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LegalandethicalissuesforhealthprofessionalsbyPozgarGeorgeDz-lib.org.epub.pdf
THIRD EDITION
Legal and Ethical Issues
for Health Professionals
George D. Pozgar, MBA, CHE
Consultant
GP Health Care Consulting
Annapolis, Maryland
Legal Review
Nina Santucci, JD
Medical Review
John W. Pinnella, MD, DDS, FICS
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Library of Congress Cataloging-in-Publication Data
Pozgar, George D.
Legal and ethical issues for health professionals / George D. Pozgar. — 3rd ed. p. cm.
Includes bibliographical references and index.
ISBN 978-1-4496-4775-9
I. Title.
[DNLM: 1. Ethics—United States. 2. Legislation, Medical—United States. 3. Ethics, Clinical— United States. 4. Patient Rights—United States. W 32.5 AA1]
KF3821.P68 2010
174.2—dc23 2011051293
6048
Printed in the United States of America
16 15 14 13 12 10 9 8 7 6 5 4 3 2 1
What lies behind us and what lies before us are tiny matters
compared to what lies within us.
Henry S. Haskins
Contents
Foreword
Preface
Acknowledgments
Chapter One Introduction to Ethics
Introduction
Ethics
Morality
Ethical Theories
Principles of Ethics
Virtue Ethics and Values
Religious Ethics
Secular Ethics
Atheism
Situational Ethics
The Final Analysis
The Moral Compass
Summary Thought
Chapter Review
Test Your Understanding
Chapter Two Contemporary Ethical Dilemmas
Introduction
Noteworthy Historical Events
Abortion
Acquired Immune Deficiency Syndrome
Artificial Insemination
Organ Donations
Research, Experimentation, and Clinical Trials
Sterilization
Wrongful Birth, Life, and Conception
Surrogacy
Human Genetics
Chapter Review
Test Your Understanding
Notes
Chapter Three End-of-Life Dilemmas
Introduction
Euthanasia
Advance Directives
Futility of Treatment
Withdrawal of Treatment
Do-Not-Resuscitate Orders
Chapter Review
Test Your Understanding
Notes
Chapter Four Health Care Ethics Committee
Introduction
Committee Structure
Goals of the Ethics Committee
Committee Functions
Requests for Consultations
Expanding Role of the Ethics Committee
Convening the Ethics Committee
Reasoning and Decision Making
Helpful Hints
Chapter Review
Test Your Understanding
Notes
Chapter Five Development of Law
Introduction
Sources of Law
Government Organization
Administrative Departments and Agencies
Chapter Review
Test Your Understanding
Notes
Chapter Six Introduction to Law
Introduction
Tort Law
Negligence
Intentional Torts
Criminal Law
Contracts
Trial Procedures and the Courtroom
Chapter Review
Test Your Understanding
Notes
Chapter Seven Government, Ethics, and the Law
Introduction
United States Office of Government Ethics
Public Policy as a Principle of Law
14 th
Amendment to the U.S. Constitution (1868)
Civil Rights Act (1964)
Sherman Antitrust Act (1890)
Privacy Act (1974)
Health Insurance Portability and Accountability Act (1996)
Emergency Medical Treatment and Active Labor Act (1986)
Health Care Quality Improvement Act (1986)
Agency for Healthcare Research And Quality
Ethics in Patient Referral Act (1989)
Patient Self-Determination Act (1990)
Sarbanes-Oxley Act (2002)
Patient Protection and Affordable Care Act (2010)
Political Malpractice
Ethics in Public Service
Chapter Review
Test Your Understanding
Notes
Chapter Eight Organizational Ethics and the Law
Introduction
Code of Ethics for Organizations
Organizational Conduct Under Scrutiny
Doctrine of Respondeat Superior
Corporate Negligence
Corporate Duties and Responsibilities
Avoid Conflicts of Interest
Provide for Effective Communications
Chapter Review
Test Your Understanding
Notes
Chapter Nine Health Care Professionals’ Ethical and Legal Issues Introduction
Chiropractor
Dentist
Dental Hygienist
Dieticians
Emergency Department Staff
Emergency Medical Technician
Medical Technologist
Medical Assistant
Medical Records
Nurse
Pharmacist
Physical Therapist
Physician Assistant
Psychologist
Respiratory Therapist
Radiology Technologist
Social Worker
Certification of Health Care Professionals
Licensing Health Care Professionals
Helpful Advice for Caregivers
Chapter Review
Notes
Chapter Ten Physicians’ Ethical and Legal Issues Introduction
Principles of Medical Ethics
Credentialing Professionals
Hospital’s Duty to Ensure Competency Honoring a Patient’s Right to Autonomy Failure to Provide Informed Consent
Abandonment
Aggravation of a Preexisting Condition
Alternative Procedures: Two Schools of Thought
Confidential Communications
Falsification of Records
Failure to Respond: Emergency Department Call
Failure to Read Nurses’ Notes Failure to Refer for Consultation
Failure to Obtain Adequate History and Physical
Infection Control Issues
Medications
Misdiagnosis
Obstetrics and Gynecology
Physician–Patient Relationship Chapter Review
Notes
Chapter Eleven Employee Rights and Responsibilities
Introduction
Employee Rights
Employee Responsibilities
Helpful Advice
The Caregiver’s Pledge Chapter Review
Notes
Chapter Twelve Patient Consent
Introduction
Informed Consent
Consent and Ethical Codes
Assessing Decision-Making Capacity
Adequacy of Consent
Proof of Consent
Who May Authorize Consent?
Implied Consent
Right to Refuse Treatment
Statutory Consent
Chapter Review
Test Your Understanding
Notes
Chapter Thirteen Patient Abuse
Introduction
Child Abuse
Senior Abuse
Look Closer, See ME
Chapter Review
Notes
Chapter Fourteen Patient Rights and Responsibilities
Introduction
Patient Rights
Patient Responsibilities
Chapter Review
Notes
Chapter Fifteen Summary Case—Star Chamber Characters
Settings
Events of Sunday, October 2
Events of Wednesday Afternoon, October 5
Events of Thursday Morning, October 6
Events of Thursday Luncheon, October 6
Events of Thursday, Late Afternoon, October 6
Events of Thursday Evening, October 6
Events of December 27–29 Educational Conference Discussion
Note
Appendix A Pillars of Moral Strength
Appendix B Websites
Ethics Websites
Government and Government-Related Websites
Legal Websites
Best Practices Websites
Health Care Resources
Hospital and Physician Finders
International Medical Websites
Reference Websites
Glossary
Index
Foreword
Health care is personal. It is perhaps the most personal of any service any
of us will receive in our lifetime. We all need it and recognize its
importance. And we need to know that our health care delivery system has
ethical and legal integrity as well as scientific validity. Sometimes correct
choices are not always obvious. There are gray areas. That is why health
care administrators and providers need a resource such as this book to help
clarify their responsibilities and to help guide them through the tough
choices that inevitably occur. Intuition and good intentions are laudable but
are not enough when it comes to health care. There are specific criteria that
our society requires in this very sensitive area. Awareness of those criteria
is crucial. That information, however, comes from a variety of sources that
are not always readily accessible. This book concentrates much of that
information into one convenient volume. It provides the reader with the
proper foundation to make good decisions in the delivery of patient care.
That is the ultimate goal of this book.
John W. Pinnella, MD, DDS, FICS
Preface
How far you go in life depends on your being tender with the young,
compassionate with the aged, sympathetic with the striving, and tolerant
of the weak and strong. Because someday in life you will have been all
of these.
GEORGE WASHINGTON CARVER
Legal and Ethical Issues for Health Professionals, Third Edition provides
the reader with a clear understanding of the law and ethics as they relate to
health care dilemmas. The practical application of ethics in the health care
setting is accomplished by interspersing the thoughts of great minds
through Quotes, events in the world through Newspaper Clippings,
provider and organizational experiences through Reality Checks, patient
experiences through People Stories, and legal rulings and summaries
through Cases. The book ends with a closet drama that illustrates the real
world of human behavior and ties together the elements of the book in one
case.
The reader is presented in the Third Edition with real-world life
experiences that bring the reader through a journey of learning that
provides an effective transitional stage from the classroom to the reality of
the everyday work environment.
This book is a comprehensive reference dealing with the questions of
right and wrong. The reader will learn how to evaluate and distinguish
between the rightness and wrongness of alternative courses of action when
faced with complicated ethical problems. Ethics in the health care setting
are about doing the right thing for both patients and caregivers. It involves
recognizing ethical dilemmas and effectively addressing them. This book
provides the reader with:
• Basic principles of ethics and the law in an easily understood format.
• Insight into how ethics and the law are intertwined. • Features such as Newspaper Clippings, Reality Checks, People Stories,
and Cases to illustrate real-life issues.
• The tools to help guide the reader to additional resources in the study of ethics and the law.
• An understanding of how ethics and the law assist the reader in resolving ethical conflicts and dilemmas.
• A better understanding of the application of ethical principles and values in the health care setting.
• A clearer understanding of the rights of patients and caregivers.
When people consider matters of ethics they are usually considering
matters of freedom in regard to personal choices, one’s obligations to other sentient beings, or judgments about human character and the right to
choose.
This book, as with the first and second editions, starts with the premise
that to act in an ethical manner means to engage in conduct according to
accepted principles of right and wrong. The author’s objective is to provide the reader with the background knowledge necessary to understand that
ethical behavior begins with understanding that we have alternatives and
choices in our behavior regarding how we treat ourselves and how we treat
others. To make good decisions, we must first understand that they will be
only as good as our knowledge of what is “right” and what is “wrong.” Thus, it is important to study ethics and apply the principles learned when
addressing common health care dilemmas.
This book is not an indictment of any profession or organization. It
does, however, illustrate how a minority of people can often cast a dark
shadow on all the good that occurs by so many for so many. It is about
learning how the system can break down and how we can so easily fix it
simply by good people doing good things. The book is a “call to arms” to do good things, to stand out from the crowd, because acts of caring,
compassion, and kindness often go unnoticed.
GP
A study titled “Does Ethics Education Influence the Moral Action of Practicing Nurses and Social Workers?” published in the American Journal of Bioethics in July 2008 showed that “Ethics education has a significant positive influence on moral confidence, moral action, and use of ethics
resources.”1 There is a deluge of ethical issues in every aspect of human existence.
Although cultural differences, politics, and religion influence who we are,
it is all of life’s experiences that affect who we become. If we are compassionate, for example, it is most likely because we have been
influenced by the compassionate.
The headlines presented here and noted throughout the book are but a
few of the many reminders of how governments, organizations, the media,
and people from all walks of life have somehow become desensitized,
ethically complacent, and unwilling to accept responsibility for
wrongdoing.
NEWSPAPER CLIPPINGS: Executive’s Medicare Scheme Had Lobbying Effort to Support It
HE FRANCHISED FRAUD WITH ADVOCACY GROUP
Prosecutors say he pushed for policies to aid sham clinics
Miami health-care executive Larry Duran orchestrated one of the
largest Medicare frauds in U.S. history, submitting more than $205
million in phony claims and landing a record-breaking 50-year prison
sentence for his crimes.
But another piece of the Duran’s scheme also caught the eye of prosecutors. They say he extended his fraud through his lobbying
efforts, all aimed at getting official Washington to make it easier for
mental health centers such as his to make money.
Patients often suffered from Alzheimer’s disease, dementia or other conditions unsuited for therapy and were frequently left to urinate or
defecate on themselves as they waited for treatment that never came,
testimony showed.
“The people that were there were just kept there and run through like cattle,” the judge in the case said.
Dan Eggen, The Washington Post, October 5, 2011
Trek of tears describes many horrible historic events, from broken treaties
with American Indians to an African Journey of horror, where people
would flee together as a village to escape the barbaric slaughter of men,
women, and children as the remainder of the world stood cowardly by
watching the death and starvation of hundreds of thousands of people.
Human atrocities committed by humans. Is it not time to stand up and be
counted upon to do what is right and leave all excuses behind for our
complacency towards the genocide that continues throughout the world?
GP
Even the news media, whom we depend upon to report the truth, has failed
to provide a balanced view of right and wrong and good and bad. Views are
often slanted by even the best of journalists. For instance, “In the Footsteps of bin Laden” is a two-hour televised documentary on the life of Osama bin Laden produced by CNN. The documentary portrays him as a glamorous
terrorist leader. With some creative editing, it could be used as a powerful
visual tool for recruiting terrorists. Today, the news media also:
• Describes the nation’s vulnerabilities to terrorists (infrastructure, ports, and food supply chain).
• Describes how easy it is to make a bomb as well as where to find more information about the subject.
• Reports and dramatizes the failures of medicine, not the successes.
Cases containing a multitude of legal and ethical issues are included
throughout the book. The reader will be asked a series of questions after
each case, requiring legal and ethical logic in order to answer them.
Caregivers who have a clear grasp of the ethical and legal concepts
discussed in this book will be better equipped to make health care decisions
that are ethically sound and legally correct. The following case is an
example of how legal and ethical principles can be intertwined.
CASE: PATIENT AUTONOMY
Several months after having stomach surgery (2002), Vicki Marsingill, in
Marsingill v. O’Malley, 58 P.3d 495, called her surgeon, Dr. O’Malley, complaining of abdominal pain and nausea. O’Malley advised Marsingill to go to the emergency room and offered to meet her there, but Marsingill
said she felt better and declined to go.
O’Malley left it up to Marsingill whether to seek emergency room treatment. O’Malley informed Marsingill that the doctors in the emergency room would probably take X-rays and insert a nasogastric tube to relieve
the pressure in her stomach. After hearing that she would likely need to
have a nasogastric tube inserted if she went to the emergency room,
Marsingill ended the call, telling O’Malley that she was feeling better. Later that night, Marsingill’s husband found her unconscious on the
bathroom floor. Paramedics rushed her to the hospital, where an
emergency operation later revealed that she had experienced an intestinal
blockage, but by then the obstruction had caused Marsingill to go into
shock. She suffered brain damage and partial paralysis.
Marsingill sued O’Malley, claiming that he lacked the skill and knowledge to advise her properly and that the information he gave her
over the telephone did not allow her to make an intelligent treatment
decision.
Section 8.08 of the AMA Code of Medical Ethics addresses the duty of
disclosure, providing, “The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to
enable an intelligent choice.” Marsingill’s experts maintained that O’Malley had violated Section 8.08 by failing to give her enough information to make an intelligent choice about whether to seek
emergency room treatment. O’Malley acknowledged that Section 8.08 applied to his conduct—that he did have an obligation to give Marsingill
enough information so that she could make an intelligent choice as to
whether she should go to the emergency room.
Marsingill’s proposed instruction by the judge to the jury would have required the jury to decide the sufficiency of O’Malley’s communications from the standpoint of a reasonable patient in Marsingill’s position. The trial court rejected the proposed “reasonable patient” instruction.
O’Malley acquiesced in Marsingill’s decision not to go to the emergency room. In the context of a preexisting patient–physician relationship involving postoperative care, a physician’s recommendation to do nothing in the face of threatening symptoms is the equivalent of a
treatment recommendation and should be accompanied by a duty of
disclosure.
A physician’s acquiescence in a patient’s decision not to seek treatment in the same circumstances should likewise be regarded as
equivalent to a treatment recommendation subject to the same duty.
The superior court deprived Marsingill of her right to have the jury
decide the issue directly from the standpoint of a reasonable patient, and
the case was remanded for a new trial on Marsingill’s claim for breach of the duty to provide sufficient information to allow her to make an
intelligent treatment choice.
The appellate court ruled that the jury should have been instructed to
use the reasonable patient standard to determine whether O’Malley gave Marsingill sufficient information about her condition and treatment
choices. On remand, the jury must be instructed to decide the claim from
the standpoint of a reasonable patient.
There will always be an endless number of “what-if” scenarios. In the end, this question remains: What should one do, knowing that whatever
decision is made there will always be some doubt as to whether the
decision made was the right one? Armed with the knowledge in this book,
the reader will be a more effective caregiver and better able to make
critical health care decisions. The reader will make better choices with
fewer doubts.
Ethical and Legal Issues
1. Does the decision involve the principle of autonomy? If so, in what
way?
2. Is this an issue of professional ethics?
3. How did the physician’s actions involve the principles of beneficence and nonmaleficence?
4. Considering a patient’s rights and responsibilities, what rights were violated, if any? What responsibilities, if any, did the patient not
assume?
5. Do you agree with the court’s decision that the jury should have been instructed to use the reasonable patient standard? Discuss your answer.
ABOUT THE BOOK LAYOUT
Legal and Ethical Issues for Health Professionals, Third Edition begins
with an introduction to ethics and progresses to contemporary ethical
dilemmas, as well as end-of-life issues and health care ethics committees.
There are chapters describing the development of law and an introduction
to those aspects of the law that may have an impact on the careers of health
care professionals. The book continues with a discussion of government
ethics and the law, organizational ethics and the law, and the ethical–legal issues that health care professionals face. The book goes on to describe
employee rights and responsibilities, patient consent, patient abuse, and
patient rights and responsibilities. There is a summary case written as a
closet drama, as well as an appendix of suggested websites that includes a
brief description of what can be found on each website to help the reader
conduct further research into the legal and ethical issues of health care. The
text also provides a glossary of ethics and legal terminology
Newspaper Clippings are dispersed throughout the book. Because many
high-profile cases are settled out of the courtroom due to the negative
impact they can have on a health care provider, secondary sources such as
newspaper articles and personal experiences by those who wish to retain
their anonymity have been digested and adapted into a variety of formats to
encourage the learning process.
Reality Checks present ethical dilemmas that can occur in the health
care setting. These examples illustrate the dilemmas and problems health
care providers may face. The reader should note that any one Reality
Check involving a particular profession generally can be applied to other
health care professions. There are questions at the end of each example and
readers should be able to use the knowledge they have gained from the
information in the book and their practical experiences to answer these
questions.
People Stories were written by patients, family members, and
caregivers and describe real-life experiences. The People Stories are but a
small sample of the wide range of ethical and legal issues in health care.
Cases provide the reader with an understanding of a vast number of
legal and ethical issues, some of which he or she will face in his or her
career. It is anticipated that the reader will learn from these experiences and
apply their lessons when faced with health care dilemmas. When reviewing
the various cases in this book, consider both the ethical and the legal
implications of a dilemma and how they intertwine with one another.
Presented here is a sampling of the numerous questions that can be asked
when analyzing an ethical dilemma.
1. What are the relevant ethical and legal issues in the case?
2. What could have been done to bring more clarity to the ethical
dilemma?
3. How should the legal issues of the case be addressed?
4. How might one’s professional code of ethics be violated in the case? 5. Describe how the principles of patient autonomy, beneficence,
nonmaleficence, and justice may have been violated in the case.
6. Discuss the issues that may impact the people involved (e.g., family
members, physicians, other caregivers including nurses, chaplains,
and/or ethics committee members).
7. If you were friendly with the patient, would it affect your ability to give
an objective opinion?
8. Explain how moral values, religious beliefs, education, and life
experiences of both caregivers and patients complicate the resolution of
health care dilemmas.
9. Describe how financial concerns can affect the decision-making
process.
10. Describe how corporate culture can affect the decision-making process.
It should be noted that the book is designed to introduce the student to
various ethical–legal issues and should not be considered an in-depth or comprehensive review of a particular ethical–legal issue.
We study ethics because we need to know right from wrong and
maintain order in a society that would otherwise be lawless. Ethics
distinguishes good from evil. Ethics and the law are inseparable, for it is
ethics that describes our values and morality. An unethical person helps
create a world of fear, distrust, and tyranny. It is the law that describes our
commonly accepted behavior and provides punishment for those who fail
to adhere to the laws of the land. The law describes what is accepted
behavior.
Each life is like a novel. Filled with moments of happiness, sadness, crisis,
defeat, and triumph. When the last page has been written, will you be
happy or saddened by what you read?
AUTHOR UNKNOWN
*Author’s Note: this text is educational in nature and should not be considered a substitute for legal advice on any particular issue. Moreover, each chapter presents an overview, rather than an
exhaustive treatment, of the various topics. The author, legal reviewers, and/or publisher cannot be
responsible for any errors or omissions, including additions to, interpretation of, and/or changes in
the materials presented in this book.
NOTES
1. http://www.informaworld.com/smpp/content~content5a794428472~db5all.
Acknowledgments
I am grateful to the very special people in the more than 1,000 hospitals
and ambulatory sites in 40 states with whom I have consulted, surveyed,
and provided education to over the past 15 years. Their shared experiences
have served to remind me of the importance of making this book more
valuable in the classroom and as a reference for practicing health care
professionals.
This is for my students in ethics and health care law classes at the New
School for Social Research, Molloy College, Saint Francis College, and St.
Joseph’s College as well as my residents while I was an onsite faculty member for George Washington University and those I have instructed
through the years at various seminars, including at the C.W. Post Campus
of Long Island University. I will always be indebted to you for your
inspiration.
The author especially acknowledges the staff at Jones & Bartlett
Learning whose guidance and assistance was so important in making this
publication a reality.
chapter one
Introduction to Ethics
I expect to pass through this world but once. Any good therefore that I
can do, or any kindness I can show to any creature, let me do it now. Let
me not defer it, for I shall not pass this way again.
STEPHEN GRELLET
LEARNING OBJECTIVES
The reader upon completion of this chapter will be able to:
• Explain what ethics is, its importance, and its application to ethical dilemmas.
• Describe the concepts of morality, codes of conduct, and moral judgments.
• Understand relevant “ethical theories and principles.” • Describe virtue ethics and values and how they more clearly describe
one’s moral character. • Explain why courage is often considered to be the “ladder on which
all other virtues mount.” • Describe why there is a declining trust in the politics of health care. • Understand how religious ethics can affect one’s moral character. • Explain the concept of “situational ethics” and how changes in
circumstances can alter one’s behavior. • Describe the concepts of “ethical relativism” and one’s “moral
compass.”
INTRODUCTION
Good can triumph over evil.
AUTHOR UNKNOWN
This chapter provides the reader with an overview of ethics, moral
principles, virtues, and values. Ethics and morals are derivatives from the
Greek and Latin terms (roots) for custom. The intent here is not to burden
the reader with the philosophical arguments surrounding ethical theories,
morals, principles, virtues, and values; however, as with the study of any
new subject, “words are the tools of thought.” Therefore, some new vocabulary is necessary for the reader to learn in order to establish a
foundation and apply the abstract theories and principles of ethics in order
to make practical use of them.
ETHICS
How we perceive right and wrong is influenced by what we feed on.
AUTHOR UNKNOWN
Ethics is the branch of philosophy that seeks to understand the nature,
purposes, justification, and founding principles of moral rules and the
systems they comprise. Ethics deals with values relating to human conduct.
It focuses on the rightness and wrongness of actions, as well as the
goodness and badness of motives and ends. Ethics encompasses the
decision-making process of determining ultimate actions—what should I do, and is it the right thing to do. It involves how individuals decide to live
within accepted boundaries, principles, and values and how we live in
harmony with the environment and one another.
Ethics, also referred to as moral philosophy, is the discipline concerned
with what is morally good and bad, right and wrong. The term is also
applied to any theoretical system of moral values or principles. Ethics is
less concerned with factual knowledge than with virtues and values— namely, human conduct, as it ought to be, as opposed to what it actually is.
Microethics involves an individual’s view of what is right and wrong based on personal life experiences. Macroethics involves a more global
view of right and wrong. Although no person lives in a vacuum, solving
ethical dilemmas involves consideration of ethical issues from both a micro
and macro perspective.
The world is a dangerous place. Not because of the people who are evil;
but because of the people who don’t do anything about it. ALBERT EINSTEIN
The term ethics is used in three distinct but related ways, signifying (1)
philosophical ethics, which involves inquiry about ways of life and rules of
conduct; (2) a general pattern or “way of life,” such as religious ethics (e.g., Judeo-Christian ethics); and (3) a set of rules of conduct or “moral code,” which involves professional ethics and unethical behavior. The scope of health care ethics encompasses numerous issues, including the
right to choose or refuse treatment and the right to limit the suffering one
will endure. Incredible advances in technology and the resulting capability
to extend life beyond what would be considered a reasonable quality of life
have complicated the process of health care decision making. The scope of
health care ethics is not limited to philosophical issues but embraces
economic, medical, political, social, and legal dilemmas.
Bioethics addresses such difficult issues as the nature of life, the nature
of death, what sort of life is worth living, what constitutes murder, how we
should treat people who are especially vulnerable, and the responsibilities
that we have to other human beings. It is about making the right judgments
in difficult situations.
Why Do We Study Ethics?
We study ethics to aid us in making sound judgments, good decisions, and
right choices. If not right choices, then better ones. To those in the health
care industry, it is about anticipating and recognizing health care dilemmas
and making good judgments and decisions based on universal values that
work in unison with the laws of the land and our Constitution, and where
the law remains silent, we rely on the ability of caregivers to make right
judgments as guided by the wisdom of Solomon to do good. Doing the
right thing by applying the universal morals and values described in this
text (e.g., the 10 Commandments) will help shield and protect all from
harm.
MORALITY
Aim above morality. Be not simply good; be good for something.
HENRY DAVID THOREAU
NEWSPAPER CLIPPINGS: Elderly Patient Hit by Motorcycle
Dies in Japan After Being Rejected by 14 Hospitals
After getting struck by a motorcycle, an elderly Japanese man with
head injuries waited in an ambulance as paramedics phoned 14
hospitals, each refusing to treat him.
He died 90 minutes later at the facility that finally relented—one of thousands of victims repeatedly turned away in recent years by
understaffed and overcrowded hospitals in Japan.
Maria Yamaguchi, Associated Press, February 5, 2009
NEWSPAPER CLIPPINGS: Vietnam—Terror of War
Fire rained down on civilians. Women and children ran screaming. Ut
snapped pictures. A little girl ran toward him, arms outstretched, eyes
shut in pain, clothes burned off by Napalm. She said, “Too hot, please help me!”
1973 Spot News, Newseum, Washington, DC
NEWSPAPER CLIPPINGS: Ethiopian Famine (1985 Feature)
People searched everywhere for food. Some 30,000 tons of it, from the
United States, had been held up by an Ethiopian government
determined to starve the countryside into submission. And starve the
people it did—half a million Ethiopians, many of them children so hungry their bodies actually consumed themselves.
I’ll never forget the sounds of kids dying of starvation.
Newseum, Washington, DC
NEWSPAPER CLIPPINGS: Waiting Game for Sudanese Child
(and a Pulitzer-Winning Photographer’s Suicide)
Carter’s winning photo shows a heartbreaking scene of a starving child collapsed on the ground, struggling to get to a food center during a
famine in the Sudan in 1993. In the background, a vulture stalks the
emaciated child.
Carter was part of a group of four fearless photojournalists known
as the “Bang Bang Club” who traveled throughout South Africa capturing the atrocities committed during apartheid.
Haunted by the horrific images from Sudan, Carter committed
suicide in 1994 soon after receiving the award.
A Pulitzer-Winning Photographer’s Suicide, National Public Radio, (NPR), March 2, 2006
Trek of tears describes many horrible historic events, from broken treaties
with American Indians to an African Journey of horror, where people
would flee together as a village to escape the barbaric slaughter of men,
women, and children as the remainder of the world stood cowardly by
watching the death and starvation of hundreds of thousands of people.
Human atrocities committed by humans. Is it not time to stand up and be
counted to do what is right and leave all excuses behind for our
complacency toward the genocide that continues throughout the world?
GP
There are those who have been brainwashed into believing, in the name of
religion, that if they blow themselves up in public places, killing innocent
people, that they will be rewarded in the afterlife. This is not religion and
it is not culture; it is evil people brainwashing young minds to do evil
things.
GP
Morality describes a class of rules held by society to govern the
conduct of its individual members. It implies the quality of being in accord
with standards of right and good conduct. Morality is a code of conduct. It
is a guide to behavior that all rational persons should put forward for
governing their behavior. Morality requires us to reach a decision as to the
rightness or wrongness of an action. Morals are ideas about what is right
and what is wrong; for example, killing is wrong, whereas helping the poor
is right, and causing pain is wrong, whereas easing pain is right. Morals are
deeply ingrained in culture and religion and are often part of its identity.
Morals should not be confused with cultural habits or customs, such as
wearing a certain style of clothing. What rules are considered right varies
from nation to nation, culture to culture, religion to religion, and one
person to the next. In other words, there is no universal morality that is
recognized by all people in all cultures at all times.
Code of Conduct
A code of conduct generally prescribes standards of conduct, states
principles expressing responsibilities, and defines the rules expressing
duties of professionals to whom they apply. Most members of a profession
subscribe to certain “values” and moral standards written into a formal document called a code of ethics. Codes of conduct often require
interpretation by caregivers as they apply to the specific circumstances
surrounding each dilemma.
Michael D. Bayles, a famous author and teacher, describes the
differences between standards, principles, and rules:
• Standards (e.g., honesty, respect for others, conscientiousness) are used to guide human conduct by stating desirable traits to be exhibited and
undesirable ones (dishonesty, deceitfulness, self-interest) to be avoided.
• Principles describe responsibilities that do not specify what the required conduct should be. Professionals need to make a judgment about what is
desirable in a particular situation based on accepted principles.
• Rules specify specific conduct; they do not allow for individual professional judgment.
Moral Judgments
Moral judgments are those judgments concerned with what an individual or
group believes to be the right or proper behavior in a given situation.
Making a moral judgment is being able to choose an option from among
choices. It involves assessing another person’s moral character based on how he or she conforms to the moral convictions established by the
individual and/or group. A lack of conformity can result in moral
disapproval and possibly ridicule of one’s character.
Morality Legislated
When it is important that disagreements be settled, morality is often
legislated. Law is distinguished from morality by having explicit rules and
penalties, as well as officials who interpret the laws and apply penalties
when laws are broken. There is often considerable overlap in the conduct
governed by morality and that governed by law. Laws are created to set
boundaries for societal behavior. They are enforced to ensure that the
expected behavior happens.
Moral Dilemmas
Moral dilemmas arise when values, rights, duties, and loyalties conflict,
and, consequently, not everyone is satisfied with a particular decision. An
understanding of the concepts presented here will help the caregiver in
conflict resolution when addressing ethical dilemmas. Caregivers often find
that there seems to be no right or wrong answer. The best answer when
attempting to resolve an ethical dilemma is based on the wishes known and
the information available at the time a decision must be made. The answer
is often elusive.
ETHICAL THEORIES
Ethics, too, are nothing but reverence for life. This is what gives me the
fundamental principle of morality, namely, that good consists in
maintaining, promoting, and enhancing life, and that destroying, injuring,
and limiting life are evil.
ALBERT SCHWEITZER
Be careful how you judge others. . . . As Scottish author J.M. Barrie said,
“Never ascribe to an opponent motives meaner than your own.” We tend to judge others based on their behavior, and ours based on our intent. In
almost all situations, we would do well to recognize the possibility—even probability—of good intent in others . . . sometimes despite their observable behavior.
STEPHEN M. R. COVEY, THE SPEED OF TRUST (FREE PRESS)
Ethics seeks to understand and to determine how human actions can be
judged as right or wrong. Ethical judgments can be made based on our own
experiences or based upon the nature of or principles of reason.
Ethical theories and principles introduce order into the way people
think about life. They are the foundations of ethical analysis and provide
guidance in the decision-making process. Various theories present varying
viewpoints that assist caregivers in making difficult decisions that impact
the lives of others. Ethical theories help caregivers to predict the outcome
of alternative choices, when following their duties to others, in order to
reach an ethically correct decision. The paragraphs following provide a
review of the more commonly discussed ethical theories.
Normative Ethics
Normative ethics is the attempt to determine what moral standards should
be followed so that human behavior and conduct may be morally right.
Normative ethics is primarily concerned with establishing standards or
norms for conduct and is commonly associated with general theories about
how one ought to live. One of the central questions of modern normative
ethics is whether human actions are to be judged right or wrong solely
according to their consequences.
General normative ethics is the critical study of major moral precepts
of such matters as what things are right, what things are good, and what
things are genuine. General normative ethics is the determination of correct
moral principles for all autonomous rational beings.
Applied ethics is the application of normative theories to practical
moral problems. It attempts to explain and justify specific moral problems
such as abortion, euthanasia, and assisted suicide.
Descriptive ethics, also known as comparative ethics, deals with what
people believe to be right and wrong, whereas normative prescribes how
people ought to act.
Meta-ethics seeks to understand ethical terms and theories and their
application.
Consequential Ethics
The consequential theory of ethics emphasizes that the morally right action
is whatever action leads to the maximum balance of good over evil. From a
contemporary standpoint, theories that judge actions by their consequences
have been referred to as consequential ethics. Consequential ethical
theories revolve around the premise that the rightness or wrongness of an
action depends on the consequences or effects of an action. The theory of
consequential ethics is based on the view that the value of an action derives
solely from the value of its consequences. The goal of a consequentialist is
to achieve the greatest good for the greatest number. It involves asking
these questions:
• What will be the effects of each course of action? • Will they be positive or negative? • Who will benefit? • What will do the least harm?
Utilitarian Ethics
Happiness often sneaks in a door you did not think was open.
AUTHOR UNKNOWN
The utilitarian approach to ethics involves the concept that the moral worth
of an action is determined solely by its contribution to overall usefulness. It
describes doing the greatest good for the most people. It is thus a form of
consequential ethics, meaning that the moral worth of an action is
determined by its outcome, and, thus, the ends justify the means.
Deontological Ethics
Act in such a way that you always treat humanity, whether in your own
person or in the person of any other, never simply as a means, but always
at the same time as an end.
IMMANUEL KANT
Deontological ethics is commonly attributed to the German philosopher
Immanuel Kant (1724–1804). Kant believed that although doing the right thing is good, it might not always lead to or increase the good and right
thing sought after. It focuses on one’s duties to others and others’ rights. It includes telling the truth and keeping your promises. Deontology ethics is
often referred to as duty-based ethics. It involves ethical analysis according
to a moral code or rules, religious or secular. Deon is derived from the
Greek word meaning “duty.” Kant’s theory differs from consequentialism in that consequences are not the determinant of what is right; therefore,
doing the right thing may not always lead to an increase in what is good.
Nonconsequential Ethics
The nonconsequential ethical theory denies that the consequences of an
action or rule are the only criteria for determining the morality of an action
or rule. In this theory, the rightness or wrongness of an action is based on
properties intrinsic to the action, not on its consequences.
Applying this theory to health care decision making, each situation may
have a different fact pattern, thus resulting in moral decisions being made
on a case-by-case basis. The values held ever so strongly in one situation
may conflict with the same values given a different set of facts. For
example, if your plane crashed high in the Andes mountains and the only
source of food for survival would be the flesh of those who did not survive,
you may, if you wish to survive, have to give up your belief that it is
morally wrong to eat the flesh of another human being. Given a different
set of circumstances, given an abundance of food, you would most likely
find it reprehensible to eat human flesh. Thus, there are no effective hard-
and-fast rules or guidelines to govern ethical behavior.
Ethical Relativism
The theory of ethical relativism holds that morality is relative to the norms
of the culture in which an individual lives. In other words, right or wrong
depends on the moral norms of the society in which it is practiced. A
particular action by an individual may be morally right in one society or
culture and wrong in another. What is acceptable in one society may not be
considered as such in another. Slavery may be considered an acceptable
practice in one society and unacceptable and unconscionable in another.
The administration of blood may be acceptable as to one’s religious beliefs and not acceptable to another within the same society. The legal rights of
patients vary from state to state, as is well borne out, for example, by
Oregon’s Death with Dignity Act. Caregivers must be aware of cultural, religious, and legal issues that can affect the boundaries of what is
acceptable and what is unacceptable practice, especially when delivering
health care to persons with beliefs different from their own. As the various
cultures of the world merge together in common communities, the
education and training of caregivers become more complex. The caregiver
must not only grasp the clinical skills of his or her profession but also have
a basic understanding of what is right and what is wrong from both a legal
and ethical point of view. Although decision making is not always perfect,
the knowledge gained from this text will assist the caregiver in making
better decisions.
PRINCIPLES OF ETHICS
You cannot by tying an opinion to a man’s tongue, make him the representative of that opinion; and at the close of any battle for principles,
his name will be found neither among the dead, nor the wounded, but the
missing.
E. P. WHIPPLE (1819–1886)
Ethical principles are universal rules of conduct, derived from ethical
theories that provide a practical basis for identifying what kinds of actions,
intentions, and motives are valued. Ethical principles assist caregivers in
making choices based on moral principles that have been identified as
standards considered worthwhile in addressing health care–related ethical dilemmas. Ethical principles provide a generalized framework within
which particular ethical dilemmas can be analyzed and decisions made.
Caregivers will find that difficult decisions often involve choices between
conflicting ethical principles, as described in the following sections.
Beneficence
Beneficence describes the principle of doing good, demonstrating kindness,
showing compassion, and helping others. In the health care setting,
caregivers demonstrate beneficence by providing benefits and balancing
benefits against risks. Beneficence requires one to do good. Doing good
requires knowledge of the beliefs, culture, values, and preferences of the
patient—what one person may believe to be good for a patient may in reality be harmful. For example, a caregiver may decide to tell a patient
frankly, “There is nothing else that I can do for you.” But what if the patient really wants encouragement and information about care options
from the caregiver? Compassion here requires the caregiver to tell the
patient, “I am not aware of new treatments for your illness; however, I have some ideas about how I can help treat your symptoms and make you more
comfortable. In addition, I will keep you informed as to any significant
research that may be helpful in treating your disease processes.” Paternalism is a form of beneficence. It occurs when individuals and/or
institutions (e.g., political, military, organizational, religious) believe they
know what is best for others, thus making decisions for others. Paternalism
may involve, for example, prohibiting or requiring certain actions.
Medical paternalism can involve making choices for a patient by
withholding medical information, preventing the patient from making an
informed decision. Justification for such actions can occur because of one’s age, cognitive ability, or level of dependency. Physicians are often in
situations in which they can influence a patient’s health care decision simply by selectively telling the patient what they believe to be in the
patient’s best interest. The problem of paternalism involves a conflict between principles of beneficence and autonomy, each of which is
conceived by different parties as the overriding principle in cases of
conflict. Conflict between the demands of beneficence and autonomy
underlies a broad range of controversies.
REALITY CHECK: Paternalism and Breach of Confidentiality
Paternalism is not only a concern when caring for patients. It also
occurs frequently in the workplace. Vicky traveled with her husband,
Dan, to a consulting assignment in Michigan. While visiting with her
brother in Michigan, she believed that her potassium was low because
of the physical symptoms that she was experiencing. Dan suggested to
Vicky that she get her blood tested. Vicky’s brother suggested that she have her blood tested at a small blood-drawing station at a local athletic
club. It turned out that the station was owned and operated by the
organization that Dan was assigned to consult with.
Vicky went to breakfast with Dan the following day. A physician
consultant joined Dan and Vicky at breakfast. During breakfast, Vicky
related her ongoing battle with her autoimmune disease. Joan, a nurse
consultant, arrived a bit later for breakfast. She offered her opinion that
Dan should leave work and be with Vicky. Dan said, “We have been fighting this battle together for many years. We know when to push the
panic button.” Vicky spoke up and said, “Our family lives here. They are familiar with my health needs and will take of care me while Dan is
working.” Later that morning, while at work, Dan learned that some of the
results of Vicky’s lab tests revealed that her potassium was low, which was a common ongoing medical problem that Vicky and Dan were used
to and had previously addressed on numerous occasions. Dan’s physician colleague inquired as to how she was doing. Dan described
her condition. The physician and the nurse suggested that Dan leave the
job to be with Vicky. Dan said, “This has been our life, and we have things under control.”
Later that morning, Joan, without Dan’s knowledge, decided to call the corporate office and discuss her concerns with Bill, who was Dan’s supervisor. Bill had overslept and had not yet arrived at work. Joan then
decided to speak to a supervisor on call. After that conversation, Joan,
being led by three staff members from the organization, tracked Dan
down on several occasions that morning.
On the first occasion, at approximately 10:15 AM, Dan was
consulting with the organization’s staff in a family practice center when Joan arrived. She abruptly called Dan aside, excusing the organization’s
staff from a room in which Dan was consulting. Joan said, with
surprise, “Dan, you are working?” Dan, even more surprised at the question, said, “Yes, I have been working.” Joan replied, “Well, anyway, the corporate office wants to speak to you.” Dan asked, “Did you call and report Vicky’s health needs?” Joan said that she had. Dan replied, “Couldn’t this have waited until lunch? I will call at lunch.”
Joan again tracked Dan down with an entourage of the
organization’s staff at 11:30 AM. She located him while he was in the organization’s transfusion center. She intruded into a conference room where Dan was discussing the care being rendered to a cancer patient
and asked the staff with whom Dan was consulting, “Could everyone please leave? I need to talk to Dan.” After the organization’s staff left, the nurse said, “I called the corporate office, and they want you to call them.” Dan inquired, “Are they pulling me off this assignment?” The nurse replied, “Yes, they are. I spoke to Bill, and he has decided that out of concern for Vicky that you should be removed from this particular
assignment. He wants you to call him.” Dan again said, “Couldn’t this have waited until lunch? I don’t understand why you did this, calling my boss and continuously interrupting my work and sharing with others
confidential information. I will wrap up with the staff regarding this
patient and call Bill.” As Joan left the conference room, disgruntled, Dan said, “I trusted that the information my wife and I shared with you would remain confidential.”
Dan called Bill during his lunch break. During that call Bill said, “I am going to remove you from your assignment because I think your
wife’s health needs should be addressed, and this could be disruptive to the survey.” Dan replied, “The only disruption has been the nurse consultant tracking me down with staff from the organization and not
conducting her work activities.” Bill said, “My decision stands. You can opt to take vacation time for the remainder of the week.”
Discussion
1. Discuss what examples of paternalism you have gleaned from this
case. Do you think Dan was treated fairly? Discuss your answer.
2. Discuss the issues of trust, confidentiality, and fairness as they
relate to this case.
CASE: CAN A PHYSICIAN “CHANGE HIS OR HER MIND”?
Walls had a condition that caused his left eye to be out of alignment with
his right eye. Walls discussed with Shreck, his physician, the possibility of
surgery on his left eye to bring both eyes into alignment. Walls and Shreck
agreed that the best approach to treating Walls was to attempt surgery on
the left eye. Before surgery, Walls signed an authorization and consent
form that included the following language:
I hereby authorize Dr. Shreck . . . to perform the following procedure
and/or alternative procedure necessary to treat my condition . . . of the
left eye.
I understand the reason for the procedure is to straighten my left
eye to keep it from going to the left.
It has been explained to me that conditions may arise during this
procedure whereby a different procedure or an additional procedure
may need to be performed, and I authorize my physician and his
assistants to do what they feel is needed and necessary.
During surgery, Shreck encountered excessive scar tissue on the
muscles of Walls’s left eye and elected to adjust the muscles of the right eye instead. When Walls awoke from the anesthesia, he expressed anger at
the fact that both of his eyes were bandaged. The next day, Walls went to
Shreck’s office for a follow-up visit and adjustment of his sutures. Walls asked Shreck why he had operated on the right eye, and Shreck responded
that “he reserved the right to change his mind” during surgery. Walls filed a lawsuit. The trial court concluded that Walls had failed to
establish that Shreck had violated any standard of care. It sustained
Shreck’s motion for directed verdict, and Walls appealed. The court stated that the consent form that had been signed indicated that there can be
extenuating circumstances when the surgeon exceeds the scope of what
was discussed presurgery. Walls claimed that it was his impression that
Shreck was talking about surgeries in general.
Roussel, an ophthalmologist, had testified on behalf of Walls. Roussel
stated that it was customary to discuss with patients the potential risks of a
surgery, benefits, and the alternatives to surgery. Roussel testified that
medical ethics requires informed consent.
Shreck claimed that he had obtained the patient’s informed consent not from the form but from what he discussed with the patient in his office.
The court found that the form itself does not give or deny permission for
anything. Rather, it is evidence of the discussions that occurred and during
which informed consent was obtained. Shreck therefore asserted that he
obtained informed consent to operate on both eyes based on his office
discussions with Walls.
Ordinarily, in a medical malpractice case, the plaintiff must prove the
physician’s negligence by expert testimony. One of the exceptions to the requirement of expert testimony is the situation whereby the evidence and
the circumstances are such that the recognition of the alleged negligence
may be presumed to be within the comprehension of laypersons. This
exception is referred to as the “common knowledge exception.” The evidence showed that Shreck did not discuss with Walls that
surgery might be required on both eyes during the same operation. There
was evidence that Walls specifically told Shreck he did not want surgery
performed on the right eye.
Expert testimony was not required to establish that Walls did not give
express or implied consent for Shreck to operate on his right eye. Absent
an emergency, it is common knowledge that a reasonably prudent health
care provider would not operate on part of a patient’s body if the patient told the health care provider not to do so.
On appeal, the trial court was found to have erred in directing a verdict
in favor of Shreck. The evidence presented established that the standard of
care in similar communities requires health care providers to obtain
informed consent before performing surgery. In this case, the applicable
standard of care required Shreck to obtain Walls’s express or implied consent to perform surgery on his right eye. [Walls v. Shreck, 658 N.W.2d
686 (2003)].
Ethical and Legal Issues
1. Discuss the conflicting ethical principles in this case.
2. Did the physician’s actions in this case involve medical paternalism? Explain your answer.
Nonmaleficence
Nonmaleficence is an ethical principle that requires caregivers to avoid
causing patients harm (to do no harm). Nonmaleficence is not concerned
with improving others’ well-being but with avoiding the infliction of harm. Medical ethics require health care providers to “first, do no harm.” In re Conroy, 464 A.2d 303, 314 (N.J. Super. Ct. App. Div. 1983), “The physician’s primary obligation is . . . first do no harm.” Telling the truth, for example, can sometimes cause harm. If there is no cure for a patient’s disease, you may have a dilemma. Do I tell the patient and possibly cause
serious psychological harm, or do I give the patient what I consider false
hope? Is there a middle ground? If so, what is it? To avoid causing harm,
alternatives may need to be considered in solving the ethical dilemma.
The caregiver, realizing that he or she cannot help a particular patient,
attempts to avoid harming the patient. This is done as a caution against
taking a serious risk with the patient or doing something that has no
immediate or long-term benefits.
The principle of nonmaleficence is broken when a physician is placed
in the position of ending life by removing respirators, giving lethal
injections, or writing prescriptions for lethal doses of medication. Helping
patients die violates the physician’s duty to save lives. In the final analysis, there needs to be a distinction between killing patients and letting them die.
Autonomy
No right is held more sacred, or is more carefully guarded, by the common
law, than the right of every individual to the possession and control of his
own person.
UNION PACIFIC RY. CO. V. BOTSFORD [141 U.S. 250, 251 (1891)].
The principle of autonomy involves recognizing the right of a person to
make one’s own decisions. “Auto” comes from a Greek word meaning “self” or the “individual.” In this context, it means recognizing an individual’s right to make his or her own decisions about what is best for him- or herself. Autonomy is not an absolute principle. The autonomous
actions of one person must not infringe upon the rights of another.
Respect for autonomy has been recognized in the 14th Amendment to
the Constitution of the United States. The law upholds an individual’s right to make his or her own decisions about health care. A patient has the right
to refuse to receive health care even if it is beneficial to saving his or her
life. Patients can refuse treatment, refuse to take medications, refuse blood
or blood by-products, and refuse invasive procedures regardless of the
benefits that may be derived from them. They have a right to have their
decisions followed by family members who may disagree simply because
they are unable to “let go.” What law has mandated has been reflected in bioethical thinking.
Although patients have a right to make their own decisions, they also have
a concomitant right to know the risks, benefits, and alternatives to
recommended procedures.
When analyzing an ethical dilemma, caregivers must consider how
autonomy and the respect for a patient’s wishes affect the caregivers’ decision-making processes. Is, for example, the patient’s right to self- determination being compromised because of a third party’s wishes for the patient?
The caregiver must respect the mentally competent decision-making
capabilities of autonomous persons and that right of an individual to make
his or her own decisions. The eminent Justice Benjamin Cardozo, in
Schloendorff v. Society of New York Hospital, stated:
Every human being of adult years and sound mind has a right to
determine what shall be done with his own body and a surgeon who
performs an operation without his patient’s consent commits an assault, for which he is liable in damages, except in cases of emergency where
the patient is unconscious and where it is necessary to operate before
consent can be obtained. [105 N.E. 92, 93 (N.Y.1914)].
What happens when the right to autonomy conflicts with other moral
principles, such as beneficence and justice? Conflict can arise, for example,
when a patient refuses a blood transfusion considered necessary to save his
or her life while the caregiver’s principal obligation is to do no harm. Autonomous decision making can be affected by one’s disabilities,
mental status, maturity, or incapacity to make decisions. Although the
principle of autonomy may be inapplicable in certain cases, one’s autonomous wishes may be carried out through an advance directive and/or
an appointed health care agent in the event of one’s inability to make decisions.
Justice
NEWSPAPER CLIPPINGS: New Kidney Transplant Rules Would
Favor Younger Patients
The nation’s organ transplant network is considering giving younger, healthier people preference over older, sicker patients for the best
kidneys.
Some also complain that the new system would unfairly penalize
middle-aged and elderly patients at a time when the overall population
is getting older.
If adopted, the approach could have implications for other decisions
about how to allocate scarce resources, such as expensive cancer drugs
and ventilators during hurricanes and other emergencies. . . .
The Washington Post, February 24, 2011
Justice is the obligation to be fair in the distribution of benefits and risks.
Justice demands that persons in similar circumstances be treated similarly.
A person is treated justly when he or she receives what is due, is deserved,
or can legitimately be claimed. Justice involves how people are treated
when their interests compete with one another.
Distributive justice is a principle requiring that all persons be treated
equally and fairly. No one person, for example, should get a disproportional
share of society’s resources or benefits. There are many ethical issues involved in the rationing of health care. This is often a result of limited or
scarce resources, limited access as a result of geographic remoteness, or a
patient’s inability to pay for services combined with many physicians who are unwilling to accept patients who are perceived as “no-pays” with high risks for legal suits.
Senator Edward M. Kennedy, speaking on health care at the John F.
Kennedy Presidential Library in Boston, Massachusetts on April 28, 2002,
stated:
It will be no surprise to this audience that I believe securing quality,
affordable health insurance for every American is a matter of simple
justice. Health care is not just another commodity. Good health is not a
gift to be rationed based on ability to pay. The time is long overdue for
America to join the rest of the industrialized world in recognizing this
fundamental need.
Later, speaking at the Democratic National Convention on August 25,
2008, Kennedy said:
And this is the cause of my life—new hope that we will break the old gridlock and guarantee that every American—North, South, East, West, young, old—will have decent, quality health care as a fundamental right and not a privilege.
Although Kennedy did not live to see the day his dream would come true,
President Barack Obama signed into law the final piece of his
administration’s historic health care bill on March 23, 2010. The White House released the following e-mail describing the key benefits of
insurance reform.
The White House
Nancy-Ann DeParle,
Mar 23, 2010, at 12:48 PM
Good afternoon,
Since the House of Representatives voted to pass health reform
legislation on Sunday night, the legislative process and its political
impact have been the focus of all the newspapers and cable TV pundits.
Outside of DC, however, many Americans are trying to cut through
the chatter and get to the substance of reform with a simple question:
“What does health insurance reform actually mean for me?” To help,
we’ve put together a list of some key benefits every American should know.
Let’s start with how health insurance reform will expand and strengthen coverage:
• This year, children with pre-existing conditions can no longer be denied health insurance coverage. Once the new health insurance
exchanges begin in the coming years, pre-existing condition
discrimination will become a thing of the past for everyone.
• This year, health care plans will allow young people to remain on their parents’ insurance policy up until their 26th birthday.
• This year, insurance companies will be banned from dropping people from coverage when they get sick, and they will be banned from
implementing lifetime caps on coverage. This year, restrictive annual
limits on coverage will be banned for certain plans. Under health
insurance reform, Americans will be ensured access to the care they
need.
• This year, adults who are uninsured because of pre-existing conditions will have access to affordable insurance through a
temporary subsidized high-risk pool.
• In the next fiscal year, the bill increases funding for community health centers, so they can treat nearly double the number of patients
over the next five years.
• This year, we’ll also establish an independent commission to advise on how best to build the health care workforce and increase the
number of nurses, doctors and other professionals to meet our
country’s needs. Going forward, we will provide $1.5 billion in funding to support the next generation of doctors, nurses and other
primary care practitioners—on top of a $500 million investment from the American Recovery and Reinvestment Act.
Health insurance reform will also curb some of the worst insurance
industry practices and strengthen consumer protections:
• This year, this bill creates a new, independent appeals process that ensures consumers in new private plans have access to an effective
process to appeal decisions made by their insurer.
• This year, discrimination based on salary will be outlawed. New group health plans will be prohibited from establishing any eligibility
rules for health care coverage that discriminate in favor of higher-
wage employees.
• Beginning this fiscal year, this bill provides funding to states to help establish offices of health insurance consumer assistance in order to
help individuals in the process of filing complaints or appeals against
insurance companies.
• Starting January 1, 2011, insurers in the individual and small group market will be required to spend 80 percent of their premium dollars
on medical services. Insurers in the large group market will be
required to spend 85 percent of their premium dollars on medical
services. Any insurers who don’t meet those thresholds will be required to provide rebates to their policyholders.
• Starting in 2011, this bill helps states require insurance companies to submit justification for requested premium increases. Any company
with excessive or unjustified premium increases may not be able to
participate in the new health insurance exchanges.
Reform immediately begins to lower health care costs for American
families and small businesses:
• This year, small businesses that choose to offer coverage will begin to receive tax credits of up to 35 percent of premiums to help make
employee coverage more affordable.
• This year, new private plans will be required to provide free preventive care: no co-payments and no deductibles for preventive
services. And beginning January 1, 2011, Medicare will do the same.
• This year, this bill will provide help for early retirees by creating a temporary re-insurance program to help offset the costs of expensive
premiums for employers and retirees age 55–64. • This year, this bill starts to close the Medicare Part D ‘donut hole’ by
providing a $250 rebate to Medicare beneficiaries who hit the gap in
prescription drug coverage. And beginning in 2011, the bill institutes
a 50% discount on prescription drugs in the ‘donut hole.’
Thank you,
Nancy-Ann DeParle, Director, White House Office of Health Reform
The rhetoric continues and is soon forgotten after the elections have
ended. The numbers of uninsured and underinsured Americans continues to
rise. The costs of health care have bankrupted many, and research dollars
have proven to be inadequate, yet those elected to address the needs of the
country have squandered trillions of dollars. They have, however, ensured
that their health care needs are met with the best of care in the best
facilities with the best doctors. They have taken care of themselves. Their
pensions are intact, while many Americans have to face such dilemmas as
which medications they will take and which they cannot afford. Many often
have to decide between food and medications. Is this justice or theft of the
nation’s resources by the few incompetents who have been elected to protect the American people? Unfortunately, these problems continue to
this day as Congress wrangles over national health insurance.
Justice and Government Spending
Scarce resources are challenging to the principles of justice. Justice
involves equality; nevertheless, equal access to health care, for example,
across the United States does not exist. How do you think the government
should spend a trillion dollars? With 46 to 47 million uninsured Americans,
according to the U.S. Census Bureau statistics, describe the value of the
one-time $300 to $600 per household give-back from the United States
Treasury under the Bush administration. Consider the following questions:
• Should the money be distributed equally among families? • Should the money be distributed equally among all citizens? • Should the money be invested and saved for a rainy day? • Should the money be used to improve educational programs, build
libraries, build state-of-the-art hospitals, or fund after-school programs
for disadvantaged youths?
• Should the money include both savings for that rainy day and funding for the programs described previously?
• What would be the greater good for all? • Should health care be rationed? If so, should it be rationed to Congress as
well and not based on one’s ability to pay? • Should those individuals (e.g., politicians, corporate directors, stock
manipulators) found to be ethically corrupt be condemned to poverty and
stand in the same food lines as the poorest of Americans?
REALITY CHECK: Treatment Options and Who Should Pay
Patients and sometimes physicians are often not aware of available
treatment options, both novel and traditional. For example, in the
treatment of multiple sclerosis (MS), different physicians from around
the country are prescribing varying plans of treatment. Some physicians
have told me how they have seen patients who walked with the
assistance of a walker or cane, even a wheelchair, and leave the hospital
without assistance. The problem is, the information, experiences, and
successes of physicians from different parts of the country often remain
unshared. Thus, physicians are left in the dark about who is doing what
and how varying combinations of treatment programs may be helpful to
patients. For example, in Florida, a physician described a case of an MS
patient who came for wound care treatment utilizing a hyperbaric
chamber. There was an unexpected side effect, however: the patient,
who had arrived in a wheelchair, left with a cane. The physician gives
credit to the hyperbaric chamber. If it had not been for the need of
wound care, the patient would not have had the unexpected secondary
benefit in improving MS symptoms. Unfortunately, health insurance
would not have covered the patient’s care in the hyperbaric chamber if it had not been for the patient’s need for wound care. In New Jersey, a physician described his development of a “cocktail of medications” for MS patients, but insurance does not want to pay for the multiple drugs.
A physical therapist in New Hampshire described a new piece of
equipment that has helped both MS patients and stroke victims walk
again without the assistance of a cane.
Discussion
1. Discuss why you believe insurance carriers are often reluctant to
pay for a variety of treatment options (e.g., lack of sufficient
medical evidence that would justify the expense associated with a
particular treatment).
2. Discuss why a computerized treatment option database would be a
valuable tool when developing a patient’s treatment plan.
NEWSPAPER CLIPPINGS: He Won His Battle With Cancer.
Thus, Why Are Millions of Americans Still Losing Theirs?
For an increasing number of cancer activists, researchers and patients,
there is too much death and too much waiting for new drugs and
therapies. They want a greater sense of urgency, a new approach that
emphasizes translational research over basic research—turning knowledge into therapies and getting them to patients pronto. The
problem is, that’s not the way our sclerotic research paradigm— principally administered by the National Institutes of Health and the
National Cancer Institute (NIH/NIC)—is set up. “The fact that we jump up and down when cancer deaths go from 562,000 to 561,000, that’s ridiculous. That’s not enough,” says Lance Armstrong, the cyclist and cancer survivor turned activist, through his Lance Armstrong
Foundation (LAF).
Time, September 15, 2008
As this article describes the number of deaths involving cancer and the
fact that cancer will affect nearly half of the U.S. population, why have so
many words been spoken and so little done to fight this battle? Should we
believe that “change is coming”? If it is, whom will it benefit? What do you think?
REALITY CHECK: States Have Double Standards
It’s no secret that the states have had double standards over the years, one for health care organizations and one for physicians. For example, a
physician is able to buy his or her own computed tomography (CT)
scanner, while hospitals have to jump through hoops to be able to
purchase one. Physicians are allowed to establish surgery centers near
hospitals without scrutiny, while hospitals have to beg and plead with
state health departments for months and sometimes years, requiring
mountains of documentation and meetings, to justify opening an
outpatient surgery center. In one true-life example, a 300-bed hospital
had to justify opening an outpatient rehabilitation program within the
hospital in order to provide a continuum of care for patients. While the
hospital was busy arguing with the state to justify this outpatient
program, physician groups were busy setting up their own outpatient
programs in direct competition with hospitals. Physicians often
duplicate the money-making health care programs that hospitals
develop, while referring Medicaid and no-pays to hospital programs for
care.
Discussion
1. Discuss the issues of justice as they apply to this scenario.
2. Discuss the issues of fairness and how physician competition with
hospitals might affect the quality of patient care.
Injustice for the Insured
Even if you’re insured, getting ill could bankrupt you. Hospitals are garnishing wages, putting liens on homes and having patients who can’t pay arrested. It’s enough to make you sick. Think You’re Covered? Think Again.
SARA AUSTIN, SELF, OCTOBER 2004
Hospitals are receiving between $4 million and $60 million annually in
charity funds in New York City alone, according to Elizabeth Benjamin,
director of the health law unit of the Legal Aid Society of New York City;
however, even the insured face injustice. In 2003, almost 1 million
Americans declared bankruptcy because of medical issues, accounting for
nearly half of all of the bankruptcies in the country. When an insured
patient gets ill and exhausts his or her insurance benefits, should the
hospital be able to:
• Withhold the money from the patient’s wages? • Place a lien on the patient’s home? • Arrest the patient? • Block the patient from applying for the hundreds of millions of dollars in
government funds designated to help pay for care for those who need it?
Age and Justice
NEWSPAPER CLIPPINGS: New Kidney Transplant Rules Would
Favor Younger Patients
The nation’s organ-transplant network is considering giving younger, healthier people preference over older, sicker patients for the best
kidneys.
Some also complain that the new system would unfairly penalize
middle-aged and elderly patients at a time when the overall population
is getting older.
If adopted, the approach could have implications for other decisions
about how to allocate scarce resources, such as expensive cancer drugs
and ventilators during hurricanes and other emergencies . . .
Rob Stein, The Washington Post, February 24, 2011
• Should an 89-year-old patient get a heart transplant, rather than a 10-year- old girl, just because he or she is higher on the waiting list?
• Should a 39-year-old single patient, rather than a 10-year-old boy, get a heart transplant because he or she is higher on the waiting list?
• Should a 29-year-old mother of three get a heart transplant, rather than a 10-year-old girl, because she is higher on the waiting list?
• Should a 29-year-old pregnant mother with two children, rather than a 10-year-old boy, get a heart transplant because she is higher on the
waiting list?
Justice and Emergency Care
When two patients arrive in the emergency department in critical condition,
consider who should receive treatment first. Should the caregiver base his
or her decision on the:
• First patient who walks through the door? • Age of the patients? • Likelihood of survival? • Ability of the patient to pay for services rendered? • Condition of the patient?
Patients are to be treated justly, fairly, and equally. What happens,
however, when resources are scarce and only one patient can be treated at a
time? What happens if caregivers decide that age should be the determining
factor as to who is treated first? One patient is saved, and another dies.
What happens if the patient saved is terminal and has an advance directive
in his wallet requesting no heroic measures to save his life? What are the
legal issues intertwined with the ethical issues in this case?
Justice describes how people are treated when interests compete.
Distributive justice implies that all are treated fairly; no one person is to get
a disproportional share of society’s resources or benefits. This principle raises numerous issues, including how limited resources should be
allocated. As noted in the following quotes, “distributive justice” has become words without application.
NEWSPAPER CLIPPINGS: The Forbes 400
The rich haven’t gotten richer—or poorer—this year. For the second year in a row, the price of admission to The Forbes 400 is $1.3 billion.
In this, the 27th edition of the list, the assembled net worth of
America’s wealthiest rose by $30 billion—only 2%—to $1.57 trillion.
Edited by Matthew Miller and Duncan, Forbes.com, September 17,
2008, Greenberg
Senator Bernie Sanders from Vermont posted on his Senate website
(http://www.sanders.senate.gov/newsroom/news/) on September 19, 2008:
The middle class has really been under assault. Since President Bush
has been in office, nearly 6 million Americans have slipped into
poverty, median family income for working Americans has declined by
more than $2,000, more than 7 million Americans have lost their health
insurance, over 4 million have lost their pensions, foreclosures are at an
all-time high, total consumer debt has more than doubled, and we have
a national debt of over $9.7 trillion dollars.
While the middle class collapses, the richest people in this country
have made out like bandits and have not had it so good since the 1920s.
The top 0.1 percent now earn more money than the bottom 50 percent
of Americans, and the top 1 percent own more wealth than the bottom
90 percent. The wealthiest 400 people in our country saw their wealth
increase by $670 billion while Bush has been president. In the midst of
all of this, Bush lowered taxes on the very rich so that they are paying
lower income tax rates than teachers, police officers or nurses.
When there is a reduction in staff in health care organizations,
managers are generally asked to eliminate “nonessential” personnel. In the health care industry, this translates to those individuals not directly
involved in patient care (e.g., maintenance and housekeeping employees).
Is this fair? Is this just? Is this the right thing to do?
In Search of Economic Justice
Avery Comarow, in his article on Under the Knife in Bangalore (U.S. News
and World Report, May 12, 2008), wrote that the high cost of U.S. hospital
care is motivating patients to travel to places like India and Thailand for
major procedures. There would be no need for uninsured patients to go
abroad if the prices they were quoted in the United States were more in line
with what insurers and Medicare pay. The uninsured often pay full price for
medical procedures in the United States. For example, a self-pay patient
will pay between $70,000 and $133,000 for coronary bypass surgery,
whereas Medicare will pay between $18,609 and $23,589. Commercial
insurance plans often get up to a 60% discount off the list cost of medical
procedures. In India, the same surgery will cost the patient $7,000, and in
Thailand, it will be $22,000.
Fairness, justice, and equality for all who seek health care are our
rights. This statement sounds good, but it is not true. It would seem that
government speaks for some of the people but not all of the people. To
avoid bankruptcy and loss of assets, maybe their homes, Americans risk the
unknowns of going abroad for health care.
PEOPLE STORIES: Boomer Bubble “Bioeconomics”
As baby boomers become Medicare eligible, there is likely to be a huge
strain on the federal budget. Is this dramatically increased cost justified,
beneficial, and necessary to the country as a whole?
The revenue from working, taxpaying baby boomers over the past 4
decades has fueled unprecedented prosperity. That revenue has made
many entitlements possible, but it is going to diminish drastically as
boomers retire and become recipients instead of contributors to the
revenue base. Advances in medical technology have increased
longevity dramatically, and boomers therefore are likely to be on the
receiving end of entitlements for a long time. Medical advances,
however, also can increase productivity as well as longevity. Boomers
with a lifetime of work experience can be a valuable resource if they
are kept healthy enough to remain gainfully employed at some level.
Maintenance of a skilled American workforce is essential for future
prosperity and economic stability. Boomers are a substantial resource of
experienced skilled workers. It is a political necessity that they are
encouraged to stay productive. The government’s subsidizing health care through Medicare and other programs is therefore an investment
that can facilitate this worthwhile goal. Additional incentives may even
be appropriate. Even on an ethical basis, boomers that fueled our
economy for so long deserve to be taken care of in their later years.
Hopefully, many of them will be healthy enough and willing enough to
continue being productive beyond the usual retirement age. Thus, from
a political perspective, the healthful, moral, and ethical choice may also
turn out to be the profitable choice for our society.
Physician
VIRTUE ETHICS AND VALUES
The most important human endeavor is the striving for morality in our
actions. Our inner balance, and even our very existence depends on it.
Only morality in our actions can give beauty and dignity to our lives.
ALBERT EINSTEIN
Virtue ethics focuses on the inherent character of a person rather than on
the specific actions that he or she performs. The term virtue is normally
defined as some sort of moral excellence or beneficial quality. In traditional
ethics, virtues are those characteristics that differentiate good people from
bad people. Virtues, such as honesty and justice, are abstract moral
principles. A morally virtuous person is one who does the good and right
thing by habit, not by a set of rules of conduct.
Virtue-based ethical theories place much less emphasis on which rules
people should follow and instead focus on helping people develop good
character traits, such as kindness and generosity. These character traits will,
in turn, allow a person to make the correct decisions later on in life. Virtue
theorists emphasize the need for people to learn how to break bad habits of
character, including greed or anger.
PEOPLE STORIES: Resilience of the Health Caregiver Spirit
I’ve been in leadership roles for two sister hospitals in southeast Louisiana, with each experiencing the devastation of hurricane damage
twice in the past 3 years. The first experience was temporarily
suspending normal operations in New Orleans, and recently, history
repeated itself at the sister hospital in Houma, Louisiana.
In both instances, I was stunned at the determination and strength of
health care teams to rebuild. Both hospitals needed to resort to MASH-
type tent hospitals to allow rebuilding of the hospitals. Health care for
the communities was not interrupted. Back-to-basics care ensued, but
not without close attention to needed regulatory compliance standards.
The regulatory agencies were called and involved from the get-go, and
the caregiver teams and support service staff flourished with
enthusiasm to survive and care for the patients in need. Was this
because of the nonprofit nature of our state-sponsored hospitals? I don’t think so. The human spirit takes over when it comes to patient care, no
matter what.
I am happy to say that both New Orleans and Houma are back on
track, with care being provided in top-quality hospitals. This is only
due to the diligence of all, including facilities management,
housekeeping, and multiple direct and indirect caregiver departments.
What is the ethical issue here? There is no issue. Support for the art of
caregiving will never be disappointed—at least not in southeast Louisiana. I stand in awe of what I have seen and look forward to
growing with this team of devoted professionals.
Nurse
The relationship between abstract virtues (principles) and values
(practice) is often difficult to grasp. The virtuous person is one who does
good, and his or her character is known through the values he or she
practices.
A moral value is the relative worth placed on some virtuous behavior.
What has value to one person may not have value to another. A value is a
standard of conduct. Values are used for judging the goodness or badness
of some action. Ethical values imply standards of worth. They are the
standards by which we measure the goodness in our lives. Intrinsic value is
something that has value in and of itself (e.g., happiness). Instrumental
value is something that helps to give value to something else (e.g., money
is valuable for what it can buy).
Values may change as needs change. If one’s basic needs for food, water, clothing, and housing have not been met, one’s values may change such that a friendship, for example, might be sacrificed if one’s basic needs
can be better met as a result of the sacrifice. As mom nears the end of her
life, a financially well-off family member may want to take more
aggressive measures to keep mom alive despite the financial drain on her
estate. Another family member, who is struggling financially, may more
readily see the futility of expensive medical care and find it easier to let go.
Values give purpose to each life. They make up one’s moral character. All people make value judgments and make choices among
alternatives. Values are the motivating power of a person’s actions and necessary to survival, both psychologically and physically.
We begin our discussion here with an overview of those virtues
commonly accepted as having value when addressing difficult health care
dilemmas. The reader should not get overly caught up in the philosophical
morass of how virtues and values differ but should be aware that virtues
and values have been used interchangeably.
Whether we call compassion a virtue or a value or both, the importance
for our purposes in this text is to understand what compassion is and how it
is applied in the health care setting.
Pillars of Moral Strength
I am part of all I have met.
ALFRED TENNYSON
What are the pillars that build one’s moral strength? What sets each person apart? In the final analysis, it is one’s virtues and values that build moral character. Look beyond the words and ask, “Do I know their meanings?” “Do I apply their concepts?” “Do I know their value?” “Are they part of me?”
This text and this chapter are not about memorizing words; they are
about applying what we learn for the good of all whose lives we touch. We
begin our discussion here with an overview of those virtues commonly
accepted as having value when addressing difficult health care dilemmas
(Figure 1–1).
Figure 1–1 Pillars of Moral Strength
Courage as a Virtue
Courage is the greatest of all virtues, because if you haven’t courage, you may not have an opportunity to use any of the others.
SAMUEL JOHNSON
Courage is the mental or moral strength to persevere and withstand danger.
Courage can be characterized as the ladder upon which all the other virtues
mount. Courage is the strength of character necessary to continue in the
face of fears and the challenges in life. It involves balancing fear, self-
confidence, and values. Without courage, we are unable to take the risks
necessary to achieve the things most valued. A courageous person has good
judgment and a clear sense of his or her strengths, correctly evaluates
danger, and perseveres until a decision is made and the right goal that is
being sought has been achieved.
The following People Story is an excerpt of a Facebook discussion
between two friends involving Courage and Forgiveness by two very
special people.
PEOPLE STORIES: Courage and Forgiveness
7:38am
Did you see this link http://www.josieking.org/page.cfm?
pageID=10 on the internet?
7:38am
Reading it now
7:39am
Ok
[Josie was 18 months old. . . . In January of 2001 Josie was
admitted . . . after suffering first and second degree burns from
climbing into a hot bath. She healed well and within weeks was
scheduled for release. Two days before she was to return home she died
of severe dehydration and misused narcotics.
Josie spent ten days in the PICU. I [Josie’s mother] was by her side every day and night. I paid attention to every minute detail of the
doctors’ and nurses’ care, and I was quick to ask questions. I bonded with them and was in constant awe of the medical attention she
received. . . . She was sent down to the intermediate care floor with
expectations of being sent home in a few days. Her three older siblings
prepared for her welcome home celebration . . .
The following week her central line had been taken out. I began
noticing that every time she saw a drink she would scream for it, and I
thought this was strange. I was told not to let her drink. While a nurse
and I gave her a bath, she sucked furiously on a washcloth. As I put her
to bed, I noticed that her eyes were rolling back in her head. Although I
asked the nurse to call the doctor, she reassured me that oftentimes
children did this and her vitals were fine. I told her Josie had never
done this and perhaps another nurse could look at her. After yet another
reassurance from another nurse that everything was fine, I was told that
it was okay for me to sleep at home. I called to check-in two times
during the night and returned to the hospital at 5:30 am. I took one look
at Josie and demanded that a doctor come at once. She was not fine.
Josie’s medical team arrived and administered two shots of Narcan. I asked if she could have something to drink. The request was approved,
and Josie gulped down nearly a liter of juice. Verbal orders were issued
for there to be no narcotics given. As I sat with Josie, I noticed that the
nurse on morning duty was acting very strangely. She seemed nervous,
overly demonstrative and in a hurry. Uneasy, I asked the other nurses
about her and they said she had been a nurse for a long time. Still
worried, I expressed my concern to one of the doctors, and he agreed
that she was acting a bit odd. Meanwhile, Josie started perking up. She
was more alert and had kept all liquids down. I was still scared and
asked her doctors to please stay close by. At 1:00 the nurse walked over
with a syringe of methadone. Alarmed, I told her that there had been an
order for no narcotics. She said the orders had been changed and
administered the drug.
Josie’s heart stopped as I was rubbing her feet. Her eyes were fixed, and I screamed for help. I stood helpless as a crowd of doctors and
nurses came running into her room. I was ushered into a small room
with a chaplain.
The next time I saw Josie she had been moved back up to the PICU.
Doctors and nurses were standing around her bed. No one seemed to
want to look at me. She was hooked up to many machines, and her leg
was black and blue. I looked into their faces, and said to them, You did
this to her now YOU must fix her. I was told to pray. Two days later
Jack, Relly and Eva were brought to the hospital to kiss their beloved
Josie good-bye. Josie was taken off of life support. She died in our
arms on a snowy night in what’s considered to be one of the best hospitals in the world. Our lives were shattered and changed forever.
Josie died from severe dehydration and misused
narcotics . . . Careless human errors. On top of our overwhelming
sorrow and intense grief we were consumed by anger. They say anger
can do one of two things to you. It can cause you to rot away or it can
propel you forward. There were days when all I wanted was to destroy
the hospital and then put an end to my own pain. My three remaining
children were my only reason for getting out of bed and functioning.
One day I will tell them how they saved my life. My husband Tony and
I decided that we had to let the anger move us forward. We would do
something good that would help prevent this from ever happening to a
child again.]
7:42am
I don’t get it 7:42am
. . . [hospital]?
7:42am
I Know
7:42am
No. 1 in the world
7:43am
Yes, i know
7:43am
It’s really awful 7:43am
What is the reasoning behind the odd behavior of the nurse?
7:43am
idk
7:43am
I’ve experience first hand human error in the hospital I was told by my Dr. it could have been critical
and I would have died
7:45am
The nurses don’t like him and he told me to write a letter to file a complaint
but the thing is
the nursing staff was so good to me
before and after that incident
evidently when it was happening
he yelled at the staff without me knowing
i had no clue what had happened till days later
the nurse involved apologized to me profusely
7:46am
What happened?
7:46am
but I was so ill I didn’t give it much thought you ever heard of tpn?
its a sugar mixture via iv
cuz i couldn’t eat supposedly it was supposed to be infused in me I think over a 12 hr
period?
7:47am
yes
7:47am
but the nurse put it for 4 hrs
I could have gone into diabetic shock
I do remember trying to wake up but I couldn’t open my eyes and I heard a lot of movement in my room with the nurses
I yelled out
I cant open my eyes and I’m dretched in sweat I had no idea wat was happening
I was then put on insulin
Anonymous Patient
Discussion
1. This young lady forgave the nurse and suggested that when the
nurse was setting the timing for the TPN, she may have distracted
the nurse, and she blamed herself for the wrong setting. Discuss
how courage and forgiveness were displayed in this case.
2. Discuss the similarities in values that Josie’s mother and the young lady on the internet have in common.
3. Discuss your thoughts as to how human errors can be prevented,
including what roles patients, families, caregivers, hospitals, and
regulatory agencies should play in preventing similar errors.
Courage, in differing degrees, helps to define one’s character (the essence of one’s being) and offers the strength to stand up for what is good and right. It crosses over and unites and affects all other values. Courage
must not be exercised to an extreme, causing a person to become so foolish
that his or her actions are later regretted.
When the passion to destroy another human being becomes such an
obsession that one is willing to sacrifice the lives of others, that person has
become a bully and a coward and not a person of courage. History is filled
with men and women who have hidden their fears by inciting others to do
evil. Such people are not the models of character that we wish to instill
thoughts of in the minds of our children.
Wisdom as a Virtue
You can’t inherit wisdom You can’t be taught wisdom. You can’t learn wisdom. Wisdom is a God-given gift.
GP
Wisdom is the judicious application of knowledge. Marcus Tullius Cicero
(106—43 BC), a Roman philosopher and politician, is reported to have said, “The function of wisdom is to discriminate between good and evil.” In the health care setting, when the patient’s wishes and end-of-life preferences are unknown, wisdom with good judgment without bias or prejudice is
mandatory.
I am part of all I have met.
We can learn from history how past generations thought and acted, how
they responded to the demands of their time and how they solved their
problems. We can learn by analogy, not by example, for our circumstances
will always be different than theirs were. The main thing history can teach
us is that human actions have consequences and that certain choices, once
made, cannot be undone. They foreclose the possibility of making other
choices and thus they determine future events.
GERDA LERNER (PIONEER OF WOMEN’S HISTORY)
Temperance as a Virtue
Being forced to work, and forced to do your best, will breed in you
temperance and self-control, diligence and strength of will, cheerfulness
and content, and a hundred virtues which the idle will never know.
CHARLES KINGSLEY 3
Temperance has to do with orderliness and moderation in everything that is
said and done.
Commitment
I know the price of success: dedication, hard work, and an unremitting
devotion to the things you want to see happen.
FRANK LLOYD WRIGHT
Commitment is the act of binding oneself (intellectually or emotionally) to
a course of action. It is an agreement or pledge to do something. It can be
ongoing or a pledge to do something in the future.
Compassion
Compassion is the basis of morality.
ARTHUR SCHOPENHAUER
NEWSPAPER CLIPPINGS: Hospital Video Shows No One Helped
Dying Woman
A shocking video shows a woman dying on the floor in the psych ward
at Kings County Hospital, while people around her, including a security
guard, did nothing to help. After an hour, another mental patient finally
got the attention of the indifferent hospital workers, according to the
tape obtained by the New York Daily News.
Worse still, the surveillance tape suggests hospital staff may have
falsified medical charts to cover the utter lack of treatment provided to
Esmin Green before she died.
John Marzulli, Daily News, June 30, 2008
Compassion is the deep awareness of and sympathy for another’s suffering. The ability to show compassion is a true mark of moral character.
There are those who argue that compassion will blur one’s judgment. Caregivers need to show the same compassion for others as they would
expect for themselves or their loved ones.
Compassion is a moral value expected of all caregivers. Those who
lack compassion have a weakness in their moral character. In 1996, Dr.
Linda Peeno, featured in Michael Moore’s 2007 film Sicko, testified before Congress (Important issue facing House-Senate conference on health care
reform, House of Representatives—March 28, 2000—Page: H1465) to discuss her prior work as a medical reviewer for Humana, where she
worked as a claims reviewer for several health maintenance organizations
(HMOs). Dr. Peeno showed compassion as she testified before the
Committee on Commerce on May 30, 1996. Here is her story in part:
I wish to begin by making a public confession. In the spring of 1987, I
caused the death of a man. Although this was known to many people, I
have not been taken before any court of law or called to account for
this in any professional or public forum. In fact, just the opposite
occurred. I was rewarded for this. It brought me an improved
reputation in my job and contributed to my advancement afterwards.
Not only did I demonstrate that I could do what was asked, expected of
me, I exemplified the good company employee. I saved a half a million
dollars.
Since that day, I have lived with this act and many others eating
into my heart and soul. The primary ethical norm is do no harm. I did
worse, I caused death. Instead of using a clumsy bloody weapon, I used
the simplest, cleanest of tools: my words. This man died because I
denied him a necessary operation to save his heart. I felt little pain or
remorse at the time. The man’s faceless distance soothed my conscience. Like a skilled soldier, I was trained for the moment. When
any moral qualms arose, I was to remember, “I am not denying care; I am only denying payment.” [http://www.fenichel.com/Ganske.shtml]
Although Dr. Peeno eventually came forward with her story, the irony
here lies in the fact that Dr. Peeno lacked the courage, integrity and
compassion to report her story sooner. The lack of compassion for others
plagues the health care industry in a variety of settings.
NEWSPAPER CLIPPINGSS: Teaching Doctors to Care
At Harvard and other medical schools across the country, educators are
beginning to realize that empathy is as valuable to a doctor as any
clinical skill . . . doctors who try to understand their patients may be the
best antidote for the widespread dissatisfaction with today’s health care system.
Nathan Thornburgh, Time magazine, March 29, 2006
NEWSPAPER CLIPPINGS: What Went Wrong?
The son of a prominent Boston doctor . . . was on his way to becoming
a leading surgeon in his own right when a bizarre blunder interrupted
his climb: he left his patient on the operating table so he could cash his
paycheck. A series of arrests followed, exposing a life of arrogance,
betrayal, and wasted promise . . .
Neil Swidey, “What Went Wrong?”, The Boston Globe, March 21, 2004.
Detachment, or lack of concern for the patient’s needs, often translates into mistakes that result in patient injuries. Those who have excessive
emotional involvement in a patient’s care may be best suited to work in those settings where patients are most likely to recover and have good
outcomes (e.g., maternity units). As with all things in life, there needs to be
a comfortable balance between compassion and detachment.
Never apologize for showing feeling. When you do so, you apologize for
the truth.
BENJAMIN DISRAELI
REALITY CHECK: Who Makes the Rules?
Mr. Jones was trying to get home from a long trip to see his ailing wife.
Mrs. Jones had been ill for several years, suffering a great deal of pain.
His flight was to leave at 7:00 PM. Upon arrival at the airport in New
York at 4:30 PM, he inquired at the ticket counter, “Is there an earlier flight that I can take to Washington?” The counter agent responded, “There is plenty of room on the 5:00 PM flight, but you will have pay a $200 change fee.” The passenger inquired, “Could you please waive the change fee? I need to get home to my ailing wife.” The ticket agent responded, “Sorry, your ticket does not allow me to make the change. You can, however, try at the gate.”
The passenger made a second attempt at the gate to get on an earlier
flight, but the manager at the gate was unwilling to authorize the
change, saying, “I don’t make the rules.” Mr. Jones decided to give it one more try. He called the airline’s
customer service center. The customer service agent responded to Mr.
Jones’s plea: “We cannot overrule the agent at the gate. Sorry, you just got the wrong supervisor. He is going by the book.”
Discussion
1. Should rules be broken for a higher good? Discuss your answer.
2. Do the rules seem to be consistently or inconsistently applied in this
reality check? Discuss your answer.
Conscientiousness
The most infectiously joyous men and women are those who forget
themselves in thinking about and serving others.
ROBERT J. MCRACKEN
A conscientious person is one who has moral integrity and a strict regard
for doing what is considered the right thing to do. An individual acts
conscientiously if he or she is motivated to do what is right, believing it is
the right thing to do. Conscience is a form of self-reflection on and
judgment about whether one’s actions are right or wrong, good or bad. It is an internal sanction that comes into play through critical reflection. This
sanction often appears as a bad conscience in the form of painful feelings
of remorse, guilt, shame, disunity, or disharmony as the individual
recognizes that his or her acts were wrong. Although a person may
conscientiously object and/or refuse to participate in some action (e.g.,
abortion), that person must not obstruct others from performing the same
act if he or she has no moral objection to it.
REALITY CHECK: Kill the Messenger
Frank, working as a hospital inspector, found a number of things wrong
in his recent building inspection. At first glance the building shone— Frank was amazed by how the floors sparkled in the old building. But
then, as Frank always does, he asked to look behind a corridor door.
Behind the door, Frank found medical records stored on the floor in
cardboard boxes, and these had been soaked by water and floor wax
that had seeped under the door when the corridors where cleaned.
Entries on the records were blurred, making them difficult to read, and
the records appeared to have mold growing on them.
Behind another door was a medical equipment repair room. Dust
balls floated on the floor as the door was opened. There was food on
the floor, and a can of soda had spilled and been allowed to dry.
Equipment parts were strewn on the floor.
The staff complained about Frank’s findings. Before he left, the staff corrected the issues he had noted, hoping that he would remove
these comments from his report. He did not remove them but did,
however, explain what measures could be taken to prevent similar
occurrences in the future.
Discussion
1. Should Frank have overlooked his findings, as the staff pressed him
not to report them? Discuss your answer.
2. Assuming you were Frank, would you have deleted the findings
from your report? Explain your answer.
Cooperation
If we do not hang together, we will all hang separately.
BENJAMIN FRANKLIN (1706–1790)
Cooperation is the process of working with others. In the health care
setting, caregivers must work together to improve patient outcomes.
NEWSPAPER CLIPPINGS: Congress Gets Stuck Again—Over FAA
Parties Blame Each Other in Funding Dispute and Partial Shutdown
A dispute over funding for the Federal Aviation Administration has
left an estimated 74,000 people out of work for a dozen days and tossed
Congress into the throes of yet another interparty battle.
Now, with lawmakers leaving town or already on recess, there
seems to be little hope of a resolution on the horizon.
Ashley Halsey III, The Washington Post, August 4, 2011
Failure to cooperate has a rippling effect in any setting. In a non–health care setting, Congress failed to cooperate and resolve funding issues for the
Federal Aviation Administration (FAA) before taking its summer recess in
2011, leaving 74,000 people out of work and costing the nation nearly a
billion dollars for the month of August. Failure of the few to cooperate and
act responsibly has not only affected the out-of-work employees but also
has placed a financial hardship on their families, not to mention the effect it
has had on the communities where they live.
Discernment
Get to know two things about a man—how he earns his money and how he spends it—and you have the clue to his character, for you have a searchlight that shows up the innermost recesses of his soul. You know all
you need to know about his standards, his motives, his driving desires, and
his real religion.
ROBERT J. MCCRACKEN
Discernment is the ability to make a good decision without personal biases,
fears, and undue influences from others. A person who has discernment has
the wisdom to decide the best course of action when there are many
possible actions to choose from.
REALITY CHECK: 9/11 Value Judgment
James had been scheduled to fly Monday evening, September 10, 2001,
from Ronald Reagan Washington National Airport to New York
LaGuardia Airport, and then rent a car and drive to Greenwich,
Connecticut, where he was assigned to inspect a hospital. As luck
would have it, there was one flight cancellation after another. After the
last flight to LaGuardia was canceled, he went to the ticket counter and
scheduled the first flight out Tuesday morning, which was at 6:00 AM.
The following morning James flew into LaGuardia, picked up his
car and drove to Connecticut to work with an assigned team that
consisted of him and Dr. Matt. Not long after he arrived at the hospital,
the first plane hit the World Trade Center. Shortly after the second
plane crashed into the World Trade Center, the corporate office called
and asked if the hospital wanted to reschedule the survey. They opted to
continue the survey.
On Thursday, the last day of the survey, a hospital staff member
approached Dr. Matt and asked if he and his survey team would like to
attend a short memorial service in the lobby at noon. Without
hesitation, Dr. Matt replied, “No, we really have to finish our reports.”
Discussion
1. Did the team leader make an appropriate decision?
2. What may have influenced the decision not to attend the lobby
ceremony?
3. Describe the various virtues and values that come into play in this
case.
4. How would you have addressed the hospital’s request? 5. Realizing that hindsight is 20/20, can you defend the decision not to
attend the ceremony? Explain your answer.
Fairness
Do all the good you can, By all the means you can, In all the ways you
can, In all the places you can, At all the times you can, To all the people
you can, As long as you ever can.
JOHN WESLEY
In ethics, fairness requires each person to be objective, unbiased,
dispassionate, impartial, and consistent with the principles of ethics.
Fairness is the ability to make judgments free from discrimination,
dishonesty, or one’s own bias. It is the ability to be objective without prejudice or bias. We often tolerate mediocrity. We sometimes forget to
thank those who just do their jobs, and we often praise the extraordinary,
sometimes despite questionable faults. To be fair, it is important to see the
good in all and to reward that good.
Fidelity
Nothing is more noble, nothing more venerable, than fidelity. Faithfulness
and truth are the most sacred excellences and endowments of the human
mind.
CICERO
Fidelity is the virtue of faithfulness, being true to our commitments and
obligations to others. A component of fidelity, veracity, implies that we will
be truthful and honest in all our endeavors. It involves being faithful and
loyal to obligations, duties, or observances. The opposite of fidelity is
infidelity, meaning unfaithfulness.
Freedom
You can only protect your liberties in this world by protecting the other
man’s freedom. You can only be free if I am free. DOROTHY THOMPSON
Freedom is the quality of being free to make choices for oneself within the
boundaries of law. Freedoms enjoyed by citizens of the United States
include the freedom of speech, freedom of religion, freedom from want,
and freedom from physical aggression.
Honesty/Trustworthiness/Truth Telling
Lies or the appearance of lies are not what the writers of our Constitution
intended for our country—it’s not the America we salute every Fourth of July, it’s not the America we learned about in school, and it is not the America represented in the flag that rises above our land.
ANONYMOUS
Speaking the truth in times of universal deceit is a revolutionary act.
GEORGE ORWELL
Honesty and trust involve confidence that a person will act with the right
motives. It is the assured reliance on the character, ability, strength, or truth
of someone or something. To tell the truth, to have integrity, and to be
honest are most honorable virtues. Veracity is devotion to and conformity
with what is truthful. It involves an obligation to be truthful.
Truth telling involves providing enough information so that a patient
can make an informed decision about his or her health care. Intentionally
misleading a patient to believe something that the caregiver knows to be
untrue may give the patient false hopes. There is always apprehension
when one must share bad news; the temptation is to gloss over the truth for
fear of being the bearer of bad news. To lessen the pain and the hurt is only
human, but in the end, truth must win over fear.
REALITY CHECK: 36,000 Feet over Texas
A few weeks before Frank was to travel to Dodge City, Texas, for a
consulting job, he received a call from Dr. Layblame: “Hi Frank. This is Dr. Layblame. Can you be ready for an early afternoon departure
from Dodge City on Friday?” Frank replied, “Well you know we have been instructed not to leave early, and the last flight leaves at 4:30. I
can get a flight Saturday morning.” Dr. Layblame replied, “Well, it’s only an hour early. If you do most of your work the night before and
during lunch on Friday, we should be able to get out early. The airport
is small and close to the hospital. Besides, we are driving and would
like some time to get to the next job so the rest of the team can go out
to dinner Friday night. I am the tour leader, so it should not be a
problem.” Frank made his flight arrangements and was able to get on the 4:30
PM flight home. On Friday afternoon, following the Texas job, when
Frank was on the flight to Washington, DC, a voicemail message was
being left for him by Bill, his manager.
When he returned home at about 10:30 that evening, Frank
retrieved his voice mail messages. Bill had left him a message at 4:30
PM that said, “Frank, call me as soon as you get this message. I will be in my office until about 5:30. If you miss me, you can reach me over
the weekend. My cell phone number is xxx-xxxx.” Frank called Bill that evening and the next morning; however, Bill
never answered, nor did he return his call.
Frank called Bill Monday morning. As fate would have it, Bill was
out of the office for the day. Frank called Bill again on Tuesday
morning and Bill answered. Frank said, “Bill, you called?” Bill replied, “Yes, I did. How were you able to get to the airport and catch a 4:30 PM flight, without leaving your job early? I had your flight schedule and
you left the survey early. You could not possibly have traveled to the
airport in time to catch your flight without leaving early.” Frank replied, “I did not schedule the exit time from the survey. The
physician team leader determined the time of the exit. He said that he
was conducting a system tour and would like to get the exit briefing
started as soon as possible. He asked for everybody to be ready to exit
by having draft reports ready the night before.” Bill replied, “Dr. Layblame told me the team had to exit early because you scheduled an
early flight.”
Discussion
1. Discuss the ethical issues involved in this case.
2. Discuss what you would do if you found yourself in Frank’s situation.
3. What should Frank have said if his manager said, “You should have reported Dr. Layblame”?
4. Discuss the ethics behind Bill’s management style.
5. Discuss how would you describe Bill’s management style.
Declining Trust in the Health Care System
The declining trust in the nation’s ability to deliver quality health care is evidenced by a system caught up in the morass of managed care
companies, which have in some instances inappropriately devised ways to
deny health care benefits to their constituency. In addition, the continuing
reporting of numerous medical errors serves only to escalate distrust in the
nation’s political leadership and the providers of health care. Physicians find themselves vulnerable to lawsuits, often because of
misdiagnosis. As a result, patients are passed from specialist to specialist in
an effort to leave no stone unturned. Fearful to step outside the boundaries
of their own specialties, physicians escalate the problem by ineffectively
communicating with the primary care physician responsible for managing
the patient’s overall health care needs. This can also be problematic if no one physician has taken overall responsibility to coordinate and manage a
patient’s care.
Politics and Distrust
Truthfulness is just one measure of one’s moral character. Unfortunately, politicians do not always set good examples for the people they serve. The
following are but a few examples of how political decisions have caused,
or have given the appearance of causing, division to the detriment of unity.
NEWSPAPER CLIPPINGS: Bush Vetoes Health Care Plan for
Poor Children
The political bind for Republicans—particularly those in swing districts —is reflected in polls that show broad public support for covering uninsured children. Sen. Orrin G. Hatch (R-Utah) called it “the morally right thing to do.”
Zaldivar Ricardo-Alonso, Los Angeles Times, October 4, 2007
President Bush, for the second time, vetoed the expansion of the
child health care bill that would have provided children from low-
income households affordable health insurance. Although the Senate
approved the bill, the House failed to get a sufficient number of votes to
override the veto. President Bush indicated that the child health care
program was meant for poor children and should not be expanded to
cover children who were not in need of such coverage. Because of the
high cost of health care, the public is concerned that the expansion of
the program is necessary to prevent financial ruin in cases of
catastrophic illnesses.
Discussion
1. Discuss why you believe the expansion of the child health program
would be the morally right thing to do.
2. Discuss how paternalism and partisan politics might have prompted
President Bush to veto the child health care bill.
3. Considering that politicians have been elected to represent the
people, describe how the principles of beneficence (doing good),
nonmaleficence (avoid causing patients harm), and justice (the
obligation to be fair in the distribution of benefits) may have been
ignored when President Bush vetoed the bill and the House of
Representatives failed to override the veto.
NEWSPAPER CLIPPINGS: Cheney’s Staff Cut Testimony on Warming
Members of Vice President Dick Cheney’s staff censored congressional testimony by a top federal official about health threats posed by global
warming, a former Environmental Protection Agency official said
yesterday.
In a letter to Sen. Barbara Boxer (D-Calif.), former EPA deputy
associate administrator Jason K. Burnett said an official from Cheney’s office ordered last October that six pages be edited out of the testimony
of Julie L. Gerberding, director of the Centers for Disease Control and
Prevention. Gerberding had planned to say that the “CDC considers climate change a serious public health concern.”
Frank O’Donnell, who heads the advocacy group Clean Air Watch, said the revelations confirmed that the vice president has been steering
environmental policy during President Bush’s tenure. “For years, we’ve suspected that Cheney was the puppeteer for
administration policy on global warming,” O’Donnell said. “This kiss- and-tell account appears to confirm the worst.”
Juliet Eilperin, The Washington Post, July 9, 2008
Discussion
1. Discuss how headlines such as this affect your opinion of
politicians.
2. Assuming a cover-up, discuss how the principles of beneficence
and nonmaleficence apply.
3. At the end of our days, the most basic principles of life—trust and survival—are on trial. What is your verdict, if indeed there was a cover-up?
Integrity
Nearly all men can stand adversity, but if you want to test a man’s character, give him power.
ABRAHAM LINCOLN
NEWSPAPER CLIPPINGS: Wrong-Operation Doctor
Hospitals find it hard to protect patients from wrong-site
surgery
Last year a jury returned a $20 million negligence verdict against
Arkansas Children’s Hospital for surgery on the wrong side of the brain of a 15-year-old boy who was left psychotic and severely brain
damaged. Testimony showed that the error was not disclosed to his
parents for more than a year. The hospital issued a statement saying it
deeply regretted the error and had “redoubled our efforts to prevent” a recurrence.
“Healthcare has far too little accountability for results. . . . All the pressures are on the side of production; that’s how you get paid,” said Peter Pronovost, a prominent safety expert and medical director of the
Johns Hopkins Center for Innovation in Quality Patient Care, who
added that increased pressure to turn over operating rooms quickly has
trumped patient safety, increasing the chance of error.
Sandra G. Boodman, Kaiser Health News, The Washington Post, June
20, 2011
Discussion
1. Discuss the issues of integrity in this case.
2. Should criminal charges be a consideration in this case, if
accurately reported? Discuss your answer.
Integrity involves a steadfast adherence to a strict moral or ethical code
and a commitment not to compromise this code. A person with integrity
has a staunch belief in and faithfulness to, for example, his or her religious
beliefs, values, and moral character. Patients and professionals alike often
make health care decisions based on their integrity and their strict moral
beliefs. For example, a Jehovah’s Witness generally refuses a blood transfusion because it is against his or her religious beliefs, even if such
refusal may result in death. A provider of health care may refuse to
participate in an abortion because it is against his or her moral beliefs. A
person without personal integrity lacks sincerity and moral conviction and
may fail to act on professed moral beliefs.
REALITY CHECK: Behind the Smiles
Integrity includes being honest and truthful. It is not berating a person
after he or she has left the conference room.
Jeff well remembers what happened after Bill left the room. He,
however, remembers more clearly how Bill, a consultant, was treated
while he was in the room after presenting his organizational
improvement report. Bill was treated with kindness and assurances as
to how well he helped the staff and how employees appreciated his
suggestions for improvement.
Prior to exiting the conference room, Bill asked whether there were
any questions about his report. No questions, just smiles, accolades, and
good-byes. Jeff thought to himself, wow, it is good to see good people
take suggestions and be so willing to make the changes that Bill
suggested.
Oops, hold on, it turns out Bill wasn’t as wonderful as Jeff had observed. The group was now disgruntled about Bill’s report. Bill was gone and now vilified. Jeff, a consultant not scheduled to finish his
assignment for another 2 weeks, asked, “Why didn’t you ask questions while Bill was here?” Carol, the finance director replied, “I spent 2 weeks with Bill. He just made up his mind. There was just no changing
his mind.” Jim said, “Are you saying that you disagree with Bill’s report?” Carol, replied, “Yes, I do disagree with it.” Jeff continued, “But you did not state that while he was here. You told him you liked his suggestions and that you were already in the process of
implementing them.” Carol replied, “That’s true, but since we made the suggested changes while he was here, he did not have to include them
in his report.” Bill replied, “It speaks well of your organization that you have done so; however, it is the board that asked for the audit. We must
report what we found.” Carol, disgruntled, remained silent.
Discussion
1. Should Bill have left his findings off the report? Explain your
answer.
2. Discuss Bill’s responsibilities to the board, which had hired the consulting team to evaluate the organization’s operations.
Medical Integrity and Patient Autonomy
The integrity of the medical profession is not threatened by allowing
competent patients to decide for themselves whether a particular medical
treatment is in their best interests. Patient autonomy sets the foundation of
one’s right to bodily integrity, including the right to accept or refuse treatment. Those rights are superior to the institutional considerations of
hospitals and their medical staffs. A state’s interest in maintaining the ethical integrity of a profession does not outweigh, for example, a patient’s right to refuse blood transfusions.
Kindness
When you carry out acts of kindness, you get a wonderful feeling inside. It
is as though something inside your body responds and says, yes, this is
how I ought to feel.
HAROLD KUSHNER
Kindness involves the quality of being considerate and sympathetic to
another’s needs. Some people are takers, and others are givers. If you go through life giving without the anticipation of receiving, you will be a
kinder and happier person.
REALITY CHECK: Kindness Is Not Always Returned
The well-known saying “actions speak louder than words” is well demonstrated in this reality check. Joe was a health care consultant. He
had collected thousands of documents of helpful information to share
with health care organizations with which he had worked. His thinking
was this: Why should hospitals have to reinvent the wheel? If
organizations are willing to share with others, why not disseminate
such information for the benefit of other hospitals? His hopes were that
larger trade organizations would eventually collect the information and
freely share with their constituents. After all, the goal was better care
for all wherever they lived. Joe would provide copies of his CD to
fellow consultants and encourage them to share the information with
others. One day upon arriving at work he noticed that one of the
consultants to whom he had given a copy of the CD had four or five
newspaper clippings about hospitals spread out on a conference room
table. Joe thought they looked interesting and asked, “Could I have a copy of your clippings?” The consultant said, “No, these are proprietary information.”
On another occasion, after sharing his CD with an organization, he
asked, “Would you be willing to share your ‘12 Step Addiction Program’ with other health care organizations?” A representative from the organization said, “We will share it with you but not others.” Joe kindly said, “That’s okay. I can only accept what you are willing to share with others.”
Discussion
1. Should Joe have asked for his CD back from the consultant and
organization? Discuss your answer.
2. Discuss why an organization might not be willing to share program
information.
Respect
Respect for ourselves guides our morals; respect for others guides our
manners.
LAURENCE STERNE
To give and show respect is to show special regard to someone or
something. Caregivers who demonstrate respect for their patients will be
more effective in helping them cope with the anxiety of their illness.
Respect helps to develop trust between the patient and caregiver and
improve healing processes. If caregivers respect the family of a patient,
cooperation and understanding will be the positive result, encouraging a
team effort to improve patient care.
Hopefulness
Hope is the last thing that dies in man; and though it be exceedingly
deceitful, yet it is of this good use to us, that while we are traveling
through fife, it conducts us in an easier and more pleasant way to our
journeys end.
FRANCOIS DE LA ROCHEFOUCAULD
Hopefulness in the patient care setting involves looking forward to
something with the confidence of success. Caregivers have a responsibility
to balance truthfulness while promoting hope. The caregiver must be
sensitive to each patient’s needs and provide hope.
Education/Learning as a Value
It is expected that each professional have a current understanding of one’s area of specialization and practice. Education has value and is a legal
necessity in order to be in conformity with the national standard of care of
one’s profession. Every professional is responsible to be current in his or her knowledge and skills. This comes by reading one’s professional literature, attending continuing education programs, and mentoring.
AUTHOR UNKNOWN
Tolerance
There is a criterion by which you can judge whether the thoughts you are
thinking and the things you are doing are right for you. The criterion is:
Have they brought you inner peace? If they have not, there is something
wrong with them—so keep seeking! If what you do has brought you inner peace, stay with what you believe is right.
PEACE PILGRIM
Tolerance can be viewed in two ways, positive or negative. (1) Positive
tolerance implies that a person accepts differences in others and that one
does not expect others to believe, think, speak, or act as he or she does.
Tolerant people are generally free of prejudice and discrimination.
Recognizing this fact, Thomas Jefferson incorporated theories of tolerance
into the U.S. Constitution. (2) Negative tolerance implies that one will
reluctantly put up with another’s beliefs. In other words, he or she simply tolerates the view of others.
Although tolerance can be viewed as a virtue, not all tolerance is
virtuous nor is all intolerance necessarily wrong. An exaggerated tolerance
may amount to a vice, whereas intolerance may sometimes be a virtue. For
example, tolerating everything regardless of its repugnance (e.g.,
persecution for religious beliefs) is no virtue, and having intolerance for
that which should not be tolerated and is evil is no vice (e.g., concentration
camps).
RELIGIOUS ETHICS
The Great Physician: Dear Lord, You are the great physician. I turn to you
in my sickness, asking you for help. I place myself under Your loving care,
praying that I may know Your healing grace and wholeness. Help me to
find love in this strange world and to feel your presence by my bed both
day and night. Give my doctors and nurses wisdom, that they may
understand my illness. Steady and guide them with your strong hand.
Reach out Your hand to me and touch my life with Your peace. Amen.
UNIVERSITY OF PENNSYLVANIA HEALTH SYSTEM
Religion serves a moral purpose by providing codes of conduct for
appropriate behavior through revelations from a divine source. These codes
of conduct are enforced through fear of pain and suffering in the next life
and/or reward in the next life for adhering to religious codes and beliefs.
The prospect of divine justice helps us to tolerate the injustices in this life,
where goodness is no guarantee of peace, happiness, wellness, or
prosperity.
NEWSPAPER CLIPPINGS: Many Think God’s Intervention Can Revive the Dying
When it comes to saving lives, God trumps doctors for many
Americans. An eye-opening survey reveals widespread belief that
divine intervention can revive dying patients. And, researchers said,
doctors “need to be prepared to deal with families who are waiting for a miracle.”
Lindsey Tanner, USA Today, August 18, 2008
Religion should be a component of the education, policy development,
and consultative functions of ethics committees. There is a need to know,
for example, how to respond to Jehovah’s Witnesses who refuse blood transfusions. Some hospitals provide staff with materials that describe
various religious beliefs and how those beliefs might affect the patient’s course of care while in the hospital.
Religion is often used as a reason to justify what otherwise could be
considered unjustifiable behavior. Political leaders often use religion to
legitimize and consolidate their power. Leaders in democratic societies
speak of the necessity to respect the right to “freedom of religion.” Militarily, political leaders often use religion to further their political
aspirations, the “God is on our side” propaganda. Jihad often is referred to as a holy war against infidels (nonbelievers), the purpose of which is to
expand the territories of Muslim nations. Using religion in this way is not
unique to Muslim nations. Many political leaders have used religion to
justify their actions. Unbelievers are called infidels. Who is an infidel is in
the eyes of the beholder. Religious persecution has plagued humankind
from the beginning of time. The world today, with the aid of the news
media, is able to see firsthand the results of what can happen to innocent
people in the name of religion. The atrocity of evil men strapping bombs to
mentally retarded women in Iraq and other parts of the world with the
purpose of exploding the bombs in public places, killing and maiming men,
women, and children, is but one of the numerous examples of what has
occurred throughout the ages.
Spirituality in the religious sense implies that there is purpose and
meaning to life; spirituality generally refers to faith in a higher being. For a
patient, injury and sickness are frightening experiences. This fear is often
heightened when the patient is admitted to a hospital or nursing facility.
Health care organizations can help reduce patient fears by making available
to them appropriate emotional and spiritual support and coping resources.
It is a well-proven fact that patients who are able to draw on their
spirituality and religious beliefs tend to have a more comfortable and often
improved healing experience. To assist both patients and caregivers in
addressing spiritual needs, patients should be provided with information as
to how their spiritual needs can be addressed.
Difficult questions regarding a patient’s spiritual needs and how to meet those needs are best addressed on admission by first collecting
information about the patient’s religious or spiritual preferences. Caregivers often find it difficult to discuss spiritual issues for fear of
offending a patient who may have beliefs different from their own. If
caregivers know from admission records a patient’s religious beliefs, the caregiver can share with the patient those religious and spiritual resources
available in the hospital and community.
A variety of religions are presented below for the purpose of
understanding some of the basic tenets of these religions. They are
presented here to note the importance of better understanding why patients
differ in decision-making processes and how religion affects their beliefs,
and to encourage further study of how each religion affects the decision-
making process. Hospitals should maintain a directory of the various
religions that includes contacts for referral and consultation purposes.
Judaism
Jewish Law refers to the unchangeable 613 mitzvot (commandments) that
God gave to the Jews. Halakhah (Jewish Law) comes from three sources:
(1) the Torah (the first five books of the Bible); (2) laws instituted by the
rabbis; and (3) long-standing customs. The Jewish People is another name
for the Children of Israel, referring to the Jews as a nation in the classical
sense, meaning a group of people with a shared history and a sense of a
group identity rather than a specific place or political persuasion.
Judaism is a monotheistic religion based on principles and ethics
embodied in the Hebrew Bible (Old Testament). The notion of right and
wrong is not so much an object of philosophical inquiry as an acceptance
of divine revelation. Moses, for example, received a list of 10 laws directly
from God. These laws were known as the 10 Commandments. Some of the
10 Commandments are related to the basic principles of justice that have
been adhered to by society since they were first proclaimed and published.
For some societies, the 10 Commandments were a turning point, where
essential commands such as “thou shalt not kill” or “thou shalt not commit adultery” were accepted as law. The 10 Commandments (King James Version) are as follows:
1. Thou shalt have no other gods before me.
2. Thou shalt not make unto thee any graven image, or any likeness of
anything that is in heaven above, or that is in the earth beneath, or that
is in the water under the earth. Thou shalt not bow down thyself to
them, nor serve them.
3. Thou shalt not take the name of the Lord thy God in vain.
4. Remember the Sabbath day, to keep it holy.
5. Honor thy father and thy mother: that thy days may be long upon the
land which the Lord thy God giveth thee.
6. Thou shalt not kill.
7. Thou shalt not commit adultery.
8. Thou shalt not steal.
9. Thou shalt not bear false witness against thy neighbor.
10. Thou shalt not covet thy neighbor’s house, thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor anything that is thy neighbor’s.
When a patient is dying, family members will normally want to be
present and prayers said. If a rabbi is requested, the patient’s own rabbi should be contacted first.
Hinduism
Hinduism is a polytheistic religion with many gods and goddesses. Hindus
believe that God is everything and is infinite. The earliest known Hindu
Scriptures were recorded around 1200 BC. Hindus believe in reincarnation
and that one’s present condition is a reflection of one’s virtuous behavior or lack thereof in a previous lifetime.
When caring for the dying, relatives may wish to perform rituals. In
death, jewelry, sacred threads, or other religious objects should not be
removed from the body. Washing the body is part of the funeral rites and
should be carried out by the relatives.
Buddhism
Buddhism is a religion and philosophy encompassing a variety of
traditions, beliefs, and practices, based largely on teachings attributed to an
Indian prince named Siddhartha Gautama (563-483 BC). He had gone on a
spiritual quest and eventually became enlightened at the age of 35, and
from then on, he took the name Buddha. Simply defined, Buddhism is a
religion to some and a philosophy to others that encourages one “to do good, avoid evil, and purify the mind.”
When caring for the dying, Buddhists like to be informed about their
health status in order to prepare themselves spiritually. A side room with
privacy is preferred.
Falun Gong
Falun Gong, also referred to as Falun Dafa, is a traditional Chinese
spiritual discipline belonging to the Buddhist school of thought. It consists
of moral teachings, a meditation, and four exercises that resemble tai chi
and are known in Chinese culture as qigong. Falun Gong does not involve
physical places of worship, formal hierarchies, rituals, or membership and
is taught without charge. The three principles practiced by the followers are
truthfulness, compassion, and forbearance/tolerance toward others. The
followers of Falun Gong claim a following in 100 countries.
Taoism
Taoists believe that ultimate reality is unknowable and unperceivable. The
founder of Taoism is believed to be Lao Tzu (6 BC). Taoist doctrine
includes the belief that the proper way of living involves being in tune with
nature. Everything is ultimately interblended and interacts.
Zen
Zen evolved from Buddhism in Tibet. It emphasizes dharma practice (from
the master to the disciple) and experiential wisdom based on learning
through the reflection on doing, going beyond scriptural readings. In Zen,
Buddhism learning comes through a form of seated meditation known as
zazen, where practitioners perform meditation to calm the body and the
mind, and experience insight into the nature of existence and thereby gain
enlightenment.
Christianity
Christianity is based on the Bible’s New Testament teachings. Christians accept both the Old and New Testament as being the word of God. The
New Testament describes Jesus as being God, taking the form of man. He
was born of the Virgin Mary, sacrificed his life by suffering crucifixion,
and after being raised from the dead on the third day, he ascended into
Heaven from which he will return to raise the dead, at which time the
spiritual body will be united with the physical body. His death, burial, and
resurrection provide a way of salvation through belief in Him for the
forgiveness of sin. God is believed to be manifest in three persons: the
Father, Son, and Holy Spirit.
The primary and final authority for Christian ethics is found in the life,
teachings, ministry, death, and resurrection of Jesus Christ. He clarified the
ethical demands of a God-centered life by applying the obedient love that
was required of Peter. The 10 Commandments are accepted and practiced
by both Christians and Jews.
Christians, when determining what is the right thing to do, often refer to
the Golden Rule, which teaches us to “do unto others as you would have them do unto you,” a common principle in many moral codes and religions.
There have been and continue to be numerous interpretations of the
meaning of the scriptures and their different passages by Christians over
the centuries. This has resulted in a plethora of churches with varying
beliefs. As noted later, such beliefs can affect a patient’s wishes for health care. However, the heart of Christian beliefs is found in the book of John:
For God so loved the world, that he gave his only begotten Son, that
whoever believeth in him should not perish, but have everlasting life.
JOHN 3:16 (KING JAMES VERSION)
Jehovah’s Witnesses Religious beliefs and codes of conduct sometimes conflict with the ethical
duty of caregivers to save lives. Many Jehovah’s Witnesses, for example, believe that it is a sin to accept a blood transfusion since the Bible states
that we must “abstain from blood” (Acts 15:29). Current Jehovah’s Witness doctrine, in part, states that blood must not be transfused. In order to
respect this belief, bloodless surgery is available in a number of hospitals to
patients who find it against their religious beliefs to receive a blood
transfusion.
Every attempt should be made to resolve blood transfusion issues prior
to any elective surgery. The transfusion of blood to an emergent
unconscious patient may be necessary to save the patient’s life. Because some Jehovah’s Witnesses would accept blood in such situations, most courts would most likely find such a transfusion acceptable. When
transfusion of a minor becomes necessary and parental consent is refused,
it may be necessary to seek a court order to allow for such transfusions.
Because time is of the essence in many cases, it is important for hospitals
to work out such issues in advance with legislative bodies and the judicial
system in order to provide legal protection for caregivers who find it
necessary to transfuse blood in order to save a life. In those instances in
which the patient has a right to refuse a blood transfusion, the hospital
should seek a formal signed release from the patient.
Anointing of the Sick for Healing
When caring for the dying, services of the in-house chaplain must always
be offered. A Catholic priest should be offered when last rites need to be
administered.
Islam
The Islamic religion believes there is one God: Allah. Muhammad (570– 632 AD) is considered to be a prophet/messenger of God. He is believed to
have received revelations from God. These revelations were recorded in the
Qur’an, the Muslim Holy Book. Muslims accept Moses and Jesus as prophets of God. The Qur’an is believed to supersede that of the Torah and the Bible. Muslims believe that there is no need for God’s grace and that their own actions can merit God’s mercy and goodness. Humans are believed to have a moral responsibility to submit to God’s will and to follow Islam as demonstrated in the Qur’an.
When caring for the dying, patients may want to die facing Mecca
(toward the southeast) and be with relatives. In death, many Muslims
follow strict rules in respect of the body after death.
SECULAR ETHICS
Unlike religious ethics, secular ethics is based on codes developed by
societies that have relied on customs to formulate their codes. The Code of
Hammurabi, for example, carved on a black Babylonian column 8 feet
high, now located in the Louvre in Paris, depicts a mythical sun god
presenting a code of laws to Hammurabi, a great military leader and ruler
of Babylon (1795–1750 BC). Hammurabi’s code of laws is an early example of a ruler proclaiming to his people an entire body of laws. The
following excerpts are from the Code of Hammurabi.
Code of Hammurabi
5
If a judge try a case, reach a decision, and present his judgment in writing;
if later error shall appear in his decision, and it be through his own fault,
then he shall pay twelve times the fine set by him in the case, and he shall
be publicly removed from the judge’s bench, and never again shall he sit there to render judgment.
194
If a man give his child to a nurse and the child die in her hands, but the
nurse unbeknown to the father and mother nurse another child, then they
shall convict her of having nursed another child without the knowledge of
the father and mother and her breasts shall be cut off.
215
If a physician make a large incision with an operating knife and cure it, or
if he open a tumor (over the eye) with an operating knife, and saves the
eye, he shall receive ten shekels in money.
217
If he be the slave of some one, his owner shall give the physician two
shekels.
218
If a physician make a large incision with the operating knife, and kill him,
or open a tumor with the operating knife, and cut out the eye, his hands
shall be cut off.
219
If a physician make a large incision in the slave of a freed man, and kill
him, he shall replace the slave with another slave.
221
If a physician heal the broken bone or diseased soft part of a man, the
patient shall pay the physician five shekels in money.
ATHEISM
Atheism is the rejection of belief in any god, generally because atheists
believe there is no scientific evidence that can prove God exists. They
argue that there is no objective moral standard for right and wrong and that
ethics and morality are the products of culture and politics and are subject
to individual convictions.
Those of various religious faiths, however, believe there is
overwhelming evidence that there is reason to believe that God does exist
and that the evidence through historical documents, archeological finds,
and the vastness of space and time clearly supports and confirms the
existence of God. Christians often refer to the Old Testament and cite the
book of Isaiah:
It is He that sitteth upon the circle of the earth . . .
ISAIAH 40:22 (KING JAMES VERSION)
When citing this verse, Christians argue that Isaiah could not possibly
know that the earth is a circle. He presents no magical formula or scientific
argument in his writings as to why the earth is round. Furthermore, Isaiah
does not belabor the fact that the earth is round. The argument continues in
the book of Job:
He stretcheth out the north over the empty place, and hangeth the earth
upon nothing.
JOB 26:7 (KING JAMES VERSION)
The obvious question then arises, how did Job know, 3,000 years before
it became a scientific, verifiable fact, that the earth hangs upon nothing?
SITUATIONAL ETHICS
NEWSPAPER CLIPPINGS: Viet Cong Execution
“And out of nowhere came this guy who we didn’t know.” Gen. Nguyen Ngoc Loan, chief of South Viet Nam’s national police, walked up and shot the prisoner in the head. His reason: The prisoner, a Viet
Cong lieutenant, had just murdered a South Vietnamese colonel, his
wife, and their six children.
The peace movement adopted the photo as a symbol of the war’s brutality. Buy Adams, who stayed in touch with Loan, said the photo
wrongly stereotyped the man. “If you’re this general and you caught this guy after he killed some of your people . . . how do you know you
wouldn’t have pulled that trigger yourself? You have to put yourself in that situation. . . . It’s a war.”
1969 Spot News, Newseum, Washington, DC
Have we come so far or have we regressed so much that we have no
common rules, values, or boundaries to guide us? Have we lost our way?
Have we lost our sense as to what is right and what is wrong? We say we
have become a melting pot with some common themes but uncommon
beliefs. In religion, we sometimes seek a church not because we seek what
is right but because it supports our beliefs and sometimes our choice of
lifestyle.
Situational ethics is concerned with the outcome or consequences of an
action in which the ends justify the means. It refers to those times when a
person’s beliefs and values can change as circumstances change. People often contradict what they believe is right and do what is wrong. In other
words, good people sometimes do bad things. Why do good people behave
differently in similar situations? Why do good people sometimes do bad
things? It can happen frequently with a harsh word from another individual
or threatening situation. Thus, there is the need to say “I am so sorry,” “I overreacted,” “Please forgive me,” and so on. Doing good must become a habit—just as people develop bad habits in relationships, they can develop good habits.
A caregiver may contradict what he believes is the right thing to do and
do what is wrong. For example, a decision not to use extraordinary means
to sustain the life of an 84-year-old may result in a different decision if the
84-year-old is one’s mother. To better understand the concept of situational ethics, consider the
desire to live and the extreme measures one will take in order to do so,
remembering that ethical decision making is the process of determining the
right thing to do in the event of a moral dilemma. Consider the story of the
crash of a small airplane on October 13, 1972, in the Andes Mountains. Of
the original 40 passengers and five crew members, 16 survivors emerged
alive 72 days later to tell the story of the difficult survival decisions they
had made (see
http://www.guardian.co.uk/books/2006/may/18/extract.features11). They
ultimately survived by turning to cannibalism. This is a gruesome story
indeed, but it illustrates the lengths one may go to in certain situations
(situational ethics) in order to survive.
Here are some situational issues to discuss:
1. Describe how what you believe to be the right thing to do might change
as circumstances change.
2. Describe how your consultative advice might change based on a
patient’s needs, beliefs, and family influences.
REALITY CHECK: The Bailout Crumbles
Hillary was the lead consultant assigned to speak at a state-sponsored
conference. The purpose of the conference was to review new and
revised national regulations scheduled to be effective on January 1.
Hillary scheduled four junior consultants to speak with her on a variety
of topics. Rebecca, one of the more junior of the consultants, addressed
the right of patients to ask questions. She spoke about a program for
health care providers to encourage patients to speak up and ask
questions about any concerns they may have regarding their care.
Following her presentation, Rebecca asked for questions from the
audience. One participant said, “I really don’t understand the need for this regulation. Patients don’t seem to have a problem complaining.” Rebecca began to flounder as she attempted to continue answering the
questions of what seemed to be a generally disgruntled person. Hillary
listened intently but said nothing.
Jerome jumped to rescue Rebecca from the constant interruptions of
that day’s self-appointed antagonist in the audience. Jerome raised his hand, and after being recognized by Rebecca, he said, “Many patients are not afraid to ask questions and complain when they believe things
are not going right. These often are ambulatory patients who can leave
a particular provider if they become dissatisfied. Other, more seriously
ill patients may fear some sort of retaliation if they complain. This is
often the case in long-term care facilities.” A nurse in the audience disagreed. Jerome said, “I realize this is not the case with all patients. This fear can often arise, however, with an elderly person or extremely
ill individual who is weak and feels vulnerable to upsetting someone,
believing that his or her care could be compromised if he or she asks
too many questions or complains. Seniors have sometimes been abused
at home or in another care setting and are often not willing to risk
further confrontation.” Figuring a picture is worth 1,000 words, Jerome had asked for an
overhead projector and proceeded to show some newspaper clippings
illustrating why some patients have developed a fear to ask questions.
After the session was over, the audience member who had raised the
issue approached Jerome and said, “All caregivers are not like the ones you displayed.” Jerome said, “I agree. I tried to illustrate for you why some patients are fearful.” Jerome looked for Rebecca but learned that she had left the conference following her presentation.
Discussion
1. Do you agree with Jerome’s attempted bailout of Rebecca to counteract a difficult encounter with an audience participant?
2. What approach would you have taken? Explain your answer.
3. What lessons may be learned from this case?
4. Discuss how the various teachings in this chapter apply to each
character in this scenario, explaining how you would counsel each
conference presenter to address similar situations in the future.
THE FINAL ANALYSIS
People are often unreasonable, illogical and self-centered; forgive them
anyway. If you are kind, people may accuse you of selfish, ulterior
motives; be kind anyway. If you are successful, you will win some false
friends and some true enemies; succeed anyway. What you spend years
building, someone may destroy overnight; build anyway. The good you do
today, people will often forget tomorrow; do good anyway. Give the world
the best you have, and it may never be enough; give the world the best you
have anyway. You see, in the final analysis, it is between you and God; It
was never between you and them anyway.
AUTHOR UNKNOWN
REALITY CHECK: Compassion Comes in Different Forms
Annie, a 27-year-old woman with two children, began experiencing
severe pain in her abdomen while visiting her family in May 2002.
After complaining of pain to Mark, her husband, in June 2002, he
scheduled an appointment with Dr. Roberts, a gastroenterologist, who
ordered a series of tests. While conducting a barium scan, a radiologist
at Community Hospital noted a small bowel obstruction. Dr. Roberts
recommended surgery, and Annie agreed to it.
After the surgery, on July 7, Dr. Brown, the operating surgeon,
paged Mark over the hospital intercom as he walked down a corridor on
the ground floor. Mark, hearing the page, picked up a house phone and
dialed zero for an operator. The operator inquired, “May I help you?” “Yes,” Mark replied. “I was just paged.” “Oh, yes. Dr. Brown would like to talk to you. I will connect you with him. Hang on. Don’t hang up.” (Mark’s heart began to pound.) Dr. Brown asked, “Is this you,
Mark?” Mark replied, “Yes, it is.” Dr. Brown replied, “Well, surgery is over. Your wife is recovering nicely in the recovery room.” Mark was relieved but for a moment. “That’s good.” Dr. Brown continued, “I am sorry to say that she has carcinoma of the colon.” Mark replied, “Did you get it all?” “I am sorry, but the cancer has spread to her lymph nodes and surrounding organs,” the doctor said. Mark asked, “Can I see her?” Dr. Brown replied, “She is in the recovery room, but I am sure it will be okay to see her.” Before hanging up, Mark told Dr. Brown, “Please do not tell Annie that she has cancer. I want her to always have hope.” Dr. Brown agreed, “Don’t worry, I won’t tell her. You can tell her that she had a narrowing of the colon.”
Mark hung up the phone and proceeded to the recovery room. After
entering the recovery room, he spotted his wife. His heart sank. Tubes
seemed to be running out of every part of her body. He walked to her
bedside. His immediate concern was to see her wake up and have the
tubes pulled out so that he could take her home.
Later, in a hospital room, Annie asked Mark, “What did the doctor find?” Mark replied, “He found a narrowing of the colon.” “Am I going to be okay?” “Yes, but it will take a while to recover.” “Oh, that’s good. I was so worried,” said Annie. “You go home and get some rest.” Mark said, “I’ll see you in the morning.”
Mark left the hospital and went to see his friends, Jerry and Helen,
who had invited him for dinner. As Mark pulled up to Jerry and Helen’s home, he got out of his car and just stood there looking up a long
stairway leading to Jerry and Helen’s home. They were standing there looking down at Mark. It was early evening. The sun was setting. A
warm breeze was blowing, and Helen’s eyes were watering. Those few moments seemed like a lifetime. Mark discovered a new emotion as he
stood there speechless. He knew then that he was losing a part of
himself. Things would never be the same.
Annie had one more surgery two months later in a futile attempt to
extend her life. In November 2002, Annie was admitted to the hospital
for the last time. Annie was so ill that even during her last moments she
was unaware that she was dying. Dr. Brown entered the room and asked
Mark, “Can I see you for a few moments?” “Yes,” Mark replied. He followed Dr. Brown into the hallway. “Mark, I can keep Annie alive for a few more days, or we can let her go.” Mark, not responding, went
back into the room. He was now alone with Annie. Shortly thereafter, a
nurse walked into the room and gave Annie an injection. Mark asked,
“What did you give her?” The nurse replied, “Something to make her more comfortable.” Annie had been asleep; she awoke, looked at Mark, and said, “Could you please cancel my appointment at the university? I will have to reschedule my appointment. I don’t think I will be well enough to go tomorrow.” Mark replied, “Okay, try to get some rest.” Annie closed her eyes, never to open them again.
Discussion
1. Do you agree with Mark’s decision not to tell Annie about the seriousness of her illness? Explain your answer.
2. Should the physician have spoken to Annie as to the seriousness of
her illness? Explain your answer.
3. Describe the ethical dilemmas in this case (e.g., how Annie’s rights were violated).
4. Place yourself in Annie’s shoes, the physician’s shoes, and Mark’s shoes, and then discuss how the lives of each may have been
different if the physician had informed Annie as to the seriousness
of her illness.
5. In the final analysis, is it difficult to say who is right or wrong?
Discuss your answer.
THE MORAL COMPASS
NEWSPAPER CLIPPINGS: We No Longer Have a Moral Compass
Hartford Police Chief Daryl Roberts questioned the city’s “moral compass” a week after bystanders and drivers maneuvered around the motionless body of a 78-year-old victim of a hit-and-run crash.
“At the end of the day we’ve got to look at ourselves and understand that our moral values have now changed,” Roberts said. “We have no regard for each other.”
WFSB.com, Hartford, CT, June 6, 2008
The saying goes that if you don’t learn from history, you are doomed to repeat it. If you have not learned and do not apply the generally accepted
moral principles (e.g., do good and do no harm), the moral values (e.g.,
respect and compassion) described in this chapter, you will not have a
moral compass to guide you.
SUMMARY THOUGHT
Be careful of your thoughts, for your thoughts inspire your words. Be
careful of your words, for your words precede your actions. Be careful of
your actions, for your actions become your habits. Be careful of your
habits, for your habits build your character. Be careful of your character,
for your character decides your destiny.
CHINESE PROVERB
Although you cannot control the amount of time you have in this lifetime,
you can control your behavior by adopting the virtues and values that will
define who you are and what you will become and how you will be
remembered or forgotten.
Become who you want to be and behave how you want to be
remembered. The formula is easy and well described previously here in
what has been claimed to be a Chinese proverb. Read it. Reread it. Write it.
Memorize it. Display it in your home, at work, and in your car, and most of
all, practice it, always remembering that it all begins with thoughts.
My words fly up, my thoughts remain below: Words without thoughts
never to heaven go.
SHAKESPEARE
Control your thoughts, and do not let them control you. As to words,
they are the tools of thought. They can be sharper than any double-edged
sword and hurt, or they can do good and heal.
It is never too late to change your thoughts, as long as you have air to
breathe. Your legacy may be short, but it can be powerful. Remember the
Gettysburg address.
CHAPTER REVIEW
1. Ethics is the branch of philosophy that seeks to understand the nature,
purposes, justification, and founding principles of moral rules and the
systems they compose.
a. Microethics involves an individual’s view of what is right and wrong based on his or her life experiences.
b. Macroethics involves a more generalized view of right and wrong.
2. Bioethics addresses such difficult issues as the nature of life, the nature
of death, what sort of life is worth living, what constitutes murder, how
we should treat people who are especially vulnerable, and the
responsibilities we have to other human beings.
3. We study ethics to aid us in making sound judgments, good decisions,
and right choices.
4. Ethics signifies a general pattern or way of life, such as religious ethics;
a set of rules of conduct or “moral code,” which involves professional ethics; or philosophical ethics, which involves inquiry about ways of
life and rules of conduct.
5. Morality is a code of conduct. It is a guide to behavior that all rational
persons would put forward for governing the behavior of all moral
agents.
6. There is no “universal morality.” Whatever guide to behavior that an individual regards as overriding and wants to be universally adopted is
considered that individual’s morality. 7. Moral judgments are those judgments concerned with what an
individual or group believes to be the right or proper behavior in a
given situation.
8. Morality is often legislated when differences cannot be resolved
because of conflicting moral codes with varying opinions as to what is
right and what is wrong (e.g., abortion). Laws are created to set
boundaries for societal behavior, and they are enforced to ensure that
the expected behavior is followed.
9. The following are ethical theories:
a. Normative ethics is the attempt to determine what moral standards
should be followed so that human behavior and conduct may be
morally right.
b. General normative ethics is the critical study of major moral
precepts of such matters as what things are right, what things are
good, and what things are genuine.
c. Applied ethics is the application of normative theories to practical
moral problems. It is the attempt to explain and justify specific moral
problems such as abortion, euthanasia, and assisted suicide.
d. Descriptive ethics, also known as comparative ethics, deals with
what people believe to be right and wrong.
e. Meta-ethics seeks to understand ethical terms and theories and their
application.
f. The consequential theory emphasizes that the morally right action is
whatever action leads to the maximum balance of good over evil.
The consequential theory is based on the view that the value of an
action derives solely from the value of its consequences.
g. Utilitarian ethics involves the concept that the moral worth of an
action is determined solely by its contribution to overall utility, that
is, its contribution to happiness or pleasure as summed among all
persons.
h. Deontological ethics focuses on one’s duties to others. It includes telling the truth and keeping your promises. Deontology is an ethical
analysis according to a moral code or rules.
i. The nonconsequential ethical theory denies that the consequences of
an action or rule are the only criteria for determining the morality of
an action or rule.
j. Ethical relativism is the theory that holds that morality is relative to
the norms of one’s culture. 10. These are principles of ethics:
a. Beneficence describes the principle of doing good, demonstrating
kindness, showing compassion, and helping others.
i. Paternalism is a form of beneficence. It may involve withholding
information from a person because of the belief that doing so is in
the best interest of that person.
ii. Medical paternalism involves making choices for (or forcing
choices on) patients who are capable of choosing for themselves.
It directly violates patient autonomy.
b. Nonmaleficence is an ethical principle that requires caregivers to
avoid causing harm to patients.
c. Autonomy involves recognizing the right of a person to make his or
her own decisions.
d. Justice is the obligation to be fair in the distribution of benefits and
risks.
i. Distributive justice is a principle that requires treatment of all
persons equally and fairly.
11. Virtue Ethics and Values
a. Virtue is normally defined as some sort of moral excellence or
beneficial quality. In traditional ethics, virtues are characteristics that
differentiate good people from bad people.
b. Virtue ethics focuses on the inherent character of a person rather
than on the specific actions he or she performs.
12. Value is something that has worth. Values are used for judging the
goodness or badness of some action.
a. Ethical values imply standards of worth.
b. Intrinsic value is something that has value in and of itself.
c. Instrumental value is something that helps to give value to
something else (e.g., money is valuable for what it can buy).
d. Values may change as needs change.
13. Commonly accepted virtues and values include courage, wisdom,
temperance, commitment, compassion, conscientiousness,
cooperativeness, discernment, fairness, fidelity, freedom, honesty,
veracity, integrity, kindness, respect, hopefulness, education/learning as
a value, and tolerance.
14. Religious ethics serves a moral purpose by providing codes of conduct
for appropriate behavior through revelations from a divine source.
a. Judaism
b. Hinduism
c. Buddhism
d. Taoism
e. Zen
f. Christianity
g. Islam
15. Secular ethics is based on codes developed by societies that have relied
on customs to formulate their codes.
a. Code of Hammurabi
16. Atheism
17. Situational ethics describes how a particular situation may influence
how one’s reaction and values may change in order to cope with changing circumstances.
18. The Final Analysis
19. Moral Compass
20. Summary Thought
TEST YOUR UNDERSTANDING
Terminology
autonomy
beneficence
commitment
compassion
conscientiousness
consequential
cooperation
courage
distributive justice
discernment
ethical relativism
ethical theories
ethics
fairness
faith
fidelity
freedom
happiness
ethics honesty
hopefulness
humility
integrity
justice
kindness
medical paternalism
morality
moral values
nonconsequential ethics
nonmaleficence
normative ethics
paternalism
religious ethics
respect
secular ethics
situational ethics
veracity
virtues
REVIEW QUESTIONS
1. What is ethics?
2. Why should one study ethics?
3. What is morality?
4. Describe the ethical theories presented above.
5. Describe virtue ethics and values. How do virtues and values
differ?
6. Discuss why “courage” could be considered as the greatest of all virtues.
7. Discuss how religion can affect one’s character. 8. Discuss why politicians sometimes use religion as a means for their
own political aspirations.
9. What is the basis of secular ethics?
10. Describe the various ethical principles reviewed and how they
might be helpful in resolving health care ethical dilemmas.
11. Describe the principle of Justice and how it can affect the decision
making process.
12. Discuss the ethical dilemmas involved in the allocation of scarce
resources.
13. How might the concepts learned in this chapter affect how you
would allocate scarce resources in the provision of health care?
14. What is “situational ethics”? Why do people behave differently in different situations?
15. What is ethical relativism? What is the relevance of this concept to
individuals of various cultures living in the same society?
chapter two
Contemporary Ethical Dilemmas
No right is held more sacred, or is more carefully guarded, by the
common law, than the right of every individual to the possession and
control of his own person, free from all restraint or interference of
others, unless by clear and unquestioned authority of law.
UNION PAC. RY. CO. V. BOTSFORD 1
LEARNING OBJECTIVES
The reader upon completion of this chapter will be able to:
• Better understand ethical concepts and how they can be applied in the resolution of health care ethical dilemmas.
• Have a better understanding of the following common ethical dilemmas:
Abortion
AIDS
Artificial insemination
Organ donations
Research, experimentation, and clinical trials
Sterilization
Wrongful birth, wrongful life, and wrongful conception
Surrogacy
Human genetics
INTRODUCTION
An ethical dilemma arises in situations where a choice must be made
between unpleasant alternatives. It can occur whenever a choice involves
giving up something good and suffering something bad, no matter what
course of action is taken. Ethical dilemmas often require caregivers to
make decisions that may break some ethical norm or contradict some
ethical value. For example, should I choose life knowing that an unborn
child will be born with severe disabilities, or should I choose abortion and
thus prevent pain for both parent and child? Should I adhere to my spouse’s wishes not to be placed on a respirator, or should I choose life over death,
disregarding her wishes and right to self-determination? Should I
encourage the abortion my pregnant daughter—the victim of a gang rape— wants, or should I choose life and “do no harm” to the unborn child? Such dilemmas give rise to conflicting answers.
There is a wide range of ethical and legal issues impacting the health
care system. This chapter focuses on some of the more common ethical and
legal dilemmas facing the providers of health care. In reviewing this
chapter, the reader should apply the ethical theories, principles, and values
previously discussed.
NOTEWORTHY HISTORICAL EVENTS
I was created at the end of the Renaissance, watched pirates rude the
oceans as Ivan the Terrible ruled Russia, and witnessed the arrest of
Galileo for believing the earth revolved around the sun.
I AM HISTORY
The historical events presented in this section describe some of the
many milestones that have had a significant impact on health care ethics in
general.
58,000 to 68,000 BC
Evidence of belief in an afterlife was found in Neanderthal burial sites,
where various implements and supplies were buried with the deceased.
1932-1972
The Tuskegee Study of Syphilis, involving African American men, was
designed to analyze the natural progression of untreated syphilis. The study
was conducted from 1932 through the early 1970s. The participants were
not told during the study that there was a cure for syphilis (i.e., penicillin).
They believed that they were receiving adequate care and unknowingly
suffered unnecessarily. The Tuskegee syphilis study used disadvantaged,
rural black men to investigate the untreated course of a disease, one that is
by no means confined to that population. We know now that the selection
of research subjects must be closely monitored to ensure that specific
classes of individuals (e.g., terminally ill patients, welfare patients, racial
and ethnic minorities, or persons confined to institutions) are not selected
for research studies because of their easy availability, compromised
position, or manipulability. Rather, they must be selected for reasons
directly related to the research being conducted.
1932-1945
The Holocaust was one of the most violent events in human history. Over 6
million Jews were murdered as well as millions of people from other
cultural groups, including Slavs, homosexuals, and Gypsies.
1946
In 1946, the Military Tribunal for War Crimes began criminal proceedings
against 23 German physicians and administrators for war crimes and
crimes against humanity. As a direct result of these proceedings, the
Nuremberg Code was established, which made it clear that the voluntary
and informed consent of human subjects is essential to research and that
benefits of research must outweigh risks to human subjects involved. 2
1949
The International Code of Medical Ethics was adopted after it was learned
that the Nazis conducted numerous inhumane experiments on prisoners in
concentration camps. Prisoners were exposed to cholera, diphtheria,
malaria, mustard gas, yellow fever, and typhus, and forced to participate in
other horrendous experiments, ultimately claiming thousands of lives. This
exploitation of unwilling prisoners as research subjects was condemned as
a particularly flagrant injustice.
1954
The National Institutes of Health published guidelines on human
experimentation following the first kidney transplant 3 conducted in 1954.
The transplantation of human organs has generated numerous ethical issues
(e.g., the harvesting and selling of organs, who should have first access to
freely donated human organs, how death is defined).
1960s
Cardiopulmonary resuscitation was developed, leading to numerous
ongoing ethical dilemmas because it involves the prolonging of life beyond
what would reasonably be expected. Should limited resources, for example,
be spent on those who have been determined to be in a comatose vegetative
state with no hope of recovery? Should those resources be better spent on
preventative medicine that would improve the quality of life for all?
1964
The World Medical Association 4 established guidelines for medical doctors
conducting biomedical research involving human subjects. The
Declaration of Helsinki is the basis for good clinical practices today. 5
1968
The Harvard Ad Hoc Committee on Brain Death published criteria to
determine a permanently nonfunctioning brain, a condition it referred to as
“irreversible coma,” now known as brain death:
1. Patient shows total unawareness to external stimuli and
unresponsiveness to painful stimuli.
2. No movements or breathing: All spontaneous muscular movement,
spontaneous respiration, and response to stimuli are absent.
3. No reflexes: Fixed, dilated pupils; no eye movement even when hit or
turned, or when ice water is placed in the ear; no response to noxious
stimuli; no tendon reflexes.
In addition to these criteria, the report recommended adding the
presence of a flat electroencephalogram. 6
1970
The Patient as a Person by Paul Ramsey discusses the question of
paternalism. As physicians are faced with many options for saving lives,
transplanting organs, and furthering research, they also must wrestle with
new and troubling choices—for example, who should receive scarce resources (e.g., organ transplants), how to determine when life ends, and
what limits should be placed on care for the dying.
1971
The Joseph P. and Rose F. Kennedy Institute of Ethics was established at
Georgetown University in 1971 by a generous grant from the Joseph P.
Kennedy, Jr., Foundation. Today it is the world’s oldest and most comprehensive academic bioethics center. The institute and its library serve
as an unequaled resource for those who research and study ethics, as well
as those who debate and make public policy. The Kennedy Institute is
home to scholars who engage in research, teaching, and public service on
issues that include protection of research subjects, reproductive and
feminist bioethics, end-of-life care, health care justice, intellectual
disability, cloning, gene therapy, eugenics, and other major bioethical
issues. Institute scholars figure prominently among the pioneers of the
discipline. They are extending the boundaries of the field to incorporate
emerging issues of racial and gender equality, international justice and
peace, and other policies affecting the world’s most vulnerable populations.
7
1972
Informed consent in the Canterbury v. Spence 8 case set the reasonable man
standard, requiring informed consent for treatment. Patients must be
informed of the risks, benefits, and alternatives associated with
recommended treatments.
1973
The Roe v. Wade abortion case gave strength to a woman’s right to privacy in the context of matters relating to her own body, including how a
pregnancy would end.
1974
Because of publicity from the Tuskegee Syphilis Study, the National
Research Act (NRA) of 1974 was passed. The NRA created the National
Commission for the Protection of Human Subjects of Biomedical and
Behavioral Research. One of the commission’s charges was to identify the basic ethical principles that should underlie the conduct of biomedical and
behavioral research involving human subjects and to develop guidelines to
ensure that such research is conducted in accordance with those principles. 9
The commission was directed to consider the following: 10
1. The boundaries between biomedical and behavioral research and the
accepted and routine practice of medicine
2. The role of assessment of risk-benefit criteria in determining the
appropriateness of research involving human subjects
3. Appropriate guidelines for the selection of human subjects for
participation in such research
4. The nature and definition of informed consent in various research
settings
The Food and Drug Administration and the National Institutes of
Health internal policy guidelines became federal regulation.
1975
The first successful cloning of frogs was achieved.
1976
The New Jersey Supreme Court In the Matter of Karen Ann Quinlan 11
rendered a unanimous decision providing for the appointment of Joseph
Quinlan as personal guardian of his daughter Karen (substituted judgment).
Mr. Quinlan was granted full power to make decisions regarding her
treating physicians. After the concurrence of the guardian and family, if
Karen’s physicians concluded that there was no reasonable possibility of her emerging from her comatose condition to a cognitive, sapient state and
that her life-support apparatus should be withdrawn, they were to consult
with the ethics committee of the institution where Karen was then
hospitalized. If that consultative body concurred in the prognosis, the life-
support system could be withdrawn without any civil or criminal liability
on the part of any participant, whether it be the guardian, physician,
hospital, or others. In addressing itself to the question of possible homicide,
the court concluded that there is a valid distinction between withdrawing
life-support systems in cases such as Karen’s and the infliction of deadly harm either on one’s self or another. It saw a difference between Karen’s situation and the unlawful killing that is condemned in statutory law. The
court denied that the death following withdrawal of treatment would be
homicidal. Rather, it would be the result of previously existing natural
causes, not from the withdrawal of treatment, and, even if it were
considered homicide, it could not be unlawful if done pursuant to the
exercise of an explicitly recognized constitutional right.
In California, the first living will legislation was enacted, permitting a
person to sign a declaration stating that if there is no hope of recovery, no
heroic measures need to be taken to prolong life. This provision is now
available in every state.
1978
The President’s Commission for the Study of Ethical Problems in Medicine includes studies regarding the ethical and legal issues of informed consent
for research participants; the matter of defining death, including the
advisability of developing a uniform definition of death; the voluntary
testing, counseling, and information and education programs with respect
to genetic diseases and conditions, taking into account the essential
equality of all human beings, born and unborn; the differences in the
availability of health services, as determined by the income or residence of
the persons receiving the services; current procedures and mechanisms
designed to safeguard the privacy of human subjects of behavioral and
biomedical research, to ensure the confidentiality of individually
identifiable patient records and to ensure appropriate access of patients to
information; and such other matters relating to medicine or biomedical or
behavioral research as the president may designate for study by the
commission. 12
1980
The Hemlock Society was formed to advocate for physician-assisted dying
for the terminally ill, mentally competent patient.
1983
California enacted the first durable power of attorney legislation permitting
an advance directive to be made describing the kind of health care that one
would desire when facing death by designating an agent to act on the
patient’s behalf.
1990
The Patient Self-Determination Act of 1990 13
was enacted to ensure that
patients are informed of their rights to execute advance directives and
accept or refuse medical care.
The Supreme Court ruled that the parents of Nancy Cruzan, a 32-year-
old woman who had been unconscious since a 1983 car accident, could
have her feeding tube removed. 14
Dr. Jack Kevorkian assisted terminally ill patients in suicide outside the
boundaries of law. He used a suicide machine to assist Janet Adkins, a 54-
year-old woman with Alzheimer’s disease, in ending her life at her request. Timothy Quill, a primary care physician, published an article describing
how he had prescribed a lethal dose of sedatives to end the life of a young
woman whose suffering from leukemia had become unbearable.
Derek Humphry’s popular text, Final Exit: The Practicalities of Self- Deliverance and Assisted Suicide for the Dying, was published.
1993
In the case of DeGrella v. Elston, the Kentucky Supreme Court ruled on an
incompetent’s right to die. The decision determined that a patient’s wishes will be honored if the attending physician, the hospital, or nursing home
ethics committee where a patient resides and the legal guardian or next of
kin all agree upon and document the patient’s wishes and the patient’s condition. If no one disputes their decision, no court order is required to
proceed to carry out the patient’s wishes. Future criminal sanctions or civil liability turn not on the existence or absence of a court order, but on the
facts of the case. No liability attaches to a decision to refuse or withdraw
treatment if the necessary facts are established and carefully documented
by the parties involved. In contrast, the court cannot absolve the parties
from liability where the facts do not exist to support the action taken. 15
1994
Oregon’s Death with Dignity Act, involving physician-assisted suicide, became a legal medical option for terminally ill patients in Oregon. The
Oregon Death with Dignity Act allows terminally ill Oregon residents to
obtain from their physicians and use prescriptions for self-administered,
lethal medications.
1996
The Health Insurance Portability and Accountability Act (Public Law 104– 191) was enacted to protect the privacy, confidentiality, and security of
patient information.
The Second and Ninth U.S. Circuit Courts of Appeals ruled that there is
a constitutional right under the 14th Amendment for a terminally ill person
to receive help from a physician when dying.
1997
Physician-assisted suicide, through referendum, became a legal medical
option within narrowly prescribed circumstances for terminally ill Oregon
residents.
Kevorkian was charged with murder in five cases of physician-assisted
suicide and was acquitted.
The Supreme Court overturned both 1996 circuit decisions, ruling that
it is up to the states to enact laws regarding medically assisted death.
Dolly the Sheep was successfully cloned.
1998
Oregon voters reaffirm their support for the Death with Dignity Act by a
60% majority.
Kevorkian administered a lethal injection to Thomas Youk, a 52-year-
old man with Lou Gehrig’s disease, on national television. Michigan voters defeated a ballot measure that would legalize
physician-assisted suicide.
1999
Kevorkian was convicted of second-degree murder for Youk’s death and sentenced to 10 to 20 years in prison.
Twenty-three terminally ill patients were reported as having received
lethal doses of dedication since passage of Oregon’s Death with Dignity Act.
2001
President George W. Bush created the President’s Council on Bioethics. The council was charged with advising the President on bioethical issues
that may emerge as a consequence of advances in biomedical science and
technology.
U.S. Attorney General John Ashcroft abrogated former Attorney
General Janet Reno’s mandate allowing physician-assisted suicide. Instead, he decided that physician-assisted suicide was a violation of the federal
Controlled Substance Act. In State of Oregon v. Ashcroft, CV01-1647 (D-
Oregon), the judge allowed Oregon’s law to remain in effect. Since 1991, the total number of physician-assisted suicide cases totaled
129. On April 17, U.S. District Court Judge Robert Jones upheld the Death
with Dignity Act.
2002
Attorney General John Ashcroft filed an appeal, asking the Ninth U.S.
Circuit Court of Appeals to lift the District Court’s ruling.
2003
The human genome system became fully sequenced, allowing molecular
genetics and medical research to accelerate at an unprecedented rate. The
ethical implications of human genome research are as immense as the
undertaking of the totality of the research that was conducted to map the
human genome system (e.g., cloning of humans). 16
Forty-two residents of the State of Oregon ingested medications under
provisions of the Death with Dignity Act.
2004
The U.S. Circuit Court of Appeals upheld Oregon’s Death with Dignity Act, blocking the attempt by the U.S. Justice Department, under Attorney
General Ashcroft, to use the federal Controlled Substances Act to prevent
doctors in the state from prescribing drugs to assist the suicide of their
patients. The Ashcroft directive interfered with Oregon’s authority to regulate medical care within its borders and therefore altered the usual
constitutional balance between state and the federal governments. 17
2006
The Supreme Court voted six to three to uphold the Oregon physician-
assisted suicide law under the Death with Dignity Act.
The Food and Drug Administration approved the morning-after pill to
prevent contraception, for use without a prescription. This decision has
added another dimension to the ongoing controversy between right-to-life
and pro-choice advocates. Opponents claim that it is just another way to
end human life.
2010
Legislation was introduced in California that would make it the first state in
the country to build a living donor registry. Under Senate Bill 1395, people
could declare their wishes regarding organ donation by checking a box
when obtaining or renewing their driver’s license.
ABORTION
We shall have to fight the politician, who remembers only that the unborn
have no votes and that since posterity has done nothing for us we need do
nothing for posterity.
WILLIAM RALPH INGE (1860–1954)18
An abortion is the termination of pregnancy by the removal or
expulsion from the uterus of a fetus or embryo before it is viable. The
question of viability has been strongly debated between pro-life (the right
to life) and pro-choice (the right to choose) advocates. An abortion can be a
spontaneous abortion, often referred to as a miscarriage, or it can be an
elective abortion, meaning purposely induced, which continues to be a
hotly debated controversial issue nationwide. The controversy in its
simplest form involves the question of the rights of the fetus to be born and
the rights of the mother to make decisions regarding her body.
A consensus as to when life begins has not been reached. There has
been no final determination as to the proper interplay among a mother’s liberty, the interests of an unborn child, and the state’s interests in protecting life. In abortion cases, the law presupposes a theory of ethics and
morality, which in turn presupposes deeply personal ideas about being and
existence. Answers to such questions as when life begins define ethical
beliefs, and these ethical beliefs should determine how we govern
ourselves. Abortion in this context is less a question about constitutional
law and more about who we are as a people. This is a decision the Supreme
Court cannot make. Taking these issues out of the public discourse
threatens to foment hostility, stifle the search for answers, distance people
from the Constitution, and undermine the credibility of that document. 19
With more than 1 million abortions performed annually in the United
States, it is certain that the conflict between pro-choice and pro-life
advocates will continue to pervade America’s landscape. The issues are numerous and emotions run high. Common ethical concerns include:
• When does life begin? • Who decides? • Who protects the unborn fetus? • What are the rights of the child or woman who has been raped? • What are the rights of the spouse? • What are the rights of the father of an unwed child or woman? • What are the rights of society and the state to interfere with another’s
rights?
• Should the principles of autonomy and right to self-determination prevail?
• Should an abortion be considered murder? • Can the use of contraception be considered a form of killing by
preventing a birth that might have otherwise occurred?
• What are the religious implications of a woman who is Catholic, for example, who chooses to undergo an abortion?
• Is it morally acceptable to save the life of the mother by aborting the fetus?
• Is an abortion for mere convenience morally wrong? • Should a child or woman who has been raped have a right to abortion? • What role should education play in the woman’s decision to undergo an
abortion?
• What alternatives should the woman be educated about (e.g., the choice of adoption) before undergoing an abortion?
• At what age should the decision to abort be that of the mother? • Should the feelings of guilt that may accompany an abortion and how
those feelings may haunt the mother through the years be explained?
• Should the feelings that might occur after giving birth be explained to the victim of a rape (e.g., anger and resentment)?
• When does control over one’s body begin, and when does it end?
These are but a few of the many questions yet to be fully resolved. As
the following pages point out, for each new issue decided in the courts,
numerous new issues arise, all of which seem to involve both legal and
moral questions as to what is acceptable behavior in American society.
United States Supreme Court Decisions
Abortion is the premature termination of pregnancy. It can be classified as
spontaneous or induced. It may occur as an incidental result of a medical
procedure, or it may be an elective decision on the part of the patient. In
addition to having substantial ethical, moral, and religious implications,
abortion has proven to be a major political issue and will continue as such
in the future. More laws will be proposed, more laws will be passed, and
more lawsuits will wind their way up to the Supreme Court.
Woman’s Right to Privacy: Roe v. Wade (1973) Roe v. Wade was a landmark case that gave strength to a woman’s right to privacy in the context of matters relating to her own body, including how a
pregnancy would end; 20
however, the Supreme Court has also recognized
the interest of the states in protecting potential life and has attempted to
spell out the extent to which the states may regulate and even prohibit
abortions.
In Roe v. Wade, the United States Supreme Court held the Texas penal
abortion law unconstitutional, stating this: “State criminal abortion statutes . . . that except from criminality only a lifesaving procedure on
behalf of the mother, without regard to the stage of her pregnancy and other
interests involved, is violating the Due Process Clause of the Fourteenth
Amendment.”21
First Trimester
During the first trimester of pregnancy, the decision to undergo an abortion
procedure is between the woman and her physician. A state may require
that abortions be performed by a licensed physician pursuant to law;
however, a woman’s right to an abortion is not unqualified because the decision to perform the procedure must be left to the medical judgment of
her attending physician. “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to
the medical judgment of the pregnant woman’s attending physician.”22
Second Trimester
In Roe v. Wade, the Supreme Court stated, “For the stage subsequent to approximately the end of the first trimester, the State, in promoting its
interest in the health of the mother, may, if it chooses, regulate the abortion
procedure in ways that are reasonably related to maternal health.”23 Thus, during approximately the fourth to sixth months of pregnancy, the state
may regulate the medical conditions under which the procedure is
performed. The constitutional test of any legislation concerning abortion
during this period would be its relevance to the objective of protecting
maternal health.
Third Trimester
The Supreme Court reasoned that by the time the final stage of pregnancy
has been reached the state has acquired a compelling interest in the product
of conception, which would override the woman’s right to privacy and justify stringent regulation even to the extent of prohibiting abortions. In
the Roe v. Wade case, the court formulated its ruling as to the last trimester
in the following words: “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life, may, if it chooses,
regulate, and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health of
the mother.”24 Thus, during the final stage of pregnancy, a state may prohibit all
abortions except those deemed necessary to protect maternal life or health.
The state’s legislative powers over the performance of abortions increase as the pregnancy progresses toward term.
Conditional Restrictions Unconstitutional: Doe v.
Bolton (1973)
The Supreme Court then went on to delineate what regulatory measures a
state lawfully may enact during the three stages of pregnancy. In the
companion decision, Doe v. Bolton, 25
where the court considered a
constitutional attack on the Georgia abortion statute, further restrictions
were placed on state regulation of the procedure. The provisions of the
Georgia statute establishing residency requirements for women seeking
abortions and requiring that the procedure be performed in a hospital
accredited by the Joint Commission on Accreditation of Hospitals (JCAH)
were declared constitutionally invalid. In considering legislative provisions
establishing medical staff approval as a prerequisite to the abortion
procedure, the court decided that “interposition of the hospital abortion committee is unduly restrictive of the patient’s rights and needs that . . . have already been medically delineated and substantiated by her
personal physician. To ask more serves neither the hospital nor the State.”26 The court was unable to find any constitutionally justifiable rationale
for a statutory requirement of advance approval by the abortion committee
of the hospital’s medical staff. Insofar as statutory consultation requirements are concerned, the court reasoned that the acquiescence of
two co-practitioners has no rational connection with a patient’s needs and, further, unduly infringes on the physician’s right to practice.
Thus, by using a test related to patient needs, the court in Doe v. Bolton
struck down four pre-abortion procedural requirements commonly imposed
by state statutes: (1) residency, (2) performance of the abortion in a hospital
accredited by the JCAH, (3) approval by an appropriate committee of the
medical staff, and (4) consultations.
Parental Consent Requirement Unconstitutional:
Danforth v. Planned Parenthood (1976)
The Supreme Court ruled in Danforth v. Planned Parenthood 27
that it is
unconstitutional to require all women younger than the age of 18 years to
obtain parental consent in writing prior to obtaining an abortion. The court,
however, failed to provide any definitive guidelines as to when and how
parental consent may be required if the minor is too immature to
comprehend fully the nature of the procedure.
States May Deny Medicaid Benefits: Maher v. Roe
(1977)
In Maher v. Roe, 28
the Supreme Court considered the Connecticut statute
that denied Medicaid benefits for first-trimester abortions that were not
medically necessary. The court rejected the argument that the state’s subsidy of medical expenses incident to pregnancy and childbirth created
an obligation on the part of the state to subsidize the expenses incident to
nontherapeutic abortions. The Supreme Court voted six to three that the
states may refuse to spend public funds to provide nontherapeutic abortions
for women.
States May Protect Fetus: Colautti v. Franklin
(1979)
The Supreme Court in Colautti v. Franklin 29
voted six to three that the
states may seek to protect a fetus that a physician has determined could
survive outside the womb. Determination of whether a particular fetus is
viable is, and must be, a matter for judgment of the responsible attending
physician. State abortion regulations that impinge on this determination, if
they are to be constitutional, must allow the attending physician the room
that he or she needs to make the best medical judgment.
Parental Consent Requirement Unconstitutional:
Bellotti v. Baird (1979)
The Supreme Court in Bellotti v. Baird 30
ruled eight to one that a
Massachusetts statute requiring parental consent before an abortion could
be performed on an unmarried woman younger than the age of 18 years
was unconstitutional. Justice John P. Stevens, joined by Justices William J.
Brennan, Jr., Thurgood Marshall, and Harry Blackmun, concluded that the
Massachusetts statute was unconstitutional because under that statute as
written and construed by the Massachusetts Supreme Judicial Court, no
minor, no matter how mature and capable of informed decision making,
could receive an abortion without the consent of either both parents or a
superior court judge, thus making the minor’s abortion subject in every instance to an absolute third-party veto.
States May Deny Medicaid Benefits: Harris v.
McRae (1980)
In Harris v. McRae, 31
the Supreme Court upheld in a five-to-four vote the
Hyde Amendment, which restricts the use of federal funds for Medicaid
abortions. Under this case, the different states are not compelled to fund
Medicaid recipients’ medically necessary abortions for which federal reimbursement is unavailable, but may choose to do so.
Notification of Parents Permitted: H. L. v.
Matheson (1981)
The Supreme Court in H. L. v. Matheson, 32
by a six-to-three vote, upheld a
Utah statute that required a physician to “notify, if possible” the parents or guardian of a minor on whom an abortion was to be performed. In this
case, the physician advised the patient that an abortion would be in her best
medical interest but, because of the statute, refused to perform the abortion
without notifying her parents. The Supreme Court ruled that although a
state may not constitutionally legislate a blanket, unreviewable power of
parents to veto their daughter’s abortion, a statute setting out a mere requirement of parental notice when possible does not violate the
constitutional rights of an immature, dependent minor.
Conditional Restrictions Unconstitutional: City of
Akron v. Akron Center for Reproductive Health
(1983)
The Supreme Court in City of Akron v. Akron Center for Reproductive
Health 33
decided that the different states cannot (1) mandate what
information physicians give abortion patients or (2) require that abortions
for women more than 3 months pregnant be performed in a hospital. With
respect to a requirement that the attending physician must inform the
woman of specified information concerning her proposed abortion, it was
found unreasonable for a state to insist that only a physician is competent
to provide information and counseling relative to informed consent. A state
may not adopt regulations to influence a woman’s informed choice between abortion and childbirth.
With regard to a second-trimester hospital requirement, this could
significantly limit a woman’s ability to obtain an abortion. This is especially so in view of the evidence that a second-trimester abortion may
cost more than twice as much in a hospital as in a clinic.
Abortion Rights Narrowed: Webster v. Reproductive
Health Services (1989)
Webster v. Reproductive Health Services 34
began the court’s narrowing of abortion rights by upholding a Missouri statute providing that no public
facilities or employees should be used to perform abortions and that
physicians should conduct viability tests before performing abortions.
Refusal to Fund Abortion Counseling Not
Unconstitutional: Rust v. Sullivan (1991)
Federal regulations that prohibit abortion counseling and referral by family
planning clinics that receive funds under Title X of the Public Health
Service Act were found not to violate the constitutional rights of pregnant
women or Title X grantees in a decision by the Supreme Court in Rust v.
Sullivan. 35
Proponents of abortion counseling argue that the regulations
impermissibly burden a woman’s privacy right to abortion. Prohibiting the delivery of abortion information, even as to where such information could
be obtained, the regulations deny a woman her constitutionally protected
right to choose under the 1st Amendment. This question arises: How can a
woman make an informed choice between two options when she cannot
obtain information as to one of them? In Sullivan, however, the Supreme
Court found that there was no violation of a woman’s or provider’s 1st Amendment rights to freedom of speech.
Abortions Restrictions—Undue Burden Rule: Planned Parenthood v. Casey (1992)
In Planned Parenthood v. Casey, 36
the Supreme Court affirmed
Pennsylvania law restricting a woman’s right to abortion. The court was one vote shy of overturning Roe v. Wade. The Supreme Court ruling, as
enunciated in Roe v. Wade, reaffirmed:
• The constitutional right of women to have an abortion before viability of the fetus, as first enunciated in Roe v. Wade
• The state’s power to restrict abortions after fetal viability, so long as the law contains exceptions for pregnancies that endanger a woman’s life or health
• The principle that the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus
The Supreme Court rejected the trimester approach in Roe v. Wade,
which limited the regulations states could issue on abortion depending on
the development stage of the fetus. In place of the trimester approach, the
court will evaluate the permissibility of state abortion rules based on
whether they unduly burden a woman’s ability to obtain an abortion. A rule is an “undue burden” if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains
viability. The Supreme Court ruled that it is “not an undue burden” to require that a woman be informed of the nature of the abortion procedure
and the risks involved, be offered information on the fetus and alternatives
to abortion, and be given informed consent before the abortion procedure.
In addition, it is not an undue burden to require parental consent for a
minor seeking an abortion, providing for a judicial bypass option if the
minor does not wish to or cannot obtain parental consent, and requiring a
24-hour waiting period before any abortion can be performed.
Women’s Medical Professional Corp. v. Voinovich (1998)
The Supreme Court in Women’s Medical Professional Corp. v. Voinovich37 denied certiorari for the first partial-birth case to reach the federal appellate
courts. This case involved an Ohio statute that banned the use of the intact
dilation and extraction (D&X) procedure in the performance of any pre-
viability or post-viability abortion. The Sixth Circuit Court of Appeals held
that the statute banning any use of the D&X procedure was
unconstitutionally vague. It is likely that a properly drafted statute will
eventually be judged constitutionally sound.
Partial Birth Abortion Ban Struck Down: Stenberg
v. Carhart (2000)
On June 28, 2002, the United States Supreme Court struck down a
Nebraska ban on “partial-birth abortion,” finding it an unconstitutional violation of Roe v. Wade. The court found these types of bans to be extreme
descriptive attempts to outlaw abortion—even early in pregnancy—that jeopardizes women’s health [192 F.3d 1142 (8th Cir. 1999), 120 S. Ct. 2597 (2000)].
Partial Birth Abortion Ban Made Law (2003)
President Bush, on November 6, 2003, signed the first federal restrictions
banning late-term partial-birth abortions. (The partial-birth abortion, also
referred to as the D&X procedure, is a late-term abortion involving partial
delivery of the baby before its being aborted.) Both houses of Congress
passed the ban. The ban permits no exceptions when a woman’s health is at risk or the fetus has life-threatening disabilities. A U.S. District Court in
Nebraska issued a restraining order on the ban.
Hundreds of Thousands March to Support Abortion
Rights (2004)
Hundreds of thousands of men and women from more than 60 countries
marched in Washington, DC, on April 25, 2004, supporting women’s reproductive rights. The slogans at the rally included “Pro Choice—Pro Child,” “It’s Your Choice . . . Not Theirs,” “My Family My Choice,” “My Body My Choice,” “Justice for All,” “Who Decides?” and “Keep Abortion Legal.”
Informed Consent (2011)
NEWSPAPER CLIPPINGS: Judge Blocks Parts of Texas Abortion
Law on Sonograms
A federal judge temporarily blocked key provisions of a Texas abortion
law on Tuesday that would require women seeking the procedure to
view a sonogram and listen to the heartbeat of their fetus. . . .
Sparks, an Austin-based federal judge for the Western District of
Texas, also took a dim view of a provision that would force women
pregnant from rape or incest to certify that in writing if they do not
wish to hear a doctor’s explanation of the sonogram images. . . . Supporters of the bill have said it was necessary to protect the rights
of unborn children, while opponents said the measure was a basic
intrusion into the privacy rights of women and doctors. . . .
“Every life lost to abortion is a tragedy and today’s ruling is a great disappointment to all Texans who stand in defense of life,” [Texas governor Rick] Perry said in a statement.
Jim Forsyth, Reuters, August 30, 2010 38
CASE: INFORMED CONSENT FOR
ABORTIONS CHALLENGED
The plaintiffs in this case sought to represent the class of all Texas medical
providers performing abortions and the patients of such providers, by
challenging the constitutionality of Texas House Bill Number 15, an act
“relating to informed consent to an abortion” H.B. 15, 82nd Leg., Reg. Sess. (Tex. 2011) (“H.B. 15”).
In part, the act amends Chapter 171 of the Texas Health and Safety
Code to require the following as prerequisites for a woman’s informed and voluntary consent to an abortion: (1) the physician who is to perform the
abortion, or a certified sonographer agent thereof, must perform a
sonogram on the pregnant woman; (2) the physician must display the
sonogram images “in a quality consistent with current medical practice” such that the pregnant woman may view them; (3) the physician must
provide, “in a manner understandable to a layperson,” a verbal explanation of the results of the sonogram images, including a variety of detailed
descriptions of the fetus or embryo; and (4) the physician or certified
sonographer agent must “make . . . audible the heart auscultation for the pregnant woman to hear, if present, in a quality consistent with current
medical practice and provide . . . , in a manner understandable to a
layperson, a simultaneous verbal explanation of the heart auscultation,” H.B. 15, Sec. 2 (amending TEX. HEALTH & SAFETY CODE ANN. Ann.
§ 171.012). The U.S. District Court ordered, in part, that the defendants are
enjoined from penalizing a physician, criminally or otherwise, under the
act when multiple physicians perform an abortion, and any one of those
physicians, or a combination of them, comply with the act’s requirements; defendants are enjoined from penalizing either physician, criminally or
otherwise, under the act when one physician is scheduled to perform an
abortion and complies with the requirements of the act, but a different
physician actually performs the abortion because the original doctor is
unexpectedly unavailable on the procedure date; defendants are enjoined
from enforcing the penalty provisions of the act against either a physician
or a pregnant woman if the physician does not place the sonogram images
where the pregnant woman may view them, or does not make audible the
heart auscultation, if the pregnant woman elects not to view the images or
hear the heart auscultation; and defendants are enjoined from penalizing a
physician, criminally or otherwise, for the physician’s failure to provide the materials required by section 171.0123 of the act, in cases where the
physician does not know whether the woman has chosen to have an
abortion. 39
Discussion
1. Do you agree with the court’s ruling? Discuss your answer. 2. Do you think a woman should have to look at the sonogram of a child
she is about to abort? Discuss your answer.
3. What do you consider the pros and cons of this ruling?
State Abortion Statutes
The effect of the Supreme Court’s 1973 decisions in Roe and Doe was to invalidate all or part of almost every state abortion statute then in force.
The responses of state legislatures to these decisions were varied, but it is
clear that many state laws had been enacted to restrict the performance of
abortions as much as possible. Although Planned Parenthood v. Casey was
expected to clear up some issues, it is evident that the states have been
given more power to regulate the performance of abortions.
24-Hour Waiting Period Not Burdensome
The 1993 Utah Abortion Act Revision, Senate Bill 60, provides for
informed consent by requiring that certain information be given to the
pregnant woman at least 24 hours before performing an abortion. The law
allows for exceptions to this requirement in the event of a medical
emergency. The Utah Women’s Clinic, in Utah Women’s Clinic, Inc. v. Leavitt,
40 filed a 106-page complaint challenging the constitutionality of
the new Utah law. It was determined that the 24-hour waiting period did
not impose an undue burden on the right to an abortion. On appeal, a U.S.
District Court held that the Utah abortion statute’s 24-hour waiting period and informed consent requirements do not render the statute
unconstitutionally vague.
In 1992, the Supreme Court in Planned Parenthood of Southeastern
Pennsylvania v. Casey 41
determined that in asserting an interest in
protecting fetal life, a state may place some restrictions on pre-viability
abortions, so long as those restrictions do not impose an “undue burden” on the woman’s right to an abortion. The court determined that the 24-hour waiting period, the informed consent requirement, and the medical
emergency definitions did not unduly burden the right to an abortion and
were therefore constitutional.
“The abortion issue is obviously one that invokes strong feelings on both sides. Individuals are free to urge support for their cause through
debate, advocacy, and participation in the political process. The subject
also might be addressed in the courts so long as there are valid legal issues
in dispute. Where, however, a case presents no legitimate legal arguments,
the courthouse is not the proper forum. Litigation, or the threat of litigation,
should not be used as economic blackmail to strengthen one’s hand in the political battle.”42
Spousal Consent
Provisions of the Florida Therapeutic Abortion Act, which required a
married woman to obtain the husband’s consent before abortion, were found to be unconstitutional. The state’s interest was found not to be sufficiently compelling to limit a woman’s right to abortion. The husband’s interest in the baby was held to be insufficient to force his wife to face the
mental and physical risks of pregnancy and childbirth. 43
In Doe v. Zimmerman (1975), 44
the court declared unconstitutional the
provisions of the Pennsylvania Abortion Control Act, which required that
the written consent of the husband of a married woman be secured before
performing an abortion. The court found that these provisions
impermissibly permitted the husband to withhold his consent either
because of his interest in the potential life of the fetus or for capricious
reasons. The natural father of an unborn fetus in Doe v. Smith (1988) 45
was
not entitled to an injunction to prevent the mother from submitting to an
abortion. Although the father’s interest in the fetus was legitimate, it did not outweigh the mother’s constitutionally protected right to an abortion, particularly in light of evidence that the mother and father had never
married.
In the 1992 decision of Planned Parenthood v. Casey, the Supreme
Court ruled that spousal consent would be an undue burden on the woman.
Incompetent Persons’ Consent Abortion was found to be proper by a family court in In re Doe (1987)
46
for a profoundly retarded woman. She had become pregnant during her
residence in a group home as a result of a sexual attack by an unknown
person. The record had supported a finding that if the woman had been able
to do so she would have requested the abortion. The court properly chose
welfare agencies and the woman’s guardian ad litem (a guardian appointed to prosecute or defend a suit on behalf of a party incapacitated by infancy,
mental incompetence, etc.) as the surrogate decision makers.
Parental Consent
The trial court In re Anonymous (1987) 47
was found to have abused its
discretion when it refused a minor’s request for waiver of parental consent to obtain an abortion. The record indicated that the minor lived alone, was
within 1 month of her 18th birthday, lived by herself most of the time, and
held down a full-time job.
Parental Notification
The issue in Planned Parenthood v. Owens 48
is whether the Colorado
Parental Notification Act, 49
which requires a physician to notify the parents
of a minor prior to performing an abortion on her, violates the minor’s rights protected by the United States Constitution. The act, a citizen-
initiated measure, was approved at Colorado’s general election. The act generally prohibits physicians from performing abortions on an
unemancipated minor until at least 48 hours after written notice has been
delivered to the minor’s parent, guardian, or foster parent. The United States District Court decided that the act violated the rights
of minor women protected by the 14th Amendment. The Supreme Court,
for more than a quarter of a century, has required that any abortion
regulation except from its reach an abortion medically necessary for the
preservation of the mother’s health. The act fails to provide such a health exception.
Abortion and Conflicting Beliefs
Two or more ethical principles in conflict with one another are considered
“ethical dilemmas,” such as in the case of abortion. Further complication of ethical dilemmas occurs when laws and regulations affect the decision-
making process and, further, when the courts enter the melting pot by
interpreting laws and regulations while recognizing the rights of
individuals as provided under the Constitution.
To help us make choices in the resolution of ethical dilemmas, it is
often necessary to value one ethical principle more than another. The
difficulty in the abortion dilemma arises because beliefs, religion, culture,
education, and life experiences can differ from person to person. Good
people cannot be considered bad people merely because their beliefs differ
from another’s beliefs. Values differ, and, therefore, determinations of morality may differ.
It is certain that the controversies and ethical dilemmas surrounding
abortion will continue for many years to come.
CASE: BANNING ABORTION
March 9, 2004: Governor Michael Rounds of South Dakota vetoed
legislation that would have all but banned abortion in the state. The two
houses of South Dakota’s state legislature had voted overwhelmingly for the bill, which called for abortions to be banned in all cases except when a
woman’s life was in danger.
Ethical and Legal Issues
1. What are the ethical and legal issues in this case?
2. Are limited state funds being spent wisely, considering the financial
difficulties many states are already facing and the high cost of legal
fees in pursuing such issues?
3. Does the fact that this bill challenges the 1973 Roe v. Wade Supreme
Court ruling influence your thinking?
Pro-choice advocates argue that a woman has a right to choose
preservation and protection of her health, and therefore, in many cases, her
life is at least as compelling as the state’s interest in promoting childbirth. The protection of a fetus and promotion of childbirth cannot be considered
so compelling as to outweigh a woman’s fundamental right to choose and the state’s obligation to be evenhanded in the design and application of its health care policies.
CASE: UTAH WOMAN REFUSES C-SECTION
March 12, 2004: A 28-year-old Utah woman refused a C-section and was
charged with criminal homicide after one of her twins died prior to
delivery. The charge claimed that the mother showed a depraved
indifference to human life by ignoring medical advice to deliver her twins
by C-section. It is alleged that a nurse told police that the patient said she
would rather lose one of the babies than be cut.
Ethical and Legal Issues
1. If convicted, what should happen to mothers who smoke, drink, or
don’t follow their physician’s orders for diet and exercise? Explain your answer.
2. Is it okay to charge this mother for murder because some do not like
the choices she made? Discuss your answer.
There will most likely be a continuing stream of court decisions, as well as
political and legislative battles, well into the 21st century. Given the
emotional, religious, and ethical concerns, as well as those of women’s rights groups, it is unlikely that this matter will be resolved anytime soon.
Morality of Abortion
The morality of abortion is not a legal or constitutional issue; it is a matter
of philosophy, ethics, and theology. It is a subject on which reasonable
people can, and do, adhere to vastly divergent convictions and principles.
Our obligation is to define the liberty of all, not to mandate our own moral
code. 50
ACQUIRED IMMUNE DEFICIENCY SYNDROME
The epidemic of acquired immune deficiency syndrome (AIDS) is
considered to be the deadliest epidemic in human history. The first case
appeared in the literature in 1981. 51
It has been estimated that more than 21
million people have died of AIDS. 52
AIDS, generally, is accepted as a
syndrome—a collection of specific, life-threatening, opportunistic infections and manifestations that are the result of an underlying immune
deficiency. AIDS is caused by the human immunodeficiency virus (HIV)
and is the most severe form of the HIV infection. HIV is a highly
contagious blood-borne virus. It is a fatal disease that destroys the body’s capacity to ward off bacteria and viruses that ordinarily would be fought
off by a properly functioning immune system. Although there is no
effective long-term treatment of the disease, indications are that proper
management of the disease can improve the quality of life and delay
progression of the disease. Internationally, AIDS is posing serious social,
ethical, economic, and health problems.
CASE: FALSE-POSITIVE TEST RESULTS
The patient-plaintiff had a blood specimen drawn and sent to a laboratory
for testing for HIV. The laboratory informed the physician that his patient
tested positive for HIV. The patient was informed that he had AIDS. Not
believing that his symptoms mimicked those of an individual with AIDS,
the patient was retested for HIV. On three separate occasions involving
two separate laboratories, the patient tested negative for the virus. The
patient-plaintiff filed a lawsuit against his physician and laboratory for the
negligent interpretation and reporting of his blood samples as being HIV
positive.
The West Virginia Supreme Court of Appeals ruled that the plaintiff
had stated a claim for the negligent infliction of emotional distress. “Given the well-known fact that AIDS had replaced cancer as the most feared
disease in America and, as defendant . . . candidly acknowledges, a
diagnosis of AIDS is a death sentence, conventional wisdom mandates that
fear of AIDS triggers genuine—not spurious—claims of emotional distress.”53
Ethical and Legal Issues
1. Do you agree with the court’s finding? Explain your answer. 2. If this same reasoning applied to hundreds of cases at one hospital
laboratory, how would you determine awards? Consider what effect
the awards granted might have on the hospital’s financial viability, as well as the quality of services provided to the community. Discuss
your answer.
3. Review the news article at the end of this section on AIDS. Further
discuss your thoughts as to right and wrong, and how the theories and
principles of ethics might apply.
Spread of AIDS
AIDS is spread by direct contact with infected blood or body fluids, such as
vaginal secretions, semen, and breast milk. Currently, there is no evidence
that the virus can be transmitted through food, water, or casual body
contact. HIV does not survive well outside the body. Although there is
currently no cure for AIDS, early diagnosis and treatment with new
medications can help HIV-infected persons remain healthy for longer
periods. High-risk groups include those who have had unprotected sexual
encounters, intravenous drug users, and those who require transfusions of
blood and blood products, such as hemophiliacs.
Blood Transfusions
The administration of blood is considered to be a medical procedure. It
results from the exercise of professional medical judgment that is
composed of two parts: (1) diagnosis, deciding the need for blood, and (2)
therapy, the actual administration of blood.
Suits often arise as a result of a person with AIDS claiming that he or
she contracted the disease as a result of a transfusion of contaminated blood
or blood products. In blood transfusion cases, the standards most
commonly identified as having been violated concern blood testing and
donor screening. An injured party generally must prove that a standard of
care existed, that the defendant’s conduct fell below the standard, and that this conduct was the proximate cause of the plaintiff’s injury.
The most common occurrences that lead to lawsuits in the
administration of blood involve:
• Transfusion of mismatched blood • Improper screening and transfusion of contaminated blood • Unnecessary administration of blood • Improper handling procedures (e.g., inadequate refrigeration and storage
procedures)
The risk of HIV infection and AIDS through a blood transfusion has
been reduced significantly through health history screening and blood
donations testing. Since May 1985, all blood donated in the United States
has been tested for HIV antibodies. Blood units that do test positive for
HIV are removed from the blood transfusion pool.
AIDS and Health Care Workers
Although transmission of HIV from an infected physician to his or her
patient during invasive surgery is unlikely, it is a theoretical possibility and
therefore foreseeable. Because of the potentially deadly consequence of
such transmission, infected physicians should not engage in activity that
creates a risk of transmission.
The ever-increasing likelihood that health care workers will come into
contact with persons carrying the AIDS virus demands that health care
workers comply with approved safety procedures. This is especially
important for those who come into contact with blood and body fluids of
HIV-infected persons.
An AIDS-infected surgeon in New Jersey was unable to recover on a
discrimination claim when the hospital restricted his surgical privileges. In
Estate of Behringer v. Medical Center at Princeton (1991), 54
the New
Jersey Superior Court held that the hospital acted properly in initially
suspending a surgeon’s surgical privileges, thereafter imposing a requirement of informed consent and ultimately barring the surgeon from
performing surgery. The court held that in the context of informed consent,
the risk of a surgical accident involving an AIDS-positive surgeon and
implications thereof would be a legitimate concern to a surgical patient that
would warrant disclosure of the risk. “The ‘risk of harm’ to the patient includes not only the actual transmission of HIV from the surgeon to
patient but the risk of a surgical accident (i.e., a scalpel cut or needle stick),
which may subject the patient to post-surgery HIV testing.”55
Confidentiality
Guidelines drafted by the Centers for Disease Control and Prevention call
on health care workers who perform “exposure-prone” procedures to undergo tests voluntarily to determine whether they are infected. The
guidelines also recommend that patients be informed. Both health care
workers and patients claim that mandatory HIV testing violates their 4th
Amendment right to privacy. The dilemma is how to balance these rights
against the rights of the public in general to be protected from a deadly
disease.
State laws have been developed that protect the confidentiality of HIV-
related information. Some states have developed informational brochures
and consent, release, and partner notification forms. The unauthorized
disclosure of confidential HIV-related information can subject an
individual to civil and/or criminal penalties. Information regarding a
patient’s diagnosis as being HIV positive must be kept confidential and should be shared with other health care professionals only on a need-to-
know basis. Each person has a right to privacy as to his or her personal
affairs. The plaintiff surgeon in Estate of Behringer v. Medical Center at
Princeton (1991) 56
was entitled to recover damages from the hospital and
its laboratory director for the unauthorized disclosure of his condition
during his stay at the hospital. The hospital and the director had breached
their duty to maintain confidentiality of the surgeon’s medical records by allowing placement of the patient’s test results in his medical chart without limiting access to the chart, which they knew was available to the entire
hospital community. “The medical center breached its duty of confidentiality to the plaintiff, as a patient, when it failed to take reasonable
precautions regarding the plaintiff’s medical records to prevent the patient’s AIDS diagnosis from becoming a matter of public knowledge.”57
The hospital in Tarrant County Hospital District v. Hughes (1987) 58
was found to have properly disclosed the names and addresses of blood
donors in a wrongful death action alleging that a patient contracted AIDS
from a blood transfusion administered in the hospital. The physician– patient privilege expressed in the Texas Rules of Evidence did not apply to
preclude such disclosure because the record did not reflect that any such
relationship had been established. The disclosure was not an impermissible
violation of the donors’ right of privacy. The societal interest in maintaining an effective blood donor program did not override the
plaintiff’s right to receive such information. The order prohibited disclosure of the donors’ names to third parties.
In Doe v. University of Cincinnati (1988), 59
a patient who was infected
with HIV-contaminated blood during surgery brought an action against a
hospital and a blood bank. The trial court granted the patient’s request to discover the identity of the blood donor, and the defendants appealed. The
court of appeals held that the potential injury to a donor in revealing his
identity outweighed the plaintiff’s modest interest in learning of the donor’s identity. A blood donor has a constitutional right to privacy not to be identified as a donor of blood that contains HIV. At the time of the
plaintiff’s blood transfusion in July 1984, no test had been developed to determine the existence of AIDS antibodies. By May 27, 1986, all donors
donating blood through the defendant blood bank were tested for the
presence of HIV antibodies. Patients who had received blood from donors
who tested positive were to be notified through their physicians. In this
case, the plaintiff’s family was notified because of the plaintiff’s age and other disability.
Any new HIV-related regulations must continue to address the rights
and responsibilities of both patients and health care workers. Although this
will require a delicate balancing act, it must not be handled as a low-
priority issue by legislators.
CASE: DISCLOSURE OF PHYSICIAN’S HIV STATUS
The physician, Doe, was a resident in obstetrics and gynecology at a
medical center. In 1991, he cut his hand with a scalpel while he was
assisting another physician. Because of the uncertainty that blood had been
transferred from Doe’s hand wound to the patient through an open surgical incision, he agreed to have a blood test for HIV. His blood tested positive
for HIV, and he withdrew himself from participation in further surgical
procedures. The medical center and Harrisburg Hospital, where Doe also
participated in surgery, identified those patients who could be at risk. The
medical center identified 279 patients, and Harrisburg identified 168
patients, who fell into this category. Because hospital records did not
identify those surgeries in which physicians may have accidentally cut
themselves, the hospitals filed petitions in the Court of Common Pleas,
alleging that there was, under the Confidentiality of HIV-Related
Information Act [35 P.S. § 7608(a)(2)], a “compelling need” to disclose information regarding Doe’s condition to those patients who conceivably could have been exposed to HIV. Doe argued that there was no compelling
need to disclose the information and that he was entitled to confidentiality
under the act.
The Pennsylvania Supreme Court held that a compelling need existed
for at least a partial disclosure of the physician’s HIV status. The medical experts who testified agreed that there was some risk of
exposure and that some form of notice should be given to the patients at
risk. Even the expert witness presented by Doe agreed that there was at
least some conceivable risk of exposure and that giving a very limited
form of notice would not be unreasonable. Failure to notify the patients at
risk could result in the spread of the disease to other noninfected
individuals through sexual contact and through exposure to other body
fluids. Doe’s name was not revealed to the patients, only the fact that a resident physician who had participated in their care had tested HIV
positive. “No principle is more deeply embedded in the law than that expressed in the maxim Salus populi suprema lex . . . (The welfare of the
people is the supreme law), and a more compelling and consistent
application of that principle than the one presented would be quite difficult
to conceive.”60
Ethical and Legal Issues
1. Do you agree that there was a need for a partial disclosure of the
physician’s HIV status? 2. If “the welfare of the people is the supreme law,” did the court fall
short of its responsibility by not allowing disclosure of the physician’s name? Discuss your answer.
AIDS: The Right to Treatment
More and more health care organizations are expressing in their ethics
statements that HIV-infected patients have a right not to be discriminated
against in the provision of treatment. The Ethics Committee of the
American Academy of Dermatology, for example, states that “it is unethical for a physician to discriminate against a class or category of
patients and to refuse the management of a patient because of medical risk,
real or imagined.”61 Patients with HIV infection, therefore, should receive the same compassionate and competent care given to other patients.
News Media and Confidentiality
The Pennsylvania Superior Court in Stenger v. Lehigh Valley Hospital
Center 62
upheld the Court of Common Pleas’ order denying the petition of The Morning Call, Inc., which challenged a court order closing judicial
proceedings to the press and public in a civil action against a hospital and
physicians. A patient and her family had all contracted AIDS after the
patient received a blood transfusion. The access of the media to pretrial
discovery proceedings in a civil action is subject to reasonable control by
the court in which the action is pending. The protective order limiting
public access to pretrial discovery material did not violate the newspaper’s 1st Amendment rights. The discovery documents were not judicial records
to which the newspaper had a common-law right of access. Good cause
existed for nondisclosure of information about the intimate personal details
of the plaintiffs’ lives, disclosure of which would cause undue humiliation.
CASE: ADMINISTRATION OF THE WRONG
BLOOD
The patient-plaintiff in Bordelon v. St. Francis Cabrini Hospital (1994) 63
was admitted to the hospital to undergo a hysterectomy. Before surgery,
she provided the hospital with her own blood in case it was needed during
surgery. During surgery, the patient did indeed need blood but was
administered donor blood other than her own. The patient filed a lawsuit
claiming that the hospital’s failure to provide her with her own blood resulted in her suffering mental distress.
The Court of Appeals held that the plaintiff stated a cause of action for
mental distress. It is well established in law that a claim for negligent
infliction of emotional distress unaccompanied by physical injury is a
viable claim of action. It is indisputable that HIV can be transmitted
through blood transfusions even when the standard procedure for screening
for the virus is in place. The plaintiff’s fear was easily associated with
receiving someone else’s blood and therefore a conceivable consequence of the defendant’s negligent act. The hospital had a “duty” to administer the plaintiff’s own blood. The hospital breached that duty by administering the wrong blood.
Ethical and Legal Issues
1. Do you agree with the court’s decision? Explain your answer. 2. In cases such as this, do you believe that financial awards are effective
in preventing future incidents? Explain your answer.
CASE: ERRORS POSSIBLE IN HIV TESTS
According to an article in the Baltimore Sun on March 11, 2004,
approximately 640 patients at Maryland General Hospital may have
received incorrect HIV and hepatitis test results. Some patients might have
been told they were HIV-negative when in fact they were positive and vice
versa, and the hospital failed to notify the patients of the problem. A
former hospital employee had apparently filed a complaint. State health
officials discovered in January that the hospital’s laboratory personnel overrode controls in the testing equipment that showed the results might be
in error and then mailed them to patients anyway. 64
Ethical and Legal Issues
1. What ethical theories and principles were violated in this case?
2. What are the legal concerns for the hospital?
CASE: HIV AUTONOMY AND
CONFIDENTIALITY
Jones, a divorcee with two children, was sentenced to 10 years in prison
for repeated robberies of three banks. He was in prison for 8 years. His
wife, Nora, disappeared shortly after he was sentenced. Five of his close
inmate friends at Sing Prison had tested positive for the HIV virus and had
since passed away. Prison officials wanted to test Jones for the HIV virus.
He objected and sought legal counsel. Local school officials were
informed of the deaths of Mr. Jones’s friends and his refusal to be tested for the HIV virus. Strangely, the community at large became aware of
Jones’s situation and the fact that his children were attending school with their children. The parents insisted that the Jones kids be removed from
school or else they would remove their children from class. Meanwhile,
Nora showed up at a local navy recruiting station posing as a single
woman with no children. She admitted to being bisexual several years
earlier but claimed that she was now straight. The navy learned of this
situation and required her to undergo HIV testing. She objected and sought
legal counsel.
Ethical and Legal Issues
1. What are Mr. Jones’s rights? 2. What are the rights of other prisoners?
3. What are the rights of the children?
4. What are the rights of the parents?
5. Is there a legitimate need for a physician to disclose otherwise
confidential testing data to the spouse and other intimate sexual
partners of an HIV-infected patient?
NEWSPAPER CLIPPINGS: Basketball Camp’s Exclusion of HIV- Positive Boy Ruled Discrimination
An HIV-positive 10-year-old boy was discriminated against when he
was denied admission to a New York basketball camp, a federal judge
has ruled. Judge Donald C. Pogue granted a motion for declaratory
relief, finding the camp had violated the Americans with Disabilities
Act. “The court agrees that defendants were obligated to protect other campers from a very serious, life-threatening viral infection,” Pogue said. “But this obligation does not excuse defendants’ actions when based on unsubstantiated fears.”
Mark Hamblet, New York Law Journal, January 22, 2010
CASE: DISCRIMINATION IN THE
COMMUNITY
The plaintiff Adam Doe claimed that the defendants, Deer Mountain Day
Camp, Inc. (DMDC) and Deer Mountain Basketball Academy (DMBA),
discriminated against him by denying him admission to a basketball camp
on the basis of his disability, an HIV infection, in violation of the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-213 (2000) (“ADA”) and the New York State Human Rights Law (NYHRL), N.Y. Exec. Law §§ 290-301 (2004) (“NYHRL”).
Adam had contracted HIV at birth due to a perinatal infection. He took
antiretroviral medications to treat his condition, and his syndrome has been
undetectable for years. On the advice of Dr. Neu, Adam’s HIV specialist, Adam and his mother had kept and continued to keep Adam’s HIV- seropositivity confidential. Adam liked to play basketball, and in 2004, his
HIV clinic recommended that he attend a basketball camp.
Mrs. Doe had been notified that the camp was unable to make
reasonable accommodations for Adam and, as a consequence, they could
not allow him to attend DMBA. According to Mrs. Doe, she was told that
Adam could potentially transmit HIV through blood in his urine or in his
stool. Mrs. Doe denied that Adam had problems with bloody stool or urine.
Mrs. Doe, however, was told that DMBA could not accept Adam. She later
received a refund of Adam’s admission fees. The plaintiff brings this action for violations of Title III of the ADA
and the NYHRL, arguing that the defendants unlawfully discriminated
against him on the basis of his disability, i.e., his HIV-seropositivity, by
excluding him from participation in the basketball camp. To redress his
injuries, including emotional and psychological harm, Adam requested
declaratory, compensatory, and injunctive relief, as well as attorney’s fees and costs.
Both parties made motions for summary judgment. The defendants
failed to present any evidence of the objective reasonableness of their
determination that the plaintiff’s condition posed a threat to other campers. In their cross motions for summary judgment, the parties placed before
the court the issues of whether HIV-seropositivity qualifies as a
“disability” and whether defendants’ denial of admission constitutes discrimination “on the basis of” that disability. The plaintiff’s motion argued that the defendants conclusively qualify as “public accommodations,” thus prohibiting them from engaging in such discrimination.
The United States District Court, S.D. of New York, granted the
plaintiff’s motion for Summary Judgment of ADA and NYHRL declaratory relief, as to DMDC’s discrimination “on the basis of” Adam’s disability, and denied the defendants’ motion for summary judgment in its entirety.
65
Ethical and Legal Issues
1. Since Adam’s HIV syndrome has been undetectable for years, discuss why you agree or disagree with the basketball camp’s decision to revoke Adam’s registration.
2. Do you agree with the court’s ruling? Discuss your answer.
ARTIFICIAL INSEMINATION
NEWSPAPER CLIPPINGS: Octuplets’ Mom: Can She Afford to Raise 14 Kids?
University of Pennsylvania bioethicist Arthur Caplan said there are
serious ethical concerns surrounding the decision to move forward with
multiple-fetus pregnancies—particularly if the babies were conceived through in-vitro fertilization, which Suleman has indicated was the case
with her daughter.
“Anyone who transfers eight embryos should be arrested for malpractice,” Caplan said.
Maria Yamaguchi, Associated Press, February 5, 2009
Artificial insemination is the process by which sperm is placed into the
reproductive tract of a female, for the purpose of impregnating the female
by using means other than sexual intercourse. There are two sources of the
sperm for impregnation of a female: (1) Homologous artificial
insemination involves the use of the husband’s semen to impregnate the female; and Heterologous artificial insemination involves the use of semen
from a donor other than a woman’s husband. The absence of answers to many questions concerning heterologous artificial insemination may
discourage couples from seeking to use the procedure and physicians from
performing it. Some of the questions concern the procedure itself; others
concern the status of the offspring and the effect of the procedure on the
marital relationship.
Consent
The Oklahoma heterologous artificial insemination statute specifies that
husband and wife must consent to the procedure. 66
It is obvious that the
wife’s consent must be obtained; without it, the touching involved in the artificial insemination would constitute a battery. Besides the wife’s consent, it is important to obtain the husband’s consent to ensure against liability accruing if a court adopted the view that without the consent of the
husband, heterologous artificial insemination was a wrong to the husband’s interest, for which he could sustain a suit for damages.
The Oklahoma statute also deals with establishing proof of consent. It
requires the consent to be in writing, and it must be executed and
acknowledged by the physician performing the procedure and by the local
judge who has jurisdiction over the adoption of children, as well as by the
husband and wife.
In states without specific statutory requirements, medical personnel
should attempt to avoid such potential liability by establishing the practice
of obtaining the written consent of the couple requesting the heterologous
artificial insemination procedure.
Confidentiality
Another problem that directly concerns medical personnel involved in
heterologous artificial insemination birth is preserving confidentiality. This
problem is met in the Oklahoma heterologous artificial insemination
statute, which requires that the original copy of the consent be filed
pursuant to the rules for filing adoption papers and is not to be made a
matter of public record. 67
ORGAN DONATIONS
Federal regulations require that hospitals have and implement written
protocols regarding their organ procurement responsibilities. The
regulations impose specific notification duties, as well as other
requirements concerning informing families of potential donors. It
encourages discretion and sensitivity in dealing with the families and in
educating hospital staff on a variety of issues involved with donation
matters in order to facilitate timely donation and transplantation.
Organ transplantation is done to treat patients with end-stage organ
disease who face organ failure. Developments in medical science have
enabled physicians to take tissue from persons immediately after death and
use it to replace or rehabilitate diseased or damaged organs or other parts of
living persons. Interest in organ transplantation began about 25 years ago
when attempts were made to transplant kidneys between twins. 68
Success
rates have improved because of better patient selection, improved clinical
and operative management and skills, and immunosuppressant drugs that
aid in decreasing the incidence of tissue rejection (e.g., cyclosporin A,
which acts to suppress the production of antibodies that attack transplanted
tissue); nevertheless, this progress has created the problem of obtaining a
sufficient supply of replacement body parts. There is a corresponding cry
for more organs as the success rate in organ transplantation increases.
Because of the fear of people buying and selling organs, the National
Organ Procurement Act was enacted in 1984, making it illegal to buy or
sell organs. Throughout the country, there are tissue banks and other
facilities that store and preserve organs and tissue that can be used for
transplantation and other therapeutic services.
The ever-increasing success of organ transplants and the demand for
organ tissue require the close scrutiny of each case, to make sure that
established procedures have been followed in the care and disposal of all
body parts. Section 1138, Title XI, of the Omnibus Budget Reconciliation
Act of 1986 requires hospitals to establish organ procurement protocols or
face a loss of Medicare and Medicaid funding. Physicians, nurses, and
other paramedical personnel assigned this responsibility often are
confronted with several legal issues. Liability can be limited by complying
with applicable regulations. Organs and tissues to be stored and preserved
for future use must be removed almost immediately after death; therefore,
it is imperative that an agreement or arrangement for obtaining organs and
tissue from a body be completed before death, or very soon after death, to
enable physicians to remove and store the tissue promptly.
There is a shortage of cadavers needed for medical education and
transplantation. Some people may wish to make arrangements for the use
of their bodies after death for such purposes. A surviving spouse may,
however, object to such disposition. In such cases, the interest of the
surviving spouse or other family member could supersede that of the
deceased.
Who Lives? Who Dies? Who Decides?
Who lives? Who dies? Who decides? These are but a few of the ethical
questions that arise when deciding to whom an organ shall be given. The
answers are not easy. The decision makers, even with guidelines to follow,
often become the judge and jury and often find that the answers to who
lives and dies are not always easy to determine. If there were unlimited
sources of organs, there would be no supply-and-demand issues. Because
there is not an unlimited supply, numerous ethical principles come into
play. In the case of a 70-year-old patient with multiple life-threatening
health problems, the patient may not be considered a suitable candidate for
a transplant, whereas a 15-year-old patient with few health issues would be
considered a more appropriate candidate.
Uniform Anatomical Gift Act
The American Bar Association has endorsed a Uniform Anatomical Gift
Act drafted by the Commission on Uniform State Laws. This statute has
been enacted by all 50 states and has many detailed provisions that apply to
the wide variety of issues raised in connection with the making,
acceptance, and use of anatomical gifts. The act allows a person to make a
decision to donate organs at the time of death and allows potential donors
to carry an anatomical donor card. State statutes regarding donation usually
permit the donor to execute the gift during his or her lifetime.
The right to privacy of the donor and his or her family must be
respected. Information should not be disseminated regarding transplant
procedures that publishes the names of the donor or donee without
adequate consent.
States have enacted legislation to facilitate donation of bodies and body
parts for medical uses. Virtually all of the states have based their
enactments on the Uniform Anatomical Gift Act, but it should be
recognized that in some states there are deviations from this act or
additional laws dealing with donation.
Individuals who are of sound mind and 18 years of age or older are
permitted to dispose of their own bodies or body parts by will or other
written instrument for medical or dental education, research, advancement
of medical or dental science, therapy, or transplantation. Among those
eligible to receive such donations are any licensed, accredited, or approved
hospitals; accredited medical or dental schools; surgeons or physicians;
tissue banks; or specified individuals who need the donation for therapy or
transplantation. The statute provides that when only a part of the body is
donated, custody of the remaining parts of the body shall be transferred to
the next of kin promptly after removal of the donated part.
A donation by will becomes effective immediately on the death of the
testator, without probate, and the gift is valid and effective to the extent that
it has been acted on in good faith. This is true even if the will is not
probated or is declared invalid for testimonial purposes.
Failure to Obtain Consent
Although failure to obtain consent for removal of body tissue can give rise
to a lawsuit, not all such claims are successful. In Nicoletta v. Rochester
Eye & Human Parts Bank, 69
emotional injuries resulted from the removal
of the eyes of Nicoletta’s son for donation after a fatal motorcycle accident. The hospital was immune from liability under the provisions of the
Uniform Anatomical Gift Act because the hospital had neither actual nor
constructive knowledge that the woman who had authorized the donation
was not the decedent’s wife. The hospital was entitled to the immunity afforded by the “good faith” provisions of Section 4306(3) of the act, under which its agents had made reasonable inquiry as to the status of the
purported wife, who had resided with the decedent for 10 years and was the
mother of their two children. The hospital had no reason to believe that any
irregularity existed. The father, who was present at the time his son was
brought to the emergency department, failed to object to any organ
donation and failed to challenge the authority of the purported wife to sign
the emergency department authorization.
There are several methods by which a donation may be revoked. If the
document has been delivered to a named donee, it may be revoked by:
• A written revocation signed by the donor and delivered to the donee • An oral revocation witnessed by two persons and communicated to the
donee
• A statement to the attending physician during a terminal illness that has been communicated to the donee
• A written statement that has been signed and is on the donor’s person or in the donor’s immediate effects
If the written instrument of donation has not been delivered to the
donee, it may be revoked by destruction, cancellation, or mutilation of the
instrument. If the donation is made by a will, it may be revoked in the
manner provided for revocation or amendment of wills. Any person acting
in good-faith reliance on the terms of an instrument of donation will not be
subject to civil or criminal liability unless there is actual notice of the
revocation of the donation.
RESEARCH, EXPERIMENTATION, AND CLINICAL
TRIALS
NEWSPAPER CLIPPINGS: Coddling Human Guinea Pigs
Endless red tape and paternalism toward study volunteers is having a
stifling effect on clinical research.
Let’s agree that people who are altruistic enough to volunteer for experiments should know what they’re in for if the study is testing a drug that has harmed lab animals, for instance, or if it involved a
psychological manipulation that might have emotional scars. That’s why all federal funded research on people must be vetted by panels
charged with protecting “human subjects.” Doing studies on people “is so full of red tape that even experienced
researchers are increasingly reluctant to tackle it,” a scientist from the University of California, San Diego, told me. “It is so much simpler to deal with a mouse.” But haven’t we cured enough of them?
Sharon Begley, Newsweek, August 25, 2008
A research study is designed to answer specific questions, sometimes about
a drug or device’s safety and its effectiveness. Being in a research study is different from being a patient. For patients, one’s personal physician has a great deal of freedom in making health care decisions. For research
subjects, the protocol director and the research staff follow the rules of the
research study (protocol) as closely as possible, without compromising the
patient’s health.70 Ethical principles relevant to the ethics of research involving human
subjects include respect for person, beneficence, and justice. These
principles cannot always be applied to resolve ethical problems beyond
dispute. The objective in applying ethical principles is to provide an
analytical framework that will guide the resolution of ethical problems
arising from research involving human subjects.
Ethical considerations that must be addressed when conducting
research on human subjects include: personal autonomy, self-
determination, the ethical considerations involved in using persons as
subjects of research, the Hippocratic maxim of “do no harm” and the Hippocratic oath’s requirement that physicians benefit their patients “according to their best judgment,” research involving subjects, and various meanings of the term “justice,” such as whether burdens are to be distributed to each person equally, to each according to his needs, to each
according to his societal contribution, or to each according to merit.
The science of medicine, by the very nature of that which it studies, the
human body, is often prevented from making progress through direct
experimentation. It must resort to necessary tests in laboratories and on
animals, whose reactions are similar to humans, but most of all, it advances
by observing how the body functions in health and in disease. It is natural
that much of this laboratory experimentation and clinical observation
should be done in the hospital. To increase the possibility of advancement
by observation, clinical records must be accurate and complete in every
case, no matter how trivial, and they should be preserved in such a manner
as to be available for the study of similar cases. New remedies of all kinds
should be tried out under conditions that favor accurate observation.
Laboratories should be available under the direction of scientific
physicians, and results of examinations should be carefully compiled and
studied. Systematized research is possible only when directed by a
physician with a scientific specialty, and it is rare not to find one such
individual working in every hospital.
Medical progress and improved patient care are dependent on advances
in medicine made through research. The basic principle of research is
honesty, which must be ensured through institutional protocols. Fraud in
research is not uncommon, and it must be condemned and punished.
Honesty and integrity must govern all stages of research.
The Nuremberg Code and the Declaration of Helsinki is an
international code of ethics that governs human research and
experimentation. It was set in place after the discovery of Nazi medical
atrocities of World War II. The code requires that human subjects be fully
informed as to the nature and societal benefits of the research being
undertaken. The code provides guidelines for the development of federal
regulations for medical research and the protection of human subjects.
Federal regulations control federal grants that apply to experiments
involving new drugs, new medical devices, or new medical procedures.
Generally, a combination of federal and state guidelines and regulations
ensures proper supervision and control over experimentation that involves
human subjects. For example, federal regulations require hospital-based
researchers to obtain the approval of an institutional review board. This
board functions to review proposed research studies and conduct follow-up
reviews on a regular basis.
Informed Consent
Physicians have a clear duty to inform patients about the risks and benefits
of an experimental procedure, as well as about the alternatives to a
proposed experimental procedure.
Written consent should be obtained from each patient who participates
in a clinical trial. Consent should include the risks, benefits, and
alternatives to the proposed treatment protocol. The consent form must not
contain any coercive or exculpatory language through which the patient is
forced to waive his or her legal rights, including the release of the
investigator, sponsor, or organization from liability for negligent conduct.
Organizations conducting clinical trials on human subjects, at the very
least, must:
• Fully disclose to the patient the inherent risks, benefits, and treatment alternatives to the proposed research protocol(s)
• Determine the competency of the patient to consent • Obtain written consent from the patient • Educate the staff as to the potential side effects, implementation of, and
ongoing monitoring of protocols
• Require financial disclosure issues associated with the protocols Promote awareness of ethical issues
Promote education in regard to ethical decision making
Increase nurse participation in ethical decision making
Have ongoing monitoring of approved protocols
Experimental Subject’s Bill of Rights The following is a bill of rights developed by the Veterans Administration
system for patients involved in research studies. Human subjects have the
following rights. These rights include, but are not limited to, the subject’s right to:
71
• Be informed of the nature and purpose of the experiment • Be given an explanation of the procedures to be followed in the medical
experiment and any drug or device to be used
• Be given a description of any attendant discomforts and risks reasonably to be expected
• Be given an explanation of any benefits to the subject reasonably to be expected, if applicable
• Be given a disclosure of any appropriate alternatives, drugs, or devices that might be advantageous to the subject, their relative risks, and
benefits
• Be informed of the avenues of medical treatment, if any, available to the subject after the experiment if complications should arise
• Be given an opportunity to ask questions concerning the experiment or the procedures involved
• Be instructed that consent to participate in the medical experiment may be withdrawn at any time and the subject may discontinue participation
without prejudice
• Be given a copy of the signed and dated consent form • Be given the opportunity to decide to consent or not to consent to a
medical experiment without the intervention of any element of force,
fraud, deceit, duress, coercion, or undue influence on the subject’s decision
CASE: MEDICAL RESEARCH AND DUTY TO
WARN
About 5,000 patients at Michael Reese Hospital and Medical Center,
located in Chicago, Illinois, were treated with X-ray therapy for some
benign conditions of the head and neck from 1930 to 1960. Among them
was Joel Blaz, now a citizen of Florida, who received this treatment for
infected tonsils and adenoids while a child in Illinois from 1947 through
1948. He has suffered various tumors, which he now attributes to this
treatment. Blaz was diagnosed with a neural tumor in 1987.
In 1974, Michael Reese set up the Thyroid Follow-Up Project to gather
data and conduct research among the people who had been subjected to the
X-ray therapy. In 1975, the program notified Blaz by mail that he was at
increased risk of developing thyroid tumors because of the treatment. In
1976, someone associated with the program gave him similar information
by phone and invited him to return to Michael Reese for evaluation and
treatment at his own expense, which he declined to do.
Dr. Arthur Schneider was put in charge of the program in 1977. In
1979, Schneider and Michael Reese submitted a research proposal to the
National Institutes of Health stating that a study based on the program
showed “strong evidence” of a connection between X-ray treatments of the sort administered to Blaz and various sorts of tumors: thyroid, neural, and
other. In 1981, Blaz received but did not complete or return a questionnaire
attached to a letter from Schneider in connection with the program. The
letter stated that the purpose of the questionnaire was to “investigate the long-term health implications” of childhood radiation treatments and to “determine the possible associated risks.” It did not say anything about “strong evidence” of a connection between the treatments and any tumors.
In 1996, after developing neural tumors, Blaz sued Michael Reese’s successor, Galen Hospital in Illinois, and Dr. Schneider, alleging, among
other things, that they failed to notify and warn him of their findings that
he might be at greater risk of neural tumors in a way that might have
permitted their earlier detection and removal or other treatment. There is a
clear duty to warn the subject of previously administered radiation
treatments when there is a strong connection between those treatments and
certain kinds of tumors. The harm alleged, neural and other tumors, would
here be reasonably foreseeable as a likely consequence of a failure to warn
and was in fact foreseen by Schneider. A reasonable physician, indeed any
reasonable person, could foresee that if someone were warned of “strong evidence” of a connection between treatments to which he had been
subjected and tumors, he would probably seek diagnosis or treatment and
perhaps avoid these tumors, and if he were not warned he probably would
not seek diagnosis or treatment, increasing the likelihood that he would
suffer from such tumors. Other things being equal, therefore, a reasonable
physician would warn the subject of the treatments. 72
Ethical and Legal Issues
1. Discuss the ethical and legal principles violated in this case.
2. What preventative measures should be taken to prevent reoccurrence of
cases such as this?
Patient Responsibilities
Patients in NIH clinical trials have responsibilities, as well as rights. The
following describes the responsibilities of NIH patients.
In the spirit of working together toward a common goal, our patients
(and their parents, guardians, and surrogates) have responsibilities as
partners in medical research and as patients at the Clinical Center.
You have the responsibility:
1. To provide, to the best of your knowledge, complete information
about your current medical condition and past medical history,
including current illness, prior hospitalizations, current
medications, allergies, and all other health-related matters;
2. To discuss your protocol (study or treatment plan) with the research
staff before indicating agreement to take part in it by signing a
consent;
3. To inform the medical staff about your wishes regarding treatment
plans. You may provide for a duly authorized family member or
spokesperson to make medical decisions on your behalf in the
event that you become unable to communicate;
4. To comply with your protocol, to cooperate with hospital staff, to
ask questions if directions or procedures are not clear, and to
participate in your health care decisions. You may withdraw from
the study for any reason, but it is desirable to discuss your concerns
with the attending physician before taking that action. Parents of
pediatric patients have the responsibility to indicate if and how they
want to be involved in their child’s plan of care; 5. To refrain from taking any medications, drugs, or alcoholic
beverages while participating in the protocol, except those
approved by an NIH physician;
6. To adhere to the no-smoking policy of the NIH;
7. To report on time for scheduled procedures and to keep all clinic
appointments. If unable to do so, you have the responsibility of
notifying the protocol physician and canceling and rescheduling the
appointment;
8. To report promptly to the medical or nursing staff any unexpected
problems or changes in your medical condition;
9. To inform the appropriate staff or the patient representative of any
concerns or problems with the care and treatment that you feel are
not being adequately addressed;
10. To respect the property of the U.S. government, fellow patients, and
others; to follow NIH rules and regulations affecting patient care
and treatment; to respect the rights of other patients and hospital
staff. This includes the responsibility of respecting the privacy of
other patients and treating information concerning them as
confidential;
11. To pay all medical or laboratory expenses incurred outside the
Clinical Center, except when you have received written
authorization on the appropriate NIH form to have such expenses
billed to the NIH;
12. To obtain medical care and medications from your own health care
provider for all conditions unrelated to the protocol in which you
are participating, except while being treated as an inpatient at the
Clinical Center;
13. To provide your own transportation to and from the Clinical Center
and to pay living expenses except when all or part of these
expenses are covered by the protocol or authorized by the
responsible NIH physician; to advise accompanying escorts or
others who travel to and remain in the Bethesda area that they must
pay for their travel and living expenses except when designated by
NIH as a guardian for you when your expenses are covered;
14. To provide complete information, so that contacts and
communications to schedule visits and monitor health status can be
maintained. This information should include: (1) your current
address and phone number; (2) the names, addresses, and phone
numbers of next of kin or persons to be notified in the event of an
emergency; and (3) the names, addresses, and phone numbers of
physicians responsible for your ongoing care, including your family
physician and the physician(s) who referred you to the NIH;
15. To return to the care of your own health-care provider when
participation in the protocol is completed or stopped and your
medical condition permits. 73
Food and Drug Administration
The Food and Drug Administration (FDA) regulates clinical trials for
investigational drugs. The FDA—after much criticism over the years because of the red tape involved in the approval of new drugs—issued rules to speed up the approval process. The rules permit the use of experimental
drugs outside a controlled clinical trial if the drugs are used to treat a life-
threatening condition; however, clinical trials of new drugs and medical
devices have been referred to as endangered because manufacturers have
been taking their devices overseas for faster approvals.
Patients participating in research studies should fully understand the
implications of their participation. Health care organizations involved in
research studies should have appropriate protocols in place that protect the
rights of patients. Consent forms should describe both the risks and benefits
involved in the research activity.
Institutional Review Board
Each organization conducting medical research must have a mechanism in
place for approving and overseeing the use of investigational protocols.
This is accomplished through the establishment of an institutional review
board (IRB). An IRB is a committee designated by an institution to provide
initial approval and periodic monitoring for biomedical research studies.
The IRB should include community representation. The IRB’s primary responsibilities include:
• Protecting the rights and welfare of human subjects • Ensuring protocols are presented by the sponsor(s) • Ensuring sponsor(s) of a protocol discloses
Areas of concern that might give the impression of a conflict of interest
in the outcome of the clinical research
Financial interests that might occur should the clinical trials prove to be
successful or give the impression of success, including stock options
and cash payouts
• Reviewing, monitoring, and approving clinical protocols for investigations of drugs and medical devices involving human subjects
• Ensuring that the rights, including the privacy and confidentiality, of each individual are protected
• Ensuring that all research is conducted within appropriate state and federal guidelines (e.g., FDA guidelines)
Nursing Facilities
The Centers for Medicare and Medicaid Services survey process includes a
review of the rights of any nursing facility residents participating in
experimental research. Surveyors will review the records of residents
identified as participating in a clinical research study. They will determine
whether informed consent forms have been executed properly. The form
will be reviewed to determine whether all known risks have been
identified. Appropriate questions may be directed to both the staff and
residents or the residents’ guardians. Possible questions to ask staff include:
74
• Is the facility participating in any experimental research? • If yes, what residents are involved? (Interview a sample of these
residents) 75
• Residents or guardians may be asked questions, such as: Are you participating in the study?
Was this explained to you well enough so that you understand what the
study is about and any risks that might be involved?
Patients participating in research studies should fully understand the
implications of their participation. Health care organizations involved in
research studies should have appropriate protocols in place that protect the
rights of patients. Consent forms should describe both the risks and benefits
involved in the research activity.
My husband . . . participated in a clinical trial involving both an
autologous (self) and allogeneic (donor) transplant for a hopeful cure of
the disease. We both understood the risks involved and the no-promise
guarantee, as such is the nature of a clinical trial. The ultimate
responsibility for whatever the outcome rested with us, as we were the
ones who voluntarily entered into the program. Three years later, we
have just learned of the disease’s progression, but we continue to look
forward, remain optimistic, and support those who dedicate their lives
for the betterment of those afflicted with these cursed cancers.
The reality is that someday, probably sooner than later, my husband
will lose the battle with this tenacious enemy, but we are still thankful
for the compassionate and learned members of the Fred Hutchinson
Cancer Research Center who helped and are still helping us to navigate
a most challenging road. 76
Patents Delay Research
The legal system—caught up in the rights of patent holders—has resulted in delayed cures. What happens to the rights of those who would have
benefited from the cures? The rights of the few, those who could be viewed
as seeing money as the ultimate good, hold the rights of the many hostage.
That is, until they need the cure. Ethical concerns seem to be ignored by the
courts. The legal system is so ruled by rules that it cannot get out of its own
harmful way.
NEWSPAPER CLIPPINGS: Where Are the Cures? How Patent
Gridlock Is Blocking the Development of Lifesaving Drugs
A curious thing happened on the way to the biotech revolution. While
investment in biotech research and development has increased over the
last three decades, new drugs that improve human health have not been
forthcoming at the same rate.
What explains this drug discovery gap? Patent gridlock plays a
large role. Since a 1980 Supreme Court decision allowing patents on
living organisms, 40,000 DNA-related patents have been granted. Now
picture a drug developer walking into an auditorium filled with dozens
of owners of the biotech patents needed to create a potential lifesaving
cure. Unless the drug maker can strike a deal with every person in the
room, the new drug won’t be developed. Peter Ringrose, former chief science officer at Bristol-Myers
Squibb, told the New York Times that the company would not
investigate some 50 proteins that could be cancer-causing, because
patent holders would either decline to cooperate or demand big
royalties.
Michael Heller, Forbes, August 11, 2008
Discussion
1. Discuss the ethical principles (e.g., beneficence [doing good] and
nonmaleficence [avoiding causing harm]) and issues of morality of
a legal system that delays research because of the legal rights of
patent holders.
2. Discuss what steps could be taken to right the wrongs of patents
that delay and often discourage research.
STERILIZATION
Sterilization is the termination of the ability to produce offspring.
Sterilization often is accomplished by either a vasectomy for men or a tubal
ligation for women. A vasectomy is a surgical procedure in which the vas
deferens is severed and tied to prevent the flow of the seminal fluid into the
urinary canal. A tubal ligation is a surgical procedure in which the fallopian
tubes are cut and tied, preventing passage of the ovum from the ovary to
the uterus. Sterilizations are often sought because of:
• Economic necessity, to avoid the additional expense of raising a child • Therapeutic purposes, to prevent harm to a woman’s health (e.g., to
remove a diseased reproductive organ)
• Genetic reasons, to prevent the birth of a defective child
Elective Sterilization
Voluntary or elective sterilizations on competent individuals present few
legal problems, so long as proper consent has been obtained from the
patient and the procedure is performed properly. Civil liability for
performing a sterilization of convenience may be imposed if the procedure
is performed in a negligent manner.
Regulation of Sterilization
Like abortion, voluntary sterilization is the subject of many debates
concerning its moral and ethical propriety. Some health care institutions
have adopted policies restricting the performance of such operations at
their facilities.
Therapeutic Sterilization
If the life or health of a woman may be jeopardized by pregnancy, the
danger may be avoided by terminating: (1) her ability to conceive or (2) her
husband’s ability to impregnate. Such an operation is a therapeutic sterilization—one performed to preserve life or health. The medical necessity for sterilization renders the procedure therapeutic. Sometimes a
diseased reproductive organ has to be removed to preserve the life or health
of the individual. The operation results in sterility, although this was not the
primary reason for the procedure. Such an operation technically should not
be classified as a sterilization because it is incidental to the medical
purpose.
Eugenic Sterilization
The term eugenic sterilization refers to the involuntary sterilization of
certain categories of persons described in statutes, without the need for
consent by, or on behalf of, those subject to the procedures. Persons
classified as mentally deficient, feebleminded, and, in some instances,
epileptic are included within the scope of the statutes. Several states also
have included certain sexual deviants and persons classified as habitual
criminals. Such statutes ordinarily are said to be designed to prevent the
transmission of hereditary defects to succeeding generations, but several
statutes also have recognized the purpose of preventing procreation by
individuals who would not be able to care for their offspring.
Although there have been many judicial decisions to the contrary, the
United States Supreme Court in Buck v. Bell 77
specifically upheld the
validity of such eugenic sterilization statutes, provided that certain
procedural safeguards are observed. Several states have laws authorizing
eugenic sterilization. The decision in Wade v. Bethesda Hospital 78
strongly
suggests that in the absence of statutory authority the state cannot order
sterilization for eugenic purposes. At the minimum, eugenic sterilization
statutes provide the following: a grant of authority to public officials
supervising state institutions for the mentally ill or prisons and to certain
public health officials to conduct sterilizations; a requirement of personal
notice to the person subject to sterilization and, if that person is unable to
comprehend what is involved, notice to the person’s legal representative, guardian, or nearest relative; a hearing by the board designated in the
particular statute to determine the propriety of the prospective sterilization;
at the hearing, evidence that may be presented, and the patient, who must
be present or represented by counsel or the nearest relative or guardian; and
an opportunity to appeal the board’s ruling to a court. The procedural safeguards of notice, hearing, and the right to appeal
must be present in sterilization statutes to fulfill the minimum
constitutional requirements of due process. An Arkansas statute was found
to be unconstitutional in that it did not provide for notice to the
incompetent patient and opportunity to be heard or for the patient’s entitlement to legal counsel.
79
CASE: NEGLIGENT STERILIZATION
Chaffee performed a partial salpingectomy on Seslar. The purpose of the
procedure was to sterilize Seslar, who had already borne four children, so
that she could not become pregnant again. After undergoing the surgery,
however, Seslar conceived and delivered a healthy baby. Seslar sued
Chaffee.
The Court of Appeals held that damages for the alleged negligent
sterilization procedure could not include the costs of raising a normal
healthy child. Although raising an unplanned child is costly, all human life
is presumptively invaluable. A child, regardless of the circumstances of
birth, does not constitute harm to the parents so as to permit recovery for
the costs associated with raising and educating the child. As with a
majority of jurisdictions, the court held that the value of a child’s life to the parents outweighs the associated pecuniary burdens as a matter of law.
Recoverable damages may include pregnancy and childbearing expenses,
but not the ordinary costs of raising and educating a normal, healthy child
conceived after an allegedly negligent sterilization procedure. 80
Ethical and Legal Issues
1. Do you agree with the court’s decision? 2. Under what circumstances would you not agree with the court’s
decision?
3. Describe the ethical issues in this case.
WRONGFUL BIRTH, LIFE, AND CONCEPTION
There is substantial legal debate regarding the impact of an improperly
performed sterilization. Suits have been brought on such theories as
wrongful birth, wrongful life, and wrongful conception. Wrongful life suits
are generally unsuccessful, primarily because of the court’s unwillingness, for public policy reasons, to permit financial recovery for the “injury” of being born into the world.
Some success, however, has been achieved in litigation by the patient
(and his or her spouse) who allegedly was sterilized and subsequently
proved fertile. Damages have been awarded for the cost of the unsuccessful
procedure; pain and suffering as a result of the pregnancy; the medical
expense of the pregnancy; and the loss of comfort, companionship services,
and consortium of the spouse. Again, as a matter of public policy, the
courts have indicated that the joys and benefits of having the child
outweigh the cost incurred in the rearing process.
There have been many cases in recent years involving actions for
wrongful birth, wrongful life, and wrongful conception. Such litigation
originated with the California case in which a court found that a genetic
testing laboratory can be held liable for damages from incorrectly reporting
genetic tests, leading to the birth of a child with defects. 81
Injury caused by
birth had not been previously actionable by law. The court of appeals held
that medical laboratories engaged in genetic testing owe a duty to parents
and their unborn child to use ordinary care in administering available tests
for the purpose of providing information concerning potential genetic
defects in the unborn. Damages in this case were awarded on the basis of
the child’s shortened life span.
Wrongful Birth
In a wrongful birth action, the plaintiffs claim that but for a breach of duty
by the defendant(s) (e.g., improper sterilization), the child would not have
been born. A wrongful birth claim can be brought by the parent(s) of a
child born with genetic defects against a physician who or a laboratory that
negligently fails to inform them, in a timely fashion, of an increased
possibility that the mother will give birth to such a child, therefore
precluding an informed decision as to whether to have the child.
In a New Jersey case, Canesi ex rel. Canesi v. Wilson, 82
the New Jersey
Supreme Court reviewed the dismissal of an action for wrongful birth on
the claim of the parents that had the mother been informed of the risk that a
drug, Provera, which she had been taking before she learned that she was
pregnant, might cause the fetus to be born with congenital anomalies, such
as limb reduction, she would have decided to abort the fetus. It was alleged
that the physicians failed to disclose the risks associated with the drug. The
physicians argued that the informed consent doctrine requires that the
plaintiffs establish that the drug in fact caused the birth anomalies. The
court rejected the argument and distinguished the wrongful birth action
from one based on informed consent: 83
In sum, the informed consent and wrongful birth causes of action are
similar in that both require the physician to disclose those medically
accepted risks that a reasonably prudent patient in the plaintiff’s position would deem material to her decision. What is or is not a
medically acceptable risk is informed by what the physician knows or
ought to know of the patient’s history and condition. These causes of action, however, have important differences. They encompass different
compensable harms and measures of damages. In both causes of action,
the plaintiff must prove not only that a reasonably prudent patient in
her position, if apprised of all material risks, would have elected a
different course of treatment or care. In an informed consent case, the
plaintiff must additionally meet a two-pronged test for proximate
causation: She must prove that the undisclosed risk actually
materialized and that it was medically caused by the treatment. In a
wrongful birth case, on the other hand, a plaintiff need not prove that
the doctor’s negligence was the medical cause of her child’s birth defect. Rather, the test of proximate causation is satisfied by showing
that an undisclosed fetal risk was material to a woman in her position;
the risk materialized was reasonably foreseeable and not remote in
relation to the doctor’s negligence; and had plaintiff known of that risk, she would have terminated her pregnancy. The emotional distress and
economic loss resulting from this lost opportunity to decide for herself
whether or not to terminate the pregnancy constitute plaintiff’s damages.
With the increasing consolidation of hospital services and physician
practices, a case could be made for finding a hospital liable for the
physician’s failure to obtain informed consent where the hospital actually owns or controls the physician’s practice or where both the hospital and the physician’s practice are owned or controlled by another corporation that sets policy for both the hospital and the physician’s practice.
Wrongful Life
Wrongful life claims are initiated by the parent(s) or child based on harm
suffered as a result of being born. The plaintiffs generally contend that the
physician or laboratory negligently failed to inform the child’s parents of the risk of bearing a genetically defective infant and hence prevented the
parents’ right to choose to avoid the birth.84 Because there is no recognized legal right not to be born, wrongful life cases are generally not successful.
[L]egal recognition that a disabled life is an injury would harm the
interests of those most directly concerned, the handicapped. Disabled
persons face obvious physical difficulties in conducting their lives.
They also face subtle yet equally devastating handicaps in the attitudes
and behavior of society, the law, and their own families and friends.
Furthermore, society often views disabled persons as burdensome
misfits. Recent legislation concerning employment, education, and
building access reflects a slow change in these attitudes. This change
evidences a growing public awareness that the handicapped can be
valuable and productive members of society. To characterize the life of
a disabled person as an injury would denigrate both this new awareness
and the handicapped themselves. 85
A cause of action for wrongful life was not cognizable under Kansas
law in Bruggeman v. Schimke. 86
Human life is valuable, precious, and
worthy of protection. Not to be born rather than to be alive with deformities
cannot be recognized. The Kansas Supreme Court held that there was no
recognized cause for wrongful life.
In Kassama v. Magat, 87
Kassama alleged that Dr. Magat failed to
advise her of the results of an alpha-fetoprotein blood test that indicated a
heightened possibility that her child, Ibrion, might be afflicted with Down
syndrome. Had she received that information, Kassama contends, she
would have undergone amniocentesis, which would have confirmed that
prospect. Kassama claims that if that had occurred she would have chosen
to terminate the pregnancy through an abortion.
The Supreme Court of Maryland decided that for purposes of tort law,
an impaired life was not worse than nonlife, and, for that reason, life itself
was not and could not be considered an injury. There was no evidence that
Ibrion was not deeply loved and cared for by her parents or that she did not
return that love. Studies have shown that people afflicted with Down
syndrome can lead productive and meaningful lives. They can be educated
and employed, form friendships, and get along in society. Allowing a
recovery of extraordinary life expenses on some theory of fairness—that the physician or his or her insurance company should pay not because the
physician caused the injury or impairment but because the child was born
—ignores that fundamental issue. Wrongful birth is based on the premise that being born and having to
live with the affliction are disadvantages and thus cognizable injuries. The
injury sued upon was the fact that Ibrion was born; she bears the disability
and will bear the expenses only because, due to the alleged negligence of
Magat, her mother was unable to terminate the pregnancy and avert her
birth. The issue here is whether Maryland law is prepared to recognize that
kind of injury—the injury of life itself. The child has not suffered any damage cognizable at law by being
brought into existence. One of the most deeply held beliefs of our society is
that life, whether experienced with or without a major physical handicap, is
more precious than nonlife. No one is perfect, and each person suffers from
some ailments or defects (whether major or minor) that make impossible
participation in all of the activities life has to offer. Our lives are not
thereby rendered less precious than those of others whose defects are less
pervasive or less severe. Despite their handicaps, Down syndrome children
are able to love and be loved and to experience happiness and pleasure— emotions that are truly the essence of life and that are far more valuable
than the suffering that may be endured.
The right to life and the principle that all are equal under the law are
basic to our constitutional order. To presume to decide that a child’s life is not worth living would be to forsake these ideals. To characterize the life of
a disabled person as an injury would denigrate the handicapped themselves.
Measuring the value of an impaired life as compared with nonexistence is a
task that is beyond mortals.
Unless a judgment can be made on the basis of reason rather than the
emotion of any given case, that nonlife is preferable to impaired life—that
the child-plaintiff would, in fact, have been better off had he or she never
been born—there can be no injury, and if there can be no injury, whether damages can or cannot be calculated becomes irrelevant.
The crucial question, a value judgment about life itself, is too deeply
immersed in each person’s own individual philosophy or theology to be subject to a reasoned and consistent community response in the form of a
jury verdict.
Wrongful Conception
Wrongful conception refers to a claim for damages sustained by the parents
of an unexpected child based on an allegation that conception of the child
resulted from negligent sterilization procedures or a defective contraceptive
device. 88
Damages sought for a negligently performed sterilization might
include:
• Pain and suffering associated with pregnancy and birth • Expenses of delivery • Lost wages • Father’s loss of consortium • Damages for emotional or psychological pain • Suffering resulting from the presence of an additional family member in
the household
• The cost and pain and suffering of a subsequent sterilization • Damages suffered by a child born with genetic defects
The most controversial item of damages claimed is that of raising a
normal healthy child to adulthood. The mother in Hartke v. McKelway 89
had undergone sterilization for therapeutic reasons to avoid endangering
her health from pregnancy. The woman became pregnant as a result of a
failed sterilization. She delivered a healthy child without injury to herself.
It was determined that “the jury could not rationally have found that the birth of this child was an injury to this plaintiff. Awarding child-rearing
expense would only give Hartke a windfall.”90 The cost of raising a healthy newborn child to adulthood was
recoverable by the parents of the child conceived as a result of an
unsuccessful sterilization by a physician employee at Lovelace Medical
Center. The physician in Lovelace Medical Center v. Mendez 91
found and
ligated only one of the patient’s two fallopian tubes and then failed to inform the patient of the unsuccessful operation. The court held that:
92
the Mendezes’ interest in the financial security of their family was a legally protected interest which was invaded by Lovelace’s negligent failure properly to perform Maria’s sterilization operation (if proved at trial), and that this invasion was an injury entitling them to recover
damages in the form of the reasonable expenses to raise Joseph to
maturity.
Some states bar damage claims for emotional distress and the costs
associated with the raising of healthy children but will permit recovery for
damages related to negligent sterilizations. In Butler v. Rolling Hill
Hospital, 93
the Pennsylvania Superior Court held that the patient stated a
cause of action for the negligent performance of a laparoscopic tubal
ligation. The patient was not, however, entitled to compensation for the
costs of raising a normal, healthy child. “In light of this Commonwealth’s public policy, which recognizes the paramount importance of the family to
society, we conclude that the benefits of joy, companionship, and affection
which a normal, healthy child can provide must be deemed as a matter of
law to outweigh the costs of raising that child.”94 As the Court of Common Pleas of Lycoming County, Pennsylvania, in
Shaheen v. Knight, stated: 95
Many people would be willing to support this child were they given the
right of custody and adoption, but according to plaintiff’s statement, plaintiff does not want such. He wants to have the child and wants the
doctor to support it. In our opinion, to allow such damages would be
against public policy.
SURROGACY
Surrogacy is a method of reproduction whereby a woman agrees to give
birth to a child she will not raise but hand over to a contracted party, who is
often unable to conceive a natural child of her or his own.
A surrogate “may be the child’s genetic mother (the more traditional form of surrogacy), or she may as a gestational carrier, carry the pregnancy
to delivery after having been implanted with an embryo. In some cases
surrogacy is the only available option for parents who wish to have a child
that is biologically related to them.”96 Surrogacy raises many ethical and legal issues to consider before
searching for a surrogate mother. For example, is it right to enter a contract
with a woman, taking advantage of her circumstances by offering her
money in exchange for bearing a child and then transferring all parental
rights and physical custody of the child to the “commissioning couple”? Although the long-term effects of surrogacy contracts are not known, the
adverse psychological impact could be detrimental to the child who learns
that he or she is the offspring of someone who gave birth only to obtain
money. Would the child want to search for his or her gestational mother?
Should records be kept and should the child have access to those? After the
child is taken, the surrogate mother may be negatively impacted as her
feeling of isolation is felt along with the reality of the sale of her body. One
might ask this: How does this differ from those circumstances in which a
donor would legally (which is not the case at present) be allowed to sell an
organ strictly for financial purposes, thus allowing a donee to live as a
result of the purchase?
Finally, some believe that the surrogacy contract is based on principles
that are contrary to the objectives of our laws. The surrogate contract is
perceived to be illegal when a fee is involved because it is compared with
baby selling, which is illegal in all states. Court decisions and legislation in
the United States are split on the issue of whether or not to prohibit
surrogacy contracts.
HUMAN GENETICS
The most promising frontier of the future of medical practice is in the area
of human genetics, which describes the study of inheritance as it occurs in
human beings. It includes such areas as stem cell research, clinical genetics
(e.g., genetic disease markers), and molecular genetics. Inevitably there
will be ethical issues that will become manifest in these new areas. We
have already had a preview of this in the controversy regarding the use of
fetal stem cells versus adult stem cells for research and therapy. The ethics
of modern science is a challenging and evolving area, but it is nothing new.
In ancient China, for instance, physician Sun Simiao (580-682 AD) had a
difficult medical ethical dilemma. In his book Qianjinfang (Prescriptions
Worth a Thousand Pieces of Gold), he is credited with formulating the first
ethical basis for the practice of medicine in China. The ethical conundrum
he faced was the clash between Confucian and Buddhist ethics. The
relatively new religion of Buddhism had taboos against using any animal-
derived product for the treatment of disease, as this violated the principle of
respect for all life. The more ancient Confucian idea of compassion and
kindness could be interpreted to overrule this, however. Sun Simiao dealt
with this conflict by prohibiting a “standard physician” from using any medication derived from an animal source. He then included many
prescriptions in his book that did have animal-sourced remedies. In other
words, he seems to have artfully navigated an ethical gray zone between
the two philosophies but with less than a clear distinction between right and
wrong. Now in modern times we are still faced with continuing and
evolving issues of ethics in the practice of medicine. 97
Genetic Markers
The use of genetic markers, like any new scientific discovery, can lead to
good and bad, which in turn can raise a wide range of ethical issues and
debates. A genetic marker is a gene or DNA sequence that has a known
location on a chromosome and can be associated with a particular gene or
trait. Genetic markers can identify certain diseases that can be detected in
the blood and used to determine whether an individual is at risk for
developing a disease.
There are companies that will evaluate a person’s DNA for these markers and provide a person with a report of his or her potential health
risks. Health insurers, life insurers, employers, and others could potentially
use this information to determine one’s insurance premiums and even one’s job future and so forth. There are going to be ethical issues that will arise.
For instance, suppose a woman has a family history of breast cancer and
has a genetic marker for it, but she is young (e.g., 30 years old) and free of
any evidence of cancer. If a physician recommends prophylactic
mastectomies or if the patient wants prophylactic mastectomies, should this
be covered by insurance?
Genetic Information Nondiscrimination Act of
2008 (HR493)
On May 21, 2008, President George W. Bush signed into law the Genetic
Information Nondiscrimination Act (GINA), which resulted largely from
the efforts of Senator Ted Kennedy. The law prohibits discrimination on the
basis of genetic information with respect to the availability of health
insurance and employment. The GINA prohibits group health plans and
insurers from denying coverage to a healthy individual or charging that
person higher premiums based solely on a genetic predisposition to
developing a specific disease (e.g., cancer or heart disease) at some future
time. The GINA also prohibits employers from using an individual’s genetic information when making hiring, firing, job placement, or
promotion decisions.
The relatively recent mapping of the human genome and the likelihood
of increasing clinical application of advances in genetic disease markers
make this an issue of potential increasing importance in the practice of
medicine. Most of the states also have legislation that addresses this issue.
Unfortunately, there remains, however, no federal legislation that protects
the individual from discrimination in the availability of life insurance,
disability insurance coverage, or long-term care insurance. Because of this
loophole, patients and their doctors need to consider the potential downside
of ordering prognostic genetic tests. 98
Stem Cell Research
Stem cell research involves the use of embryonic stem cells to create
organs and various body tissues. It continues to be a highly controversial
issue generally involving religious beliefs and fears as to how far scientists
might go in their attempt to create, for example, another human being.
After all, a sheep named Dolly was cloned and born in 1996, and who
knows what goes on behind the doors of research, which are closed to the
outside world.
Some opponents of the research argue that this practice is a slippery
slope to reproductive cloning and fundamentally devalues the worth of
a human being. Contrarily, some medical researchers in the field argue
that it is necessary to pursue embryonic stem cell research because the
resultant technologies could have significant medical potential, and that
excess embryos created for in vitro fertilization could be donated with
consent and used for the research. This in turn, conflicts with
opponents in the pro-life movement, who advocate for the protection of
human embryos. The ensuing debate has prompted authorities around
the world to seek regulatory frameworks and highlighted the fact that
embryonic stem cell research represents a social and ethical
challenge. 99
The controversy continues, as stem cell research is ongoing in
laboratories around the world. Some of this research is most likely of
serious concern to the natural order of the ecosystem and, ultimately, the
survival of the human race.
CHAPTER REVIEW
1. An ethical dilemma arises whenever a choice has to be made in which
something good has to be given up or something bad has to be suffered
no matter what is chosen.
2. Noteworthy Historical Events (see text above).
3. Abortion is the premature termination of a pregnancy, either
spontaneous or induced.
4. The morality of abortion is not a legal or constitutional issue; it is a
matter of philosophy, ethics, and theology. It is a subject where
reasonable people can and do adhere to vastly divergent convictions
and principles.
5. Partial birth abortion is a late-term abortion that involves partial
delivery of the baby prior to its being aborted.
6. Acquired immune deficiency syndrome is a fatal disease that destroys
the body’s ability to fight bacteria and viruses. 7. Artificial insemination most often takes the form of the injection of
seminal fluid into a woman to induce pregnancy. Homologous artificial
insemination is when the husband’s semen is used in the procedure. Heterologous artificial insemination is when the semen is from a donor
other than the husband.
8. Organ Donations: Federal regulations require that hospitals have and
implement written protocols regarding the organization’s organ procurement responsibilities.
9. Organ transplantation is the result of the need for treating patients with
end-stage organ disease and who face organ failure.
10. Research, Experimentation, and Clinical Trials.
11. The Uniform Anatomical Gift Act has many provisions that apply to
the wide variety of issues raised in connection with the making,
acceptance, and use of anatomical gifts. The act allows a person to
make a decision to donate organs at the time of death and allows
potential donors to carry an anatomical donor card.
12. Ethical principles that are relevant to the ethics of research involving
human subjects include respect for person, beneficence, and justice.
These principles cannot always be applied to resolve ethical problems
beyond dispute. The objective in applying ethical principles is to
provide an analytical framework that will guide the resolution of ethical
problems arising from research involving human subjects.
13. Sterilization is defined as the termination of the ability to produce
offspring.
14. As long as proper consent is obtained and the procedure is performed
properly, elective sterilizations present few legal problems. A
therapeutic sterilization is performed to preserve life or health. Eugenic
sterilization refers to the involuntary sterilization of certain categories
of persons described in statutes, without the need for consent by, or on
behalf of, those subject to the procedures.
15. Wrongful birth actions claim that, but for breach of duty by the
defendant, a child would not have been born. Wrongful life suits—those in which a parent or child claims to have suffered harm as a result of
being born—are generally unsuccessful. Wrongful conception/pregnancy actions claim that damages were sustained by the
parents of an unexpected child based on the allegation that the child’s conception was the result of negligent sterilization procedures or a
defective contraceptive device.
16. Surrogacy refers to a method of reproduction whereby a woman agrees
to become pregnant for the purpose of gestating and giving birth to a
child she will not raise but hand over to a contracted party.
17. Human genetics describes the study of inheritance as it occurs in
human beings.
18. The Genetic Information Nondiscrimination Act (GINA) prohibits
discrimination on the basis of genetic information with respect to the
availability of health insurance and employment.
19. Stem cell research is being conducted to create tissues and organs that
can be matched to patients for transplant.
20. Genetic markers are genes or DNA sequences that have a known
location on chromosomes and can be associated with particular genes
or traits.
TEST YOUR UNDERSTANDING
Terminology
artificial insemination
abortion
AIDS
elective sterilization
ethical dilemma
eugenic sterilization
genetic marker
institutional review board
partial birth abortion
Roe v. Wade
stem cell research
sterilization
surrogacy
therapeutic sterilization
Uniform Anatomical Gift Act
wrongful birth
wrongful life
wrongful conception
REVIEW QUESTIONS
1. Discuss under what circumstances ethical dilemmas arise.
2. Discuss the controversy over the Supreme Court decision in Roe v.
Wade.
3. What ethical principles surround the abortion issue? Discuss these
principles.
4. Do you agree that individual states should be able to impose
reasonable restrictions or waiting periods on women seeking
abortions? Who should determine what is reasonable?
5. Should a married woman be allowed to abort without her husband’s consent?
6. Discuss the arguments for and against partial birth abortions.
7. Why is the medical issue of abortion an example of legislating
morality?
8. What is AIDS, and how is it spread?
9. Discuss the controversy that can occur when considering a patient’s right to know whether a caregiver has AIDS and the caregiver’s right to privacy and confidentiality.
10. What is artificial insemination? What questions should be asked
when considering artificial insemination?
11. Discuss the importance of organ donations.
12. Describe the ethical considerations that should be addressed before
conducting research on human subjects.
13. Why is it important that written consent be obtained from each
patient who participates in a clinical trial?
14. What is sterilization, as discussed in this chapter? Do you agree that
eugenic sterilization should be allowed? Explain your answer.
15. Describe the distinctions among wrongful birth, wrongful life, and
wrongful conception. Discuss the moral dilemmas of these
concepts.
16. Describe the controversy over surrogacy.
17. Discuss why there is controversy over genetic markers and stem
cell research.
NOTES
1. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).
2. “Protection and Use of Human Subjects in Research,” Eastern Michigan University, http://www.rcr.emich.edu/module1/a_7part1.html.
3. “First Successful Kidney Transplant Performed,” PBS.org, http://www.pbs.org/wgbh/aso/databank/entries/dm54ki.html.
4. http://www.wma.net/e/history/index.htm.
5. “Protection and Use of Human Subjects,” Eastern Michigan University, 6. “Issues and Concepts,” Ascension Health,
http://www.ascensionhealth.org/ethics/public/issues/harvard.asp.
7. http://www.georgetown.edu/research/kie/site/index.htm.
8. 464 F.2d 772 (D.C. Cir. 1972).
9. http://dor.ncat.edu/compliance/compliance-ed/ethics3F.html.
10. Id.
11. 70 N.J. 10 (1976).
12. United States Code, Title 42—The Public Health and Welfare, Chapter 6A—Public Health Service, Subchapter XVI—President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavior Research, Section 300v-1,
http://caselaw.lp.findlaw.com/casecode/uscodes/42/chapters/6a/subchapters
/xvi/sections/section_300v-1.html.
13. 42 U.S.C. 1395cc(a)(1).
14. Cruzan v. Director of the Mo. Dep’t of Health, 497 U.S. 261 (1990). 15. DeGrella v. Elston, 858 S.W.2d 698 (1993).
16. “Biological Sciences,” Intute, http://bioresearch.ac.uk/browse/mesh/C0020125L0020125.html. 17. State of Oregon v. Ashcroft, No. 02-35587 (C.A. 9, Ore. 2004).
18. English Clergy, Dean of Westminster.
19. Causeway Medical Suite v. Ieyoub, 109 F.3d 1096 (1997).
20. 410 U.S. 113 (1973).
21. Id. at 164.
22. Id.
23. Id.
24. Id.
25. 410 U.S. 179 (1973).
26. Id. at 198.
27. 428 U.S. 52 (1976).
28. 432 U.S. 464 (1977).
29. 99 S. Ct. 675 (1979).
30. 443 U.S. 622 (1979).
31. 448 U.S. 297 (1980).
32. 101 S. Ct. 1164 (1981).
33. 103 S. Ct. 2481 (1983).
34. 492 U.S. 490 (1989).
35. 111 S. Ct. 1759 (1991).
36. Planned Parenthood v. Casey, 112 S. Ct. 2792 (1992).
37. 118 S. Ct. 1347 (1998).
38. Available at http://news.yahoo.com/judge-blocks-texas-abortion-law-requiring-sonograms-
010552309.html.
39. Texas Medical Providers Performing Abortion Services, et al. v. David Lakey, M.D., et al., Case
No. A-11-CA-486-SS (U.S. District Court, W.D. Texas, August 30, 2011)
40. 844 F. Supp. 1482 (D. Utah 1994).
41. 112 S. Ct. 2791 (1992).
42. 844 F. Supp. 1482 (D. Utah 1994) at 1494.
43. Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975).
44. 405 F. Supp. 534 (M.D. Pa. 1975).
45. 486 U.S. 1308 (1988).
46. 533 A.2d 523 (R.I. 1987).
47. 515 So. 2d 1254 (Ala. Civ. App. 1987).
48. 107 F. Supp. 2d 1271 (2000).
49. Colo. Rev. Stat. § 12-37.5-101 et seq. (1998). 50. American Acad. of Pediatrics v. Lungren, 940 P.2d 797 (1997).
51. Cantwell, AIDS: The Mystery and the Solution (Los Angeles: Aries Rising Press, 1986), at 54.
52. Joint United Nations Programme on HIV/AIDS, AIDS Epidemic Update: December 2000,
UNAIDS/00.44E—WHO/CDS/CSR/EDC/2000.9. http://www.unaids.org. 53. Bramer v. Dotson, 437 S.E.2d 775 (W. Va. 1993).
54. 592 A.2d 1251 (N.J. Super. Ct. Law Div. 1991).
55. Id. at 1255.
56. 592 A.2d 1251 (N.J. Super. Ct. Law Div. 1991).
57. Id. at 1255.
58. 734 S.W.2d 675 (Tex. Ct. App. 1987).
59. 538 N.E.2d 419 (Ohio Ct. App. 1988).
60. Application of Milton S. Hershey Med. Ctr., 639 A.2d 159, 163 (Pa. 1993).
61. Ethics Committee of the American Academy of Dermatology, Ethics in Medical Practice, 1992,
at 6.
62. 554 A.2d 954 (Pa. Super. Ct. 1989).
63. 640 So. 2d 476 (La. App. 3d Cir. 1994).
64. Walter F. Roche, Jr., “City hospital’s HIV testing manipulated,” The Baltimore Sun, March 11, 2004, http://www.baltimoresun.com/news/maryland/bal-lab0311,0,3643424.story.
65. Doe v. Deer Mountain Day Camp, Inc.; Deer Mountain Basketball Academy 682 F.Supp.2d 324
(2010).
66. Okla. Stat. Ann. 10, §§ 551-553. 67. Id.
68. U.S. Dept. of Health & Human Services, Task Force on Organ Donation and Transplantation
(1986).
69. 519 N.Y.S.2d 928 (N.Y. Sup. Ct. 1987).
70. http://humansubjects.stanford.edu/medical/VASampCons.html.
71. Id.
72. Blaz v. Michael Reese Hosp. Found, 74 F. Supp. 2d 803 (D.C. Ill. 1999).
73. http://www.cc.nih.gov/participate/patientinfo/legal/responsibilities.shtml.
74. 2 C.F.R. § 488.115 (1989). 75. Id.
76. Mary Ellen Stokes and Bill Stokes, “Relentless Assault on a Research Hospital,” Wall Street Journal, March 15, 2004, at A17.
77. 224 U.S. 200 (1927).
78. 337 F. Supp. 671 (E.D. Ohio 1971).
79. McKinney v. McKinney, 805 S.W.2d 66 (Ark. 1991).
80. Chaffee v. Seslar, 786 N.E.2d 705 (2003).
81. 165 Cal. Rptr. 477 (Cal. Ct. App. 1980).
82. 730 A.2d 806 (N.J. 1999).
83. Id. at 18.
84. Smith v. Cote, 513 A.2d 344 (N.H. 1986).
85. Id. at 353.
86. 718 P.2d 635 (Kan. 1986).
87. 136 Md. App. 38 (2002).
88. Cowe v. Forum Group, Inc., 575 N.E.2d 630, 631 (Ind. 1991).
89. 707 F.2d 1544 (D.C. Cir. 1983).
90. Id. at 1557.
91. 805 P.2d 603 (N.M. 1991).
92. Id. at 612.
93. 582 A.2d 1384 (Pa. Super. Ct. 1990).
94. Id. at 1385.
95. 11 Pa. D. & C.2d 41, 46 (Lycoming Co. Ct. Com. Pl. 1957).
96. Id.
97. Yuanyi S. Chun, History of Medicine (Wuhan, China, 1988).
98. National Human Genome Research Institute, http://www.genome.gov.
99. Id.
chapter three
End-of-Life Dilemmas
When we finally know we are dying, and all other sentient beings are
dying with us, we start to have a burning, almost heartbreaking sense of
the fragility and preciousness of each moment and each being, and from
this can grow a deep, clear, limitness compassion for all beings.
SOGYAL RINPOCHE
LEARNING OBJECTIVES
The reader upon completion of this chapter will be able to:
• Describe the human struggle to survive. • Explain the issues involved in end-of-life dilemmas:
Euthanasia
Assisted suicide
Oregon’s Death with Dignity Act Patient Self-Determination Act of 1990
Advance directives (e.g., living will, durable power of attorney)
Surrogate decision making
Futility of treatment
Withdrawal of treatment
Do-not-resuscitate orders
INTRODUCTION
Dance as though no one is watching, love as though you’ve never been hurt before, sing as though no one can hear you, live as though heaven is
on earth.
SOUZA
One of the most tension-producing, thought-provoking issues facing health
care providers focuses on end-of-life issues. Although it is established that
competent terminally ill patients may refuse life-sustaining treatment,
physician-assisted suicide continues to raise much debate.
The human struggle to survive and dreams of immortality have been
instrumental in pushing humankind to develop means to prevent and cure
illness. Advances in medicine and related technologies that have resulted
from human creativity and ingenuity have given society the power to
prolong life; however, the process of dying also can be prolonged. Those
victims of long-term pain and suffering, as well as patients in vegetative
states and irreversible comas, are the most directly affected. Rather than
watching hopelessly as a disease destroys a person or as a body part
malfunctions, causing death to a patient, physicians now can implant
artificial body organs. Exotic machines and antibiotics are weapons in a
physician’s arsenal to help extend a patient’s life. Such situations have generated vigorous debate. This section reviews many of those issues that
inevitably arise as one approaches the end of life.
PEOPLE STORIES: End of Life or Beginning of Life?
My mother is 92 years old, and she is more active and is enjoying life
more than when she was much younger. Her advanced age has actually
proven to be something of an advantage, as it has given her the time
and freedom to do some of the things she couldn’t do while she was raising a family. It has been a joy to me, as her son, and to the rest of
the family to witness her joy and vigor. Even strangers have found her
stamina to be an inspiration as to the value of the end years of life.
Three years ago, however, it wasn’t so. Mother was critically ill, comatose on a respirator in an intensive care unit. Survival was not
considered likely. I am embarrassed to say that I was making
arrangements for a funeral. I am even more embarrassed because I am a
physician and did not see how she could survive for long except as a
vegetable. Then the unlikely occurred. She recovered! Her condition
rapidly and surprisingly improved dramatically including both physical
and mental status, and she promptly resumed a life even more active
than before. It would have been a tragedy to deprive her of these joyous
years of her life after she worked and sacrificed so much for others
most of her life. I had thought it would be an act of mercy to disconnect
the respirator when her condition had looked so hopeless. I was so
wrong. I learned that we must not make life and death decisions
casually. Life is a beautiful mystery with many wonderful surprises if
we will let them happen.
Advances in medical technology have made it possible to survive to
an older age. That longer survival inevitably involves considerable cost
and can therefore be a substantial financial burden to the family and the
government. Is it worth it? How do we make a judgment about quality
of life? What is the financial value of another day, week, or year of life?
Should we assume that younger years are better than older years?
Although our bodies may physically decline over time, our treasure
trove of life experiences accrues over time. Our knowledge and
judgment may often be better than when we were younger.
Furthermore, the aged may be a source of comfort and joy to their
children, grandchildren, and even great-grandchildren. As long as we
are alive, we have value.
Physician
EUTHANASIA
There is nothing more sacred than life and there is nothing more natural
in life to wish to cling on to it for those you love! And nothing more cruel
than to play god by artificially holding onto that which god wants to bring
home.
AUTHOR UNKNOWN
When patients and their families perceive a deterioration of the quality of
life and no end to unbearable pain, conflict often arises between health care
professionals, who are trained to save lives, and patients and their families,
who wish to end the suffering. This conflict centers on the concept of
euthanasia and its place in the modern world. There seems to be an absence
of controversy only when a patient who is kept alive by modern technology
is still able to appreciate and maintain control over his or her life.
Any discussion of euthanasia obliges a person to confront humanity’s greatest fear—death. The courts and legislatures have faced it and have made advances in setting forth some guidelines to assist decision makers in
this arena; however, much more must be accomplished. Society must be
protected from the risks associated with permitting the removal of life-
support systems. Society cannot allow the complex issues associated with
this topic to be simplified to the point where it is accepted that life can be
terminated based on subjective quality-of-life considerations. The legal
system must ensure that the constitutional rights of the patient are
maintained, while protecting society’s interests in preserving life, preventing suicide, and maintaining the integrity of the medical profession.
For example, can competent adult patients who ask that no extraordinary
lifesaving measures be taken recover damages for finding themselves alive
after unwanted resuscitative measures? During a medical emergency, it
seems unrealistic to ask a caregiver to first look in a patient’s medical record for an advance directive before tending to the immediate needs of
the patient. In the final analysis, the boundaries of patient rights remain
very uncertain.
From its inception, euthanasia has evolved into an issue with competing
legal, medical, and moral implications that continues to generate debate,
confusion, and conflict. Currently, there is a strong movement advocating
death with dignity, which excludes machines, monitors, and tubes.
Even the connotation of the word “euthanasia” has changed with time depending on who is attempting to define it. Euthanasia originated from the
Greek word euthanatos, meaning “good death” or “easy death,” and was accepted in situations in which people had what were considered to be
incurable diseases. Euthanasia is defined broadly as “the mercy killing of the hopelessly ill, injured, or incapacitated.”1
In the Confucian and Buddhist religions, suicide was an acceptable
answer to unendurable pain and incurable disease. The Celtics went a step
further, believing that those who chose to die of disease or senility, rather
than committing suicide, would be condemned to Hell. Such acceptance
began to change during the 1800s when Western physicians refused to
lessen suffering by shortening a dying patient’s life. Napoleon’s physician, for example, rejected Napoleon’s plea to kill plague-stricken soldiers, insisting that his obligation was to cure rather than kill people.
In the late 1870s, writings on euthanasia began to appear, mainly in
England and the United States. Although such works were written, for the
most part, by lay authors, the public and the medical community began to
consider the issues raised by euthanasia. Then defined as “the act or practice of painlessly putting to death persons suffering from incurable
conditions or diseases,” it was considered to be a merciful release from incurable suffering. By the beginning of the 20th century, however, there
were still no clear answers or guidelines regarding the use of euthanasia.
Unlike in prior centuries when society as a whole supported or rejected
euthanasia, different segments of today’s society apply distinct connotations to the word, generating further confusion. Some believe
euthanasia is meant to allow a painless death when one suffers from an
incurable disease yet is not dying. Others, who remain in the majority,
perceive euthanasia as an instrument to aid only dying people in ending
their lives with as little suffering as possible.
It has been estimated that of the 2 million Americans who die each
year, 80% die in hospitals or nursing homes, and 70% of those die after a
decision to forgo life-sustaining treatment has been made. Although such
decisions are personal in nature and based on individual moral values, they
must comply with the laws applicable to the prolonging of the dying
process. Courts have outlined the ways in which the government is allowed
to participate in the decision-making process. Yet the misconceptions and
lack of clear direction regarding the policies and procedures have resulted
in wide disparity among jurisdictions, both in legislation and in judicial
decisions. As a result, the American Medical Association, the American
Bar Association, legislators, and judges are actively attempting to
formulate and legislate clear guidelines in this sensitive, profound, and not
yet fully understood area. To ensure compliance with the law while serving
the needs of their patients, it is incumbent on health care providers to keep
themselves informed of the legislation enacted in this ever-changing field.
To address the topic of euthanasia properly, it is necessary to
understand the precise meaning of the recognized forms of it. Rhetorical
phrases such as “right to die,” “right to life,” and “death with dignity” have obfuscated, rather than clarified, the understanding of euthanasia. The
dividing of euthanasia into two categories, active and passive, is for many
the most controversial aspect of this topic.
Active or Passive Euthanasia
Active euthanasia is commonly understood to be the intentional
commission of an act, such as giving a patient a lethal drug that results in
death. The act, if committed by the patient, is thought of as suicide.
Moreover, because the patient cannot take his or her own life, any person
who assists in the causing of the death could be subject to criminal sanction
for aiding and abetting suicide.
Passive euthanasia occurs when lifesaving treatment (such as a
respirator) is withdrawn or withheld, allowing the terminally ill patient to
die a natural death. Passive euthanasia is generally accepted pursuant to
legislative acts and judicial decisions. These decisions, however, generally
are based on the facts of a particular case. Regardless of the definitional
differences, the end result in both active and passive euthanasia is the same.
The distinctions are important when considering the duty and liability
of a physician who must decide whether to continue or initiate treatment of
a comatose or terminally ill patient. Physicians are obligated to use
reasonable care to preserve health and to save lives, and, thus, unless fully
protected by the law, they will be reluctant to abide by a patient’s or family wishes to terminate life-support devices.
Although there may be a duty to provide life-sustaining equipment in
the immediate aftermath of cardiopulmonary arrest, there is no duty to
continue its use after it has become futile and ineffective to do so in the
opinion of qualified medical personnel. An example is a patient who
suffered severe brain damage, placing him in a comatose and vegetative
state, from which, according to tests and examinations by other specialists,
he was unlikely to recover. The patient, on the written request of his family,
was taken off life-support equipment. The patient’s family (his wife and eight children) made the decision together after consultation with the
physicians. Evidence had been presented that the patient, before his
incapacitation, had expressed to his wife that he would not want to be kept
alive by a machine.
Decisions by family members are based on love and concern for the
dignity of their loved one (Barber v. Superior Court, 147 Cal. App. 3d
1006 [Cal. Ct. App. 1983]).
Voluntary or Involuntary Euthanasia
Both active and passive euthanasia may be either voluntary or involuntary.
Voluntary euthanasia occurs when a person suffering an incurable illness
makes the decision to die. To be considered voluntary, the request or
consent must be made by a legally competent adult and be based on
material information concerning the possible ramifications and alternatives
available.
Involuntary euthanasia, however, occurs when the decision to
terminate the life of an incurable person (i.e., an incompetent or
unconsenting competent) is made by someone other than that incurable
person.
The patient’s lack of consent could be due to mental impairment or a comatose state. Important value questions face courts grappling with
making decisions regarding involuntary euthanasia:
• Who should decide to withhold or withdraw treatment? • On what factors should the decision be based? • Are there viable standards to guide the courts? • Should criminal sanctions be imposed on a person assisting in ending a
life?
• When does death occur?
Constitutional Considerations
To analyze the important questions regarding whether life-support
treatment can be withheld or withdrawn from an incompetent patient, it is
necessary to consider first what rights a competent patient possesses. Both
statutory law and case law have presented a diversity of policies and points
of view. Some courts point to common law and the early case of
Schloendorff v. Society of New York Hospital 2 to support their belief in a
patient’s right to self-determination. The Schloendorff court stated:3
Every human being of adult years has a right to determine what shall
be done with his own body; and the surgeon who performs an operation
without his patient’s consent commits an assault for which he is liable for damages.
This right of self-determination was emphasized in In re Storar 4 when
the court announced that every human being of adult years and sound mind
has the right to determine what shall be done with his or her own body.
The Storar case was a departure from the New Jersey Supreme Court’s rationale in the case of In re Quinlan.
5 The Quinlan case was the first to
address significantly the issue of whether euthanasia should be permitted
when a patient is terminally ill. The Quinlan court, relying on Roe v.
Wade, 6 announced that the constitutional right to privacy protects a
patient’s right to self-determination. The court noted that the right to privacy “is broad enough to encompass a patient’s decision to decline medical treatment under certain circumstances, in much the same way as it
is broad enough to encompass a woman’s decision to terminate pregnancy under certain conditions.”7
The Quinlan court, in reaching its decision, applied a test balancing the
state’s interest in preserving and maintaining the sanctity of human life against Karen Quinlan’s privacy interest. It decided that, especially in light of the prognosis (physicians determined that Quinlan was in an irreversible
coma), the state’s interest did not justify interference with her right to
refuse treatment. Thus, Karen Quinlan’s father was appointed her legal guardian, and the respirator was shut off.
In the same year as the Quinlan decision, the case of Superintendent of
Belchertown State School v. Saikewicz 8 was decided. There, the court,
using the balancing test enunciated in Quinlan, approved the
recommendation of a court-appointed guardian ad litem that it would be in
Saikewicz’s best interests to end chemotherapy treatment. Saikewicz was a mentally retarded, 67-year-old patient suffering from leukemia. The court
found from the evidence that the prognosis was dim, and even though a
“normal person” would probably have chosen chemotherapy, it allowed Saikewicz to die without treatment to spare him the suffering.
Although the court also followed the reasoning of the Quinlan opinion
in giving the right to an incompetent to refuse treatment, based on either
the objective “best interests” test or the subjective “substituted judgment” test, which it favored because Saikewicz always had been incompetent, the
court departed from Quinlan in a major way. It rejected the Quinlan
approach of entrusting a decision concerning the continuance of artificial
life support to the patient’s guardian, family, attending physicians, and a hospital ethics committee. The Saikewicz court asserted that even though a
judge might find the opinions of physicians, medical experts, or hospital
ethics committees helpful in reaching a decision, there should be no
requirement to seek out the advice. The court decided that questions of life
and death with regard to an incompetent should be the responsibility of the
courts, which would conduct detached but passionate investigations. The
court took a “dim view of any attempt to shift the ultimate decision-making responsibility away from duly established courts of proper jurisdiction to
any committee, panel, or group, ad hoc or permanent.”9 This main point of difference between the Saikewicz and Quinlan cases
marked the emergence of two different policies on the incompetent’s right to refuse treatment. One line of cases has followed Saikewicz and supports
court approval before physicians are allowed to withhold or withdraw life
support. Advocates of this view argue that it makes more sense to leave the
decision to an objective tribunal than to extend the right of a patient’s privacy to a number of interested parties, as was done in Quinlan. They
also attack the Quinlan method as being a privacy decision effectuated by
popular vote. 10
Six months after Saikewicz, the Massachusetts Appeals Court narrowed
the need for court intervention in In re Dinnerstein 11
by finding that “no code” orders are valid to prevent the use of artificial resuscitative measures on incompetent terminally ill patients. The court was faced with the case of
a 67-year-old woman who was suffering from Alzheimer’s disease. It was determined that she was permanently comatose at the time of trial.
Furthermore, the court decided that Saikewicz-type judicial proceedings
should take place only when medical treatment could offer a reasonable
expectation of effecting a permanent or temporary cure of or relief from the
illness.
The Massachusetts Supreme Judicial Court attempted to clarify its
Saikewicz opinion with regard to court orders in In re Spring. 12
It held that
such different factors as the patient’s mental impairment and his or her medical prognosis with or without treatment must be considered before
judicial approval is necessary to withdraw or withhold treatment from an
incompetent patient. The problem in all three cases is that there is still no
clear guidance as to exactly when the court’s approval of the removal of life-support systems would be necessary. Saikewicz seemed to demand
judicial approval in every case. Spring, however, in partially retreating
from that view, stated that it did not have to articulate what combination of
the factors it discussed, thus making prior court approval necessary.
The inconsistencies presented by the Massachusetts cases have led
most courts since 1977 to follow the parameters set by Quinlan, requiring
judicial intervention. In cases in which physicians have certified the
irreversible nature of a patient’s loss of consciousness, an ethics committee (actually a neurologic team) could certify the patient’s hopeless neurologic condition. Then a guardian would be free to take the legal steps necessary
to remove life-support systems. The main reason for the appointment of a
guardian is to ensure that incompetents, like all other patients, maintain
their right to refuse treatment. Most holdings indicate that because a patient
has the constitutional right of self-determination, those acting on the
patient’s behalf can exercise that right when rendering their best judgment concerning how the patient would assert the right. This substituted
judgment doctrine could be argued on standing grounds, whereby a second
party has the right to assert the constitutional rights of another when that
second party’s intervention is necessary to protect the other’s constitutional rights. The guardian’s decision is sounder if it is based on the known
desires of a patient who was competent immediately before becoming
comatose.
An advance directive, such as a living will, is persuasive evidence of an
incompetent’s wishes. An incompetent patient can act as a guardian and in accordance with the terms of a living will. An agent can substitute his or
her judgment for that of the patient.
A court may require the attending physician to certify that a patient is
in a permanent vegetative state, with no reasonable chance for recovery,
before a family member or guardian can request termination of
extraordinary means of medical treatment.
The decision maker would attempt to ascertain the incompetent
patient’s actual interests and preferences. Court involvement would be mandated only to appoint a guardian in one of the following cases:
13
• Family members disagree as to the incompetent’s wishes • Physicians disagree on the prognosis • The patient’s wishes cannot be known because he or she has always been
incompetent
• Evidence exists of wrongful motives or malpractice • No family member can serve as a guardian
Defining Death
When is a patient considered to be legally dead, and what type of treatment
can be withheld or withdrawn? Most cases dealing with euthanasia speak
of the necessity for a physician to diagnose a patient as being either in a
persistent vegetative state or terminally ill.
Traditionally, the definition of death adopted by the courts has been
according to Black’s Law Dictionary: “cessation of respiration, heartbeat, and certain indications of central nervous system activity, such as
respiration and pulsation.”14 Currently, however, modern science has the capacity to sustain vegetative functions of those in irreversible comas.
Machinery can sustain heartbeat and respiration even in the face of brain
death. It is now generally accepted that the irreversible cessation of brain
function constitutes death.
Ethicists who advocate the prohibition on taking action to shorten life
agree that “where death is imminent and inevitable, it is permissible to forgo treatments that would only provide a precarious and painful
prolongation of life, as long as the normal care due to the sick person in
similar cases is not interrupted.”15 Relying on the 1968 Harvard Criteria set forth by the Ad Hoc
Committee of the Harvard Medical School to Examine the Definition of
Brain Death, the American Medical Association in 1974 accepted that
death occurs when there is “irreversible cessation of all brain functions including the brain stem.”16 Most states now recognize brain death by statute or judicial decision. New York, for example, in People v. Eulo,
17 in
rejecting the traditional cardiopulmonary definition of death, announced
that the determination of brain death can be made according to acceptable
medical standards. The court also repeated its holding in In re Storar 18
that
clear and convincing evidence of a person’s desire to decline extraordinary medical care may be honored and that a third person may not exercise this
judgment on behalf of a person who has not expressed or cannot express
the desire to decline treatment.
Some courts hold that artificial nutrition can be withheld from a patient
who is unable to converse or feed him- or herself. Unequivocal proof of a
patient’s wishes will suffice when the decision to terminate life support is at issue. Factors for determining the existence of clear and convincing
evidence of a patient’s intention to reject the prolongation of life by artificial means include:
1. The persistence of statements regarding an individual’s beliefs 2. The desirability of the commitment to those beliefs
3. The seriousness with which such statements were made
4. The inferences that may be drawn from the surrounding circumstances
The family of a patient who is in a persistent vegetative state cannot
necessarily order physicians to remove artificial nutrition. In 1983, Nancy
Cruzan sustained injuries in a car accident in which her car overturned,
after which she was found face down in a ditch without respiratory or
cardiac function. Although the patient was unconscious, her breathing and
heartbeat were restored at the site of the accident. On examination at the
hospital, a neurosurgeon diagnosed her as having suffered cerebral
contusions and anoxia. It was estimated that she had been deprived of
oxygen for 12 to 14 minutes. After remaining in a coma for 3 weeks,
Cruzan went into an unconscious state. At first she was able to ingest some
food orally. Thereafter, surgeons implanted a gastrostomy feeding and
hydration tube, with the consent of her husband, to facilitate feeding her.
She did not improve, and until December 1990, she lay in a Missouri state
hospital in a persistent vegetative state that was determined to be
irreversible, permanent, progressive, and ongoing. She was not dead,
according to the accepted definition of death in Missouri, and physicians
estimated that she could live in the vegetative state for an additional 30
years. Because of the prognosis, Cruzan’s parents asked the hospital staff to cease all artificial nutrition and hydration procedures. The staff refused to
comply with their wishes without court approval. The state trial court
granted authorization for termination, finding that Cruzan had a
fundamental right—grounded in both the state and federal constitutions— to refuse or direct the withdrawal of death-prolonging procedures.
Testimony at trial from a former roommate of Cruzan indicated to the court
that she had stated that if she were ever sick or injured she would not want
to live unless she could live halfway normally. The court interpreted that
conversation, which had taken place when Cruzan was 25 years old, as
meaning that she would not want to be forced to take nutrition and
hydration while in a persistent vegetative state.
The case was appealed to the Missouri Supreme Court, which reversed
the lower court decision. The court not only doubted that the doctrine of
informed consent applied to the circumstances of the case, it moreover
would not recognize a broad privacy right from the state constitution that
would support the right of a person to refuse medical treatment in every
circumstance. Because Missouri recognizes living wills, the court held that
Cruzan’s parents were not entitled to order the termination of her treatment because “no person can assume that choice for an incompetent in the absence of the formalities required under Missouri’s Living Will statutes or the clear and convincing, inherently reliable evidence absent here.”19 The court found that Cruzan’s statements to her roommate did not rise to the level of clear and convincing evidence of her desire to end nutrition and
hydration.
In June 1990, the U.S. Supreme Court heard oral arguments and held
that: 20
1. The U.S. Constitution does not forbid Missouri from requiring that
there be clear and convincing evidence of an incompetent’s wishes as to the withdrawal of life-sustaining treatment.
2. The Missouri Supreme Court did not commit constitutional error in
concluding that evidence adduced at trial did not amount to clear and
convincing evidence of Cruzan’s desire to cease hydration and nutrition.
3. Due process did not require the state to accept the substituted judgment
of close family members, absent substantial proof that their views
reflected those of the patient.
In delivering the opinion of the Court, Justice William Rehnquist noted
that although most state courts have applied the common-law right to
informed consent or a combination of that right and a privacy right when
allowing a right to refuse treatment, the Supreme Court analyzed the issues
presented in the Cruzan case in terms of a 14th Amendment liberty interest.
They found that a competent person has a constitutionally protected right
grounded in the due process clause to refuse lifesaving hydration and
nutrition. Missouri provided for the incompetent by allowing a surrogate to
act for the patient in choosing to withdraw hydration and treatment.
Moreover, it put into place procedures to ensure that the surrogate’s action conforms to the wishes expressed by the patient when he or she was
competent. Although recognizing that Missouri had enacted a restrictive
law, the Supreme Court held that right-to-die issues should be decided
pursuant to state law, subject to a due process liberty interest, and in
keeping with state constitutional law. After the Supreme Court rendered its
decision, the Cruzans returned to Missouri probate court, where on
November 14, 1990, Judge Charles Teel authorized physicians to remove
the feeding tubes from Cruzan. The judge determined that testimony
presented to him early in November demonstrated clear and convincing
evidence that Nancy would not have wanted to live in a persistent
vegetative state. Several of her co-workers had testified that she told them
before her accident that she would not want to live “like a vegetable.” On December 26, 1990, 2 weeks after her feeding tubes were removed, Nancy
Cruzan died.
Legislative Response
After the Cruzan decision, states began to rethink existing legislation and
draft new legislation in the areas of living wills, durable powers of attorney,
health care proxies, and surrogate decision-making. Pennsylvania and
Florida were two of the first states to react to the Cruzan decision. The new
Pennsylvania law is applied to terminally ill or permanently unconscious
patients. The statute, the Advance Directive for Health Care Act, 21
deals
mainly with individuals who have prepared living wills. It includes in its
definition of life-sustaining treatment the administration of hydration and
nutrition by any means if it is stated in the individual’s living will. The statute mandates that a copy of the living will be given to the physician to
be effective. Furthermore, the patient must be incompetent or permanently
unconscious. If there is no evidence of the presence of a living will, the
Pennsylvania probate codes allow an attorney-in-fact who was designated
in a properly executed durable-power-of-attorney document to give
permission for “medical and surgical procedures to be utilized on an incompetent patient.”22
The Supreme Court stated in Cruzan that only 15% of the population
has signed any living wills or other types of medical directives. In light of
that, more states will have to address the problem of surrogate decision
making for an incompetent. Legislation would not only have to include
direction to consider evidence of an incompetent’s wishes that had been expressed when he or she was competent, but it also would have to include
provisions for consideration and protection of an incompetent who never
stated what he or she would want done if in a terminally ill or persistent
vegetative state.
Unless there is some national uniformity in the legislation, patients and
their families will shop for states that will allow them to have medical
treatment terminated or withdrawn with as few legal hassles as possible.
For example, on January 18, 1991, a Missouri probate court judge
authorized a father to take his 20-year-old brain-damaged daughter,
Christine Busalacchi, from the Missouri Rehabilitation Center to
Minnesota for testing by a pro-euthanasia physician, Dr. Ronald Cranford.
Cranford, who practiced at the Hennepin County Medical Center, has been
at the center of controversy in Minnesota. In January 1991, Pro Life Action
Ministries demanded Cranford’s resignation, claiming that he “desires to make Minnesota the killing fields for the disabled.”23 He, however, viewed himself as an advocate of patients’ rights; however, the situation involving Cranford is resolved. It is clear that the main reason Busalacchi sought
authorization to take his daughter to Minnesota is that he believed that he
would have to deal with fewer legal impediments there to allow his
daughter to die.
Because of the continuing litigation concerning the right-to-die issue, it
is clear that the public must be educated about the necessity of expressing
their wishes concerning medical treatment while they are competent.
Uniformity with regard to the legal instruments available for demonstrating
what a patient wants should be a common goal of legislators, courts, and
the medical profession. If living wills, surrogates, and durable powers of
attorney were to be enacted pursuant to national rather than individual state
guidelines, the result should be a greater ease in resolving the myriad
conflicting issues in this area. Some states have addressed the problem by
statutorily providing for these instruments, thereby enabling individuals to
have a say in the medical care they should receive if they become unable to
speak for themselves.
Chief Justice Fred Dore of the Washington Supreme Court voiced his
opinion that a legislative response to right-to-die issues could be better
addressed by the legislature.
The United States Supreme Court, in Cruzan, questioned whether a
federally protected right to forgo nutrition and hydration existed. The
Cruzan Court confronted the same philosophical issues that we face
today and wisely recognized and deferred to the Legislature’s superior policy-making abilities. As was the case in Cruzan, our legislature is
far better equipped to evaluate this complex issue and should not have
its power usurped by this court. 24
Assisted Suicide
The issue of assisted suicide presents profound questions of medicine and
medical ethics, theology and sociology, and numerous other far-reaching
public policy issues. These are precisely the kinds of issues in which public
input is vital, and courts are simply not equipped to conduct the type of
comprehensive, broad-based hearings at which witnesses and experts on all
sides of the question would testify about the broader policy ramifications of
creating and regulating a right to assisted suicide. The legislative and
executive branches in our system are uniquely well-equipped to pursue
these issues. Courts have before them only the legal arguments of lawyers,
and although questions of law are certainly part of the equation, the core
issues presented are fundamentally grounded in questions of policy and
how we view ourselves as a society. In a democracy, these questions are
best answered by those who must answer to the people for their policy
product, not by those who have no accountability to the people. 25
Physician-Assisted Suicide
NEWSPAPER CLIPPINGS: Physician-Assisted Suicide Legal in
Montana, Court Rules
The state supreme court declined to rule on constitutional grounds
but said state law does not forbid doctor-aided death.
Physicians in Montana should not fear criminal prosecution when
writing lethal prescriptions for mentally competent patients with
terminal illnesses, the state’s supreme court said in a 4-2 decision issued Dec. 31, 2009.
Because patients consent to their own deaths and administer the
lethal medications themselves, physicians would be shielded from
homicide liability under state law, the court said in its decision in the
case of Baxter v. Montana. The ruling makes Montana the third state,
after Oregon and Washington, where physician-assisted suicide is legal.
Kevin B. O’Reilly, American Medical News, January 18, 2010
Physician-assisted suicide is an action in which a physician voluntarily
aids a patient in bringing about his or her own death. In Oregon, for
example, a physician may under the law provide the patient with the
necessary prescriptions for medication to end his or her life. The states of
Oregon and Washington allow physician-assisted suicide, as a result of
legislative enactments. Montana has yet to provide legislation for
physician-assisted suicide, however, the Montana Supreme Court ruled that
state law protects physicians from prosecution for assisting terminally ill
patients to die. The court, however, did not address whether assisted
suicide was guaranteed under the state’s constitution.
Dr. Jack Kevorkian of Michigan announced in October 1989 that he
had developed a device that would end one’s life quickly, painlessly, and humanely. He chose to assist a 54-year-old Alzheimer’s disease patient in committing suicide on June 4, 1990. In December 1990, he was charged
with first-degree murder, but the charge was later dismissed because
Michigan had no law against assisted suicide. He was ordered, however,
not to help anyone else commit suicide or to give advice about it. On
February 6, 1991, he violated the court order by giving advice about the
preparation of the drug to a terminally ill cancer patient. 26
Additional
murder charges were lodged against Kevorkian in October 1991, when he
instructed two Michigan women in the use of his “suicide machine.” In dismissing the charges against him, the circuit court judge stated that
“some people with intractable pain cannot benefit from treatment.” While emphasizing that Michigan has no law against assisting suicide, the judge
also expressed his belief that physician-assisted suicide remains an
alternative for patients experiencing “unmanageable pain.”27 The Michigan House approved legislation placing a temporary ban on
assisted suicide on November 24, 1992. The Senate approved the
temporary ban after Kevorkian helped a sixth terminally ill patient kill
herself. On December 15, 1992, Michigan Governor John Engler signed
the law just hours after two more women committed suicide with
Kevorkian’s aid. The new law, which became effective on April 1, 1993, made assisting
suicide a felony punishable by up to 4 years in prison and a $2,000 fine.
Under the new law, assisted suicide was banned for 15 months. During this
time, a special commission studied assisted suicide and submitted its
recommendations to the Michigan legislature for review and action. The
new law apparently raised constitutional questions and was challenged by
the Civil Liberties Union of Michigan because of the claim that it failed to
recognize that the terminally ill have the right to end their lives painlessly
and with dignity.
Kevorkian faced prosecution for murdering two people and for
assisting in the suicides of three others. As a result, he appealed a Michigan
Supreme Court ruling that found there is no right to assisted suicide. 28
The
U.S. Supreme Court rejected his argument that assisted suicide is a
constitutional right. The high court’s decision allowed the State of Michigan to move forward and prosecute Kevorkian on the pending
charges. At the time of the high court’s ruling, Kevorkian had attended his 22nd suicide, involving a retired clergyman, less than a month after he was
left facing murder charges in Michigan. 29
As of March 1998, Kevorkian
had aided in or witnessed 100 suicides. Kevorkian was released on June 1,
2007, after serving 8 years on the 10- to 25-year sentence for physician-
assisted suicide.
In March 1995, a federal appeals court upheld the state of Washington’s ban on assisted suicide. Then, in June 1997, the United States Supreme
Court, in two unanimous and separate decisions, ruled that the laws in
Washington and New York prohibiting assisted suicide are constitutional;
nevertheless, the U.S. Supreme Court has also ruled that states can allow
physicians to assist in the suicide of their terminally ill patients.
Criminalizing Assisted Suicide
The Supreme Court in Quill v. Vacco 30
found that neither the assisted
suicide ban nor the law permitting patients to refuse medical treatment
treats anyone differently from anyone else or draws any distinctions
between persons. There is a distinction between letting a patient die and
making one die. Most legislatures have allowed the former, but have
prohibited the latter. The Supreme Court disagreed with the respondents’ claim that the distinction is arbitrary and irrational.
In its decision, the Supreme Court determined that New York had valid
reasons for distinguishing between refusing treatment and assisting suicide.
Those reasons included prohibiting intentional killing and preserving life,
preventing suicide, maintaining the physician’s role as his or her patient’s healer, and protecting vulnerable people from indifference, prejudice, and
psychological and financial pressure to end their lives. All of those reasons,
the Court decided, constitute valid and important public interests fulfilling
the constitutional requirement that a legislative classification bear a rational
relation to a legitimate end.
In the Washington case, Washington v. Glucksberg, 31
the Court applied
the same “rationally related to the state’s interest in preserving life” test (which includes preventing suicide and studying, identifying, and treating
its causes; protecting vulnerable groups; and preventing the state from
allowing euthanasia). The Court held that assisted suicide is not a liberty
protected by the Constitution’s due process clause. A majority of states now ban assisted suicide. These rulings, however, do not affect the right of
patients to refuse treatment. It is clear that this emotionally charged issue is
not settled. Legislative, judicial, and public debates continue to rage.
A Florida court ruled that a man dying of AIDS had a right to
physician-assisted suicide under the privacy issues of the state’s constitution. The court emphasized that the patient had to administer the
lethal dose of medication, which was prescribed by his physician.
Prosecutors were enjoined from bringing criminal charges against the
physician. 32
In the end, caregivers must improve the variety of pain management
alternatives to those who are dying so that physician-assisted suicide does
not become the answer for those who suffer. Society must learn to deal
effectively with end-of-life issues. Thus far, progress is slow and
inadequate.
Oregon’s Death with Dignity Act (1994) On October 27, 1997, physician-assisted suicide became a legal medical
option for the terminally ill residents of Oregon. The Oregon Death with
Dignity Act allows a terminally ill Oregon resident to obtain a lethal dose
of medication from his or her physician. The act legalizes physician-
assisted suicide but specifically prohibits euthanasia, where a physician or
other person directly administers a medication to end another’s life. The following are excerpts from the Oregon Death with Dignity Act:
Or. Rev. Stat. Sects. 127.800-.897 Section 1.01. Definitions...
(12) “Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical
judgment, produce death within (6) months . . .
Section 2.01. Who may initiate a written request for medication?
An adult who is capable, is a resident of Oregon, and has been
determined by the attending physician and consulting physician to be
suffering from a terminal disease, and who has voluntarily expressed
his or her wish to die, may make a written request for medication for
the purpose of ending his or her life in a humane and dignified manner.
Section 2.02. Form of the Written Request.
(1) A valid request for medication . . . shall be in substantially the
form described in ORS 127.897, signed and dated by the patient
and witnessed by at least two individuals who, in the presence
of the patient, attest that to the best of their knowledge and
belief the patient is capable, acting voluntarily, and is not being
coerced to sign the request. . . .
Section 3.01. Attending physician responsibilities. The attending
physician shall: and has made the request voluntarily.
(2) Inform the patient of:
(a) His or her medical diagnosis;
(b) His or her prognosis;
(c) The potential risks associated with taking the medication to
be prescribed;
(d) The probable result of taking the medication to be
prescribed; and
(e) The feasible alternatives, including, but not limited to,
comfort care, hospice care, and pain control.
(3) Refer the patient to a consulting physician for medical
confirmation of the diagnosis, and for a determination that the
patient is capable and acting voluntarily . . .
Section 3.06. Written and oral requests.
In order to receive a prescription for medication to end his or her
life in a humane and dignified manner, a qualified patient shall have
made an oral request and a written request, and reiterate the oral
request to his or her attending physician no less than (15) days after
making the initial oral request. At the time the qualified patient makes
his or her second oral request, the attending physician shall offer the
patient an opportunity to rescind the request.
Section 3.07. Right to rescind request.
A patient may rescind his or her request at any time and in any
manner without regard to his or her mental state. . . .
Section 3.08. Waiting periods.
No less than (15) days shall elapse between the patient’s initial oral request and the writing of a prescription. . . . No less than 48 hours
shall elapse between the patient’s written request and the writing of a prescription. . . .
Section 6.01. Form of the request.
A request for a medication . . . shall be in substantially the
following form.
Patient Self-Determination Act of 1990
The Patient Self-Determination Act of 1990 33
provides that patients have a
right to formulate advance directives and to make decisions regarding their
health care. Self-determination includes the right to accept or refuse
medical treatment. Health care providers (including hospitals, nursing
homes, home health agencies, health maintenance organizations, and
hospices) receiving federal funds under Medicare are required to comply
with the new regulations. Providers are required to: 34
1. Provide individuals written information concerning their rights under
state law (whether statutory or recognized by courts of the state) to
make decisions including the right to accept or refuse medical or
surgical treatment and the right to formulate advance directives.
2. Document in the individual’s medical record whether the individual has executed an advance directive.
3. Not condition the provision of care or otherwise discriminate against an
individual based on whether the individual has executed an advance
directive.
4. Ensure compliance with requirements of State law (whether statutory or
recognized by the courts of the State) regarding advance directives.
The provider must inform individuals that complaints concerning the
advance directive requirements may be filed with the state survey and
certification agency.
5. Provide education for staff concerning its policies and procedures on
advance directives.
6. Provide for community education regarding issues concerning advance
directives by defining what constitutes an advance directive,
emphasizing that an advance directive is designed to enhance an
incapacitated individual’s control over medical treatment and describe applicable state law concerning advance directives. A provider must be
able to document its community education efforts.
Providers are not entitled to reimbursement under the Medicare
program if they fail to meet Patient Self-Determination Act of 1990
requirements.
ADVANCE DIRECTIVES
Patients have a right to make decisions about their health care with their
physician. They may agree to a proposed treatment, choose among offered
treatments, or say no to a treatment. Patients have this right even if they
become incapacitated and are unable to make decisions regarding their
health care.
Because of the advances in modern medical technology, each person
should give serious consideration as to their health care wishes, to
decide what they would want done should they become incapacitated,
to execute advance directives and make their wishes known so that
family and health care providers can respect their decision.
Advance directives, in the form of a “living will” or “durable power of attorney,” allow the patient to state in advance the kinds of medical care that he or she considers acceptable or not acceptable. The patient can
appoint an agent, a surrogate decision maker, to make those decisions on
his or her behalf. A patient should be asked at the time of admission if he
or she has an advance directive. If a patient does not have an advance
directive, the organization should provide the patient with information
about an advance directive and the opportunity to execute a directive. A
patient should clearly understand that an advance directive is a guideline
for caregivers describing his or her wishes for medical care—what he or she would and would not want—in the event of incapacitation and inability to make decisions. This interaction should be documented in the patient’s medical record. If the patient has an advance directive, a copy should be
requested for insertion into the patient’s record. If the patient does not have a copy of the advance directive with him or her, the substance thereof
should be documented and flagged in the patient’s medical record. Documentation should include the location of the advance directive, the
name and telephone number of the designated health care agent, and any
information that might be helpful in the immediate care situation (e.g.,
patient’s desire for food and hydration). The purpose of such documentation should not be considered to be a need to recreate a new
directive, but should be considered a desire to adhere to a patient’s wishes
in the event some untoward event occurs while waiting for a copy of the
directive.
The patient can execute a new directive at any time if desired. Patient
and family education should be provided regarding the existence of the
directive and its contents. The patient should be periodically queried about
whether he or she wishes to make any changes with regard to an advance
directive.
Living Will
A living will is the instrument or legal document that describes those
treatments an individual wishes or does not wish to receive should he or
she become incapacitated and unable to communicate treatment decisions.
Typically, a living will allows a person, when competent, to inform
caregivers in writing of his or her wishes with regard to withholding and
withdrawing life-supporting treatment, including nutrition and hydration.
The living will is helpful to health care professionals because it provides
guidance about a patient’s wishes for treatment, provides legally valid instructions about treatment, and protects the patient’s rights and the provider who honors them.
The Supreme Court of Kentucky’s Living Will Directive Act was determined to be constitutional in T. Bruce Simpson, Jr., v. Commonwealth
of Kentucky and Cabinet for Human Resources, 142 S.W3d 24 (Ky. 2004).
The act allows a judicially appointed guardian or other designated
surrogate to remove a ward’s life support. After suffering cardiac arrest, it was agreed that the patient, Woods, would never regain consciousness.
After a recommendation of the hospital’s ethics committee, Wood’s guardian asked for the removal of Woods’s life support. If there was no legal guardian but the physicians, family, and ethics committee all agree
with the surrogate’s decision—in this case, the state’s—there is no need for judicial approval. The Supreme Court did determine that when there is
disagreement in a particular case, withdrawal of life support would be
prohibited absent clear and convincing evidence that the patient is
permanently unconscious or in a persistent vegetative state and that
withdrawal of life support was in the patient’s best interest. In support of its holding, the Supreme Court cited the ethical standards of the National
Center for State Courts, the Council on Ethical and Judicial Affairs of the
American Medical Association, an Address to an International Congress of
Anesthesiologists by Pope Pius XII, and the Declaration on Euthanasia by
Pope John Paul II: 35
In determining the patient’s best interests, courts may consider, but are not limited to considering: (1) the patient’s present level of physical,
sensory, emotional, and cognitive functioning and possibility of
improvement thereof; (2) any relevant statements or expressions made
by the patient, when competent, as to his or her own wishes with a
rebuttable presumption attaching to a valid living will or a designation
of a health care surrogate; (3) to the extent known, the patient’s own philosophical, religious, and moral views, life goals, values about the
purpose of life and the way it should be lived, and attitudes toward
sickness, medical procedures, suffering, and death; (4) the degree of
physical pain caused by the patient’s condition, treatment, and termination of treatment; (5) the degree of humiliation, dependence,
and loss of dignity probably resulting from the condition or treatment;
(6) the life expectancy and prognosis for recovery with and without the
treatment; (7) the various treatment options and their risks, benefits,
and side effects; (8) whether any particular treatment would be
proportionate or disproportionate in terms of the benefits gained; and
(9) the impact on the patient’s family (the assumption being that the patient would be concerned about the well-being and happiness of his
or her own family members).
The living will should be signed and dated by two witnesses who are
not blood relatives or beneficiaries of property. A living will should be
discussed with the patient’s physician, and a signed copy should be placed in the patient’s medical record. A copy also should be given to the individual designated to make decisions in the event the patient is unable to
do so. A person who executes a living will when healthy and mentally
competent cannot predict how he or she will feel at the time of a terminal
illness; therefore, it should be updated regularly so that it accurately
reflects a patient’s wishes. The written instructions become effective when a patient is either in a terminal condition, permanently unconscious, or
suffering irreversible brain damage.
Right to Die Without a Living Will
In San Juan-Torregosa v. Garcia, 36
the evidence at trial established that
Garcia suffered a cardiac arrest. Although she was later resuscitated, she
suffered oxygen deprivation to her brain for more than 10 minutes and was
in a chronic vegetative state. Medical opinion established that she was
breathing reflexively, but there was no evidence that she would be able to
recover “cortical functions.” Garcia also had metastatic breast cancer. Her treating physician, Dr. Parrish, testified at trial that within a reasonable
degree of medical certainty Garcia would not recover and that he had never
seen anyone in her condition recover. He stated that Garcia was functioning
on a low brain level, whereby the brainstem kept her blood circulating,
maintained blood pressure, and maintained respiration, and that she was in
a persistent vegetative state with zero chance of recovering any cortex
activity. Parrish further stated that he discussed the discontinuation of
artificial nutrition and hydration with the family and that they had
ultimately decided to continue the fluids but stop the nutrition, which he
felt was reasonable.
When asked why Garcia had been given life support in the first place,
Parrish explained that although Garcia’s injury initially seemed very severe, he could not say from the beginning whether she would recover,
and wanted to give her every chance to improve if she could.
The trial court ruled that because Garcia, who was in a chronic
vegetative state, had not executed a living will, the court had no authority
to authorize discontinuance of artificial nutrition.
On appeal, the appellants asserted that the trial court erred in refusing
to allow Garcia’s family to terminate the artificial nutrition and hydration that was keeping her body alive, thereby failing to honor her wishes and
denying her constitutional right to bodily integrity.
The United States Supreme Court, in Cruzan v. Director, Missouri
Dept. of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990), recognized that a
competent person had a constitutionally protected liberty interest in
refusing unwanted medical treatment. The Court stopped short of finding
that an incompetent person would have the same right; however, the court
said: “An incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment, or any
other right. Such a ‘right’ must be exercised for her, if at all, by some sort of surrogate.”
Tennessee’s public policy on this issue is set forth in the “Legislative intent” section of the Tennessee Right to Natural Death Act, codified at Tenn. Code Ann. §32-11-102. This statute reads: “The general assembly declares it to be the law of the state of Tennessee that every person has the
fundamental and inherent right to die naturally with as much dignity as
circumstances permit and to accept, refuse, withdraw from, or otherwise
control decisions relating to the rendering of the person’s own medical care, specifically including palliative care and the use of extraordinary
procedures and treatment.” This policy applies to every person and does not distinguish between
those who are competent and those who are not. An individual has a right
to refuse treatment so long as that individual is competent. When an
individual is incompetent to make such a decision, the state has a duty to
become involved by trying to determine what “the desires of the patient would have been had he been conscious and competent”; the initial assumption would be that the patient desired lifesaving treatment unless
that assumption was contradicted by previous statements made when
competent. It is clear from state court decisions that artificial nutrition and
hydration are to be included in the realm of medical treatment that a patient
has a right to refuse.
The appeals court concurred with the trial court’s fact-finding that evidence is clear and convincing that Garcia would not want to be kept
alive by artificial means and that her wishes, expressed while she was
competent, would be to have these services discontinued. Courts have the
duty to protect constitutional rights and when necessary enable individuals
to exercise them. The appeals court ordered that a conservator be appointed
to carry out Garcia’s wishes, including the refusal for medical care.
Durable Power of Attorney
A durable power of attorney is a legal device that permits one individual,
known as the “principal,” to give to another person, called the “attorney-in- fact,” the authority to act on his or her behalf. The attorney-in-fact is authorized to handle banking and real estate affairs, incur expenses, pay
bills, and handle a wide variety of legal affairs for a specified period of
time. The power of attorney may continue indefinitely during the lifetime
of the principal so long as that person is competent and capable of granting
power of attorney. If the principal becomes comatose or mentally
incompetent, the power of attorney automatically expires, just as it would if
the principal dies.
Because a power of attorney is limited by the competency of the
principal, some states have authorized a special legal device for the
principal to express intent concerning the durability of the power of
attorney, to allow it to survive disability or incompetency. The durable
power of attorney is more general in scope, and applies to a wider range of
situations than those involving a patient in imminent danger of death, as is
necessary for a living will to apply. Although it need not delineate desired
medical treatment specifically, it must indicate the identity of the
principal’s attorney-in-fact and that the principal has communicated his or her health care wishes to the attorney-in-fact. Although the laws vary from
state to state, all 50 states and the District of Columbia have durable power
of attorney statutes. This legal device is an important alternative to
guardianship, conservatorship, or trusteeship. Because a durable power of
attorney places a considerable amount of power in the hands of the
attorney-in-fact, an attorney in the state where the client resides should
draw up the power of attorney. In the health care setting, a durable power
of attorney for health care is a legal instrument that designates and grants
authority to an agent to, for example, make health care decisions for
another.
Surrogate Decision Making
A surrogate decision maker is an agent who acts on behalf of a patient who
lacks the capacity to participate in a particular decision.
A health care agent’s rights are no greater than those of a competent patient; however, the agent’s rights are limited to any specific instructions included in the proxy document. An agent’s decisions take priority over those of any other person except the patient. The agent has the right to
consent or refuse to consent to any service or treatment, routine or
otherwise, to refuse life-sustaining treatment, and to access all of the
patient’s medical information to make informed decisions. The agent must make decisions based on the patient’s moral and religious beliefs. If a patient’s wishes are not known, decisions must be based on a good-faith judgment of what the patient would have wanted.
Substituted Judgment
Substituted judgment is a form of surrogate decision making where the
surrogate attempts to establish what decision the patient would have made
if that patient were competent to do so. This conclusion can be based on the
patient’s preference expressed in previous statements or the surrogate’s knowledge of the patient’s beliefs (e.g., religious) and values.37
Mrs. Martin, in In re Martin, 517 N.W.2d 749 (Mich. Ct. App. 1994),
wanted to withdraw her husband’s life support. Mr. Martin’s mother and sister did not wish to have Mr. Martin removed from life support, and thus
wanted Mrs. Martin removed as the patient’s guardian. There was, however, sufficient evidence to show that the patient had a medical
preference to decline treatment under circumstances such as those that had
occurred and that the patient’s spouse was a suitable guardian. Evidence was clear that Mr. Martin would never regain sufficient decision-making
capacity that would enable him to make such a decision and that his
condition and cognitive level of functioning would not improve in the
future.
Testimony from two of Mr. Martin’s friends described statements made by him that he would never want to be maintained in a coma or in a
vegetative state. In addition, Mrs. Martin described numerous statements
made to her by her husband before the accident saying that he would not
want to be maintained alive given the circumstances described earlier. The
court of appeals found no reason to dispute the trial court’s finding as to Mrs. Martin’s credibility. There was no evidence that Mrs. Martin had anything but her husband’s best interests at heart. There were allegations, but no evidence, that financial considerations or pressure from another
individual influenced Mrs. Martin’s testimony.
Guardianship
Guardianship is a legal mechanism by which the court declares a person
incompetent and appoints a guardian. The court transfers the responsibility
for managing financial affairs, living arrangements, and medical care
decisions to the guardian.
The right to refuse medical treatment on behalf of an incompetent
person is not limited to legally appointed guardians but may be exercised
by health care proxies or surrogates, such as close family members or
friends. When a patient has not expressed instructions concerning his or her
future health care in the event of later incapacity but has merely delegated
full responsibility to a proxy, designation of a proxy must have been made
in writing.
Health Care Proxy
A health care proxy allows a person to appoint a health care agent to make
treatment decisions in the event he or she becomes incompetent and is
unable to make decisions for him- or herself. The agent must be made
aware of the patient’s wishes regarding nutrition and hydration in order to be allowed to make a decision concerning withholding or withdrawing
them. In contrast to a living will, a health care proxy does not require a
person to know about and consider in advance all situations and decisions
that could arise. Rather, the appointed agent would know about and
interpret the expressed wishes of the patient and then make decisions about
the medical care and treatment to be administered or refused. The Cruzan
decision indicates that the Supreme Court views advance directives as clear
and convincing evidence of a patient’s wishes regarding life-sustaining treatment.
Although most statutes fail to cover incompetents, cases such as
Quinlan and Saikewicz created a constitutionally protected obligation to
terminate the incurable incompetent’s life when guardians use the doctrine of substituted judgment. Furthermore, some states provide for proxy
consent in the form of durable power of attorney statutes. Generally, these
involve designation of a proxy to speak on the incurable incompetent’s behalf. They represent a combination of the intimate wishes of the patient
and the medical recommendations of the physicians.
Oral declarations are accepted only after the patient has been declared
terminally ill. Moreover, the declarant bears the responsibility of informing
the physician to ensure that the document becomes a part of the medical
record. The California statute provides that the document be re-executed
after 5 years. Other statutes differ in the length of time of effectiveness.
Most states allow the document to be effective until revoked by the
individual. To revoke, the patient must sign and date a new writing, destroy
the first document himself or herself, direct another to destroy the first
document in his or her presence, or orally state to the physician an intent to
revoke. The effect of the directive varies among jurisdictions; however,
there is unanimity in the promulgation of regulations that specifically
authorize health care personnel to honor the directives without fear of
incurring liability. The highest court of New York in In re Eichner 38
complied with the request of a guardian to withdraw life-support systems
from an 83-year-old brain-damaged priest. The court reached its result by
finding the patient’s previously expressed wishes to be determinative. Before exercising an incompetent patient’s right to forgo medical
treatment, the surrogate decision maker must satisfy the following
conditions:
• The surrogate must be satisfied that the patient executed a document (e.g., Durable Power of Attorney for Health Care and Health Care Proxy)
knowingly, willingly, and without undue influence and that the evidence
of the patient’s oral declaration is reliable. • The patient must not have reasonable probability of recovering
competency so that the patient could exercise the right.
• The surrogate must take care to ensure that any limitations or conditions expressed either orally or in written declarations have been considered
carefully and satisfied.
FUTILITY OF TREATMENT
Futility of treatment, as it relates to medical care, occurs when the
physician recognizes that the effect of treatment will be of no benefit to the
patient. Morally, the physician has a duty to inform the patient when there
is little likelihood of success. The determination as to futility of medical
care is a scientific decision.
After a diagnosis has been made that a person is terminally ill with no
hope of recovery and is in a chronic vegetative state with no possibility of
attaining cognitive function, a state generally has no compelling interest in
maintaining life. The decision to forgo or terminate life-support measures
is, at this point, simply a decision that the dying process will not be
artificially extended. Although the state has an interest in the prolongation
of life, it has no interest in the prolongation of dying, and although there is
a moral and ethical decision to be made to end the process, that decision
can be made only by the surrogate. The decision whether to end the dying
process is a personal decision for family members or those who bear a legal
responsibility for the patient.
A determination as to the futility of medical care is a decision that must
be made by a physician. Even if death is not imminent but a patient’s coma is irreversible beyond doubt and there are adequate safeguards to confirm
the accuracy of the diagnosis with the concurrence of those responsible for
the patient’s care, it is not unethical to discontinue all means of life- prolonging medical treatment.
WITHDRAWAL OF TREATMENT
Withdrawal of treatment is a decision to discontinue treatment or medical
interventions for the patient. When death is imminent and cannot be
prevented by available treatment, it is morally permissible to withhold
treatment that can yield only a precarious prolongation of life that may
involve a great burden for the patient or family. Palliative care should be
encouraged in end-of-life situations.
Withdrawal of treatment should be considered when (1) the patient is in
a terminal condition and there is a reasonable expectation of imminent
death of the patient and (2) the patient is in a noncognitive state with no
reasonable possibility of regaining cognitive function, and/or restoration of
cardiac function will last for a brief period.
Patient Not in a Persistent Vegetative State
A guardian may only direct the withdrawal of life-sustaining medical
treatment, including nutrition and hydration, if the incompetent ward is in a
persistent vegetative state and the decision to withdraw is in the best
interests of the ward.
In Spahn v. Eisenberg, Edna’s sister and court-appointed guardian, Spahn, sought permission to direct the withholding of Edna’s nutrition, claiming that her sister would not want to live in this condition; however,
the only testimony presented at trial regarding Edna’s views on the use of life-sustaining medical treatment involved a statement made 30 years
earlier. At that time, Spahn and Edna were having a conversation about
their mother, who was recovering from depression, and Spahn’s mother-in- law, who was dying of cancer. Spahn testified that during this conversation,
Edna said to her that she would rather die of cancer than lose her mind.
Spahn further testified that this was the only time that she and Edna
discussed the subject and that Edna never said anything specifically about
withholding or withdrawing life-sustaining medical treatment.
The ethics committee at the nursing facility where Edna lived met to
discuss the issue of withholding artificial nutrition from Edna. The
committee approved withholding nutrition if no family member objected;
however, one of Edna’s nieces refused to sign a statement approving the withdrawal of nutrition.
The record spoke very little to what Edna’s desires would be, and there was no clear statement of what her desires would be today under the
current conditions. Her friends and family never had any conversations or
discussions with her regarding her feelings or opinions about withdrawing
nutrition or hydration, and she did not execute any advance directives
expressing her wishes while she was competent.
Consequently, the court held that a guardian may only direct the
withdrawal of life-sustaining medical treatment, including nutrition and
hydration, if the incompetent ward is in a persistent vegetative state and the
decision to withdraw is in the best interests of the ward. In this case, where
the only indication of Edna’s desires was made at least 30 years earlier and under different circumstances, there was not a clear statement of intent
such that Edna’s guardian might authorize the withholding of her nutrition.
The circuit judge concluded his own questioning of one member of the
ethics committee, “The way I understand it, what you really have is a liability problem, and that’s why you want everybody to consent, is that correct?” Dr. Erickson answered, “That is correct.”39
Removal of Life-Support Equipment
Although there may be a duty to provide life-sustaining equipment in the
immediate aftermath of cardiopulmonary arrest, there is no duty to
continue its use after it has become futile and ineffective to do so in the
opinion of qualified medical personnel. Two physicians in Barber v.
Superior Court 40
were charged with the crimes of murder and conspiracy
to commit murder. The charges were based on their acceding to requests of
the patient’s family to discontinue life-support equipment and intravenous tubes. The patient had suffered a cardiopulmonary arrest in the recovery
room after surgery. A team of physicians and nurses revived the patient and
placed him on life-support equipment. The patient had suffered severe
brain damage, placing him in a comatose and vegetative state from which,
according to tests and examinations by other specialists, he was unlikely to
recover. On the written request of the family, the patient was taken off life-
support equipment. The family, his wife and eight children, made the
decision together after consultation with the physicians. Evidence had been
presented that the patient, before his incapacitation, had expressed to his
wife that he would not want to be kept alive by a machine. There was no
evidence indicating that the family was motivated in their decision by
anything other than love and concern for the dignity of their loved one. The
patient continued to breathe on his own. Because the patient showed no
signs of improvement, the physicians again discussed the patient’s poor prognosis with the family. The intravenous lines were removed, and the
patient died sometime thereafter.
A complaint then was filed against the two physicians. The magistrate
who heard the evidence determined that the physicians did not kill the
deceased because their conduct was not the proximate cause of the
patient’s death. On motion of the prosecution, the superior court determined as a matter of law that the evidence required the magistrate to
hold the physicians to answer and ordered the complaint reinstated. The
physicians then filed a writ of prohibition with the court of appeals. The
court of appeals held that the physicians’ omission to continue treatment, although intentional and with knowledge that the patient would die, was
not an unlawful failure to perform a legal duty. The evidence amply
supported the magistrate’s decision. The superior court erred in
determining that, as a matter of law, the evidence required the magistrate to
hold the physicians to answer. The preemptory writ of prohibition to
restrain the Superior Court of Los Angeles from taking any further action
in this matter—other than to vacate its order reinstating the complaint and to enter a new and different order denying the People’s motion—was granted.
Feeding Tubes
Theologians and ethicists have long recognized a distinction between
ordinary and extraordinary medical care. The theological distinction is
based on the belief that life is a gift from God that should not be destroyed
deliberately by humans; therefore, extraordinary therapies that extend life
by imposing grave burdens on the patient and family are not required. A
patient, however, has an ethical and moral obligation to accept ordinary or
life-sustaining treatment. Although the courts have accepted decisions to
withhold or withdraw extraordinary care, especially the respirator, from
those who are comatose or in a persistent vegetative state with no
possibility of emerging, they have been unwilling until now to discontinue
feeding, which they have considered ordinary care.
In 1985, however, the New Jersey Supreme Court heard the case of In
re Claire C. Conroy. 41
The case involved an 84-year-old nursing home
patient whose nephew petitioned the court for authority to remove the
nasogastric tube that was feeding her. The court overturned the appellate
division decision and held that life-sustaining treatment, including
nasogastric feeding, could be withheld or withdrawn from incompetent
nursing home patients who will, according to physicians, die within 1 year,
in three specific circumstances. These are as follows: 42
1. When it is clear that the particular patient would have refused the
treatment under the circumstances involved (the subjective test)
2. When there is some indication of the patient’s wishes (but he or she has not “unequivocally expressed” his or her desires before becoming incompetent) and the treatment “would only prolong suffering” (the limited objective test)
3. When there is no evidence at all of the patient’s wishes, but the treatment “clearly and markedly outweighs the benefits the patient derives from life” (the pure objective test, based on pain)
A procedure involving notification of the state Office of the
Ombudsman is required before withdrawing or withholding treatment
under any of the three tests. The ombudsman must make a separate
recommendation.
The court also found tubal feeding to be a medical treatment, and as
such, as intrusive as other life-sustaining measures. The court in its analysis
emphasized duty, rather than causation, with the result that medical
personnel acting in good faith will be protected from liability. If physicians
follow the Quinlan/Conroy standards and decide to end medical treatment
of a patient, the duty to continue treatment ceases. Thus, the termination of
treatment becomes a lawful act.
Although Conroy presents case-specific guidelines, there is concern
that the opinion will have far-reaching repercussions. There is fear that
decisions to discontinue treatment will not be based on the “balancing of interests” test, but rather that a “quality-of-life” test similar to that used by Hitler will be used to end the lives of severely senile, very old, decrepit,
and burdensome people.
Those quality-of-life judgments would be most dangerous for nursing
home patients whose age would be a factor in the decision-making process.
“Advocates of ‘the right to life’ fear that the ‘right to die’ for the elderly and handicapped will become a ‘duty to die.’ ”43 In both the Saikewicz and Spring cases, age was a determining factor weighing against life-sustaining
treatment. Furthermore, in In re Hier, 44
the court found that Mrs. Hier’s age of 92 years made the “proposed gastrostomy substantially more onerous or burdensome . . . than it would be for a younger, healthier
person.” Moreover, a New York Superior Court held that the burdens of an emergency amputation for an elderly patient outweighed the benefit of
continued life. 45
Finding that prolonging her life would be cruel, the court
stated that life had no meaning for her. Although some courts have
recognized the difference, other courts must still address the difference
between Quinlan-type patients and older, confined, and conscious patients
who can interact but whose mental or physical functioning is impaired.
In a New Jersey case, however, the ombudsman denied a request to
remove feeding tubes from a comatose nursing home patient. 46
In applying
the Conroy tests, the ombudsman decided that Hilda Peterson might live
more than 1 year, the period that Conroy used as a criterion for determining
whether life support can be removed.
To complicate this issue further, on March 17, 1986, the American
Medical Association (AMA) changed its code of ethics on comas. Now
physicians may ethically withhold food, water, and medical treatment from
patients in irreversible comas or persistent vegetative states with no hope of
recovery—even if death is not imminent.47 Although physicians can consider the wishes of the patient and family or the legal representatives,
they cannot cause death intentionally. The wording is permissive, and, thus,
those physicians who feel uncomfortable withdrawing food and water may
refrain from doing so. The AMA’s decision does not comfort those who fear abuse or mistake in euthanasia decisions, nor does it have any legal
value as such. There are physicians, nurses, and families who are
unscrupulous and have their own, and not the patient’s, interests in mind. Even with the Conroy decision and the AMA’s code of ethics change, the feeding tube issue is not settled.
On April 23, 1986, the New Jersey Superior Court ruled that the
husband of severely brain-damaged Nancy Jobes could order the removal
of her life-sustaining feeding tube, which would ultimately cause the 31-
year-old comatose patient, who had been in a vegetative state in a hospice
for the past 6 years, to starve to death. 48
Dr. Fred Plum created and defined
the term “persistent vegetative state” as one in which:49
The body functions entirely in terms of its internal controls. It
maintains temperature. It maintains digestive activity. It maintains heart
beat and pulmonary ventilation. It maintains reflex activity of muscles
and nerves for low-level conditioned responses. But there is no
behavioral evidence of either self-awareness or awareness of the
surroundings in a learned manner.
Medical experts testified that the patient could, under optimal
conditions, live another 30 years. Relieving the nursing home officials from
performing the act on one of its residents, the court ruled that the patient
may be taken home to die (with the removal to be supervised by a
physician and medical care to be provided to the patient at home).
The nursing home had petitioned the court for the appointment of a
“life advocate” to fight for continuation of medical treatment for Jobes, which, it argued, would save her life. The court disallowed the appointment
of a life advocate, holding that case law does not support requiring the
continuation of life-support systems in all circumstances. Such a
requirement, according to the court, would contradict the patient’s right of privacy.
The court’s decision applied “the principles enunciated in Quinlan and . . . Conroy” and the “ruling by the AMA’s Council on Judicial Affairs that the provision of food and water is, under certain circumstances, a
medical treatment like any other and may be discontinued when the
physician and family of the patient feel it is no longer benefiting the
patient.”50 An Illinois court found that the authorized guardian of a terminally ill
patient in an irreversible coma or persistent vegetative state has a common-
law right to refuse artificial nutrition and hydration. The court found that
there must be clear and convincing evidence that the refusal is consistent
with the patient’s interest. The court also required the concurrence of the patient’s attending physician and two other physicians. “Court intervention is also necessary to guard against the remote, yet real possibility that greed
may taint the judgment of the surrogate decision maker.”51 Dissenting, Judge Ward said, “The right to refuse treatment is rooted in and dependent on the patient’s capacity for informed decision, which an incompetent patient lacks.”52
Also, Elizabeth Bouvia, a mentally competent cerebral palsy victim,
won her struggle to have feeding tubes removed even though she was not
terminally ill. 53
The California Court of Appeals announced on April 16,
1986, that she could go home to die. The court found that Bouvia’s decision to “let nature take its course” did not amount to a choice to commit suicide with people aiding and abetting it. The court stated that it is
not “illegal or immoral to prefer a natural, albeit sooner, death than a drugged life attached to a mechanical device.”54 The court’s finding that it was a moral and philosophical question, not a legal or medical one, leaves
one wondering whether the courts are opening the door to permitting “legal starvation” to be used by those who are not terminally ill but who do wish to commit suicide.
DO-NOT-RESUSCITATE ORDERS
Do-not-resuscitate (DNR) orders are those given by a physician indicating
that in the event of a cardiac or respiratory arrest “no” resuscitative measures should be used to revive the patient. A DNR order is an
extremely difficult decision to make for both the patient and family. It is
generally made when one’s quality of life has been so diminished that “heroic” rescue methods are no longer in the patient’s best interests. The attending physician or his or her designee may initiate a DNR order at the
request of or with the agreement of the patient or the legally appointed
health care decision maker. A DNR order may be written if the patient has
an executable advance directive with instructions regarding DNR status
and/or if the transfer information from an extended care facility indicates
the patient should have a DNR order.
If a patient lacks the ability to make a decision regarding a DNR order,
the patient’s legally appointed decision maker can make such decisions provided it can be demonstrated that the decision maker is following the
patient’s wishes. Advance directives, such as living wills, are helpful in determining a patient’s wishes.
DNR orders must be in writing and signed and dated by the physician.
Appropriate consents must be obtained either from the patient or his or her
health care agent. Many states have acknowledged the validity of DNR
orders in cases involving terminally ill patients in which the patients’ families make no objections to such orders.
DNR orders must comply with statutory requirements, be of short
duration, and be reviewed periodically to determine whether the patient’s condition or other circumstances (e.g., change of mind by the patient or
family) surrounding the “no code” orders have changed. Currently, it is generally accepted that if a patient is competent, the DNR order is
considered to be the same as other medical decisions in which a patient
may choose to reject life-sustaining treatment. In the case of an
incompetent, absent any advance written directives, the best interests of the
patient would be considered.
Competent Patients Make Their Own Decisions
Should relatives of a patient agree to a no code order when the patient is
competent to make his or her own decision?
In Payne v. Marion General Hospital, 55
the Indiana Court of Appeals
overturned a lower court decision in favor of the physician. The physician
had issued a no code status on Payne despite evidence given by a nurse that
up to a few minutes before his death Payne could communicate. The
physician had determined that Payne was incompetent, thereby rendering
him unable to give informed consent to treatment. Because Payne left no
written directives, the physician relied on one of Payne’s relatives, who asked for the DNR order. The court found that there was evidence that
Payne was not incompetent and should have been consulted before a DNR
order was given.
Furthermore, the court reviewed testimony that 1 year earlier Payne had
suffered and recovered from the same type of symptoms, leading to the
conclusion that there was a possibility that he could have survived if
resuscitation had continued. There was no DNR policy in place at the
hospital to assist the physician in making his decision. To avoid this type of
problem, health care providers should adopt an appropriate process with
respect to issuing no code orders.
CASE: SPOUSAL RIGHTS IN DECISION
MAKING
Mr. Martin sustained debilitating injuries as the result of an automobile
accident. He suffered severe subcortical brain damage, significantly
impairing his physical and cognitive functioning. 56
His injuries left him
totally paralyzed on the left side. He could not speak or eat and had no
bladder or bowel control. Martin remained conscious and had some
awareness of his surroundings. He could communicate to a very minimal
degree through head nods.
The trial court determined that Martin did not have nor would he ever
have the ability to have the requisite capacity to make decisions regarding
the withdrawal of life-support equipment. The evidence demonstrated that
Martin’s preference would have been to decline life-support equipment given his medical condition and prognosis. The trial court’s decision was based on the following four-part test for determining whether a person has
the requisite capacity to make a decision: Does the person have sufficient
mind to reasonably understand the condition? Is the person capable of
understanding the nature and effect of the treatment choices? Is the person
aware of the consequences associated with those choices? Is the person
able to make an informed choice that is voluntary and not coerced?
The trial court also determined that Mrs. Martin, the patient’s spouse, was a suitable guardian for him.
Mrs. Martin petitioned to withdraw her husband’s life support. Martin’s mother and sister counterpetitioned to have Mrs. Martin removed as the patient’s guardian. The Michigan Court of Appeals held that the evidence was sufficient to support a finding that the patient lacked capacity
to make decisions regarding the withholding or withdrawal of life-
sustaining treatment. As to the patient’s desire not to be placed on life- support equipment, there was sufficient evidence to show that the patient
had a medical preference to decline treatment under circumstances such as
those that occurred. There was also sufficient evidence to show that the
patient’s spouse was a suitable guardian. The test for determining whether Martin had the requisite capacity to
make a decision regarding the withholding or withdrawal of life-
supporting medical treatment was clear and convincing—he did not have sufficient decision-making capacity. The evidence was just as clear that he
never would regain sufficient decision-making capacity that would enable
him to make such a decision. It was the general consensus of all of the
experts that Martin’s condition and cognitive level of functioning would not improve in the future.
Testimony from two of Martin’s friends described statements made by him that he would never want to be maintained in a coma or in a vegetative
state. In addition, Mrs. Martin described numerous statements made to her
by Martin prior to the accident that he would not want to be maintained
alive, given the circumstances described previously here. The trial court
found that Mrs. Martin was credible. The court of appeals found no reason
to dispute the trial court’s finding as to Mrs. Martin’s credibility. In contrast to allegations made by the patient’s mother and sister, the
evidence was clear that Mrs. Martin’s testimony was credible. There was no evidence that Mrs. Martin had anything but her husband’s best interest at heart. There were allegations, but no evidence, that financial
considerations or pressure from another individual influenced Mrs.
Martin’s testimony.
Ethical and Legal Issues
1. Knowing that the patient had some ability to interact with his
environment, discuss the four-part test for determining the patient’s ability to make a decision.
2. Do you agree with the court’s decision? Explain. 3. Should the concern of the mother and sister have carried more weight
in removing custody from Mrs. Martin?
4. What influence do you believe the mother and sister might have had on
Mrs. Martin?
CASE: MEN DON’T CRY
Some say, “Men don’t cry.” Not true! You may find yourself crying alone someday. But for now, you have to be strong for Sunshine.
Sunshine was her name, as given to her by her grandmother. For purposes
of this case, she remains Sunshine. Not Miss or Ms. or Mrs., for Sunshine
is her name. If you were to ask Sunshine what she thought about her life,
this is what she would tell you.
As a hard-charging former district attorney, Sunshine knows what it’s like to be under the constant threat of death. In the notorious 1990 “Angel Gabriel” case, a key witness to a cult leader’s rape spree was murdered. As a result, the district attorney ordered that a panic alarm be placed in
Sunshine’s home.
Still, one enemy has done more damage than all of her former enemies
combined. Sunshine has been battling systemic sclerosis for more than 6
years and has beaten the long-shot odds for survival.
Early on, she lost 20 pounds in 3 weeks. One by one, from her
esophagus to her bottom, her internal organs came under painful attack.
Her skin hardened in patches. Her fingers became discolored and swollen.
Fingernails fell off. Calcification set in, and she nearly lost several digits.
At the moment, she has a mysterious edema throughout her body.
Maintaining a full-time work schedule, she bounced from physician to
physician for 3 years, seeking to find a reason for sudden illness. The clues
were finally put together, and her illness was diagnosed as systemic
sclerosis—a degenerative connective tissue disease. Most people don’t know she has an illness. She’s always in good
spirits. She hides it well. Sunshine admits to putting a mask on in the
morning. “When I cannot hide the pain, I disappear—go away or go home. I don’t want to be defined by my illness. You go through mourning and anger. You feel tethered by the disease. It’s a sadness you have to cope with.”
With her mask firmly in place, a smiling Sunshine says she is not
bitter. “I had a great life. I had fun. If it ended, I had fun.”
Sunshine’s prayer: Strength to Cope O God, you know my feelings. You know that I want to feel better. I want
to be better. I want to have my health restored. But the hours of testing,
the days of diagnosis, and the question marks concerning my future seem
nearly more than I can take! Grant me, O God, the strength to face each
hour of this and every day. In fact, when it seems that I cannot face even
this hour, fill me with strength to face the next five minutes. Amen.
Wherever Sunshine goes, the sun always shines, for she, as always,
recognizes the beauty of each day.
Ethical and Legal Issues
1. When Annie, a 27-year-old woman with two children, began
experiencing severe pain in her abdomen, her husband Mark scheduled
an appointment with Dr. Roberts, a gastroenterologist, who ordered a
series of tests. While conducting a barium scan, a radiologist at
Community Hospital noted a small bowel obstruction. Dr. Roberts
recommended surgery, and Annie agreed to it. Dr. Brown, the
operating surgeon, discovered that Annie has carcinoma of the colon
and told Mark. Mark wanted Annie to always have hope and asked Dr.
Brown not to tell Annie she had cancer. Mark and Dr. Brown told
Annie she had a narrowing of the colon. Annie underwent another
surgery two months later in an attempt to extend her life, still unaware
she had cancer. The surgery was unsuccessful and Annie died in the
hospital a few months later, so ill at the time that she was unaware that
she was dying. Do you think Mark is capable of making end-of-life
decisions for Sunshine? Explain your answer.
2. Should Sunshine appoint Mark as her health care surrogate decision
maker? Explain your answer.
CHAPTER REVIEW
1. Euthanasia is defined broadly as “the mercy killing of the hopelessly ill, injured, or incapacitated.” The debate over euthanasia is complex, and the legal system must maintain a balance between ensuring that the
patient’s constitutional rights are protected and protecting society’s interests in preserving life, preventing suicide, and maintaining the
integrity of the medical profession.
2. When there exists an element of uncertainty regarding a patient’s wishes in an emergency situation, the situation should be resolved in a
way that favors the preservation of life. This protects the patient’s right to freedom of religion and self-determination.
• Active euthanasia is the intentional commission of an act that will result in death.
• Passive euthanasia is when a potentially lifesaving treatment is withdrawn or withheld.
3. Voluntary euthanasia occurs when a competent adult patient with an
incurable condition who has been informed of the possible
ramifications and alternatives available gives consent. Involuntary
euthanasia is when the decision to terminate the life of an incurable
person (i.e., an incompetent or unconsenting competent) is made by
someone other than that incurable person.
4. The Supreme Court has ruled that there exists no constitutional right to
assisted suicide. This decision allowed the state of Michigan to
prosecute Dr. Jack Kevorkian for assisting patients in committing
suicide.
5. According to the Patient Self-Determination Act of 1990, health care
organizations have a responsibility to explain to patients, staff, and
families that patients have legal rights to direct their medical and
nursing care as it corresponds to existing state law.
6. Because of the debate surrounding right-to-die issues, patients should
be counseled to make decisions regarding their wishes while they are
competent. Living wills, designation of surrogates, health care proxies,
and powers of attorney are legal steps that allow patients to express
their wishes.
7. Advance directives, in the form of a “living will” or “durable power of attorney,” allow the patient to state in advance the kinds of medical care that he or she considers acceptable or not acceptable. The patient
can appoint an agent, a surrogate decision maker, to make those
decisions on his or her behalf.
8. A living will is the instrument or legal document that describes those
treatments an individual wishes or does not wish to receive should he
or she become incapacitated and unable to communicate treatment
decisions.
9. A durable power of attorney is a legal device that permits one
individual, known as the “principal,” to give to another person, called the “attorney-in-fact,” the authority to act on his or her behalf.
10. Guardianship is a legal mechanism by which the court declares a
person incompetent and appoints a guardian. The court transfers the
responsibility for managing financial affairs, living arrangements, and
medical care decisions to the guardian.
11. A health care proxy allows a person to appoint a health care agent to
make treatment decisions in the event that he or she becomes
incompetent and is unable to make decisions for him- or herself.
12. A surrogate decision maker is an agent who acts on behalf of a patient
who lacks the capacity to participate in a particular decision.
13. Substituted judgment is a form of surrogate decision making where the
surrogate attempts to establish what decision the patient would have
made if that patient were competent to do so.
14. A primary difference between health care proxies and living wills is
that proxies do not require that a person know about and consider in
advance every situation and decision that could arise. Instead, the
appointed agent would have to interpret the patient’s wishes based on the information given at the time that the patient is incapacitated and
unable to make decisions for him- or herself.
15. Futility of treatment, as it relates to medical care, occurs when the
physician recognizes that the effect of treatment will be of no benefit to
the patient. Morally, the physician has a duty to inform the patient when
there is little likelihood of success. The determination as to futility of
medical care is a scientific decision.
16. Withdrawal of treatment is a decision not to initiate treatment or
medical interventions for the patient.
17. Do-not-resuscitate orders are given by physicians and indicate that in
the event of a cardiac or respiratory arrest, no resuscitative measures
should be used to revive the patient. These orders must be in writing
and must be signed and dated by the physician.
TEST YOUR UNDERSTANDING
Terminology
advance directives
appointed decision makers
do-not-resuscitate (DNR) order
durable power of attorney
euthanasia
futility of treatment
guardianship
health care proxy
living will
Oregon’s Death with Dignity Act Patient Self-Determination Act
physician-assisted suicide
substituted judgment
surrogate decision maker
withdrawal of treatment
REVIEW QUESTIONS
1. Describe why there is such a struggle when addressing end-of-life
issues.
2. Describe the difference between active and passive euthanasia.
3. Describe the difference between voluntary and involuntary
euthanasia.
4. What are the differences between allowing a patient to die and
physician-assisted suicide?
5. Examine this statement: “The inherent risk is that society’s faith in doctors as healers would become subverted if doctors participate in
physician-assisted suicide.” 6. Constitutionally, what gives patients the right to self-determination?
7. Describe Oregon’s Death with Dignity Act. 8. What was the purpose of the Patient Self-Determination Act of
1990?
9. What are advance directives?
10. Describe how a living will differs from a durable power of attorney
for health care.
NOTES
1. J. Podgers, Matters of Life and Death, A.B.A.J. May 1992, at 60.
2. 105 N.E. 92 (N.Y. 1914).
3. Id. at 93.
4. 438 N.Y.S.2d 266, 272 (N.Y. 1981).
5. In re Quinlan, 355 A.2d 647 (N.J. 1976).
6. 410 U.S. 113 (1973).
7. Quinlan, 355 A.2d at 663.
8. 370 N.E.2d 417 (Mass. 1977).
9. Id. at 434.
10. Gelford, Euthanasia and the Terminally III Patient, 63 Neb. L. Rev. 741, 747 (1984).
11. 380 N.E.2d 134 (Mass. 1978).
12. 405 N.E.2d 115 (Mass. 1980).
13. John F. Kennedy Mem’l Hosp. v. Bludworth, 452 So. 2d 921, 925 (Fla. 1984) (citing In re Welfare of Colyer, 660 P.2d 738 (Wash. 1983), in which the court found prior court approval to
be “unresponsive and cumbersome”). 14. Schmitt v. Pierce, 344 S.W.2d 120 (Mo. 1961).
15. Connery, Prolonging Life: The Duty and Its Limits, Moral Responsibility in Prolonging Life’s Decisions, in To Treat or Not to Treat, 25 (1984).
16. Statement of Medical Opinion Re: “Brain Death,” A.M.A. House of Delegates Res. (June 1974).
17. 482 N.Y.S.2d 436 (1984).
18. 438 N.Y.S.2d 266 (1981).
19. Id. at 425.
20. Cruzan v. Director of the Mo. Dep’t of Health, 497 U.S. 261 (1990). 21. Pa. S.646, Amendment A3506, Printer’s No. 689, Oct. 1, 1990. 22. 20 Pa. Cons. Stat. Ann. § 5602(a)(9) (1988). 23. “Hospital wants to let wife die,” Newsday, Jan. 11, 1991, at 13. 24. Farnam v. Crista Ministries, 807 P.2d 830, 849 (Wash. 1991).
25. Kevorkian v. Thompson, 947 F. Supp. 1152 (1997).
26. “Dr. Death at work,” Newsday, February 7, 1991, at 12. 27. “Kevorkian charges dropped,” Newsday, July 22, 1992, at 4. 28. Hobbins v. Attorney Gen. of Mich., No. 94–1473 (Mich. 1994); Kevorkian v. Michigan, No. 94–
1490 (Mich. 1994).
29. “22nd Death for ‘Dr. Death,’ ” USA Today, May 9, 1995, at 2A. 30. 117 S. Ct. 2293 (1997).
31. Washington v. Glucksberg, 117 S.Ct. 2258 (1997).
32. Mclver v. Krischer, No. CL-96-1504-AF (Jan. 31, 1997) (stay issued February 11, 1997).
33. 42 U.S.C. 1395cc(a)(1).
34. http://www.wsha.org/EOL-FedState.cfm
35. Barry A. Bostrom, “In the Supreme Court of Kentucky Woods v. Commonwealth of Kentucky,” AllBusiness.com; http://www.allbusiness.com/legal/3495593-1.html.
36. No. E2001-02906-COA-R3-CV (2002).
37. Ascension Health, “Issues and Concepts,” http://www.ascensionhealth.org/ethics/public/issues/substituted.asp.
38. 420 N.E.2d 64 (N.Y. 1981).
39. Spahn v. Eisenberg, 563 N.W.2d 485 (1997).
40. 195 Cal. Rptr. 484 (Cal. Ct. App. 1983).
41. 486 A.2d 1209 (N.J. Sup. Ct. 1985).
42. Id.
43. U.S. Congress, Off. of Technology Assessment, Pub. No. OTA-BA-306, Life-Sustaining
Technologies and the Elderly 48 (1987).
44. 464 N.E.2d 959 (Mass. 1984).
45. In re Beth Israel Med. Ctr., 519 N.Y.S.2d 511, 517 (N.Y. Sup. Ct. 1987).
46. Ronald Sullivan, “Ombudsman bars food tube removal,” New York Times, March 7, 1986, at 82. 47. “AMA changes code of ethics on comas,” Newsday, March 17, 1986, at 2. 48. In re Jobes, 529 A.2d 434 (N.J. 1987).
49. Id. at 438.
50. “Man wins right to let wife die,” Newsday, Apr. 24, 1986, at 3. 51. Id. at 790.
52. Id. at 793.
53. Bouvia v. Superior Court (Glenchur), 225 Cal. Rptr. 297 (Cal. Ct. App. 1986).
54. Id. at 306.
55. 549 N.E.2d 1043 (Ind. Ct. App. 1990).
56. In re Martin, 517 N.W.2d 749 (Mich. Ct. App. 1994).
chapter four
Health Care Ethics Committee
LEARNING OBJECTIVES
The reader upon completion of this chapter will be able to:
• Understand the importance, development, structure, and goals of ethics committees.
• Describe the functions of the ethics committee: Policy and procedure development
Educational role
Consultation and conflict resolution
• Describe the expanding role of the ethics committee. • Describe the concept of reasoning and decision making.
INTRODUCTION
A health care ethics committee in a hospital is an advisory body with
multidisciplinary membership from the hospital (e.g., nurses, physicians,
patient advocates) and the community (e.g., clergy, legal counsel, ethicist)
whose purpose is to facilitate the discussion and resolution of ethical issues
arising in the patient care setting. The goal of the ethics committee is to
improve patient care and outcomes through recognition of the needs,
interests, and rights of each patient and of all participants in the delivery of
each patient’s health care. Health care ethics committees address legal–ethical issues that arise
during the course of a patient’s care and treatment. They serve as a resource for patients, families, and staff. They offer objective counsel when
dealing with difficult health care issues. Ethics committees provide both
educational and consultative services to patients, families, and caregivers.
They enhance but do not replace important patient/family–physician relationships; nevertheless, they afford support for decisions made within
those relationships.
The numerous ethical questions facing health professionals involve the
entire life span, from the right to be born to the right to die. Ethics
committees concern themselves with issues of morality, patient autonomy,
legislation, and states’ interests. Although ethics committees first emerged in the 1960s in the United
States, attention was focused on them in the 1976 landmark Quinlan case, 1
wherein the parents of Karen Ann Quinlan were granted permission by the
New Jersey Supreme Court to remove Karen from a ventilator after she had
been in a coma for a year. She died 10 years later at the age of 31, having
been in a persistent vegetative state the entire time. The Quinlan court
looked to a prognosis committee to verify Karen’s medical condition. It then factored in the committee’s opinion with all other evidence to reach the decision to allow withdrawing her life-support equipment. To date,
ethics committees do not have sole surrogate decision-making authority;
however, they play an ever-expanding role in the development of policy
and procedural guidelines to assist in resolving ethical dilemmas.
Most organizations describe the functioning of the ethics committee
and how to access the committee at the time of admission in patient
handbooks and informational brochures.
COMMITTEE STRUCTURE
To be successful, an ethics committee should be structured to include a
wide range of community leaders in positions of political stature, respect,
and diversity. The ethics committee should be composed of a
multidisciplinary group of people, whose membership should include an
ethicist, educators, clinicians, legal advisors, and political leaders as well as
members of the clergy, a quality-improvement manager, and corporate
leaders from the business community. Ethics committees all too often are
composed mostly of hospital employees and members of the medical staff
with a token representative from the community.
GOALS OF THE ETHICS COMMITTEE
The goals of ethics committees often include:
• To lend support, by providing guidance to patients, families, and decision makers
• To review cases, as requested, when there are conflicts in basic values • To provide assistance in clarifying situations that are ethical, legal, or
religious in nature that extend beyond the scope of daily practice
• To help in clarifying issues; to discuss alternatives and compromises • To promote the rights of patients • To assist the patient and family, as appropriate, in coming to consensus
with the options that best meet the patient’s care needs • To promote fair policies and procedures that maximize the likelihood of
achieving good, patient-centered outcomes
• To enhance the ethical tenor of both health care organizations and professionals
COMMITTEE FUNCTIONS
The functions of ethics committees are multifaceted and include
development of policy and procedure guidelines to assist in resolving
ethical dilemmas; staff and community education; conflict resolution; case
reviews, support, and consultation; and political advocacy. The degree to
which an ethics committee serves each of these functions varies in different
health care organizations.
Policy and Procedure Development
The ethics committee is a valuable resource for developing hospital
policies and procedures to provide guidance to health care professionals
when addressing ethical dilemmas.
Education
The ethics committee typically provides education on current ethical
concepts and issues to committee members, staff, and the community at
large. Some community hospitals provide ethics education to the staff at
ambulatory care facilities, home health agencies, long-term care facilities,
and physicians’ offices. Such education helps reduce the need for emergent end-of-life consultations in acute-care settings.
The ethics committee helps to develop resources for educational
purposes to help staff develop the appropriate competencies for addressing
ethical, legal, and spiritual issues. Educational programs on ethical issues
are developed for ethics committee members, staff, patients, and the
community (e.g., how to prepare an advance directive).
Consultation and Conflict Resolution
Ethics consultations are helpful in resolving uncertainty and disagreements
over health care dilemmas. Ethics committees often provide consultation
services for patients, families, and caregivers struggling with difficult
treatment decisions and end-of-life dilemmas. Always mindful of its basic
orientation toward the patient’s best interests, the committee provides options and suggestions for resolution of conflict in actual cases.
Consultation with an ethics committee is not mandatory, but is conducted at
the request of a physician, patient, family member, or other caregiver.
The ethics committee strives to provide viable alternatives that will lead
to the optimal resolution of dilemmas confronting the continuing care of
the patient. It is important to remember that an ethics committee functions
in an advisory capacity and should not be considered a substitute proxy for
the patient.
REQUESTS FOR CONSULTATIONS
Requests for ethics consultations often involve clarification of issues
regarding decision-making capacity, informed consent, advance directives,
and withdrawal of treatment. Consultations should be conducted in a timely
manner considering the following information:
• Who requested the consultation? • What are the issues? • Is there is a problem that needs referral to another service? • What specifically is being requested of the ethics committee (e.g.,
clarification of the problem or mediation)?
When conducting a consultation, all patient records must be reviewed and
discussed with the attending physician, family members, and other
caregivers involved in the patient’s treatment. If an issue can be resolved easily, a designated member of the ethics committee should be able to
consult on the case without the need for a full committee meeting. If the
problem is unusual, problematic, or delicate, or has important legal
ramifications, a full committee meeting should be called. Others who can
be invited to an ethics committee case review, as appropriate, include the
patient, if competent; relatives; agent or surrogate decision maker; and
caregivers.
Evaluation of a case consultation should take the following into
consideration:
• Patient’s current medical and mental status, diagnosis, and prognosis • Patient’s mental status and ability to make decisions, understand the
information that is necessary to make a decision, and clearly understand
the consequences of his or her choice
• Benefits and burdens of recommended treatment, or alternative treatments
• Life expectancy, treated and untreated • Views of caregivers and consultants • Pain and suffering • Quality-of-life issues
• Financial burden on family (e.g., if the patient is in a comatose state with no hope of recovery, should the spouse deplete his or her finances to
maintain the spouse on a respirator?)
Decisions concerning patient care must take into consideration the
patient’s:
• Personal assessment of the quality of life • Current expressed choices • Advance directives • Competency to make decisions • Ability to process information rationally to compare risks, benefits, and
alternatives to treatment
• Ability to articulate major factors in decisions and reasons for them and ability to communicate
The patient must have all the information necessary to allow a reasonable
person to make a prudent decision on his or her own behalf. The patient’s choice must be voluntary and free from coercion by family, physicians, or
others.
Family members must be identified and the following questions
considered when making decisions:
• Do family members understand the patient’s wishes? • Is the family in agreement with the patient’s wishes? • Does the patient have an advance directive? • Has the patient appointed an agent? • Are there any religious proscriptions? • Are there any financial concerns? • Are there any legal factors (applicable state statutes and case law)?
When an ethics committee is engaged in the consulting process, its
recommendations should be offered as suggestions, imposing no obligation
for acceptance on the part of the patient, organization, its governing body,
medical staff, attending physicians, or other persons. The Ethics
Consultation form in this chapter presents a suggested form for
documenting an ethics committee consultation.
When conducting a formal consultation, ethics committees should:
1. Identify the ethical dilemma (i.e., reasons why the consult was
requested).
a. Be sure that the appropriate “Consultation Request” form has been completed.
2. Identify relevant facts.
a. Diagnosis and prognosis.
b. Patient goals and wishes.
c. Regulatory and legal issues.
d. Professional standards and codes of ethics.
e. Institutional policies and values.
3. Identify stakeholders.
4. Identify moral issues.
a. Human dignity.
b. Common good.
c. Justice.
d. Beneficence.
e. Respect for autonomy.
f. Informed consent.
g. Medical futility and so on.
5. Identify legal issues.
6. Consider alternative options.
7. Conduct consultation.
a. Review, discuss, and provide reasoning for recommendations made.
8. Review and follow up.
9. Committee discussion should include family members.
10. Family members should be asked what their hopes and expectations
are.
11. Consultations should be documented.
CASE: ETHICS COMMITTEE SERVES AS
GUARDIAN
The Kentucky Supreme Court ruled in Woods v. Commonwealth, 1999-
SSC0773 (August 24, 2004) that Kentucky’s Living Will Directive, allowing a court-appointed guardian or other designated surrogate to
remove a patient’s life support systems, is constitutional. The patient in this case, Woods, had been placed on a ventilator after having a heart
attack. It was generally agreed that he would never regain consciousness
and would die in 2 to 10 years. After a recommendation of the hospital
ethics committee, Woods’s guardian at the time asked for approval to remove Woods’s life support. The Kentucky Supreme Court affirmed an appeals court decision, holding that: (1) “If there is no guardian,” but the family, physicians, and ethics committee all agree with the surrogate, there
is no need to appoint a guardian; (2) “If there is a guardian” and all parties agree, there is no need for judicial approval; (3) “If there is disagreement,” the parties may petition the courts.
Withdrawal of life support from a patient is prohibited absent clear and
convincing evidence that the patient is permanently unconscious or in a
persistent vegetative state and that withdrawing life-support is in the
patient’s best interest.
Ethical and Legal Issues
1. Discuss the ethical issues of this case.
2. Discuss under what circumstances an ethics committee should serve as
a legal guardian.
3. Discuss the pros and cons of an ethics committee serving as a patient’s guardian.
EXPANDING ROLE OF THE ETHICS COMMITTEE
Typically, hospital ethics committees concern themselves with biomedical
issues as they relate to end-of-life issues; unfortunately, they often fail to
address external decisions that affect internal operations. The role of an
organization’s ethics committee is evolving into more than a group of individuals who periodically gather together to meet regulatory
requirements and review and address advance directives and end-of-life
issues. The organizational ethics committee has an ever-expanding role.
This expanded role involves addressing external issues that affect internal
operations (e.g., managed care, malpractice insurance, and complicated
Health Insurance Portability and Accountability Act regulations that
increase legal and other financial costs, thus burdening hospitals and
slowing the progress of medicine). Ethics committees need to review their
functions periodically and redefine themselves.
The ethics committee is health care’s sleeping giant. Because of its potential to bring about change, its mission must not be limited to end-of-
life issues. Its vision must not be restricted to issues internal to the
organization but must include external matters that affect internal
operations.
Failure to increase the good of others when one is knowingly in a
position to do so is morally wrong. Preventative medicine and active public
health interventions exemplify this conviction. After methods of treating
yellow fever and smallpox were discovered, for example, it was universally
agreed that positive steps ought to be taken to establish programs to protect
public health.
The wide variety of ethical issues that an ethics committee can be
involved in is somewhat formidable. Although an ethics committee cannot
address every issue that one could conceivably imagine, the ethics
committee should periodically reevaluate its scope of activities and
effectiveness in addressing ethical issues. Some of the internal and external
issues facing an organization’s ethics committee are presented later here.
Internal Ethical Issues
1. Dilemma of blind trials: Who gets the placebo when the investigational
drug looks very promising?
2. Informed consent: Are patients adequately informed as to risks,
benefits, and alternative procedures that may be equally effective,
knowing that one procedure may be more risky or damaging than
another (e.g., lumpectomy versus a radical mastectomy)?
3. What is the physician’s responsibility for informing the patient of his or her education, training, qualifications, and skill in treating a medical
condition or performing an invasive procedure?
4. What is the role of the ethics committee when the medical staff is
reluctant or fails to take timely action, knowing that one of its members
practices questionable medicine?
5. Should a hospital’s medical staff practice evidence-based medicine or follow its own best judgment?
6. To what extent should the organization participate in and/or support
genetic research?
7. How should the ethics committee address confidentiality issues?
8. To what extent should medical information be shared with the patient’s family?
9. To what extent should the organization’s leadership control the scope of issues that the ethics committee addresses?
10. What are the demarcation lines as to what information should or
should not be provided to the patient when mistakes are made relative
to his or her care?
External Ethical Issues
1. Does the ethics committee have a role in addressing questionable
reimbursement schemes?
2. Should an ethics committee have its own letterhead? What value would
this serve?
3. What role, if any, should an ethics committee play in the following
scenario?
CASE: CHOOSING THE RIGHT HOSPITAL
Emergency services ambulance personnel regularly transport suspected
stroke patients to Hospital A. This hospital has no neurologists or
neurosurgeons on its medical staff but does provide coffee and donuts to
transport personnel. Ambulance personnel have an option to take the
suspected stroke victim to Hospital B, which is within five blocks of
Hospital A. Hospital B has a well-trained stroke team with staff
neurologists and neurosurgeons readily available.
Ethical and Legal Issues
1. Describe the ethical issues in this case.
2. Describe the organizational politics that might come into play.
3. Discuss how organizational politics may prevent an ethics committee
from becoming involved in many of the issues just described.
Although the committee’s involvement is strictly advisory, its value to an organization has yet to be fully realized.
CONVENING THE ETHICS COMMITTEE
The ethics committee is not a decision maker but a resource that provides
advice to help guide others in making wiser decisions when there is no
clear best choice. A unanimous opinion is not always possible when an
ethics committee convenes to consider the issues of an ethical dilemma;
however, consultative advice as to a course of action to follow in resolving
the dilemma is often the role of the ethics committee. Any
recommendations for issue resolution reached by the ethics committee need
to be communicated to those most closely involved with the patient’s care. Being sensitive to each family member’s values and assisting them in coping with whatever consensus decision is reached are a must. Unresolved
issues often need to be addressed and a course of action followed. Each
new consultation presents new opportunities for learning and teaching
others how to cope with similar issues. Guidelines for resolving ethical
issues will always be in a state of flux. Each new case presents new
challenges and learning opportunities.
Making a decision, suggesting a course of action, recommending a path
to follow, and making a choice require accepting the fact that there will be
elements of right and wrong in the final decision. The idea is to cause the
least pain and provide the greatest benefit.
CASE: BIOETHICS COMMITTEE NOT
CONVENED
In this medical malpractice suit, the Stolles (appellants) sought damages
from physicians and hospitals (appellees) for disregard of their instructions
not to use “heroic efforts” or artificial means to prolong the life of their child, Mariel, who was born with brain damage. The Stolles argued that
such negligence resulted in further brain damage to Mariel, prolonged her
life, and caused them extraordinary costs that will continue as long as the
child lives.
The Stolles had executed a written “Directive to Physicians” on behalf of Mariel in which they made known their desire that Mariel’s life not be
artificially prolonged under the circumstances provided in that directive.
Mariel suffered a medical episode after regurgitating her food. An
unnamed, unidentified nurse-clinician administered chest compressions for
30 to 60 seconds, and Mariel survived.
The Stolles sued, alleging the following, among other things:
Appropriate medical entries were not made in the medical record to reflect
the Stolles’ wishes that caregivers refrain from “heroic” life-sustaining measures. Lifesaving measures were initiated in violation of the
physician’s orders. The hospital did not follow the physician’s orders, which were in Mariel’s medical chart, when chest compressions and mechanically administered breathing to artificially prolong Mariel’s life were applied, and a bioethics committee meeting was not convened to
consider the Stolles’ wishes and the necessity of a do-not-resuscitate (DNR) order.
The central issue in this case is whether appellees are immune from
liability under the Texas Natural Death Act. Section 672.016(b) of the
Texas Natural Death Act provides the following: “A physician, or a health professional acting under the direction of a physician, is not civilly or
criminally liable for failing to effectuate a qualified patient’s directive” [Tex. Health & Safety Code Ann. A4 672.016(b) (Vernon 1992)]. A
“qualified patient” is a “patient with a terminal condition that has been diagnosed and certified in writing by the attending physician and one other
physician who have personally examined the patient.” A “terminal condition” is an “incurable condition caused by injury, disease, or illness that would produce death regardless of the application of life-sustaining
procedures, according to reasonable medical judgment, and in which the
application of life-sustaining procedures serves only to postpone the
moment of the patient’s death.” Mariel was not in a terminal condition, as appellees alleged. The
Stolles failed to cite any authority that would have allowed the withdrawal
of life-sustaining procedures in a lawful manner. The Texas Natural Death
Act, therefore, provided immunity to the caregivers for their actions in the
treatment and care of Mariel. 2
Ethical and Legal Issues
1. Describe the ethical principles in conflict in this case.
2. Do you agree with the court’s decision? Explain your answer.
REASONING AND DECISION MAKING
Reason guides our attempt to understand the world about us. Both reason
and compassion guide our efforts to apply that knowledge ethically, to
understand other people, and have ethical relationships with other people.
MOLLEEN MATSUMURA
The logical application of reasoning is important in the decision-making
process. “Knowing” ethical theories, principles, values, and morals and “understanding” how to apply them must go hand in hand. Reason includes the capacity for logical inference and the ability to conduct inquiry, solve
problems, evaluate, criticize, and deliberate about how we should act and to
reach an understanding of ourselves, other people, and the world. 3 Partial
reasoning involves bias for or against a person based on one’s relationship with that person. Circular reasoning describes a form of reasoning where
the premise is the conclusion and the conclusion is the premise of an
argument. My premise is correct, therefore my conclusion is correct—thus the term circular reasoning. The premise is never changed based on
opposing arguments. Only further argument to support the original
premise/conclusion/belief is offered. A person who reasons in a circular
manner is saying, “I have made up my mind and no further argument will change it.” For example, consider the following: “Mr. Gates believes that Mr. Smith has lived a good life. Therefore, he considers the case closed,
end of discussion. It’s time to pull the plug. He is over 65 and, therefore, should not have any rights to donated organs. Donated organs should be
given to younger people.” The rightness or wrongness of this statement is a moral issue and should be open for discussion, fact finding, evaluation,
reasoning, and consensus decision making.
Ethical decision making is the process of deciding the right thing to do
when facing a moral dilemma. Decision making is not easy when there is
more than one road, an alternative route, to take. Health care dilemmas
often occur when there are alternative choices, limited resources, and
differing values among patients, family members, and caregivers. Coming
to an agreement may mean sacrificing one’s personal wishes and following the road where there is consensus. Consensus building can happen only
when the parties involved can sit and reason together. The process of
identifying the various alternative resolutions to an ethical dilemma,
determining the pros and cons of each choice, and making informed
decisions requires a clear, unbiased willingness to listen, learn, and, in the
end, make an informed decision.
Ethical dilemmas arise when ethical principles and values are in
conflict. An ethical dilemma arises when, for example, the principles of
autonomy and beneficence conflict with one another. The following case
illustrates how one’s right to make his or her decision can conflict with the principle of doing no harm.
CASE: PATIENT REFUSES BLOOD
Mrs. Jones has gangrene of her left leg. Her hemoglobin slipped to 6.4.
She has a major infection and is diabetic. There is no spouse and no living
will. The patient has decided that she does not want to be resuscitated if
she should go into cardiopulmonary arrest. She may need surgery. She has
agreed to surgery but refuses a blood transfusion, even though she is not a
Jehovah’s Witness. The surgeon will not perform the surgery, which is urgent, without Jones agreeing to a blood transfusion, if it becomes
necessary. The attending physician questions the patient’s capacity to make decisions. Her children have donated blood. She says she is not
afraid to die.
Ethical and Legal Issues
1. Should the physician refuse to treat this patient? Explain your answer.
2. Should the family have a right to override the patient’s decision to refuse blood? Explain your answer.
CASE: A SON’S GUILD, A FATHER’S
WISHES
Following a massive stroke, Mr. Smith was transported from the Rope
nursing facility to a local hospital by ambulance on July 4, 2004. Smith, 94
years of age, had been a resident at the Rope nursing facility for the past
12 years. Before being placed in Rope, Smith had been living with Mr.
Curry, a close friend, for the previous 8 years. He had an advance directive
indicating that he would never want to be placed on a respirator.
Smith’s son and only child, Barry, who now lives in Los Angeles and had been estranged from his dad for more than 20 years, was notified by
Curry that his dad had been admitted to the hospital in a terminal
condition. Smith had mistakenly been placed on a respirator by hospital
staff contrary to the directions in his advance directive, which had been
placed on the front cover of Smith’s medical chart. Curry, who was legally appointed by Smith to act as his health care surrogate decision maker,
called Barry and explained that, according to his dad’s wishes and advance directives, he was planning to ask hospital staff to have the respirator
removed. Barry asked Curry to wait until he flew in from California to see
his dad. Curry agreed to wait for Barry’s arrival the following day, July 5. After arriving at the hospital, Barry told Curry that he would take
responsibility for his dad’s care and that Curry’s services would no longer be needed. Barry told hospital staff that he objected to the hospital’s plan to remove his father from the respirator. He said that he needed time to say
goodbye to his dad, which he did by whispering his sorrows in his dad’s ears. Smith, however, did not respond. Barry demanded that the hospital
do everything that it could to save his dad’s life, saying, “I don’t know if Dad heard me. We have to wait until he wakes up so that I can tell him
how sorry I am for not having stayed in touch with him over the years.” Smith’s physicians explained to Barry that there was no chance Smith would ever awaken out of his coma. Barry threatened legal action if the
hospital did not do everything it could to keep his dad alive. Smith’s physician again spoke to Barry about the futility of maintaining his dad on
a respirator. Barry remained uncooperative. The hospital chaplain was
called to speak to Barry, but had little success. Finally, hospital staff
requested an ethics consult.
Ethical and Legal Issues
1. Discuss the ethical dilemmas in this case.
2. Discuss the issues and the role of the ethics committee in this case.
HELPFUL HINTS
The reason for studying ethical and legal issues is to understand and help
guide others through the decision-making process as it relates to ethical
dilemmas. The following are some helpful guidelines when faced with
ethical dilemmas:
• Be aware of how everyday life is full of ethical decisions and that numerous ethical issues can arise when caring for patients.
• Help guide others to make choices. • Ask your patient how you might help him or her. • Be aware of why you think the way you do. Do not impose your beliefs
on others.
• Ask yourself whether you agree with the things you do. If the answer is no, ask yourself how you should change.
• When you are not sure what to do, the wise thing to do is to talk it over with another person, someone whose opinion you trust.
• Do not sacrifice happiness for devotion to others. • Do not lie to avoid hurting someone’s feelings.
CHAPTER REVIEW
1. An ethics committee serves as a hospital resource for patients, families,
and staff, offering an objective counsel when dealing with difficult
health care issues and decisions.
2. To be successful, an ethics committee should be structured to include a
wide range of community leaders in positions of political stature,
respect, and diversity.
3. The goals of the ethics committee are to:
• Promote the rights of patients. • Promote shared decision making between patients and their
clinicians.
• Assist the patient and family, as appropriate, in coming to consensus regarding the options that best meet the patient’s goal for care.
• Promote fair policies and procedures that maximize the likelihood of achieving good, patient-centered outcomes.
4. The functions of ethics committees are multifaceted and include:
• Policy and procedure development. • Staff and community education. • Consultation and conflict resolution.
5. The ethics committee should address external issues that affect internal
operations.
6. The ethics committee is not a decision maker but a resource that
provides advice to help guide others toward making wiser decisions
when there is no clear best choice.
7. Decision making is not easy when there are alternative choices, limited
resources, and a variety of value beliefs held by patients, family
members, and caregivers.
8. Patients and family should be encouraged to participate in decision
making processes.
9. One needs to know the reasons for his or her beliefs and be able to state
why decisions are made.
• Partial reasoning involves bias for or against a person based on one’s relationship with that person.
• Circular reasoning describes a form of reasoning where the premise is the conclusion and the conclusion is the premise of an argument. My
premise is correct, therefore my conclusion is correct, thus the term
circular reasoning. The premise is never changed based on opposing
arguments. Only further argument to support the original
premise/conclusion/belief is offered. A person who reasons in a
circular manner is saying, “I have made up my mind and no further argument will change it.”
10. The process of identifying the various alternative resolutions to an
ethical dilemma, determining the pros and cons of each choice, and
making informed decisions requires a clear, unbiased willingness to
listen, learn, and, in the end, make an informed decision.
TEST YOUR UNDERSTANDING
Terminology
circular reasoning
conflict resolution
health care ethics committee
ethics consultation
reasoning and decision making
REVIEW QUESTIONS
1. What is the purpose of an ethics committee?
2. How should an ethics committee be structured?
3. Discuss the functions of an ethics committee.
4. Discuss the consultative role of the ethics committee.
5. Discuss the educational role of the ethics committee.
6. Discuss the ever-expanding role of ethics committees, including
internal operational issues and external influences that affect
internal operations.
7. Discuss reasoning and decision making as reviewed in this chapter.
NOTES
1. In re Quinlan, 355 A.2d 647 (N.J. 1976).
2. Stolle v. Baylor College of Medicine, 981 S.W.2d 709 (1998).
3. George Lakoff & Mark Johnson, Philosophy in the Flesh, 3–4 (Basic Books, 1999).
chapter five
Development of Law
Laws are the very bulwarks of liberty; they define every man’s rights, and defend the individual liberties of all men.
J. G. HOLLAND (1819–1881)
LEARNING OBJECTIVES
The reader upon completion of this chapter will be able to:
• Understand the development of law. • Describe the functioning of our legal system. • Describe the sources of law:
Common law
Statutory law
Administrative law
• Describe the functions of the three branches of government: Legislative
Judicial
Executive
• Understand the concept of “separation of powers.”
INTRODUCTION
In law a man is guilty when he violates the rights of others. In ethics he is
guilty if he only thinks of doing so.
IMMANUEL KANT
It is appropriate here to provide the reader with a background of the law, as
it is the law that enables society to uphold what is right and punish those
who transgress its intent—to protect the moral fiber upon which this nation was founded. This chapter introduces the reader to the development of
American law, the functioning of our legal system, and the roles of the
different branches of government in creating, administering, and enforcing
the law in the United States. It is important to understand the foundation of
our legal system before one can appreciate or comprehend the specific laws
and principles relating to health care.
The law is rooted in tradition, culture, customs, and beliefs (e.g.,
religious influence—the Mosaic law). Laws constantly grow and change to meet the needs of the American culture, a mixture of many. Familiarity
with the vocabulary enables one to understand the ideas, concepts, and
structure of the law. Laws continually evolve because of the ever-changing
political, social, religious, and personal values of society, which is
composed of many cultures that become more intertwined with each new
generation.
Supreme Court Justice Oliver Wendell Holmes said that the law “is a magic mirror, wherein we see reflected not only our own lives but also the
lives of those who went before us.”1 “The government of the United States has been emphatically termed a government of laws, and not of men. It will
certainly cease to deserve this high appellation, if the laws furnish no
remedy for the violation of a vested right.”2 Most definitions of law define it as a system of principles and processes
by which people in a society deal with their disputes and problems, seeking
to solve or settle them without resorting to force. Laws are general rules of
conduct that are enforced by government, which imposes penalties when
prescribed laws are violated.
Laws govern the relationships between private individuals and
organizations and between both of these parties and government. Public
law deals with the relationships between individuals and government;
private law deals with relationships among individuals. Laws regulate the
activities and behaviors of individuals in international, federal, state, local,
and municipal settings.
One important segment of public law is criminal law, which prohibits
conduct deemed injurious to public order and provides for punishment of
those proven to have engaged in such conduct. Public law also consists of
countless regulations designed to advance societal objectives by requiring
private individuals and organizations to adopt specified courses of action in
their activities and undertakings. The thrust of most public law is to attain
what society deems to be valid public goals.
Private law is concerned with the recognition and enforcement of the
rights and duties of private individuals and organizations. Tort and contract
actions are two basic types of private law. In a tort action, one party asserts
that the wrongful conduct of another has caused harm, and the injured party
seeks compensation for the harm suffered. Generally, a contract action
involves a claim by one party that another party has breached an agreement
by failing to fulfill an obligation. Either remuneration or specific
performance of the obligation may be sought as a remedy. It is clear that
without an organized, clear system of laws that regulate society, anarchy
would be the result.
The goal of this chapter is to help caregivers better understand the law
and how it affects the difficulties they face while trying to do the right
thing by making health care decisions that are both morally and legally
acceptable.
SOURCES OF LAW
The basic sources of law are common law, which is derived from judicial
decisions; statutory law, which emanates from the federal and state
legislatures; and administrative law, prescribed by administrative agencies.
In those instances in which written laws are either silent, vague, or
contradictory to other laws, the judicial system often is called on to resolve
those disputes until such time as appropriate legislative action can be taken
to clear up a particular legal issue. In the following sections, the sources of
law that formed the foundation of our legal system are discussed.
Common Law
The term common law refers to the body of principles that has evolved and
expanded from judicial decisions that arise during the trial of court cases.
Many of the legal principles and rules applied today by courts in the United
States have their origins in English common law. Common law has its roots
in “reason and justice” for all. Because it is impossible to have a law that covers every potential
human event that might occur in society, the judicial system is thus doubly
necessary. It not only serves as a mechanism for reviewing legal disputes
that arise in the written law, but it is also an effective review mechanism for
those issues on which the written law is silent or, in instances of a mixture
of issues, involves both written law and common-law decisions.
During the colonial period, English common law began to be applied in
the colonies. According to John Dickinson in his Letters from a Farmer in
Pennsylvania in 1768: 3
The common law of England is generally received . . . but our courts
exercise a sovereign authority, in determining what parts of the
common and statute law ought to be extended: For it must be admitted,
that the difference of circumstances necessarily requires us, in some
cases to reject the determination of both. . . . Some of the English rules
are adopted, others rejected.
Joseph Story, in an 1829 U.S. Supreme Court decision, wrote, “The common law of England is not to be taken in all respects to be that of
America. Our ancestors brought with them its general principles, and
claimed it as their birthright. But they brought with them, and adopted only
that portion which was applicable to their situation.”4
The size of the country and the abundance of its natural resources made
impossible the importation of the common law exactly as it had been
developed in England. Measured by English standards, America had
superabundant land, timber, and mineral wealth. American law had to
serve the primary need of the new society to master the vast land areas
of the American continent. The decisive facts upon which the law had
to be based were the seemingly limitless expanses of land and the
wealth and variety of natural resources. 5
After the Revolution, each state, with the exception of Louisiana,
adopted all or part of the existing English common law. Laws were added
as needed. Louisiana civil law is based to a great extent on the French and
Spanish laws and, especially, on the Napoleonic Code. As a result, there is
no national system of common law in the United States, and common law
on specific subjects may differ from state to state.
Case law court decisions did not easily pass from colony to colony.
There were no printed reports to make transfer easy, though in the 18th
century some manuscript materials did circulate among lawyers. These
could hardly have been very influential. No doubt custom and case law
slowly seeped from colony to colony. Travelers and word of mouth
spread knowledge of living law. It is hard to say how much; thus it is
hard to tell to what degree there was a common legal structure. 6
Judicial review started to become part of the living law during the
decade before the adoption of the federal Constitution. During that time
American courts first began to assert the power to rule on the
constitutionality of legislative acts and to hold unconstitutional statutes
void. 7
Cases are tried applying common-law principles unless a statute
governs. Even though statutory law has affirmed many of the legal rules
and principles initially established by the courts, new issues continue to
arise, especially in private-law disputes, that require decision making
according to common-law principles. Common-law actions are initiated
mainly to recover money damages and/or possession of real or personal
property.
When a higher state court has enunciated a common-law principle, the
lower courts within the state where the decision was rendered must follow
that principle. A decision in a case that sets forth a new legal principle
establishes a precedent. Trial courts or those on equal footing are not bound
by the decisions of other trial courts. Also, a principle established in one
state does not set precedent for another state. Rather, the rulings in one
jurisdiction may be used by the courts of other jurisdictions as guides to the
legal analysis of a particular legal problem. Decisions found to be
reasonable will be followed.
The position of a court or agency, relative to other courts and agencies,
determines the place assigned to its decision in the hierarchy of decisional
law. The decisions of the United States Supreme Court are highest in the
hierarchy of decisional law with respect to federal legal questions. Because
of the parties or the legal question involved, most legal controversies do
not fall within the scope of the Supreme Court’s decision-making responsibilities. On questions of purely state concern—such as the interpretation of a state statute that raises no issues under the U.S.
Constitution or federal law—the highest court in the state has the final word on proper interpretation. The following are explanations of some of
the more important common-law principles:
• Res judicata. In common law, the term res judicata—which means “the thing is decided”—refers to that which has been previously acted on or decided by the courts. According to Black’s Law Dictionary, it is a rule where “a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies,
and, as to them, constitutes an absolute bar to subsequent action
involving the same claim, demand, or cause of action.”8 • Stare decisis. The common-law principle of stare decisis (“let the
decision stand”) provides that when a decision is rendered in a lawsuit involving a particular set of facts, another lawsuit involving an identical
or substantially similar situation is to be resolved in the same manner as
the first lawsuit. The resolution of future lawsuits is arrived at by
applying rules and principles of preceding cases. In this manner, courts
arrive at comparable rulings. Sometimes, slight factual differences may
provide a basis for recognizing distinctions between the precedent and
the current case. In some cases, even when such differences are absent, a
court may conclude that a particular common-law rule is no longer in
accord with the needs of society and may depart from precedent. It
should be understood that principles of law are subject to change,
whether they originate in statutory or in common law. Common-law
principles may be modified, overturned, abrogated, or created by new
court decisions in a continuing process of growth and development to
reflect changes in social attitudes, public needs, judicial prejudices, or
contemporary political thinking.
Statutory Law
Statutory law is written law emanating from federal and state legislative
bodies. Although a statute can abolish any rule of common law, it can do so
only by stating it in express words. States and local jurisdictions can only
enact and enforce laws that do not conflict with federal law. Statutory laws
may be declared void by a court; for example, a statute may be found
unconstitutional because it does not comply with a state or federal
constitution, because it is vague or ambiguous, or in the case of a state law,
because it is in conflict with a federal law.
In many cases involving statutory law, the court is called on to interpret
how a statute applies to a given set of facts. For example, a statute may
state merely that no person may discriminate against another person
because of race, creed, color, or gender. A court may then be called on to
decide whether certain actions by a person are discriminatory and therefore
violate the law.
Constitution of the United States
In civilized life, law floats on a sea of ethics.
EARL WARREN
The principles and rules of statutory law are set in hierarchical order.
The Constitution of the United States adopted at the Constitutional
Convention in Philadelphia in 1787 is highest in the hierarchy of enacted
law. Article VI of the Constitution declares: 9
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.
The clear import of these words is that the U.S. Constitution, federal
law, and federal treaties take precedence over the constitutions and laws of
specific states and local jurisdictions. Statutory law may be amended,
repealed, or expanded by action of the legislature.
Bill of Rights
The conventions of a number of the states, at the time of adopting the U.S.
Constitution, expressed a desire to prevent the abuse of its powers. As a
result of this concern, Congress ratified amendments to the Constitution of
the United States. The Bill of Rights, the first 10 amendments to the
constitution, was added to protect the rights of citizens. The amendments
included the rights to privacy, equal protection, and freedom of speech and
religion.
Administrative Law
Administrative law is the extensive body of public law issued by
administrative agencies to direct the enacted laws of the federal and state
governments. It is the branch of law that controls the administrative
operations of government. Congress and state legislative bodies
realistically cannot oversee their many laws; therefore, they delegate
implementation and administration of the law to an appropriate
administrative agency. Health care organizations in particular are inundated
with a proliferation of administrative rules and regulations affecting every
aspect of their operations.
The Administrative Procedures Act 10
describes the different procedures
under which federal administrative agencies must operate. 11
The act
prescribes the procedural responsibilities and authority of administrative
agencies and provides for legal remedies for those wronged by agency
actions. The regulatory power exercised by administrative agencies
includes power to license, power of rate setting (e.g., Centers for Medicare
and Medicaid Services), and power over business practices (e.g., National
Labor Relations Board).
The rules and regulations established by an agency must be
administered within the scope of the authority delegated to the agency by
Congress. Agency regulations and decisions can be subject to judicial
review.
GOVERNMENT ORGANIZATION
The three branches of the federal government are the legislative, executive,
and judicial branches. A vital concept in the constitutional framework of
government on both federal and state levels is the separation of powers.
Essentially, this principle provides that no one branch of government is
clearly dominant over the other two; however, in the exercise of its
functions, each may affect and limit the activities, functions, and powers of
the others.
Legislative Branch
On the federal level, legislative powers are vested in the Congress of the
United States, which consists of a Senate and a House of Representatives.
The function of the legislative branch is to enact laws that may amend or
repeal existing legislation and to create new legislation. It is the
legislature’s responsibility to determine the nature and extent of the need for new laws and for changes in existing laws. The work of preparing
federal legislation is the responsibility of the various committees of both
houses of Congress. There are 16 standing committees in the Senate and 19
in the House of Representatives. “The membership of the standing committees of each house is chosen by a vote of the entire body; members
of other committees are appointed under the provisions of the measure
establishing them.”12 Legislative proposals are assigned or referred to an appropriate
committee for study. The committees conduct investigations and hold
hearings where interested persons may present their views regarding
proposed legislation. These proceedings provide additional information to
assist committee members in their consideration of proposed bills. A bill
may be reported out of a committee in its original form or it may be
reported out with recommended amendments, or the bill might be allowed
to lie in the committee without action. Some bills eventually reach the full
legislative body, where, after consideration and debate, they may be
approved or rejected.
The U.S. Congress and all state legislatures are bicameral (consisting of
two houses), except for the Nebraska legislature, which is unicameral. Both
houses in a bicameral legislature must pass identical versions of a
legislative proposal before the legislation can be brought to the chief
executive.
Judicial Branch
As I have said in the past, when government bureaus and agencies go
awry, which are adjuncts of the legislative or executive branches, the
people flee to the third branch, their courts, for solace and justice.
JUSTICE J. HENDERSON, SUPREME COURT OF SOUTH DAKOTA 13
The function of the judicial branch of government is adjudication— resolving disputes in accordance with law. As a practical matter, most
disputes or controversies that are covered by legal principles or rules are
resolved without resort to the courts.
Alexis de Tocqueville, a foreign observer commenting on the
primordial place of the law and the legal profession, stated, “Scarcely any political question arises in the United States that is not resolved, sooner or
later, into a judicial question.”14
It is emphatically the province and duty of the judicial branch to say
what the law is. Those who apply the rule to particular cases must of
necessity expound and interpret that rule. If two laws conflict with each
other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and
the constitution apply to a particular case, so that the court must either
decide that case conformably to the law, disregarding the constitution;
or conformably to the constitution, disregarding the law; the court must
determine which of these conflicting rules govern the case. This is the
very essence of judicial duty.
. . . [I]t is apparent, that the framers of the constitution
contemplated that instrument, as a rule for the government of courts, as
well as of the legislature. Why otherwise does it direct the judges to
take such an oath to support it? 15
Each state in the United States provides its own court system, which is
created by the state’s constitution and/or statutes. The oldest court in the United States, established in 1692, is the Supreme Judicial Court of
Massachusetts. 16
Most of the nation’s judicial business is reviewed and acted on in state courts. Each state maintains a level of trial courts that have
original jurisdiction. This jurisdiction may exclude cases involving claims
with damages less than a specified minimum, probate matters (i.e., wills
and estates), and workers’ compensation. Different states have designated different names for trial courts (e.g., superior, district, circuit, or supreme
courts). Also on the trial court level are minor courts such as city, small
claims, and justice of the peace courts. States such as Massachusetts have
consolidated their minor courts into a statewide court system.
There is at least one appellate court in each state. Many states have an
intermediate appellate court between the trial courts and the court of last
resort. Where this intermediate court is present, there is a provision for
appeal to it, with further review in all but select cases. Because of this
format, the highest appellate tribunal is seen as the final arbiter in cases that
are important in themselves or for the particular state’s system of jurisprudence.
The trial court of the federal system is the U.S. District Court. There are
89 district courts in the 50 states (the larger states having more than one
district court) and one in the District of Columbia. The Commonwealth of
Puerto Rico also has a district court with jurisdiction corresponding to that
of district courts in the different states. Generally, only one judge is
required to sit and decide a case, although certain cases require up to three
judges. The federal district courts hear civil, criminal, admiralty, and
bankruptcy cases. The Bankruptcy Amendments and Federal Judgeship Act
of 1984 17
provided that the bankruptcy judges for each judicial district
shall constitute a unit of the district court to be known as the bankruptcy
court.
The U.S. Courts of Appeals (formerly called Circuit Courts of Appeals)
are appellate courts for the 11 judicial circuits. Their main purpose is to
review cases tried in federal district courts within their respective circuits,
but they also possess jurisdiction to review orders of designated
administrative agencies and to issue original writs in appropriate cases.
These intermediate appellate courts were created to relieve the U.S.
Supreme Court of deciding all cases appealed from the federal trial courts.
The Supreme Court, the nation’s highest court, is the only federal court created directly by the Constitution.
The judicial Power of the United States, shall be vested in one Supreme
Court, and in such inferior Courts as the Congress may from time to
time ordain and establish. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour, and shall, at
stated Times, receive for their Services a Compensation, which shall
not be diminished during their Continuance in Office. 18
Eight associate justices and one chief justice sit on the Supreme Court.
The Court has limited original jurisdiction over the lower federal courts
and the highest state courts. In a few situations, an appeal will go directly
from a federal or state court to the Supreme Court, but in most cases today,
review must be sought through the discretionary writ of certiorari, an
appeal petition. In addition to the aforementioned courts, special federal
courts have jurisdiction over particular subject matters. The U.S. Court of
Claims has jurisdiction over certain claims against the government. The
U.S. Court of Appeals for the Federal Circuit has appellate jurisdiction
over certain customs and patent matters. The U.S. Customs Court reviews
certain administrative decisions by customs officials. Also, there is a U.S.
Tax Court and a U.S. Court of Military Appeals.
Executive Branch
The primary function of the executive branch of government on the federal
and state level is to administer and enforce the law. The chief executive,
either the President of the United States or the governor of a state, also has
a role in the creation of law through the power to approve or veto
legislative proposals.
The U.S. Constitution provides that “the executive Power shall be vested in a President of the United States of America. He shall hold his
Office during the Term of four Years . . . together with the Vice President,
chosen for the same Term.”19 The President serves as the administrative head of the executive branch of the federal government, which includes 15
executive departments, as well as a variety of agencies, both temporary and
permanent.
The Cabinet, a creation of custom and tradition dating back to George
Washington’s administration, functions at the pleasure of the President. Its purpose is to advise the President on any subject on which he requests
information (pursuant to Article II, section 2, of the Constitution).
The Cabinet is composed of the 15 executive departments. 20
Each
department is responsible for a different area of public affairs, and each
enforces the law within its area of responsibility. For example, the
Department of Health and Human Services (HHS) administers much of the
federal health law enacted by Congress. Most state executive branches also
are organized on a departmental basis. These departments administer and
enforce state law concerning public affairs.
On a state level, the governor serves as the chief executive officer. The
responsibilities of a state governor are provided for in the state’s constitution. The Massachusetts State Constitution, for example, describes
the responsibilities of the governor as follows: 21
• To present an annual budget to the state legislature • To recommend new legislation • To veto legislation • To appoint and remove department heads • To appoint judicial officers
• To act as Commander-in-Chief of the state’s military forces (the Massachusetts National Guard)
Separation of Powers
The concept of separation of powers—in effect, a system of checks and balances—is illustrated in the relationships among the branches of government with regard to legislation. On the federal level, when a bill
creating a statute is enacted by Congress and signed by the President, it
becomes law. If the President vetoes a bill, it takes a two-thirds vote of
each house of Congress to override the veto. The President also can prevent
a bill from becoming law by avoiding any action while Congress is in
session. This procedure, known as a pocket veto, can temporarily stop a bill
from becoming law and may permanently prevent it from becoming law if
later sessions of Congress do not act on it favorably.
A bill that has become law may be declared invalid by the Supreme
Court if the law violates the Constitution. “It is also not entirely unworthy of observation, that in declaring what shall be the Supreme law of the land,
the Constitution itself is first mentioned; and not the laws of the United
States generally, but those only which shall be made in pursuance of the
Constitution, have that rank.”22 Even though a Supreme Court decision is final regarding a specific
controversy, Congress and the President may generate new, constitutionally
sound legislation to replace a law that has been declared unconstitutional.
The procedures for amending the Constitution are complex and often time
consuming, but they can serve as a way to offset or override a Supreme
Court decision.
ADMINISTRATIVE DEPARTMENTS AND AGENCIES
A variety of federal departments and administrative agencies can affect the
health care industry. Besides the federal-level departments and agencies,
many departments and agencies on the state and local levels address many
matters also considered on the federal level (e.g., public health, finance,
education, welfare, labor, housing, and other needs and concerns of state
residents).
The HHS is a cabinet-level department of the executive branch of the
federal government, is concerned with people, and is most involved with
the nation’s human concerns. HHS is responsible for developing and implementing appropriate administrative regulations for carrying out
national health and human services policy objectives. It is also the main
source of regulations affecting the health care industry. The secretary of the
HHS, serving as the department’s administrative head, advises the President with regard to health, welfare, and income security plans,
policies, and programs. The following Operating Divisions report directly
to the Secretary of the Department of Health and Human Services: (1)
Administration for Children and Families (ACF); (2) Administration on
Aging (AOA); (3) Agency for Healthcare Research and Quality (AHRQ);
(4) Agency for Toxic Substances and Disease Registry (ATSDR); (5)
Centers for Disease Control and Prevention (CDC); (6) Centers for
Medicare & Medicaid Services (CMS); (7) Food and Drug Administration
(FDA); (8) Health Resources and Services Administration (HRSA); (9)
Indian Health Service (HIS); (10) National Institutes of Health (NIH); and
(11) Substance Abuse and Mental Health Services Administration
(SAMSHA). See the HHS organizational chart for further details at
http://www.hhs.gov/about/orgchart/.
The HHS is also responsible for many of the programs designed to
meet the needs of senior citizens, including Social Security benefits (e.g.,
retirement, survivors, and disability), Supplemental Security Income
(which ensures a minimum monthly income to needy persons and is
administered by local Social Security offices), Medicare, Medicaid, and
programs under the Older Americans Act (e.g., in-home services such as
home health and home-delivered meals, and community services such as
adult day care, transportation, and ombudsman services in long-term care
facilities). 23
CHAPTER REVIEW
1. A law is a general rule of conduct that is enforced by the government.
When a law is violated, the government imposes a penalty.
• Public laws deal with the relationships between individuals and the government. Criminal law is a segment of public law.
• Private laws deal with relationships among individuals. Two types of private laws are tort and contract actions.
2. Common law is derived from judicial decisions. U.S. common law has
as its roots the English common-law system. The first English royal
court was established in the year 1178. There were few written laws at
the time, and a collection of principles evolved from the decisions of
the court. These principles, known as “common law,” were used to decide subsequent cases. During the colonial period, the United States
based its law on English common law, but states had the authority to
modify their legal systems.
3. A common-law principle established in a higher state court must be
followed by the lower courts in that state; however, trial courts or those
otherwise on equal footing are not bound by the decisions of other trial
courts, and a principle established in one state does not set precedent
within another state. Common-law principles can be modified,
overturned, abrogated, or created by new court decisions.
4. Statutory law is a written law that emanates from a legislative body.
Using express words, a statute can abolish any rule of common law.
The Constitution is the highest level of enacted law; it takes precedence
over the constitutions and laws of specific states and local jurisdictions.
5. Statutory law can be amended, repealed, or expanded by the legislature.
States and local jurisdictions can enact and enforce only laws that do
not conflict with federal laws.
6. Administrative law is public law issued by administrative agencies to
administer the enacted laws of the federal and state governments. This
branch of law controls the administrative operations of the government.
7. Administrative agencies implement and administer the administrative
law. The rules and regulations established by an agency must be
administered within the scope of the authority delegated to the agency
by Congress.
8. The concept of separation of powers provides that no one branch of the
government—legislative, executive, or judicial—will be clearly dominant over the other two. The legislative branch, composed of the
House of Representatives and the Senate, both enacts laws that can
amend or repeal existing legislation and creates new legislation. The
judicial branch resolves disputes in accordance with the law. The
executive branch administers and enforces the law.
9. The HHS develops and implements administrative regulations for
carrying out national health and human services policy objectives. It is
the main source of regulations that affect the health care industry.
TEST YOUR UNDERSTANDING
Terminology
administrative law
Bill of Rights
common law
Constitution of the United States
law
private law
public law
res judicata
separation of powers
statutory law
stare decisis
REVIEW QUESTIONS
1. Define the term law and describe the sources from which law is
derived.
Describe and contrast the legal terms res judicata and stare decisis.
2. Describe the function of each branch of government.
3. What is the meaning of separation of powers?
4. What is the function of an administrative agency?
NOTES
1. B. Schwartz, The Law in America 1 (1974).
2. Marbury v. Madison, 5 U.S. (Cranch) 137, 163 (1803).
3. Schwartz, supra note 1, at 29.
4. Id.
5. Id. at 30–31. 6. L. Friedman, A History of American Law 92 (1985).
7. Schwartz, supra note 1, at 51.
8. Black’s Law Dictionary 1305 (6th. ed. 1990). 9. U.S. Const. art. VI, A4 1, cl. 2.
http://www.archives.gov/national_archives_experience/constitution
_transcript.html.
10. 5 U.S.C.S. A4A4 500–576 (Law. Co-op. 1989). 11. An “agency means each authority of the Government of the United States . . . but does not
include (A) the Congress; the Courts of the United States . . .” 5 U.S.C.S. A4 551(1) (Law. Co- op. 1989).
12. Office of the Federal Register, National Archives and Records Administration, The United
States Government Manual 2000/2001 29 (2000) [hereinafter Manual].
13. Heritage of Yankton, Inc. v. South Dakota Dep’t of Health, 432 N.W.2d 68, 77 (S.D. 1988). 14. Schwartz, supra note 1, at 15.
15. Marbury v. Madison, 5 U.S. (Cranch) 137, 177–180 (1803). 16. Levitan, supra note 46, at 32.
17. 28 U.S.C. A4 151.
18. U.S. Const. art. III, A4 1.
19. U.S. Const. art. II, A41, cl. 1.
20. http://dir.yahoo.com/Government/U_SGovernment/
Executive_Branch/Departments_and_Agencies/.
21. D. Levitan, Your Massachusetts Government 14 (10th ed. 1984).
22. Marbury v. Madison, 5 U.S. (Cranch) 137, 180 (1803).
23. U.S. Department of Health and Human Services, “About HHS,” www.hhs.gov.
chapter six
Introduction to Law
Every instance of a man’s suffering the penalty of the law, is an instance of the failure of that penalty in effecting its purpose, which is to deter from
transgression.
WHATELY
LEARNING OBJECTIVES
The reader upon completion of this chapter will be able to:
• Identify and explain tort law. • Describe the elements of negligence and how they apply to health
professionals.
• Identify and describe intentional torts and how they apply to health professionals, such as:
Assault and battery
False imprisonment
Defamation of character
Invasion of privacy
Infliction of mental distress
• Identify and describe criminal law and how it applies to health professionals, including:
Criminal trial
Fraud
Manslaughter
Murder
Theft
• Identify and describe contract law and how it applies to health professionals, including:
Elements of a contract
Employment contracts
Exclusive contracts
Commercial ethics and noncompetitive agreements
• Understand the pretrial and trial process and how it applies to health professionals:
Pleadings
Discovery of evidence
Preparation of witnesses
The court
The jury
Subpoenas
Opening statements
Burden of proof
Evidence
Examination of witnesses
Defense of one’s actions Closing statements
Judge’s charge to the jury Jury deliberation
Damages
Appeals
INTRODUCTION
Laws are enacted to regulate human behavior for the benefit of society.
They are designed to prevent harm to others while protecting the rights of
individuals. In the law we are taught that we have a duty to care and that if
we breach that duty and someone is injured as a result of that breach, there
will be a penalty to pay, which could be financial loss, loss of license,
and/or jail time to be served. This chapter introduces the reader to tort law,
criminal law, contract law, and trial procedures. These are the areas of law
that most often affect the provider and receiver of care.
TORT LAW
A tort is a civil wrong, other than a breach of contract, committed against a
person or property (real or personal) for which a court provides a remedy in
the form of an action for damages. Tort actions touch an individual on both
a personal and a professional level, which is why those involved in the
health care field should be armed with the knowledge necessary for them to
be aware of their rights and responsibilities.
The objectives of tort law are as follows: preservation of peace
(between individuals by providing a substitute for retaliation); culpability
(to find fault for wrongdoing); deterrence (to discourage the wrongdoer
[tort-feasor] from committing future torts); and compensation (to
indemnify the injured person[s] of wrongdoing).
NEGLIGENCE
Negligence is a tort, a civil or personal wrong. It is the unintentional
commission or omission of an act that a reasonably prudent person would
or would not perform under given circumstances.
Commission of an act would include the following: (1) administering
the wrong medication, (2) administering the wrong dosage of a medication,
(3) administering medication to the wrong patient, and (4) performing a
surgical procedure without patient consent, performing a surgical procedure
on the wrong patient, surgically removing the wrong body part, and failing
to assess and reassess a patient’s nutritional needs. Omission of an act would include the following: (1) failing to
administer medications, (2) failing to order diagnostic tests, and (3) failing
to follow up on abnormal test results.
Negligence is a form of conduct caused by heedlessness or carelessness
that constitutes a departure from the standard of care generally imposed on
reasonable members of society. It can occur where (1) one has considered
the consequences of an act and has exercised his or her best possible
judgment, (2) one fails to guard against a risk that should be appreciated,
and (3) one engages in certain behavior expected to involve unreasonable
danger to others.
Malpractice is the negligence or carelessness of a professional person
(e.g., a nurse, pharmacist, physician, or accountant). Criminal negligence is
the reckless disregard for the safety of another (e.g., willful indifference to
an injury that could follow an act).
Negligence generally involves one of the following acts: (1)
malfeasance (execution of an unlawful or improper act [e.g., performing an
abortion in the third trimester when such is prohibited by state law]), (2)
misfeasance (improper performance of an act, resulting in injury to another
[e.g., wrong-site surgery]), and (3) nonfeasance (failure to act, when there
is a duty to act as a reasonably prudent person would in similar
circumstances [e.g., failing to order diagnostic tests or prescribe
medications that should have been ordered or prescribed under the
circumstances]).
Elements of Negligence
The four elements that must be present for a plaintiff to recover damages
caused by negligence are (1) duty to care, (2) breach of duty, (3) injury, and
(4) causation. All four elements must be present in order for a plaintiff to
recover for damages suffered as a result of a negligent act.
1. Duty to Care
The first requirement in establishing negligence is that the plaintiff must
prove the existence of a legal relationship between himself or herself and
the defendant. Duty is defined as a legal obligation of care, performance, or
observance imposed on one to safeguard the rights of others. This duty may
arise from a special relationship such as that between a physician and a
patient. The existence of this relationship implies that a physician–patient relationship was in effect at the time an alleged injury occurred. The duty
to care can arise from a simple telephone conversation or out of a
physician’s voluntary act of assuming the care of a patient. Duty also can be established by statute or contract between the plaintiff and the
defendant.
Standard of Care Expected
A duty of care carries with it a corresponding responsibility not only to
provide care, but also to provide it in an acceptable manner. Because of this
obligation to conform to a recognized standard of care, the plaintiff must
show that the defendant failed to meet this standard. Just because an injury
is suffered is not sufficient for imposing liability without proof that the
defendant deviated from the practice of competent members of his or her
profession.
The standard of care describes what conduct is expected of an
individual in a given situation. The general standard of care that must be
exercised is that which a reasonably prudent person would adhere to when
acting under the same or similar circumstances.
The reasonably prudent person concept describes a nonexistent,
hypothetical person who is put forward as the community ideal of what
would be considered reasonable behavior. It is a measuring stick
representing the conduct of the average person in the community under the
circumstances facing the defendant at the time of the alleged negligence.
The reasonableness of conduct is judged in light of the circumstances
apparent at the time of injury and by reference to different characteristics of
the actor (e.g., age, gender, physical condition, education, knowledge,
training, and mental capacity).
The actual performance of an individual in a given situation will be
measured against what a reasonably prudent person would or would not
have done. Deviation from the standard of care will constitute negligence if
there are resulting damages.
Ethicists and the Standard of Care
Some medical standards of care are influenced by medical ethics. For
example, a decision concerning termination of resuscitation efforts is an
area in which the standard of care includes an ethical component. Under
these circumstances, it occasionally may be appropriate for a medical
expert to testify about the ethical aspects underlying the professional
standard of care. In Neade v. Portes, 710 N.E.2d 418 (Ill. App. Ct. 1999), a
physician expert was allowed to base an opinion on breach of standard of
care on the violation of an ethical standard established by the American
Medical Association.
Duty Created by Statute
Some duties are created by statute, which occurs when a statute specifies a
particular standard that must be met. Many such standards are created by
administrative agencies under the provisions of a statute. For liability to be
established, based on a defendant’s failure to follow the standard of care outlined by statute, the following elements must be present: (1) the
defendant must have been within the specified class of persons outlined in
the statute; (2) the plaintiff must have been injured in a way that the statute
was designed to prevent; and (3) the plaintiff must show that the injury
would not have occurred if the statute had not been violated.
Duty to Provide Timely Care
The surviving parents in Hastings v. Baton Rouge Hospital 1 brought a
medical malpractice action for the wrongful death of their 19-year-old son.
The action was brought against the hospital; the emergency department
physician, Dr. Gerdes; and the thoracic surgeon on call, Dr. McCool. The
patient had been brought to the emergency department at 11:56 PM because
of two stab wounds and weak vital signs. Gerdes decided that a
thoracotomy had to be performed. He was not qualified to perform the
surgery and called McCool, who was on call that evening for thoracic
surgery. Gerdes described the patient’s condition, indicating that he had been stabbed in a major blood vessel. At trial, McCool claimed that he did
not recall Gerdes saying that a major blood vessel could be involved.
McCool asked Gerdes to transfer the patient to the Earl K. Long Hospital.
Gerdes said, “I can’t transfer this patient.” McCool replied, “No. Transfer him.” Kelly, an emergency department nurse on duty, was not comfortable with the decision to transfer the patient and offered to accompany him in
the ambulance. Gerdes reexamined the patient, who exhibited marginal
vital signs, was restless, and was draining blood from his chest. The
ambulance service was called at 1:03 AM, and by 1:30 AM the patient had
been placed in the ambulance for transfer. The patient began to fight wildly.
The chest tube came out, and the bleeding increased. An attempt to revive
him from a cardiac arrest was futile, and the patient died after having been
moved back to the emergency department. The patient virtually bled to
death.
The duty to care in this case cannot be reasonably disputed. Louisiana,
by statute, imposes a duty on hospitals licensed in Louisiana to make
emergency services available to all persons residing in the state regardless
of insurance coverage or economic status. The hospital’s own bylaws provided that no patient should be transferred without due consideration for
his or her condition and the facilities existing for his or her care.
Duty to Hire Competent Staff
Texas courts recognize that an employer has a duty to hire competent
employees, especially if they are engaged in an occupation that could be
hazardous to life and limb and requires skilled or experienced persons. For
example, the appellant in Deerings West Nursing Center v. Scott 2 was
found to have negligently hired an incompetent employee who it knew or
should have known was incompetent, thereby causing unreasonable risk of
harm to others.
Hopper testified that he was hired sight unseen over the telephone by
the Deerings director of nursing. Even though the following day he went to
the nursing facility to complete an application, he still maintained that he
was hired over the phone. In his application, he falsely stated that he was a
Texas-licensed vocational nurse (LVN). Additionally, he claimed that he
had never been convicted of a crime. In reality, he had been previously
employed by a bar, was not an LVN, had committed more than 56 criminal
offenses of theft, and was on probation at the time of his testimony.
The duty of care in this case is clear. The appellant violated the very
purpose of Texas licensing statutes by failing to validate whether or not
Hopper had a current LVN license. The appellant then placed him in a
position of authority and not only allowed him to dispense drugs but also
made him a shift supervisor. This negligence eventually resulted in an
inexcusable assault on an older woman.
2. Breach of Duty
After a duty to care has been established, the plaintiff must demonstrate
that the defendant breached that duty by failing to comply with the
accepted standard of care required. Breach of duty, the second element that
must be present for a plaintiff to establish negligence, is the failure to
conform to or the departure from a required obligation owed to a person.
The obligation to perform according to a standard of care may encompass
either performing or refraining from performing a particular act.
The court in Hastings v. Baton Rouge Hospital, 3 discussed earlier,
found a severe breach of duty. Hospital regulations provide that when a
physician cannot be reached or refuses a call, the chief of service is to be
notified so that another physician can be obtained. This was not done. It is
not necessary to prove that a patient would have survived if proper
treatment had been administered, only that the patient would have had a
chance of survival. As a result of Dr. Gerdes’ failure to make arrangements for another physician and Dr. McCool’s failure to perform the necessary surgery, the patient had no chance of survival. The duty to provide for
appropriate care under the circumstances was breached.
3. Injury/Actual Damages
A defendant may be negligent and still not incur liability if no injury or
actual damages, the third element necessary to establish negligence, result
to the plaintiff. The term “injury” includes more than physical harm. Without harm or injury, there is no liability. Injury is not limited to physical
harm but includes loss of income or reputation and compensation for pain
and suffering.
The mere occurrence of an injury “does not establish negligence for which the law imposes liability, since the injury may be the result of an
unavoidable accident, or an act of God, or some cause so remote to the
person sought to be held liable for negligence that he cannot be charged
with responsibility for the injury.”4 In Hastings, the patient’s death was a direct result of the breach of duty.
4. Causation/Proximate Cause
Causation, the fourth element necessary to establish negligence, requires
that there be a reasonable, close, and causal connection or relationship
between the defendant’s negligent conduct and the resulting damages suffered by the plaintiff. In other words, the defendant’s negligence must be a substantial factor causing the injury. Proximate cause is a term
referring to the relationship between a breached duty and the injury. The
breach of duty must be the proximate cause of the resulting injury.
Causation in the Hastings 5 case was well established. In the ordinary
course of events, a person does not bleed to death in a hospital emergency
department over a 2-hour period without some surgical intervention to save
the patient’s life.
Foreseeability and Anticipation of Harm
Foreseeability is the reasonable anticipation that harm or injury is likely to
result from an act or an omission of an act. The test for foreseeability is
whether one of ordinary prudence and intelligence should have anticipated
the danger to others caused by his or her negligent act. “The test is not what the wrongdoer believed would occur; it is whether he or she ought
reasonably to have foreseen that the event in question, or some similar
event, would occur.”6 There is no expectation that a person can guard against events that
cannot reasonably be foreseen. Foreseeability involves guarding against
that which is probable and likely to happen, not against that which is only
remotely and slightly possible. In Hastings, 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.”7
CASE: CURSORY EXAMS ARE RISKY
All of the elements necessary to establish negligence were well established
in Niles v. City of San Rafael. 8 On June 26, 1973, at approximately 3:30
PM, Kelly Niles, a young boy, got into an argument with another boy on the
ball field. He was hit on the right side of his head. Kelly rode home on his
bicycle and waited for his father, who was to pick him up for the weekend.
At approximately 5:00 PM, his father arrived. By the time they arrived in
San Francisco, Kelly appeared to be in a great deal of pain. His father then
decided to take him to Mount Zion Hospital, which was a short distance
away. He arrived at the hospital emergency department at approximately
5:45 PM. On admission to the emergency department, Kelly was taken to a
treatment room by a registered nurse. The nurse obtained a history of the
injury and took Kelly’s pulse and blood pressure. During his stay in the emergency department, he was irritable, vomited several times, and
complained that his head hurt. An intern who had seen Kelly wrote “pale, diaphoretic, and groggy” on Kelly’s chart. Skull X-rays were ordered and
found to be negative except for soft tissue swelling that was not noted until
later. The intern then decided to admit Kelly. A second-year resident was
called, and he agreed with the intern’s decision. An admitting clerk called the intern and indicated that Kelly had to be admitted by an attending
physician. The resident went as far as to write “admit” on the chart and later crossed it out. A pediatrician who was in the emergency department
at the time was asked to look at Kelly. The pediatrician was also the paid
director of the Mount Zion Pediatric Out-Patient Clinic. The pediatrician
asked Kelly a few questions and then decided to send him home. The
physician could not recall what instructions he gave Kelly’s father, but he did give the father his business card.
The pediatrician could not recall giving the father a copy of the
emergency department’s “Head Injury Instructions,” an information sheet that had been prepared for distribution to patients with head injuries. The
sheet explained that patients should return to the emergency department
should any of the following signs appear: a large, soft lump on the head,
unusual drowsiness (cannot be awakened), forceful or repeated vomiting, a
fit or convulsion (jerking or spells), clumsy walking, bad headache, and/or
one pupil larger than the other.
Kelly was taken back to his father’s apartment at about 7:00 PM. A psychiatrist friend stopped by and examined Kelly. He noted that one pupil
was larger than the other. Kelly was taken back to the emergency
department. A physician on duty noted an epidural hematoma during his
examination and ordered that a neurosurgeon be called.
Today, Kelly can move only his eyes and neck. A lawsuit was brought
against the hospital and pediatrician for $5 million. The city of San Rafael
and public school district were included in the lawsuit as defendants.
Expert testimony by two neurosurgeons during the trial indicated that
Kelly’s chances of recovery would have been very good if he had been admitted promptly. This testimony placed the proximate cause of the injury
with the hospital. The final judgment was $4 million against the medical
defendants, $2.5 million for compensatory damages, and another $1.5
million for pain and suffering.
Discussion
The many lessons for discussion in Niles v. City of San Rafael include the
following:
1. An organization can improve the quality of patient care rendered in the
facility by establishing and adhering to policies, procedures, and
protocols that facilitate the delivery of quality care across all
disciplines.
2. The provision of quality health care requires collaboration across
disciplines.
3. A physician must conduct a thorough and responsible examination and
order the appropriate tests for each patient, evaluating the results of
those tests before discharging the patient.
4. A patient’s vital signs must be monitored closely and documented in the medical record. Corrective measures must be taken when a
patient’s medical condition signals a medical problem. 5. A complete review of a patient’s medical record must be accomplished
before discharging a patient.
6. Review of the record must include review of test results, nurses’ notes, residents’ and interns’ notes, and the notes of any other physician or consultant who may have attended the patient.
7. Failure to fully review a patient’s record can lead to an erroneous diagnosis, and the premature dismissal of a case can result in liability
for both the organization and physician.
Duty to care involves a responsibility to do the “right thing.” The right thing is based on an acceptable standard of care. If breaching the standard
causes harm to the patient, not only is there a legal issue but there are
ethical principles that have been violated. Nonmaleficence, for example,
requires caregivers to avoid causing harm to patients.
If the “ethical theories, principles, and values” discussed above had been valued and practiced, Kelly Niles would most likely be leading a
normal life today.
INTENTIONAL TORTS
An intentional tort is one that is committed deliberately. Proof of intent is
based on the premise that the defendant intended the harmful consequences
of his or her behavior. An individual’s reason to cause harm is irrelevant and does not protect him or her from responsibility for the damages
suffered as the result of an intentional act.
Assault and Battery
It has long been recognized by law that a person possesses a right to be free
from aggression and the threat of actual aggression against one’s person. The right to expect others to respect the integrity of one’s body has roots in both common and statutory law. The distinguishing feature between assault
and battery is that assault effectuates an infringement on the mental
security or tranquility of another, whereas battery constitutes a violation of
another’s physical integrity. An assault is defined as the deliberate threat, coupled with the apparent
present ability to do physical harm to another. No actual contact or
damages are necessary. It is the deliberate threat or attempt to injure
another or the attempt by one to make bodily contact with another without
his or her consent. To commit the tort of assault, two conditions must exist.
First, the person attempting to touch another unlawfully must possess the
apparent present ability to commit the battery. Second, the person
threatened must be aware of or have actual knowledge of an immediate
threat of a battery and must fear it.
A battery is the intentional touching of another’s person, in a socially impermissible manner, without that person’s consent. It is intentional conduct that violates the physical security of another. An act that otherwise
would be considered to be an assault may be permissible if proper consent
has been given or if it is in defense of oneself or of a third party. The
receiver of the battery does not have to be aware that a battery has been
committed (e.g., a patient who is unconscious and has surgery performed
on him or her without consent, either expressed or implied, is the object of
a battery). The unwanted touching may give rise to a cause of action for
any injuries brought about by the touching. No actual damages need be
shown to impose liability.
False Imprisonment
False imprisonment is the unlawful restraint of an individual’s personal liberty or the unlawful restraining or confining of an individual. The
personal right to move freely and without hindrance is basic to our legal
system. Any intentional infringement on this right may constitute false
imprisonment. Actual physical force is not necessary to constitute false
imprisonment. All that is necessary is that an individual who is physically
confined to a given area experience a reasonable fear that force, which may
be implied by words, threats, or gestures, will be used to detain the
individual or to intimidate him or her without legal justification. Excessive
force used to restrain a patient may produce liability for both false
imprisonment and battery.
Defamation of Character
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 is the oral form of defamation. For example, in Eli v. Griggs
County Hospital & Nursing Home, 9 a nurse’s aide was terminated as the
result of an incident in the hospital dining room in which the aide, in the
presence of patients and visitors, cursed at her supervisor and complained
that personnel were working short staffed. Given the nature of her
employment, such behavior justified her termination on a charge of
reported breach of patient- and facility-specific information. No defamation
resulted from the entry of such charges in the aide’s personnel file because the record established that the charges were “true.”
Libel is the written form of defamation. Libel can be presented in signs,
photographs, letters, cartoons, and various other forms of written
communication. To be an actionable wrong, defamation must be
communicated to a third person. Defamatory statements communicated
only to the injured party are not grounds for an action. Truth of a statement
is a complete defense.
Defamation on its face is actionable without proof of special damages.
In certain cases, a court will presume that the words caused injury to the
person’s reputation. There are four generally recognized exceptions whereby no proof of actual harm to reputation is required to recover
damages: (1) accusing someone of a crime, (2) accusing someone of having
a loathsome disease, (3) using words that affect a person’s profession or business, and (4) accusing someone of sexual misconduct.
Invasion of Privacy
Invasion of privacy is a wrong that invades the right of a person to personal
privacy. Absolute privacy has to be tempered with reality in the care of any
patient, and the courts recognize this fact. Disregard for a patient’s right to privacy is legally actionable, particularly when patients are unable to
protect themselves adequately because of unconsciousness or immobility.
The right to privacy is implied in the Constitution. It is recognized as a
right to be left alone—the right to be free from unwarranted publicity and exposure to public view, as well as the right to live one’s life without having one’s name, picture, or private affairs made public against one’s will. Health care organizations and professionals may become liable for
invasion of privacy if, for example, they divulge information from a
patient’s medical record to improper sources or if they commit unwarranted intrusions into a patient’s personal affairs.
Patients have a right to personal privacy and a right to the
confidentiality of their personal and clinical records. The information in a
patient’s medical record is confidential and should not be disclosed without the patient’s permission. Those who come into possession of the most intimate personal information about patients have both a legal and an
ethical duty not to reveal confidential communications. The legal duty
arises because the law recognizes a right to privacy. To protect this right,
there is a corresponding duty to obey. The ethical duty is broader and
applies at all times. There are, however, occasions when there is a legal
obligation or duty to disclose information. The law requires, for example,
the reporting of communicable diseases, gunshot wounds, and older person
and child abuse.
Infliction of Mental Distress
The intentional or reckless infliction of mental distress is characterized by
conduct that is so outrageous that it goes beyond the bounds tolerated by a
decent society. It is a civil wrong for which a tort-feasor can be held liable
for damages. Mental distress includes mental suffering resulting from
painful emotions such as grief, public humiliation, despair, shame, and
wounded pride. Liability for the wrongful infliction of mental distress may
be based on either intentional or negligent misconduct. A plaintiff may
recover damages if he or she can show that the defendant intended to inflict
mental distress and knew or should have known that his or her actions
would give rise to it. Recovery generally is permitted even in the absence
of physical harm.
CASE: THE COURT WAS APPALLED
In Tomcik v. Ohio Dep’t of Rehabilitation & Correction,10 the plaintiff, Tomcik, was in the custody of the defendant, a penal institution. Pursuant
to the defendant’s policy of medically evaluating all new inmates, on May 26, 1989, Dr. Evans gave Tomcik a medical examination. He testified that
his physical evaluation included an examination of Tomcik’s breasts; however, he stated that his examination was very cursory.
The day after her examination, Tomcik examined her own breasts. At
that time, she discovered a lump in her right breast, which she
characterized as being about the size of a pea. She then sought an
additional medical evaluation at the defendant’s medical clinic. Testimony indicated that fewer than half of the inmates who sign the clinic list are
actually seen by medical personnel the next day. Also, inmates who are not
examined on the day for which the list is signed are given no preference in
being examined on the following day. In fact, their names are simply
deleted from the daily list, and their only recourse is to continually sign the
list until they are examined.
The evidence indicated that from May 27 on, Tomcik constantly signed the
clinic list and provided the reason she was requesting medical care.
A nurse finally examined Tomcik on June 21. The nurse wrote in her
nursing notes that Tomcik had a “moderate large mass in right breast.” The nurse recognized that the proper procedure was to measure such a mass,
but she testified that this was impossible because no measuring device was
available. The missing “measuring device” to which she alluded was a simple ruler. The nurse concluded that Evans, the original doctor who had
examined Tomcik, should examine her again.
On June 28, Evans examined Tomcik again. He recorded in the
progress notes that she had “a mass on her right wrist. Will send her to hospital and give her Benadryl for allergy she has.”11 Evans meant to write “breast,” not “wrist.” He again failed to measure the size of the mass on Tomcik’s breast.
Tomcik was transferred to the Franklin County Prerelease Center on
September 28. On September 30, a nurse there examined Tomcik; the
nurse recorded that she had a “golf ball-sized” lump in her right breast. Tomcik was transported to the hospital on October 27, where Dr. Walker
treated her. A mammogram indicated that Tomcik’s tumor was probably malignant. This diagnosis was confirmed by a biopsy performed on
November 9. Tomcik was released from confinement on November 13.
On November 16, Dr. Lidsky, a surgeon employed outside of the penal
institution, examined Tomcik. Lidsky noted the existence of the lump in
her breast and determined that the size of the mass was approximately 4 to
5 centimeters and somewhat fixed. He performed a modified radical
mastectomy on the plaintiff’s right breast, removing nearly the entire breast.
Tomcik alleged that it was the delay in her examination that ultimately
led to the removal of her right breast; had she been seen more timely, much
of the breast could have been spared. The defendant, the corrections
department, contended that even if its employees were negligent, Tomcik’s cancer was so advanced when discovered that it would nevertheless have
required removal of her breast. 12
The Ohio Court of Appeals held that the delay in providing treatment
to Tomcik fell below the medically acceptable standard of care. The court
was “appalled” that the physician had characterized his evaluation as a medical examination and that what he described as a “cursory breast examination” should be considered medically sufficient. It seemed
incredible to the court that a physician would deliberately choose not to
take the additional few minutes or seconds to palpate thoroughly the sides
of the breasts, which is a standard minimally intrusive cancer detection
technique.
Ethical and Legal Issues
1. Do you agree with the court’s decision? Discuss your answer. 2. Discuss why the court was appalled.
3. What ethical values were lacking by the caregivers?
CRIMINAL LAW
Laws were made to restrain and punish the wicked; the wise and good do
not need them as a guide, but only as a shield against rapine and
oppression; they can live civilly and orderly, though there were no law in
the world.
OWEN FELTHAM (1602–1668)
Criminal law is society’s expression of the limits of acceptable human and institutional behavior. A crime is any social harm defined and made
punishable by law. The objectives of criminal law are to maintain public
order and safety, to protect the individual, to use punishment as a deterrent
to crime, and to rehabilitate the criminal for return to society.
Crimes are generally classified as misdemeanors or felonies. The
difference between a misdemeanor and a felony revolves around the
severity of the crime. A misdemeanor is an offense punishable by less than
1 year in jail and/or a fine (e.g., petty larceny). A felony is a much more
serious crime (e.g., rape, murder) and is generally punishable by
imprisonment in a state or federal penitentiary for more than 1 year.
Peculiar to health care organizations is the fact that patients are often
helpless and at the mercy of others. Health care facilities are far too often
places where the morally weak and mentally deficient prey on the
physically and sometimes mentally helpless. The very institutions designed
to make the public well and feel safe can sometimes provide the setting for
criminal conduct.
PEOPLE STORIES: Narcotics Taken
One night in October, before going into night shift, a nurse counted
narcotics with the previous shift’s RN. Then the count sheet was signed. After the narcotic count was correct, a nurse signed it. The
evening shift coworker then said, “Look at this.” Some suspicious activity had been going on for a long time with the boxes of Demerol
and oral narcotics, especially Percocet. The coworker showed that one
of the RNs had signed out two narcotics to a 3-day postoperative C-
section patient—given at 8:30 AM, 10:30 AM, and again at 1 PM. Each time it was the following: Demerol 100 mg and Tylenol 3, 2 p.o. Any
professional or even nonprofessional in a hospital setting realizes that a
3-day postoperative patient would never get an injection and oral
medication at the same time, and certainly not every 2 hours. Not even
a fresh postoperative patient would get this amount at the same time.
The reaction of the three other evening shift nurses was interesting:
“This has been going on for a long time.” “I have a life to live so I am not saying anything.” “Do you think we should report this?” The last coworker’s response deserves respect.
To make a long story short, the night supervisor was called. When
she arrived, the revealing evidence was pointed out to her. This RN had
been suspected for quite awhile, but no one ever pinpointed evidence.
The higher-up authorities proceeded to question the RN the next day
when she arrived for work. Of course, she denied involvement. They
asked for a drug test, which she refused. It was shocking that no one,
including the pharmacy, had ever noticed her suspicious activity before.
She received a punishment of immediate suspension for 1 week. When
she returned, she was not allowed to carry the narcotic keys for a week.
Later, after she regained access to the narcotics, she was caught giving
a patient two Motrin when Percocet was ordered. Another incident
sheet was filled out against her. She continued to work.
This nurse continued to work into January. Because other
coworkers finally got concerned that they might be implicated, they
went to the vice president of nursing. Finally, this nurse was let go from
the facility. Eventually she was listed in the state professional
newsletter as having a suspended license.
Sadly, this young nurse (39 years old) was in a vehicle 6 months
later with two young men. They were speeding at 75 mph around a 35-
mph curve without seat belts. They hit the embankment and were
thrown out of the car, and she and one accomplice were killed instantly.
She had drugs in her possession, and autopsy confirmed inebriation of
all three passengers.
Unfortunately, the officials of our facility did not take action sooner,
nor did they call some kind of a meeting to explain the responsibility
that the professionals have about honesty and integrity when suspicious
activity is seen among our fellow workers. This situation was also seen
in 1977 (in another state) when an LPN was caught; within 24 hours,
she had a choice of admittance to chemical dependency or walking out
of the hospital with the police. Unfortunately, some of her fellow
workers stood on her side, as though she had a right to be lifting
narcotics for personal use or distribution!
Nurse
The U.S. Department of Justice and state and local prosecutors are
vigorously pursuing and prosecuting health care organizations and
individuals for criminal conduct. Health care fraud, patient abuse, and other
such crimes have caused law enforcement agencies to establish a zero-
tolerance policy for such acts. This reality requires health care
professionals to be observant in their environments and to report suspicious
conduct, as appropriate.
Criminal Procedure
The following sections provide an overview of criminal procedure and the
process for the prosecution of misdemeanors and felonies.
Arrest
Prosecutions for crimes generally begin with the arrest of a defendant by a
police officer or with the filing of a formal action in a court of law and the
issuance of an arrest warrant or summons. On arrest, the defendant is taken
to the appropriate law enforcement agency for processing, which includes
paperwork and fingerprinting. The police also prepare accusatory
statements, such as misdemeanor information and felony complaints.
Detectives are assigned to cases when necessary to gather evidence,
interview persons suspected of committing a crime and witnesses to a
crime, and assist in preparing a case for possible trial. After processing has
been completed, a person is either detained or released on bond.
A felony complaint or an indictment commences a criminal proceeding;
however, an individual may be tried for a felony after indictment by a
grand jury unless the defendant waives presentment to the grand jury and
pleads guilty by way of a superior court. Felony cases are presented to a
grand jury by a district attorney or an assistant district attorney. The grand
jury is presented with the prosecution’s evidence, and then its members may indict the target if they find reasonable cause to believe from the
evidence presented to them that all the elements of a particular crime are
present. The grand jury may request that witnesses be subpoenaed to
testify. A defendant may choose to testify and offer information if he or she
wishes. Actions of a grand jury are handed up to a judge, after which the
defendant will be notified to appear to be arraigned for the crimes charged
in the indictment.
Arraignment
The arraignment is a formal reading of the accusatory instrument and
includes the setting of bail. The accused should appear with counsel or
have counsel appointed by the court if he or she cannot afford his or her
own. After the charges are read, the defendant pleads guilty or not guilty. A
not guilty plea is normally offered on a felony. On a plea of not guilty, the
defense attorney and prosecutor make arguments regarding bail. After
arraignment of the defendant, the judge sets a date for the defendant to
return to court. Between the time of arraignment and the next court date,
the defense attorney and the prosecutor confer about the charges and the
evidence in the possession of the prosecutor. At that time, the defense will
offer any mitigating circumstances that it believes will convince the
prosecutor to lessen or drop the charges.
Conference
If the defendant does not plead guilty, both felony and misdemeanor cases
are taken to conference, and plea-bargaining commences with the goal of
an agreed-on disposition. If no disposition can be reached, the case is
adjourned, motions are made, and further plea-bargaining ensues.
Generally after several adjournments, a case is assigned to a trial court.
Prosecutor
The role of the prosecutor in the criminal justice system is well defined in
Berger v. United States: 13
The United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice will be done. As such, he is in a peculiar and
very definite sense the servant of the law, the twofold aim of which is
that guilt shall not escape or innocence suffer.
The potential of the prosecutor’s office is not always fully realized in many jurisdictions. In many cities, the combination of the prosecutor’s staggering caseload and small staff of assistants prevents sufficient
attention being given to each case. 14
Defense Attorney
The defense attorney generally sits in the proverbial hot seat, being
perceived as the bad guy. Although everyone seems to understand the
attorney’s function in protecting the rights of those represented, the defense attorney often is not very popular.
There is a substantial difference in the problem of representing the
“run-of-the-mill” criminal defendant and one whose alleged crimes have aroused great public outcry. The difficulties in providing
representation for the ordinary criminal defendant are simple
compared with the difficulties of obtaining counsel for one who is
charged with a crime which by its nature or circumstances incites
strong public condemnation. 15
Criminal Trial
Most of the processes of a criminal trial are similar to those of a civil trial.
They include jury selection, opening statements, presentation of witnesses
and other evidence, summations, instructions to the jury by the judge, jury
deliberations, verdict, and opportunity for appeal to a higher court. In a
criminal trial, the jury verdict must be unanimous, and the standard of
proof is that guilt must be determined beyond a reasonable doubt.
Fraud
NEWSPAPER CLIPPINGS: Medicare Fraud Crackdown Nabs 91
in 8 Cities Across U.S.
Suspects accused of bilking system out of nearly $300 million
Among those charged in the coordinated series of arrests was a
doctor in Detroit who allegedly billed Medicare for services provided to
dead people and claimed that he performed psychotherapy treatments
more than 24 hours a day. Other doctors, nurses and health-care
company owners were charged in various schemes to get paid for
services that were medically unnecessary or never provided, officials
said.
“From Brooklyn to Miami to Los Angeles, the defendants allegedly treated the Medicare program like a personal piggy bank,” Lanny A. Breuer, assistant attorney general for the Justice Department’s criminal division, said at a news conference in Washington.
[Attorney General Eric H.] Holder said the victims included “some of the most vulnerable among us—including seniors suffering from dementia and Alzheimer’s disease.”
Officials said the crackdown will continue. “The health-care system is part of our nation’s infrastructure, and we must do everything in our power to protect the integrity of Medicare,” said FBI Executive Assistant Director Shawn Henry.
Jerry Markon, The Washington Post, September 8, 2011
Health care fraud involves an unlawful act, generally deception for
personal gain. It “encompasses an array of irregularities and illegal acts
characterized by intentional deception.”16 As noted in the following headline, health care fraud continues to be a major financial drain on the
health care system.
Schemes to Defraud
NEWSPAPER CLIPPINGS: Medicare Bilked of $77M “Like an ATM”
Over 7 years, the federal program for the elderly and disabled paid at
least about $77 million—and possibly as much as $92 million—to purported medical equipment suppliers who used Medicare ID numbers
of deceased physicians, says a report out today by congressional
investigators. . . .
Despite learning of the problem in 2001, the government failed to
fix it, the report says. Investigators reviewing billing data submitted by
equipment suppliers from 2000 to 2007 using the ID numbers of 1,500
deceased doctors.
Julie Appleby, USA Today, July 9, 2008
NEWSPAPER CLIPPINGS: Woman Guilty of Health Care Fraud
A Severna Park woman pleaded guilty yesterday to health care fraud,
admitting she billed the government and insurance companies for more
than $200,000 in services she never rendered. . . . A state-licensed
clinical specialist in child and adolescent psychiatric and mental health,
[she] now faces the possibility of 10 years in prison and $250,000 in
fines.
To conceal the fraud, she used false information on medical forms
and patient logs.
Scott Daugherty, The Capital, July 3, 2008
A defendant is guilty of a scheme to defraud when he or she engages in
a scheme constituting a systematic ongoing course of conduct with intent to
defraud more than one person or to obtain property from more than one
person by false or fraudulent pretenses, representations, or promises, and so
obtains property from one or more of such persons. To show intent in a
scheme to defraud, one needs to establish the following elements: 17
1. That on or about (date), in the county of (county), the defendant
(defendant’s name), engaged in a scheme constituting a systematic ongoing course of conduct;
2. That the defendant did so with intent to defraud more than one person
or to obtain property from more than one person by false or fraudulent
pretenses, representations, or promises; and
3. That the defendant so obtained property from one or more of such
persons, at least one of whom has been identified.
Health care fraud is committed when a dishonest provider or consumer
intentionally submits or causes someone else to submit false or misleading
information for use in determining the amount of health care benefits
payable. Some examples of provider health care fraud include the
following:
• Billing for services not rendered • Falsifying a patient’s diagnosis to justify tests, surgeries, or other
procedures that aren’t medically necessary • Misrepresenting procedures performed to obtain payment for noncovered
services, such as cosmetic surgery
• Upcoding services (billing for a more costly service than the one actually performed)
• Upcoding medical supplies and equipment (billing for more expensive equipment than what was delivered to the patient)
• Unbundling (billing each stage of a procedure as if it were a separate procedure)
• Billing for unnecessary services (services that are not medically indicated)
• Accepting kickbacks for patient referrals • Waiving patient co-pays or deductibles • Overbilling the insurance carrier or benefit plan
Investigation and Prosecution of Fraud
The federal government’s initiative to investigate and prosecute health care organizations for criminal wrongdoing has resulted in the establishment of
corporate compliance programs for preventing, detecting, and reporting
criminal conduct. An effective corporate compliance program involves:
1. Developing appropriate policies and procedures
2. Appointing a compliance officer to oversee the compliance program
3. Communicating the organization’s compliance program to employees 4. Providing for monitoring and auditing systems that are designed to
detect criminal conduct by employees and other agents
5. Publicizing a reporting system whereby employees and other agents
can report criminal conduct by others within the organization without
fear of retribution
6. Taking appropriate steps to respond to criminal conduct and to prevent
similar offenses
7. Periodically reviewing and updating the organization’s corporate compliance program
8. Working with state and federal law enforcement and regulatory
agencies and insurance companies to detect, prevent, and prosecute
health care fraud
Healthy Dose of Fraud
In one example of fraud, patients were allegedly brought to California,
where they were paid to undergo surgeries that they did not need.
In the scam, agents say, recruiters bring “patients from across the nation to surgery centers in California where they give phony or
exaggerated symptoms and doctors perform unnecessary operations on
them. Then the surgery centers send inflated claims for the unnecessary
procedures to the patients’ insurance companies. When the insurers pay up, federal authorities say, the recruiters, the surgery centers and the
patients split the proceeds. 18
It is no wonder that the public, bombarded with stories of such fraudulent
activities, has little if any trust in the corporate world. Corporate fraud has
become so rampant that the level of trust in and reputation of
organizational leadership has reached an all-time low.
Home Care Fraud
Today, more Americans are living longer than ever before. As medicine has
advanced, the average life expectancy has increased by 50%. An ever-
escalating number of older persons receive in-home care, dependent on
family and health care providers to attend to their physical, financial,
emotional, and health care needs. Medicare home health benefits allow
individuals with restricted mobility to remain home, outside an institutional
setting, by providing home care benefits. Home care services and supplies
are generally provided by nurses, home nursing aides, speech therapists,
and physical therapists under a physician-certified plan of care.
Home care is rapidly being recognized as a breeding ground for abuse.
The numerous scams in home care fraud are caused by the difficulty in
supervising services provided in the home, Medicare’s failure to monitor the number of visits per patient, beneficiaries paying no co-payments
except for medical equipment, and the lack of accountability to the patient
by failing to explain services provided.
Home care fraud is generally not easy to detect. It involves charging
insurers for more services than patients received, billing for more hours of
care than were provided, falsifying records, and charging higher nurses’ rates for care given by aides. The trend toward shorter hospital stays has
created a multibillion-dollar market in home care services. This new
market brings many opportunities for fraud.
Manslaughter
Manslaughter is the unlawful killing of another person without malice
aforethought. It can be either voluntary or involuntary. Voluntary
manslaughter is the intentional killing of another person in what is
commonly referred to as the “heat of passion,” which is caused by the provocation of the victim (e.g., found having an affair with the defendant’s spouse). Involuntary manslaughter is when death occurs as the result of a
negligent act (e.g., reckless driving).
CASE: AN ANGRY SURGEON, A PATIENT’S DEATH
It was alleged that a surgeon unlawfully killed a teenage cancer patient
when he lost his temper as she lay on an operating table. The physician is
said to have become angry because the operation at the hospital was
making him late for his next appointment. The physician denied
manslaughter at the opening of the trial.
Part of the patient’s heart was punctured, and she died of massive internal bleeding. A staff nurse, who was assisting in the operating room,
told the court that she was aghast at the physician’s behavior and language during the operation. She told the jury that the physician was unable to
insert a needle and guide wire into the patient and that the physician
pushed and shoved the patient’s body quite aggressively, using such force that the patient’s entire body shook.
The nurse was asked by the prosecutor if she had ever seen that sort of
behavior or anything like it, and she replied that she had not. The physician
admitted that something had gone wrong but that it was a rare and
recognized complication. 19
The judge instructed the jury that they “should not unconsciously be swayed by sympathies in either direction, either for Kelly and her family,
or sympathy for [the physician] in his position.”20
Ethical and Legal Issues
1. Discuss the ethical issues and values that were violated in this case.
2. Discuss how a physician’s daily schedule of conducting surgery, making patient rounds, writing prescriptions, dealing with angry
family members, going to the office, and so on can affect his or her
temper and ability to function effectively as a physician.
3. Discuss how on-the-job pressures for nurses, pharmacists, physician
assistants, and other caregivers affect patient care.
Murder
NEWSPAPER CLIPPINGS: 3 Shot at Georgia Hospital; Suspect
Captured
Armed with a 3-year grudge and more guns than he could hold, a
former substitute school teacher stormed a hospital looking to punish
the nurse he blamed for his mother’s death. The nurse, another employee and a bystander are dead. . . .
The Capital, March 29, 2008
Murder is the unlawful killing of a person. It is a homicide, and it involves
malice aforethought and the premeditated intent to kill another human
being. First-degree murder involves the deliberate and premeditated killing
of another with malice aforethought. Second-degree murder is not
deliberate, nor is it premeditated; however, it is the killing of another with
malice aforethought. The tragedy of murder in institutions that are
dedicated to the healing of the sick has been an all too frequent occurrence.
For example, Cullen, a former nurse, pleaded guilty to 13 murders and
attempting to kill two others in New Jersey and Pennsylvania. 21
Cullen had
refused to cooperate with prosecutors unless they promised not to seek the
death penalty. Cullen claimed responsibility for the deaths of 30 to 40
patients over a 16-year nursing career. “The case raises concerns about hospital oversight of medical errors, narcotics security, and background
checks on prospective employees. Cullen was fired from five hospitals and
resigned from two amid questions about his job performance.”22 Cullen had been found violating nursing standards from the beginning
of his career. He had problems in every one of the 10 institutions that he
worked for in New Jersey and Pennsylvania. Apparently not one of the
institutions in which Cullen worked gave him a bad reference. “It
amounted to a policy of ‘see no evil, speak no evil’—one that gave Cullen, in effect, a license to kill.”23
CASE: ANGEL OF DEATH
Richard Angelo, an Eagle Scout and voluntary fireman, gained national
attention as the “angel of death.” He was a registered nurse on the cardiac/intensive care unit at a Long Island hospital, where he murdered
patients by injecting them with the drug Pavulon.
Angelo was ultimately convicted of two counts of depraved
indifference murder (second-degree murder), one count of second-degree
manslaughter, one count of criminally negligent homicide, and six counts
of assault with respect to five of the patients and was sentenced to 61 years
to life. 24
Angelo had committed the murders in a bizarre scheme to revive the
patients and be thought of as a hero. The attorney for the estate of one of
the alleged victims had filed a wrongful death suit against Angelo and the
hospital a day before the verdict was rendered by the jury. 25
Ethical and Legal Issues
1. Discuss the ethical and legal issues and values that were violated in
this case.
2. Discuss what steps a hospital should take to prevent such events.
Theft
NEWSPAPER CLIPPINGS: Virginia Court Rules Identity Theft
Victim to Get $532,000 from . . .
Sloane delivered her second child . . . unaware that her last name would
prove too big a temptation for an employee of the hospital’s accounting department, Shovana Sloan.
Sloan, who was hired for the department even though she was a
felon, appropriated Sloane’s identification and went on a $35,000 spending spree.
Alan Cooper, Daily Record and the Kansas City Daily News-Press,
September 23, 2006 26
NEWSPAPER CLIPPINGS: Medical Theft Trend Sweeps
Pennsylvania
A slew of hospital thefts nationwide—including close to $75,000 of equipment from Mount Nittany Medical Center in 2005—has opened investigators’ eyes to a black market specializing in the swap of used medical instruments.
Krystle Kopacz, The Daily Collegian Online, January 13, 2006 27
NEWSPAPER CLIPPINGS: NHS Hospital Thefts Cost Millions
National Health Service (NHS) hospital wards in the UK are being
targeted by thieves who steal tens of millions of pounds worth of
medical equipment every year.
Hospital Healthcare.com, June 26, 2008 28
NEWSPAPER CLIPPINGS: Millions of Patient Billing Records
Stolen from UT Hospital
Billing records for about 2.2 million patients and guarantors were
stolen last week from the University of Utah Hospitals & Clinics, just
one more in what appears to be a rapidly growing flood of identity theft
incidents.
Anne Zieger, Fierce HealthIT, June 14, 2008 29
NEWSPAPER CLIPPINGS: Grady Hospital Battles Patient Thefts
“It’s got to be clearly 180 degrees from what we expect in an institution of care and shelter,” said Atlanta attorney Mark Spix, who says he represented a man whose wife lost an engagement ring after being
flown to Grady in October 2004 with fatal injuries. “I just think that is unacceptable.”
There were 260 thefts involving patients, employees and visitors in
2007, compared with 262 in 2006 and 279 in 2005, Grady
spokeswoman Denise Simpson said.
Tim Eberly, The Atlanta Journal-Constitution, July 24, 2008 30
Theft is the illegal taking of another person or organization’s property. Health care organizations must be alert to the potential ongoing threat of
theft by unscrupulous employees, physicians, patients, visitors, and
trespassers. The theft of patient or resident valuables, supplies, drugs, and
medical equipment is substantial and costs health care organizations
millions of dollars each year.
The evidence presented in People v. Lancaster 31
was found to have
provided a probable cause foundation for information charging felony theft
of nursing home residents’ money by the office manager. Evidence showed that on repeated occasions the residents’ income checks were cashed or cash was otherwise received on behalf of residents; that the defendant, by
virtue of her office, had sole responsibility for maintaining the residents’ ledger accounts; and that cash receipts frequently were never posted to the
residents’ accounts. In another case, Miller v. Dunn,
32 there was sufficient evidence to hold
that a nurse assistant had misappropriated $15,000 from an 83-year-old
nursing home resident. The record indicated that the funds were taken
during those times when the resident made visits to the hospital for
respiratory problems. The patient had been diagnosed with dementia, and
the resident’s confusion was increasing. The nursing assistant actively procured the check in question, filling in the date, amount, and her name as
payee. As a result, the nursing assistant was placed on the Employee
Disqualification List for misappropriating funds.
CONTRACTS
A contract is a special kind of agreement, either written or oral, that
involves legally binding obligations between two or more parties. The
major purpose of a contract is to specify, limit, and define the agreements
that are legally enforceable.
Elements of a Contract
Whether contracts are executed in writing or agreed to orally, they must
contain the following elements to be enforceable: (1) offer/communication,
(2) consideration, and (3) acceptance.
1. Offer/Communication
An offer must be communicated to the other party so that it can be accepted
or rejected. Unless the offeror specifically requires that the acceptance be
received before a contract is formed, communication of the acceptance to
the offeror is not necessary.
2. Consideration
An offer is a promise by one party to do (or not to do) something if the
other party agrees to do (or not do) something. Not all statements or
promises are offers. Generally, advertisements of goods for sale are not
offers but are invitations to the public to come to the place of business,
view the merchandise, and be made an offer. An opinion is not an offer.
Preliminary negotiations are not offers.
3. Acceptance
On proper acceptance of an offer, a contract is formed. It involves:
• Meeting of the minds: Acceptance requires a “meeting of the minds” (mutual assent). The parties must understand and then agree on the terms
of the contract.
• Definite and complete: Acceptance requires mutual assent to be found between the parties. The terms must be so complete that both parties
understand and agree to what has been proposed.
• Duration: Generally, the other party may revoke an offer at any time prior to a valid acceptance. When the offeror does revoke the proposal,
the revocation is not effective until the offeree (the person to whom the
offer is made) receives it. After the offeree has accepted the offer, any
attempt to revoke the agreement is too late and is invalid.
• Complete and conforming: The traditional rule is that the acceptance must be the mirror image of the offer. In other words, the acceptance
must comply with all the terms of the offer and not change or add any
terms.
Employment Contracts
An employer’s right to terminate an employee can be limited by express agreement with the employee or through a collective bargaining agreement
to which the employee is a beneficiary. No such agreement was found to
exist in O’Connor v. Eastman Kodak Co.,33 in which the court held that an employer had a right to terminate an employee at will at any time, and for
any reason or no reason. The plaintiff did not rely on any specific
representation made to him during the course of his employment
interviews, nor did he rely on any documentation in the employee
handbook, which would have limited the defendant’s common-law right to discharge at will. The employee had relied on a popular perception of
Kodak as a “womb-to-tomb” employer.
Exclusive Contracts
An exclusive contract, in the context of a hospital, is an agreement between
two or more entities to deal only with each other regarding a specific area
of business (e.g., hospital[s] and radiology physician[s] group). The
essential feature of an exclusivity contract is the covenant not to engage in
a particular business activity with other parties for a specified period of
time.
An organization often enters into an exclusive contract with physicians
and/or medical groups for the purpose of providing a specific service to the
organization. Exclusive contracts generally occur within the organization’s ancillary service departments (e.g., radiology, anesthesiology, and
pathology). Physicians who seek to practice at organizations in these
ancillary areas but who are not part of the exclusive group have attempted
to invoke the federal antitrust laws to challenge these exclusive contracts.
These challenges generally have been unsuccessful.
Exclusive Contract with Radiology Group
Tennessee code permitted the hospital authority to enter into an exclusive
contract with a radiology group. The governing body’s decision to close the staff of the imaging department did not violate medical staff bylaws, and
the defendant radiologists were not legally or constitutionally entitled to a
hearing if their privileges were terminated on entry of the hospital authority
into an exclusive provider contract. 34
Commercial Ethics and Noncompetition Agreements
The purpose in allowing noncompetition agreements is to foster
“commercial ethics” and to protect the employer’s legitimate interests by preventing unfair competition, not ordinary competition.
The respondent hospital in Washington County Memorial Hospital v.
Sidebottom 35
employed the appellant/nurse practitioner from October 1993
through April 1998. Before beginning her employment, the nurse entered
into an employment agreement with the hospital. The agreement included a
noncompetition clause providing in part that the nurse “during the term of [the] Agreement and for a period of one (1) year after the termination of
her employment . . . will not, anywhere within a fifty (50) mile
radius . . . directly or indirectly engage in the practice of
nursing . . . without the express direction or consent” of the hospital. In February 1994, the nurse requested the hospital’s permission to work for the Washington County Health Department doing prenatal nursing care.
Because the hospital was not then doing prenatal care, the hospital gave her
permission to accept that employment but reserved the ability to withdraw
the permission if the services the nurse was providing later came to be
provided by the hospital. In January 1996, the nurse and the hospital
entered into a second employment agreement that continued the parties’ employment relationship through January 9, 1998. This agreement included
a noncompetition clause identical to the 1993 employment agreement. It
also provided for automatic renewal for an additional 2 years unless either
party gave written termination notice no less than 90 days prior to the
expiration of the agreement.
The hospital’s interest lies in protecting its patient base as a primary source of revenue. The specific enforcement of the nurse’s noncompetition clause is reasonably necessary to protect the hospital’s interest. Actual damage need not be proven to enforce a covenant not to compete. Rather,
the employee’s opportunity to influence customers justifies enforcement of the covenant. Thus, the quality, frequency, and duration of an employee’s exposure to an employer’s customers are crucial in determining the covenant’s reasonableness. The nurse had opportunity to influence the hospital’s patients. Before her employment with the hospital, the nurse had never worked in Washington County, nor did she have a patient base there.
The nurse helped to establish two rural health care clinics for the hospital,
one of which she managed during her first year of employment. During her
almost 5 years of employment with the hospital, the nurse saw more than
3,000 patients. Pursuant to a collaborative practice agreement with a
physician, the nurse treated patients, diagnosed illnesses and injuries,
prescribed and dispensed medications, and ordered and interpreted
laboratory tests. The nurse got to know the patients and families to whom
she provided these services. At the clinic, she had her own telephone
number, receptionist, appointment book, medical assistant, patient charts,
laboratory, and examination rooms. Her offices were physically separated
from those of the other medical practitioner at the clinic. Furthermore,
during her employment, the hospital promoted the nurse as a nurse
practitioner in the community by paying for advertisements with her
picture and telephone number in the newspaper. In general, the nurse had a
good rapport with her patients, and she had patients who requested her for
medical services.
TRIAL PROCEDURES AND THE COURTROOM
This next section presents a brief review of the law as applied in the
courtroom. Although many of the procedures leading up to and followed
during a trial are discussed in this chapter, civil procedure and trial practice
are governed by each state’s statutory requirements. Federal statutes govern cases on the federal level.
Pleadings
The pleadings of a case (e.g., summons and complaint), which include all
the allegations of each party to a lawsuit, are filed with a court. The
pleadings may raise questions of both law and fact. If only questions of law
are at issue, the judge will decide the case based on the pleadings alone. If
questions of fact are involved, the purpose of a trial is to determine those
facts.
Summons and Complaint
The parties to a controversy are the plaintiff and the defendant. The
plaintiff is the person who initiates an action by filing a complaint; the
defendant is the person against whom a suit is brought. Many cases have
multiple plaintiffs and defendants. Filing an order with a court clerk to
issue a writ or summons commences an action.
Although the procedures for beginning an action vary according to
jurisdiction, there are procedural common denominators. All jurisdictions
require service of process on the defendant (usually through a summons)
and a return to the court of that process by the person who served it. Where
a summons is not required to be issued directly by a court, an attorney, as
an officer of the court, may prepare and cause a summons to be served
without direct notice to or approval of a court. Notice to a court occurs
when an attorney files a summons and complaint in a court, thereby
indicating to the court that an action has been commenced.
The first pleading filed with the court in a negligence action is the
complaint. The complaint identifies the parties to a suit, states a cause of
action, and includes a demand for damages. It is filed by the plaintiff and is
the first statement of a case by the plaintiff against the defendant. In some
jurisdictions, a complaint must accompany a summons (an announcement
to the defendant that a case has been commenced).
Answer
After service of a complaint, a response is required from the defendant in a
document called the answer. In the answer, the defendant responds to each
of the allegations contained in the complaint by stating his or her defense
and by admitting to or denying each of the plaintiff’s allegations. If the defendant fails to answer the complaint within the prescribed time, the
plaintiff can seek judgment by default against the defendant.
Bill of Particulars
Because a complaint may provide very little information regarding the
claim, the defense attorney may request a bill of particulars. This document
requests more specific and detailed information than is provided in the
complaint. If a counterclaim has been filed, the plaintiff’s attorney may request a bill of particulars from the defense attorney.
Discovery of Evidence
Discovery is the process of investigating the facts of a case before trial. The
objectives of discovery are to (1) obtain evidence that might not be
obtainable at the time of trial, (2) isolate and narrow the issues for trial, (3)
gather knowledge of the existence of additional evidence that may be
admissible at trial, and (4) obtain leads to enable the discovering party to
gather further evidence.
The parties to a lawsuit have the right to discovery and to examine
witnesses before trial. Examination before trial (EBT) is one of several
discovery techniques used to enable the parties of a lawsuit to learn more
regarding the nature and substance of each other’s case. An EBT consists of oral testimony under oath and includes cross-examination. A deposition,
taken at an EBT, is the testimony of a witness that has been recorded in a
written format. Testimony given at a deposition becomes part of the
permanent record of the case. Each question and answer is transcribed by a
court stenographer and may be used at the subsequent trial. Truthfulness
and consistency are important because answers that differ from those given
at trial will be used to attack the credibility of the witness.
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. Helpful guidelines for witnesses undergoing examination
in a trial or a court hearing include the following:
• Review the records (e.g., medical records and other business records) on which you might be questioned.
• Do not be antagonistic when answering the questions. The jury may already be somewhat sympathetic toward a particular party to the
lawsuit; antagonism may only serve to reinforce such an impression.
• Be organized in your thinking and recollection of the facts regarding the incident.
• Answer only the questions asked. • Explain your testimony in simple, succinct terminology. • Do not overdramatize the facts you are relating. • Do not allow yourself to become overpowered by the cross-examiner. • Be polite, sincere, and courteous at all times. • Dress appropriately, and be neatly groomed. • Pay close attention to any objections your attorney may have as to the
line of questioning being conducted by the opposing counsel.
• Be sure to have reviewed any oral deposition in which you may have participated during EBT.
• Be straightforward with the examiner. Any answers designed to cover up or cloud an issue or fact will, if discovered, serve only to discredit any
previous testimony that you may have given. Do not show any visible
signs of displeasure regarding any testimony with which you are in
disagreement.
• Be sure to have questions that you did not hear repeated and questions that you did not understand rephrased.
• If you are not sure of an answer, indicate that you are not sure or that you just do not know the answer.
• Remember that lawyers often get the answers they want by how they frame the questions they ask.
The Court
A case is heard in the court that has jurisdiction over the subject of
controversy. The judge decides questions of law and is responsible for
ensuring that a trial is conducted properly in an impartial atmosphere and
that it is fair to both parties of a lawsuit. He or she determines what
constitutes the general standard of conduct required for the exercise of due
care. The judge informs the jury of what the defendant’s conduct should have been, thereby making a determination of the existence of a legal duty.
The judge decides whether evidence is admissible, charges the jury
(defines the jurors’ responsibility in relation to existing law), and may take a case away from the jury (by directed verdict or judgment notwithstanding
the verdict) if he or she believes that there are no issues for the jury to
consider or that the jury has erred in its decision. This right on the part of
the judge with respect to the role of the jury narrows the jury’s responsibility with regard to the facts of the case. The judge maintains
order throughout the suit, determines issues of procedure, and is generally
responsible for the conduct of the trial.
NEWSPAPER CLIPPINGS: Mother Loses Custody of Her
Children—Because She Has Breast Cancer
A woman with terminal breast cancer says she has lost custody of her
children because doctors do not know how long she will live.
A judge ruled that 37-year-old Alaina Giordano, from Durham,
North Carolina, must give up both her children to her estranged
husband after she was diagnosed with stage four breast cancer.
Durham County Family Court judge Nancy Gordon ruled that Mr.
Snyder should get the children after a psychiatrist recommended that
they should live with him because of the “deteriorating condition of the mother’s health.”
John Stevens, Daily Mail, May 10, 2011
A Facebook account was set up for Alaina, and within several weeks,
18,743 people linked to her page. Below is a sampling of the numerous
posts on her Facebook page:
D.D.
MAY GOD HAVE MERCY ON YOU AND I WILL PRAY FOR
YOU AND YOUR CHILDREN. NO ONE HAS THE RIGHT TO
TAKE WHAT GOD HAS GIVEN YOU . . . “YOUR CHILDREN”
M.A.B.
she should not lose her family because she feel ill. falling ill is not a
lifestyle choice she made—it is a circumstance she is forced to endure she should not endure it without her children. mothers in
prison may have their children with them for God’s sake.
S.X.
Came home to NC after a business trip to see this report.
SHAMEFUL that a court and an “expert witness” could have so little compassion and rule like this. I’m shocked. I know the family. These kids belong with Mom!
“We have learned that the North Carolina Supreme Court has denied my motion for a stay—this means that now, my children will be moving to Chicago to start the school year with their father.
As I write today, I deal with the difficult recognition that my
children will have to live 800 miles away from me, until my appeal
can be heard. In the wake of this legal decision, my children and I
now must grieve the pending loss of each other.”
http://www.facebook.com/friendsofalaina
Discussion
1. Make an argument supporting the judge’s decision and one that opposes her decision.
The Jury
The right to a trial by jury is a constitutional right in certain cases. Not all
cases entitle the parties to a jury trial as a matter of right. For example, in
many jurisdictions, a case in equity (a case seeking a specific course of
conduct rather than monetary damages) may not entitle the parties to a trial
by a jury. An example of an equity case is one that seeks a declaration as to
the title to real property.
An individual may waive the right to a jury trial. If this right is waived,
the judge acts as judge and jury, becomes the trier of facts, and decides
issues of law.
Members of the jury are selected from a jury list. They are summoned
to court by a paper known as the jury process. Impartiality is a prerequisite
of all jurors. The number of jurors who sit at trial is 12 in common law. If
there are fewer than 12, the number must be established by statute.
Counsel for both parties of a lawsuit may question each prospective
jury member for impartiality, bias, and prejudicial thinking. This process is
referred to as the voir dire, the examination of jurors. After members of the
jury are selected, they are sworn in to try the case.
The jury makes a determination of the facts that have occurred,
evaluating whether the plaintiff’s damages were caused by the defendant’s negligence and whether the defendant exercised due care. The jury makes a
determination of the particular standard of conduct required in all cases in
which the judgment of reasonable people might differ. The jury must pay
close attention to the evidence presented by both sides of a suit in order to
render a fair and impartial verdict.
The jury also determines the extent of damages, if any, and the degree
to which the plaintiff’s conduct may have contributed to any injuries suffered.
Subpoenas
A subpoena is a legal order requiring the appearance of a person and/or the
presentation of documents to a court or administrative body. Attorneys,
judges, and certain law enforcement and administrative officials, depending
on the jurisdiction, may issue subpoenas.
A subpoena ad testificandum orders the appearance of a person at a
trial or other investigative proceeding to give testimony. Witnesses have a
duty to appear and may suffer a penalty for contempt of court should they
fail to appear.
A subpoena for records, known as a subpoena duces tecum, is a written
command to bring records, documents, or other evidence described in the
subpoena to a trial or other investigative proceeding. The subpoena is
served on a person able to produce such records.
Opening Statements
During the opening statement, the plaintiff’s attorney attempts to prove the wrongdoing of the defendant by presenting credible evidence favorable to
his or her client. The opening statement by the plaintiff’s attorney provides in capsule form the facts of the case, what he or she intends to prove by
means of a summary of the evidence to be presented, and a description of
the damages to his or her client.
The defense attorney makes his or her opening statement indicating the
position of the defendant and the points of the plaintiff’s case he or she intends to refute. The defense attorney explains the facts as they apply to
the case for the defendant.
Burden of Proof
The burden of proof requires that the plaintiff’s attorney show that the defendant violated a legal duty by not following an acceptable standard of
care and that the plaintiff suffered injury because of the defendant’s breach. If the evidence presented does not support the allegations made, the case is
dismissed.
Evidence
Evidence consists of the facts proved or disproved during a lawsuit. The
law of evidence is a body of rules under which facts are proved. To be
admitted at trial, evidence must be competent, relevant, and material.
Direct Evidence
Direct evidence is proof offered through direct testimony. It is the jury’s function to receive testimony presented by witnesses and to draw
conclusions in the determination of facts.
Demonstrative Evidence
Demonstrative (real) evidence is evidence furnished by things themselves.
It is considered the most trustworthy and preferred type of evidence. It
consists of tangible objects to which testimony refers (e.g., medical
instruments and broken infusion needles) that can be requested by a jury.
Demonstrative evidence is admissible in court if it is relevant, has
probative value, and serves the interest of justice. It is not admissible if it
will prejudice, mislead, confuse, offend, inflame, or arouse the sympathy or
passion of the jury. Other forms of demonstrative evidence include
photographs, motion pictures, X-ray films, drawings, human bodies as
exhibits, pathology slides, fetal monitoring strips, safety committee
minutes, infection committee reports, medical staff bylaws, rules and
regulations, nursing policy and procedure manuals, census data, and
staffing patterns.
A plaintiff’s injuries are admissible as an exhibit if the physical condition of the body is material to the complaint. The human body is
considered the best evidence as to the nature and extent of the alleged
injury/injuries. If there is no controversy about either the nature or the
extent of an injury, presenting such evidence could be considered
prejudicial and an objection can be made as to its presentation to a jury.
Documentary Evidence
Documentary evidence is written evidence capable of making a truthful
statement (e.g., drug manufacturer inserts, autopsy reports, birth
certificates, and medical records). Documentary evidence must satisfy the
jury as to authenticity. Proof of authenticity is not necessary if the opposing
party accepts its genuineness. In some instances, concerning wills, for
example, witnesses are necessary. In the case of documentation, the
original of a document must be produced unless it can be demonstrated that
the original has been lost or destroyed, in which case a properly
authenticated copy may be substituted.
Examination of Witnesses
After conclusion of the opening statements, the judge calls for the
plaintiff’s witnesses. An officer of the court administers an oath to each witness, and direct examination begins. On cross-examination by the
defense, an attempt is made to challenge or discredit the plaintiff’s witness. The plaintiff’s attorney may ask the same witness more questions in an effort to overcome the effect of the cross-examination. Re-cross-
examination may also take place if necessary for the defense of the
defendant.
Expert Witness
Laymen are quite able to render opinions about a great variety of general
subjects, but for technical questions, the opinion of an expert is necessary.
At the time of testifying, each expert’s training, experience, and special qualifications will be explained to the jury. The experts will be asked to
give an opinion concerning hypothetical questions based on the facts of the
case. Should the testimony of two experts conflict, the jury will determine
which expert opinion to accept. Expert witnesses may be used to assist a
plaintiff in proving the wrongful act of a defendant or to assist a defendant
in refuting such evidence. In addition, expert testimony may be used to
show the extent of the plaintiff’s damages or to show the lack of such damages.
Defense of One’s Actions The defendant’s case is presented to discredit the plaintiff’s cause of action and prevent recovery of damages. Principles of law that may relieve a
defendant from liability include assumption of a risk, comparative
negligence, contributory negligence, Good Samaritan laws, ignorance of
fact and unintentional wrongs, the statute of limitations, and sovereign
immunity. These are discussed next.
Assumption of a Risk
Assumption of a risk is knowing that a danger exists and voluntarily
accepting the risk by exposing oneself to it, knowing that harm might
occur. Assumption of a risk may be implicitly assumed, as in alcohol
consumption, or expressly assumed, as in relation to warnings found on
cigarette packaging.
This defense provides that the plaintiff expressly has given consent in
advance, relieving the defendant of an obligation of conduct toward the
plaintiff and taking the chances of injury from a known risk arising from
the defendant’s conduct. For example, one who agrees to care for a patient with a communicable disease and then contracts the disease would not be
entitled to recover from the patient for damages suffered. In taking the job,
the individual agreed to assume the risk of infection, thereby releasing the
patient from all legal obligations.
The following two requirements must be established in order for a
defendant to be successful in an assumption of risk defense: (1) the plaintiff
must know and understand the risk that is being incurred, and (2) the
choice to incur the risk must be free and voluntary.
Comparative Negligence
A defense of comparative negligence provides that the degree of
negligence or carelessness of each party to a lawsuit must be established by
the finder of fact and that each party then is responsible for his or her
proportional share of any damages awarded. For example, if a plaintiff
suffers injuries of $10,000 from an accident and is found to be 20%
negligent, and the defendant is found to be 80% negligent, the defendant
would be required to pay $8,000 to the plaintiff. Thus, with comparative
negligence, the plaintiff can collect for 80% of the injuries, whereas an
application of contributory negligence would deprive the plaintiff of any
monetary judgment. This doctrine relieves the plaintiff from the hardship of
losing an entire claim when a defendant has been successful in establishing
that the plaintiff has contributed to his or her own injuries.
Contributory Negligence
Contributory negligence can be defined as any lack of ordinary care on the
part of the person injured that, combined with the negligent act of another,
caused the injury. A person is contributorily negligent when that person
does not exercise reasonable care for his or her own safety. As a general
proposition, if a person has knowledge of a dangerous situation and
disregards the danger, then that person is contributorily negligent.
Good Samaritan Laws
The various states have enacted Good Samaritan laws that relieve health
care professionals, and in some instances laypersons, from liability in
certain emergency situations. Good Samaritan legislation encourages health
care professionals to render assistance at the scene of emergencies. Good
Samaritan statutes provide a standard of care that delineates the scope of
immunity for those persons eligible under the law.
Ignorance of the Law and Unintentional Wrongs
Ignorance of the law excuses no man; not that all men know the law, but
because ‘tis an excuse every man will plead, and no man can tell how to confute him.
JOHN SELDEN (1584–1654)
The defendant cannot use ignorance of the law to excuse his negligent
actions; otherwise, pleading ignorance would reward an individual.
Arguing that a negligent act is unintentional is no defense. If such a defense
were acceptable, all defendants would use it.
Because a defense of ignorance or “I didn’t know what I was doing” is not an acceptable answer in a courtroom, you need to learn and understand
the potential consequences of your actions in the health care setting. This
text lays the foundation for understanding your legal and ethical rights and
responsibilities.
Statute of Limitations
The statute of limitations refers to legislatively imposed time constraints
that restrict the period of time after an injury occurs during which a legal
action must be commenced. Should a cause of action be initiated later than
the period of time prescribed, the case cannot proceed. The statutory period
begins when an injury occurs, although in some cases (usually involving
foreign objects left in the body during surgery) the statutory period
commences when the injured person discovers or should have discovered
the injury.
Many technical rules are associated with statutes of limitations.
Computation of the period when the statute begins to run in a particular
state may be based on any of the following factors:
• The date that the physician terminated treatment • The time of the wrongful act • The time when the patient should have reasonably discovered the injury • The date that the injury is discovered • The date when the contract between the patient and the physician ended
Sovereign Immunity
Sovereign immunity refers to the common-law doctrine by which federal
and state governments historically have been immune from liability for
harm suffered from the tortious conduct of employees. For the most part,
both federal and state governments have abolished sovereign immunity.
Closing Statements
Closing statements give attorneys an opportunity to summarize for the jury
and the court what they have proven. They may point out faults in their
opponent’s case and emphasize points they want the jury to remember.
Judge’s Charge to the Jury After the attorneys’ summations, the court charges the jury before the jurors recess to deliberate. Because the jury determines issues of fact, it is
necessary for the court to instruct the jury with regard to applicable law.
This is done by means of a charge. The charge defines the responsibility of
the jury, describes the applicable law, and advises the jury of the
alternatives available to it.
Jury Deliberation
After the judge’s charge, the jury retires to the jury room and deliberates as to whether or not the defendant is liable. The jury returns to the courtroom
upon reaching a verdict, and its determinations are presented to the court.
If a verdict is against the weight of the evidence, a judge may dismiss
the case, order a new trial, or set his or her own verdict. At the time
judgment is rendered, the losing party has an opportunity to motion for a
new trial. If the new trial is granted, the entire process is repeated; if not,
the judgment becomes final, subject to a review of the trial record by an
appellate court.
Damages
Damages, in the context of a negligent act, refers to an award of money to
be paid to a person as compensation for loss or injury resulting from a
negligent act. Damages are often awarded to a plaintiff in a civil case in
order to compensate the injured party as a result of the wrongful actions of
the defendant(s). Plaintiffs seek recovery for a great variety of damages.
Damages are generally sought for emotional distress, physical pain and
suffering, and economic loss. Punitive damages are sometimes awarded
over and above that which is intended to compensate the plaintiff for
economic losses resulting from the injury. Punitive damages cover such
items as physical disability, mental anguish, loss of a spouse’s services, physical suffering, injury to one’s reputation, and loss of companionship. Punitive damages are referred to as “that mighty engine of deterrence” in Johnson v. Terry.
36 In Estes Health Care Centers v. Bonnerman, it was
found that: 37
While human life is incapable of translation into a compensatory
measurement, the amount of an award of punitive damages may be
measured by the gravity of the wrong done, the punishment called for
by the act of the wrongdoer, and the need to deter similar wrongs in
order to preserve human life.
Appeals
An appellate court reviews a case on the basis of the trial record as well as
written briefs and, if requested, concise oral arguments by the attorneys. A
brief summarizes the facts of a case, testimony of the witnesses, laws
affecting the case, and arguments of counsel. The party making the appeal
is the appellant. The party answering the appeal is the appellee. After
hearing the oral arguments, the court takes the case under advisement until
such time as the judges consider it and agree on a decision. An opinion
then is prepared, explaining the reasons for a decision. The appellate court
may modify, affirm, or reverse the judgment or may order a new trial on an
appeal.
REALITY CHECK: Should Patients Fear Hospitalization?
If you are unsure of your answer, consider the risks:
1. Hospital-acquired infections leading to longer hospital stays and
thousands of disabilities and deaths, costing the nation billions of
dollars annually
2. Medication errors that lead to disabilities and thousand of deaths
annually
3. Wrong invasive procedures, such as wrong site, wrong patient, and
wrong surgery
4. Falls leading to injury or even death
5. Mistreatment, abuse, and sometimes murder of patients by
caregivers
6. Failure to order necessary procedures because of insurance denials
7. Ordering of unnecessary procedures and treatments, placing
patients at risks for injury and death
8. Media horror stories (e.g., “Nursing Home Employee Mixed Drug Cocktails to Quiet Residents, Report Says,” in which an employee of a McHenry County nursing home at the center of an
investigation into suspicious deaths mixed drug cocktails to make
sure that troublesome residents “would not be bothering her during her shift,” according to a state report, Chicago Tribune, September 25, 2008)
Discussion
1. To follow this course of discussion, are patients fearful to report or
complain about the care they are receiving? Discuss your answer.
2. What actions should both the government and hospitals take to help
reduce patients’ fear?
CHAPTER REVIEW
1. A tort is a civil wrong—not including breach of contract—that is committed against a person or property for which a court provides a
correction in the form of an action for damages.
2. The objectives of tort law are: preservation of peace (between
individuals by providing a substitute for retaliation); culpability (to find
fault for wrongdoing); deterrence (to discourage the wrongdoer [tort-
feasor] from committing future torts); and compensation (to indemnify
the injured person[s] of wrongdoing).
3. Negligence is a tort, a civil or personal wrong. It is the unintentional
commission or omission of an act that a reasonably prudent person
would or would not perform under given circumstances. Intentional
wrongdoing involves an act that violates another person’s interests. 4. Negligence has three basic forms:
• Malfeasance is the execution of an unlawful or improper act. • Misfeasance is the improper performance of an act that results in
injury to another.
• Nonfeasance is a failure to act when there is a duty to do so. 5. To recover damages caused by negligence, four elements must be
present: duty to care, breach of duty, injury, and causation.
• Duty to care exists when there is a legal obligation of care, performance, or observance imposed on one party to guard the rights
of others.
• Breach of duty is the failure to meet a prevailing standard of care. • Without proof of harm or injury, a defendant cannot be found liable. • Causation refers to the idea that the defendant’s negligence must be a
substantial factor in having caused an injury.
Foreseeability is the reasonable anticipation that harm or injury will
result from an act or a failure to act. The test for foreseeability is
whether or not one should have reasonably anticipated that the
event in question or a similar event would occur.
6. Assault is the infringement on the mental security or tranquility of
another person; battery is the violation of another person’s physical integrity.
7. False imprisonment is the unlawful restraint of an individual’s personal liberty or the unlawful restraint or confinement of an individual.
8. Defamation of character is a false oral or written communication to
someone other than the individual defamed, subjecting that individual’s reputation to scorn and ridicule. Two aspects of defamation of character
are libel, which results from the written word, and slander, which
results from the spoken word.
9. The infliction of mental distress is characterized by conduct that is so
outrageous that it goes beyond the bounds tolerated by a decent society.
10. The objectives of criminal law are to maintain public order and safety,
protect individuals, use punishment as a deterrent to crime, and
rehabilitate criminals for return to society.
11. A crime—a social harm defined and made punishable by law—is generally either a misdemeanor or a felony. A misdemeanor is an
offense punishable by less than 1 year in jail and/or a fine. A felony,
however, is generally punishable by imprisonment in a state or federal
prison for a period of more than 1 year.
12. Criminal negligence is the reckless disregard for the safety of others
and is the willful indifference to an injury that could result from an act.
It differs from tort liability in that it provides for a more specific lack of
care commonly characterized as “gross negligence” and “recklessness.” 13. A contract is a written or oral agreement that involves legally binding
obligations between two or more parties.
14. To be enforceable, contracts must contain an offer or communication,
consideration, and acceptance.
15. Exclusive contracts allow organizations to contract with physicians
and/or medical groups to provide specific services to the organization.
16. Before the trial, facts are investigated in a process called discovery. The
discovery process helps to prevent surprises during trial. EBT is part of
the discovery process that allows for witnesses to be examined before
the trial.
17. The jury determines the facts in a case and makes a determination of
the particular standards of conduct required in all cases in which the
judgment of reasonable people might differ.
18. A subpoena is a legal order requiring that a person appear in court or
that documents be presented to a court or administrative body.
19. Facts proved or disproved during a lawsuit constitute evidence. Direct
evidence is proof that is offered via direct testimony. Demonstrative
evidence is offered by objects themselves. Documentary evidence is
written evidence capable of making a truthful statement.
20. When the issues to be resolved in a case are outside the understanding
or experience of the average juror, an expert witness is allowed to offer
testimony to assist in explaining technical matters.
21. Principles of law that may relieve a defendant from liability include,
among others:
• Assumption of a risk • Comparative negligence • Contributory negligence • Good Samaritan laws • Statute of limitations • Sovereign immunity
22. Damages can include nominal damages, compensatory damages, and
punitive damages.
TEST YOUR UNDERSTANDING
Terminology
assault
assumption of a risk
battery
comparative negligence
contract
contributory negligence
damages
defamation of character
demonstrative evidence
direct evidence
documentary evidence
evidence
exclusive contract
false imprisonment
foreseeability
Good Samaritan laws
invasion of privacy
libel
malpractice
manslaughter
misdemeanor
negligence
proximate cause
punitive damages
slander
standard of care
statute of limitations
subpoena
tort
REVIEW QUESTIONS
1. Describe the objectives of tort law.
2. Discuss the distinctions among negligent torts, intentional torts, and
strict liability.
3. What forms of negligence are described in this chapter?
4. How does one distinguish between negligence and malpractice?
5. 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.)
6. Describe the categories of intentional torts.
7. How does slander differ from libel? Give an example of each.
8. What are the objectives of criminal law?
9. Describe the difference between a misdemeanor and a felony. Give
an example of each.
10. Discuss why physicians have been so reluctant to remove a
patient’s life support systems. 11. What is a scheme to defraud?
12. What is a contract?
13. What are the elements of a contract?
14. Describe why exclusive contracts are so controversial.
15. Describe the trial process, including pretrial motions and the
functions of the judge, jury, and attorneys.
16. Describe the kinds of evidence that a plaintiff can present in order
to establish a negligent act.
17. What defenses can a defendant present in order to refute a
plaintiff’s evidence? 18. Describe how statutes of limitations favor defendants in a lawsuit.
19. Describe the differences between nominal, compensatory, hedonic,
and punitive damages.
NOTES
1. 498 So. 2d 713 (La. Ct. App. 1986).
2. 787 S.W.2d 494 (Tex. Ct. App. 1990).
3. 498 So. 2d 713 (La. Ct. App. 1986).
4. 57A Am. Jur.2d Torts § 78 (1989). 5. 498 So. 2d 713 (La. Ct. App. 1986).
6. Clark v. Wagoner, 452 S.W.2d 437, 440 (Tex. 1970).
7. 57A Am. Jur.2d Torts § 134 (1989). 8. 116 Cal. Rptr. 733 (Cal. Ct. App. 1974).
9. 385 N.W.2d 99 (N.D. 1986).
10. Tomcik v. Ohio Dep’t of Rehabilitation & Correction, 598 N.E.2d 900 (Ohio Ct. App. 1991). 11. Id. at 904.
12. Id.
13. 295 U.S. 78, 88 (1935).
14. J. Kaplan, Criminal Justice Introductory Cases and Materials 228 (1973).
15. Id. at 259.
16. http://www.osc.state.ny.us/localgov/pubs/red_flags_fraud.pdf.
17. New York State Unified Court System, “Scheme to Defraud in the Second Degree,” http://www.nycourts.gov/cji/2-PenalLaw/190/190.60.pdf.
18. http://abcnews.go.com/Primetime/story?id=131894&page=1#.TswWoWB-Tbp.
19. BBC News, “Angry surgeon killed girl, court told,” December 6, 2001; http://news.bbc.co.uk/1/hi/england/1695580.stm.
20. BBC News, “Jury told to ignore sympathy,” December 20, 2001; http://news.bbc.co.uk/2/hi/uk_news/england/1721902.stm.
21. USA Today, November 30, 2004, at 3A.
22. USA Today, November 29, 2004, at 3A.
23. http://www.cbsnews.com/stories/2004/08/13/60minutes/main635860.shtml.
24. Charles Montaldo, “Profile of serial killer Richard Angelo,” About.com; http://crime.about.com/od/serial/a/richardangelo.htm.
25. Collwell, The Verdict of Angelo, 50(103) Newsday 1989, at 3.
26. Alan Cooper, “Virginia court rules identity theft victim to get $532,000 from credit agency,” CBS Interactive Business Network Resource Library;
http://findarticles.com/p/articles/mi_qn4181/is_20060923/ai_n16749272.
27. http://www.collegian.psu.edu:8080/archive/2006/01/01-13-06tdc/01-13-
06dnews-02.asp.
28. HospitalHealthcare.com, “NHS hospital theft costs millions,” June 6, 2008; http://www.hospitalhealthcare.com/default.asp?
page=article.display&title=NHShospitaltheftscostmillions&article.id=11504.
29. Anne Zieger, “Millions of patient billing records stolen from UT hospital,” FierceHealthIT, June 14, 2008; http://www.fiercehealthit.com/story/millions-patient-billing-records-stolen-
uthospital/2008-06-14-0.
30. Tim Eberly, “Grady Hospital battles patient thefts,” Atlanta Journal-Constitution, July 24, 2008; http://www.ajc.com/search/content/metro/atlanta/stories/2008/07/24/grady_
hospital_thefts.html.
31. 683 P.2d 1202 (Colo. 1984).
32. 184 S.W.3d 122 (Mo. App. 2006).
33. 492 N.Y.S.2d 9 (N.Y. 1985).
34. City of Cookeville, No. M2001-00695-SC-R11-CV (Tenn. 2004).
35. 7 S.W.3d 542 (Mo. App. 1999).
36. No. 537-907 (Wis. Cir. Ct. Mar. 18, 1983).
37. 411 So. 2d 109, 113 (Ala. 1982).
chapter seven
Government, Ethics, and the Law
Nothing is politically right which is morally wrong.
DANIEL O’CONNELL (1775–1847)1
LEARNING OBJECTIVES
The reader upon completion of this chapter will be able to:
• Describe the loss of trust in government. • Explain the purpose of the United States Office of Government
Ethics.
• Describe the meaning and sources of public policy. • Describe important laws designed to protect each individual’s rights:
14th Amendment to the U.S. Constitution
Civil Rights Act of 1964
Sherman Antitrust Act
Privacy Act of 1974
Health Insurance Portability and Accountability Act of 1996
Emergency Medical Treatment and Active Labor Act of 1986
Health Care Quality Improvement Act of 1986
Agency for Healthcare Research and Quality
Ethics in Patient Referral Act of 1989
Patient Self-Determination Act of 1990
Sarbanes-Oxley Act of 2002
Patient Protection and Affordable Care Act of 2010
• Understand the concept of political malpractice. • Understand Ethics in Public Service.
INTRODUCTION
Let every American, every lover of liberty, every well wisher to his
posterity, swear by the blood of the Revolution, never to violate in the
least particular, the laws of the country; and never to tolerate their
violation by others. As the patriots of seventy-six did to the support of the
Declaration of Independence, so to the support of the Constitution and
Laws, let every American pledge his life, his property, and his sacred
honor—let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his
children’s liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap—let it be taught in schools, in seminaries, and in colleges; let it be written in
Primers, spelling books, and in Almanacs—let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.
And, in short, let it become the political religion of the nation; and let the
old and the young, the rich and the poor, the grave and the gay, of all
sexes and tongues, and colors and conditions, sacrifice unceasingly upon
its altars.
ABRAHAM LINCOLN
The words of Abraham Lincoln, so eloquently spoken, have too soon been
forgotten. Political corruption, antisocial behavior, declining civility, and
rampant unethical conduct have heightened discussions over the nation’s moral decline and decaying value systems. The numerous instances of
questionable political decisions, numbers-cooking executives with
exorbitant salaries, including health care executives working for both profit
and nonprofit organizations, cheating at work and in school, and the
proliferation of X-rated websites have contributed to this decline.
Legislators, investigators, prosecutors, and the courts are finally stepping
up to the plate and are taking action. The question, however, remains: Can
this boat be turned around, or are we just plugging the holes with new laws
and creating more leaks in a misdirected sinking boat? The answer is more
likely to be a return to practicing the values upon which this nation was
founded.
The following quote from the Washington Post illustrates how even in
the nation’s capital, people are being taxed because of illness.
NEWSPAPER CLIPPINGS: Washington Hospital Center and
Nurses Union Reach Agreement
Hospital officials have cited increased financial pressures from
cutbacks in Medicaid and Medicare revenue, declining patient volumes
and bed taxes imposed by the District government.
Lena H. Sun, The Washington Post, May 5, 2011
The above article is very telling of how inept government is. Imagine,
paying a bed tax, as though you were going to the hospital for a vacation.
It is absolutely amazing how government inspects hospitals and expects
them to meet certain standards as they in reality steal money from them. In
another example, hospitals have to pay for surveys by organizations such as
the Joint Commission to inspect them and ensure the hospitals are meeting
government standards for which the government is unwilling to pay.
NEWSPAPER CLIPPINGS: Congressional Job Approval Ties
Historic Low of 13%
Disapproval rating of 84% highest in Gallup annals
Americans’ evaluation of the job Congress is doing is the worst Gallup has ever measured, with 13% approving, tying the all-time low
measured in December 2010. Disapproval of Congress is at 84%, a
percentage point higher than last December’s previous high rating.
Jeffrey M. Jones, Gallup, August 16, 2011 2
NEWSPAPER CLIPPINGS: Congressional Performance
New Low: 6% Think Congress Is Doing a Good or Excellent Job
Voter approval of the job Congress is doing has fallen to a new low
—for the second month in a row. Just six percent (6%) of Likely U.S. Voters now rate Congress’
performance as good or excellent, according to a new Rasmussen
Reports national telephone survey. Last month, Congressional approval
ratings fell to what was then a record low with eight percent (8%) who
rated its performance good or excellent.
Rasmussen Reports, July 26, 2011 3
Ethics and the law are not mutually exclusive—they are intertwined. Without the two, we would become a lawless land. The following pages
present an overview of laws, influenced by ethical principles, designed to
protect each individual’s rights (e.g., the right to privacy and self- determination).
UNITED STATES OFFICE OF GOVERNMENT ETHICS
NEWSPAPER CLIPPINGS: Long Waits for Generics
Brand-name drug makers already pay hefty user fees to help speed their
applications through the FDA. That money is expected to provide about
a third of the agency’s budget this year. In general, we oppose user fees that allow a regulated industry to
fund the regulators. A government agency can become dependent on
the companies it’s supposed to objectively regulate, which can influence decisions. In a 2006 survey . . . many FDA employees said
they felt pressured to hastily and perhaps improperly approve user-fee
drugs. And at least one felt the agency viewed industry, not the
American public, as its client.
Jim Guest, Consumer Reports, November 2010
Discussion
1. What other industries help fund government regulatory programs?
2. Do you see any conflict in allowing private for-profit and not-for-
profit hospital accreditation programs accredit hospitals on behalf
of Medicare, noting that the hospitals pay the accrediting
organization to conduct such surveys? Discuss your answer.
The People Are the Government
Some say that whatever happens in government is a reflection of the people
it serves, for it is they who have become complacent. They have often
failed to vote, and are distracted due to the loss of jobs and financial
pressures (e.g., the need for jobs and health care), social events and
pressures (e.g., Facebook, Twitter), and political events at home and around
the world (e.g., wars, famine, murders in the name of religion).
NEWSPAPER CLIPPINGS: Tea Party Debate Audience Cheered
Idea of Letting Uninsured Patients Die
If it was up to Ron Paul, or many of the Tea Party audience members at
Monday night’s GOP presidential debate, churches, not the federal government, would help foot the bill for the medical costs of America’s 50 million residents living without health insurance.
CNN moderator Wolf Blitzer’s hypothetical question about whether an uninsured 30-year-old working man in a coma should be treated
prompted one of the most boisterous moments of audience participation
in the CNN/Tea Party Express [debate].
“What he should do is whatever he wants to do and assume responsibility for himself,” Paul responded, adding, “That’s what freedom is all about, taking your own risk. This whole idea that you
have to compare and take care of everybody . . .” The audience erupted into cheers, cutting off the Congressman’s
sentence.
After a pause, Blitzer followed up by asking, “Congressman, are you saying that society should just let him die?” to which a small number of audience members shouted “Yeah!”
Amy Bingham, ABC News, September 13, 2011
The Office of Government Ethics (OGE) is an agency within the
executive branch of government. “It was established by the Ethics in Government Act of 1978. It was originally part of the Office of Personnel
Management. OGE became a separate agency on October 1, 1989, as part
of the Office of Government Ethics Reauthorization Act of 1988. The
Office of Government Ethics exercises leadership in the executive branch
to prevent conflicts of interest on the part of Government employees, and
to resolve those conflicts of interest that do occur. In partnership with
executive branch agencies and departments, OGE fosters high ethical
standards for employees and strengthens the public’s confidence that the Government’s business is conducted with impartiality and integrity.”4
The OGE website provides information about the agency and services it
provides. The site helps people understand the executive branch ethics
program and its effort to reach federal employees and the general public.
Common ethical issues discussed on the website include gifts from outside
sources, gifts between employees, conflicting financial interests, remedies
for financial conflicts of interest, impartiality in performing official duties,
seeking other employment, misuse of position, outside activities,
postemployment, representation to government agencies and courts,
supplementation of salary, financial disclosure, informal advisory letters
and memorandum and formal opinions, DAEOgrams (memoranda to
agency ethics officials providing guidance on how to interpret and comply
with modifications or new issuances of ethics laws, policies, and
procedures; copies of the memoranda released since 1992 are available in
the DAEOgrams section of the OGE website), and contractors in the
workplace.
PUBLIC POLICY AS A PRINCIPLE OF LAW
Public policy is the principle of law that holds that no one can lawfully do
that which tends to be injurious to the public or against the public good.
The sources of public policy “include legislation; administrative rules, regulations, or decisions; and judicial decisions. In certain instances, a
professional code of ethics may contain an expression of public policy.”5
PEOPLE STORIES: The Coal Miner
This is a story about a coal miner who had black lung disease. I had
introduced myself to him as the administrator. He introduced himself to
me as Jimmy. He then turned to a man who was on the opposite side of
his bed and said, “This is my brother Bill.” I asked, as he turned looking back at me, “Are we taking good care of you?” He said, “Yes.” Bill, looking at me, choked up and asked, “Can you help my brother? He has given up the will to live. Please help my brother want to live.” I looked at Jimmy lying there in his bed, fragile and struggling to breathe
between each word, as he said, “I can no longer carry on this way. I am ready to move on. I’m a tired old man. I have fought so long. I’ve needed benefits for so many years for my family and myself. No one
was able to help me. You see, I have black lung disease. I can barely
breathe.” He then turned, looking over to Bill, and said, “My brother also has black lung disease. We worked together in the coal mines for
many years. This is our reward.” I looked at Jimmy and slowly back to Bill and said, “I will help you.” As we said our goodbyes, I thought to myself, as I left the room, this man has fought so long. He has asked for
so little, a man forgotten by a cruel system of corrupt government and
greedy corporations. I remember this day all too well. It brings tears to
my eyes as I recall the sadness of that day.
Administrator
Discussion
1. Based on this coal miner’s experience, do you believe the United States Office of Government Ethics is properly regulating itself, as
well as other government agencies, or is this just another item on a
long list (e.g., items like the Agent Orange controversy) of the U.S.
government’s failure to take responsibility for its wrongful actions that have harmed others? Discuss your answer.
2. Explain what action you would take to help Jimmy.
3. Describe the ethical principles outlined in the Pillars of Moral
Strength (see Appendix A) that apply to this case.
14 TH
AMENDMENT TO THE U.S. CONSTITUTION (1868)
According to the 14th Amendment to the Constitution, a state cannot act to
deny any person equal protection of the laws. If a state or a political
subdivision of a state, whether through its executive, judicial, or legislative
branch, acts in such a way as to deny unfairly to any person the rights
accorded to another, the amendment has been violated.
Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and
of the state wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws
Section 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
CIVIL RIGHTS ACT (1964)
Civil rights are rights ensured by the U.S. Constitution and by the acts of
Congress and the state legislatures. Generally, the term includes all the
rights of each individual in a free society. Congress and the federal courts
have dealt with discriminatory practices in health care organizations.
Discrimination in the admission of patients and segregation of patients on
racial grounds are prohibited in any organization receiving federal financial
assistance. Pursuant to Title VI of the Civil Rights Act of 1964, the
guidelines of the Department of Health and Human Services (HHS)
prohibit the practice of racial discrimination by any organization or agency
receiving money under any program supported by HHS. This includes all
“providers of service” receiving federal funds under Medicare legislation.
SHERMAN ANTITRUST ACT (1890)
The Sherman Antitrust Act, named for its author, Senator John Sherman of
Ohio, prescribes that every contract, combination in the form of trust or
otherwise, or conspiracy in restraint of trade or commerce among the
several states is declared to be illegal. Those who attempt to monopolize,
combine, or conspire with any other person or persons to monopolize any
part of the trade or commerce can be deemed guilty of a felony. 6 Areas of
concern for health care organizations include reduced market competition,
price fixing, actions that bar or limit new entrants to the field, preferred
provider arrangements, and exclusive contracts.
A health care organization must be cognizant of the potential problems
that may exist when limiting the number of physicians that it will admit to
its medical staff. Because closed staff determinations can effectively limit
competition from other physicians, the governing body must ensure that the
decision-making process in granting privileges is based on legislative,
objective criteria and is not dominated by those who have the most to gain
competitively by denying privileges. Physicians have attempted to use state
and federal antitrust laws to challenge determinations denying or limiting
medical staff privileges. Generally, these actions claim that the organization
conspired with other physicians to ensure that the complaining physician
would not obtain privileges so that competition among physicians would be
reduced.
PRIVACY ACT (1974)
The Privacy Act of 1974, Title 5 United States Code (U.S.C.) 552, was
enacted to safeguard individual privacy from the misuse of federal records,
to give individuals access to records concerning themselves that are
maintained by federal agencies, and to establish a Privacy Protection Safety
Commission. Section 2 of the Privacy Act reads as follows:
[a] The Congress finds that (1) the privacy of an individual is directly
affected by the collection, maintenance, use, and dissemination of
personal information by Federal agencies; (2) the increasing use of
computers and sophisticated information technology, while essential to
the efficient operations of the Government, has greatly magnified the
harm to individual privacy that can occur from any collection,
maintenance, use, or dissemination of personal information; (3) the
opportunities for an individual to secure employment, insurance, and
credit, and his right to due process, and other legal protections are
endangered by the misuse of certain information systems; (4) the right
to privacy is a personal and fundamental right protected by the
Constitution of the United States; and (5) in order to protect the privacy
of individuals identified in information systems maintained by Federal
agencies, it is necessary and proper for the Congress to regulate the
collection, maintenance, use, and dissemination of information by such
agencies. [b] The purpose of this Act is to provide certain safeguards
for an individual against an invasion of personal privacy by requiring
Federal agencies, except as otherwise provided by law, to (1) permit an
individual to determine what records pertaining to him are collected,
maintained, used, or disseminated by such agencies; (2) permit an
individual to prevent records pertaining to him obtained by such
agencies for a particular purpose from being used or made available for
another purpose without his consent; (3) permit an individual to gain
access to information pertaining to him in Federal agency records, to
have a copy made of all or any portion thereof, and to correct or amend
such records; (4) collect, maintain, use, or disseminate any record of
identifiable personal information in a manner that assures that such
action is for a necessary and lawful purpose, that the information is
current and accurate for its intended use, and that adequate safeguards
are provided to prevent misuse of such information . . .
HEALTH INSURANCE PORTABILITY AND
ACCOUNTABILITY ACT (1996)
The Health Insurance Portability and Accountability Act (HIPAA) of 1996
(Public Law 104–191) was designed to protect the privacy, confidentiality, and security of patient information. HIPAA standards are applicable to all
health information in all of its formats (e.g., electronic, paper, verbal). It
applies to both electronically maintained and transmitted information.
HIPAA privacy standards include restrictions on access to individually
identifiable health information and the use and disclosure of that
information, as well as requirements for administrative activities such as
training, compliance, and enforcement of HIPAA mandates.
EMERGENCY MEDICAL TREATMENT AND ACTIVE
LABOR ACT (1986)
In 1986, Congress passed the Emergency Medical Treatment and Active
Labor Act (EMTALA), which forbids Medicare-participating hospitals
from “dumping” patients out of emergency departments. The act provides that:
7
In the case of a hospital that has a hospital emergency department, if
any individual (whether or not eligible for benefits under this
subchapter) comes to the emergency department and a request is made
on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical
screening examination within the capability of the hospital emergency
department, including ancillary services routinely available to the
emergency department, to determine whether or not an emergency
medical condition . . . exists.
CASE: EMTALA VIOLATED
In Burditt v. U.S. Department of Health and Human Services, 8 EMTALA
was violated by a physician when he ordered a woman with dangerously
high blood pressure (210/130) and in active labor with ruptured
membranes transferred from the emergency department of one hospital to
another hospital 170 miles away. The physician was assessed a penalty of
$20,000. Dr. Louis Sullivan, secretary of HHS at that time, issued a
statement: “This decision sends a message to physicians everywhere that they need to provide quality care to everyone in need of emergency
treatment who comes to a hospital. This is a significant opinion and we are
pleased with the result.”9 The American Public Health Association, in filing an amicus curiae brief, advised the appeals court that “if Burditt wants to ensure that he will never be asked to treat a patient not of his
choosing, then he ought to vote with his feet by affiliating only with
hospitals that do not accept Medicare funds or do not have an emergency
department.”10
Ethical and Legal Issues
1. What are the main issues in this case?
2. What ethical theories, principles, and values are of concern? Describe
them.
3. What action can be taken to prevent similar occurrences in the future?
4. What could have been done to prevent the ethical and legal issues from
occurring in the first place?
5. If you were the judge in this case, what would you do in light of the
American Public Health Association’s comments? 6. Describe both the hospital and physician’s ethical and legal
responsibilities.
HEALTH CARE QUALITY IMPROVEMENT ACT (1986)
The Health Care Quality Improvement Act of 1986 (HCQIA) was enacted
in part to provide those persons giving information to professional review
bodies and those assisting in review activities limited immunity from
damages that may arise as a result of adverse decisions that affect a
physician’s medical staff privileges. Before enacting the HCQIA, Congress found that “[t]he increasing occurrence of medical malpractice and the need to improve the quality of medical care . . . [had] become nationwide
problems,” especially in light of “the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician’s previous damaging or incompetent performance” (42 U.S.C. § 11101). The problem, however, could be remedied through effective professional peer
review combined with a national reporting system that made information
about adverse professional actions against physicians more widely
available. HCQIA was enacted by Congress to “facilitate the frank exchange of information among professionals conducting peer review
inquiries without the fear of reprisals in civil lawsuits. The statute attempts
to balance the chilling effect of litigation on peer review with concerns for
protecting physicians improperly subjected to disciplinary action.”
CASE: FAILURE TO MEET ETHICAL
STANDARDS
Meyers applied for medical staff privileges at a hospital. Shortly thereafter,
the Credentials Committee and the Medical Executive Committee (MEC)
and the board of the hospital approved Meyers for appointment to the
medical staff. All initial appointments to the medical staff were provisional
for one year. At the end of that year, the physician would once again be
evaluated for advancement from associate to active staff.
The Credentials Committee began to evaluate Meyers for advancement
to active staff privileges. The committee was concerned about Meyers’s history: moving from hospital to hospital after disputes with hospital staff,
his failure to disclose timely and fully disciplinary and corrective action
taken against him in another state, and the quality of his patient care. The
MEC voted to accept a Credentials Committee recommendation to revoke
Meyers’s staff privileges. The MEC was to consider the recommendation from the Credentials Committee and make a recommendation to the board,
which had the ultimate authority to grant or deny advancement, or
terminate Meyers’s privileges. The board informed Meyers that it was assuming responsibility for
determining his reappointment and advancement to active staff because of
concerns with the manner in which the peer review process was being
handled. Three members of the board, acting as a Credentials Committee,
conducted an independent review. This committee discussed concerns
about Meyers’s behavior and his inability to get along with others, in addition to questions about his surgical technique. The committee
questioned Meyers about several incident reports concerning disruptive
behavior, his history of problems at other hospitals, his failure to complete
medical records timely, his hostility toward the operation room staff,
reports of breaking the sterile field, and his failure to provide appropriate
coverage for patients while he was out of town. Meyers acknowledged that
he had a personality problem.
The 3-member committee of the board voted to deny Meyers’s appointment to active staff. The reasons cited for the committee’s decision were Meyers’s failure to satisfy requirements that he “abide by the ethics of the profession,” work cooperatively with others, timely complete medical records, and abide by hospital standards. The committee outlined
Meyers’s pattern of rude, abusive, and disruptive behavior that included, but was not limited to, temper tantrums, attempted interference with the
right of an attending physician to refer a patient to the surgeon of his
choice or to transfer the patient, condescending remarks toward women,
refusal to speak to a member of his surgical team during surgical
procedures, and several instances of throwing a scalpel during surgery. The
committee informed Meyers that this behavior could have an adverse
effect on the quality of patient care. As for his failure to complete medical
records timely, the committee stated “delinquent medical records can put patients at risk by being inaccurate or incomplete if needed to assist in later
diagnosis and treatment of a patient.” A Fair Hearing Committee issued its recommendation that Meyers not
be reappointed to the hospital’s staff because of his failure to meet “ethical
standards” and his inability to work cooperatively with others. In May, the board adopted and affirmed the Fair Hearing Committee’s recommendation. Ultimately, after further appeals the board revoked
Meyers’s privileges. Meyers brought suit in seeking a permanent injunction to require the
hospital to reinstate him to staff. The court denied the motion for an
injunction that would require the hospital to reinstate Meyers’s privileges. The court agreed with hospital defendants that the behavior of Meyers
had the potential of affecting the health and welfare of patients, despite the
fact that no patients were actually injured. Quality patient care demands
that doctors possess at least a reasonable ability to work with others.
Clearly, the hospital defendants were acting with a reasonable belief that
the professional review action was in the furtherance of quality health care.
They were concerned that Meyers’s behavior would continue until a patient was injured as a result of his actions.
11
Ethical and Legal Issues
1. Describe the ethical theories, principles, and values of concern in this
case.
2. Describe what steps the organization can take to prevent similar
occurrences in the future.
AGENCY FOR HEALTHCARE RESEARCH AND QUALITY
It is well publicized that tens of thousands of patients die annually because
hospitals fail to ensure safety, quality, and public accountability, according
to a report released on January 7, 2002, by the National Academy of
Sciences.
The Agency for Healthcare Research and Quality (AHRQ), established
in 1989, is charged with researching ways to improve the quality of health
care, reduce its costs, and broaden access to essential services. The AHRQ
was created as a result of the mistakes that have occurred and continue to
occur in the delivery of care. The pain, misery, and financial drain on the
injured, their families, and society have taken its toll. The numerous ethical
and legal issues that have evolved spawned the need for the AHRQ.
ETHICS IN PATIENT REFERRAL ACT (1989)
In 1989, the Ethics in Patient Referral Act was enacted, prohibiting
physicians who have ownership interest or compensation arrangements
with a clinical laboratory from referring Medicare patients to that
laboratory. The law also requires all Medicare providers to report the
names and provider numbers of all physicians or their immediate relatives
with ownership interests in the provider entity prior to October 1, 1991.
PATIENT SELF-DETERMINATION ACT (1990)
The Patient Self-Determination Act of 1990 (PSDA) 12
was enacted to
ensure that patients are informed of their rights to execute advance
directives and accept or refuse medical care. On December 1, 1991, the
PSDA 13
took effect in hospitals, skilled nursing facilities, home health
agencies, hospice organizations, and health maintenance organizations
serving Medicare and Medicaid patients. As a result of implementation of
the PSDA, 14
health care organizations participating in the Medicare and
Medicaid reimbursement programs must address patient rights regarding
life-sustaining decisions and other advance directives. Health care
organizations have a responsibility to explain to patients, staff, and families
that patients have a legal right to direct their own medical and nursing care
as it corresponds to existing state law, including right-to-die directives. A
person’s right to refuse medical treatment is not lost when his or her mental or physical status changes. When a person is no longer competent to
exercise his or her right of self-determination, the right still exists, but the
decision must be delegated to a surrogate decision maker. Those
organizations that do not comply with a patient’s medical directives or those of a legally authorized decision maker are exposing themselves to the
risk of a lawsuit.
Each state is required under the PSDA to provide a description of the
law in the state regarding advance directives to providers, whether such
directives are based on state statutes or judicial decisions. Providers must
ensure that written policies and procedures with respect to all adult
individuals regarding advance directives are established as follows: 15
(A) to provide written information to each such individual concerning
(i) an individual’s rights under State law (whether statutory or as recognized by the courts of the State) to make decisions
concerning such medical care, including the right to accept or
refuse medical or surgical treatment and the right to formulate
advance directives . . . and
(ii) written policies of the provider organization respecting the
implementation of such rights;
(B) to document in the individual’s medical record whether or not the individual has executed an advance directive;
(C) not to condition the provision of care or otherwise discriminate
against an individual based on whether or not the individual has
executed an advance directive;
(D) to ensure compliance with requirements of State law (whether
statutory or recognized by the courts of the State) respecting
advance directives at the facilities of the provider or organization;
and
(E) to provide (individually or with others) for education for staff and
the community on issues concerning advance directives.
Although the PSDA is being cheered as a major advancement in
clarifying and nationally regulating this often-obscure area of law and
medicine, there are continuing problems and new issues that must be
addressed.
SARBANES-OXLEY ACT (2002)
The Sarbanes-Oxley Act was signed by President Bush on July 30, 2002, in
response to the Enron debacle and high-profile cases of corporate financial
mismanagement. The act requires top executives of public corporations to
vouch for the financial reports of their companies. The act encourages self-
regulation and the need to promote due diligence, select a leader with
morals and core values, examine incentives, constantly monitor the
organization’s culture, build a strong, knowledgeable governing body, continuously search for conflicts of interest, focus attention on the right
things, and have the courage to speak out.
PATIENT PROTECTION AND AFFORDABLE CARE ACT
(2010)
NEWSPAPER CLIPPINGS: In Health Care, a Slow Transition
As many legislatures across the country have finished their work for the
year, fewer than one-fourth of states have taken concrete steps to create
health insurance marketplaces, a central feature of the federal law to
overhaul the U.S. health-care system.
A total of 43 states, meanwhile, have made fresh cuts to Medicaid,
even as lingering unemployment and diminishing access to private
coverage continue to drive up the number of Americans turning to the
public insurance program for the poor.
Taken together, these trends highlight the ground-level challenges
that health care poses to states. A year after Congress passed the
biggest revisions to the health-care system since the 1960s, states are
grappling with their own versions of the fiscal and ideological battles
that are roiling Washington.
Amy Goldstein and N. C. Aizenman, The Washington Post, June 5, 2011
The Patient Protection and Affordable Care Act (PPACA) is a federal
statute that was signed into law by President Barack Obama on March 23,
2010. This act and the Health Care and Education Reconciliation Act of
2010 (signed into law on March 30, 2010) made up the health care reform
of 2010. The laws focus on reform of the private health insurance market,
providing better coverage for people with preexisting conditions,
improving prescription drug coverage in Medicare, and extending the life
of the Medicare trust fund by at least 12 years.
NEWSPAPER CLIPPINGS: Virginia AG Ken Cuccinelli’s Health- Care Lawsuit Dismissed by 4th Circuit
In a major setback to Virginia Attorney General Ken Cuccinelli II, a
federal appeals court on Thursday tossed out one of the most prominent
challenges to the new federal health-care law.
A three-judge panel of the US Court of Appeals for the 4th circuit
in Richmond found that Virginia lacked standing to sue. The panel’s unanimous decision, which did not address the merits of the case,
overturns a lower-court ruling that the laws mandate that practically all
Americans obtain health insurance or pay a penalty is unconstitutional.
Cuccinelli filed the lawsuit to much fanfare after President Obama
signed the health-care legislation into law on March 23, 2010.
In February, Cuccinelli and Gov. Robert F. McDonnell (R) asked
that the U.S. Supreme Court immediately review the case, a rare legal
request to bypass appeals and seek early intervention from the nation’s highest court. The court declined.
Motz [Judge Diana Gribbon Motz of the 4 th
Circuit panel] also
quoted statements about the state law’s purpose made by McDonnell and Lieut. Gov. Bill Bolling (R), concluding that if the court allowed
Virginia to sue, “a state could acquire standing to challenge any federal law merely by enacting a statute—even an utterly unenforceable one— purporting to prohibit the application of the federal law.”
The timeline still sets up a likely ruling in the spring, sometime
before the Supreme Court’s term ends June 30.
Anita Kumar and N. C. Aizenman, The Washington Post, September 8,
2011
NEWSPAPER CLIPPINGS: Individual Mandate Ruling: Federal
Judge Strikes Down Key Health Care Law Provision
The requirement in the national health-care overhaul law that
individuals buy health insurance is unconstitutional, a federal judge in
Pennsylvania ruled Tuesday in a question that the U.S. Supreme Court
is widely expected to settle.
The ruling by Judge Christopher C. Conner in Harrisburg was
issued in one of more than 30 lawsuits nationwide that have been filed
over the 2010 law that is President Barack Obama’s signature initiative. It was filed by a Pennsylvania couple who do not have health
insurance, but believe they would be subject to the mandate.
Conner, who was appointed to the federal bench in 2002 by
President George W. Bush, said the mandate that individuals buy health
insurance or pay a penalty starting in 2014 is an unconstitutional
extension of authority granted to the federal government under the
Constitution’s commerce clause.
The Huffington Post, September 13, 2011
The act has been challenged based on the fact that some states consider it
unconstitutional. As indicated by the above newspaper clippings, the lower
courts vary in their opinions about the constitutionality of the law. As the
courts continue to wrangle over the law, the various political parties are
expected to continue to their battles over the concept of health care for all.
See the latest information on the Affordable Care Act at
http://www.healthcare.gov/law/introduction/index.html.
POLITICAL MALPRACTICE
The tragedy of society is not the noisiness of the so-called bad people, but
the appalling silence of the so-called good people.
MARTIN LUTHER KING, JR.
Political malpractice is negligent or unethical conduct on the part of an
elected official. Like medical malpractice, political malpractice involves a
failure to offer professional services as expected. Political malpractice
usually hurts the citizens to whom the politician is accountable. The failure
of Congress to act when there is a duty to act by playing partisan politics is
unconscionable to the citizens of the United States. It has occurred, for
example, in financial and health care policy decision making or lack
thereof. Just indiscriminately objecting to every issue of the sitting
President on a partisan basis continues to fall on the backs of the citizen
whom Congress was elected to represent.
“I do not understand why the governments of the United States and Europe put money into studying pollutants like bisphenol A and then
later don’t listen to what scientists have found,” comments Angel Nadal of the Spanish Biomedical Research Network in Diabetes and
Associated with Metabolic Disorders in Alicante.
“They are using a last-century approach to toxicology. . . . These findings provide the molecular basis for bisphenol A being implicated
in both obesity and potentially the associated disease that is now being
detected in children and adolescents—type 2 diabetes,” comments Frederick vom Saal of the University of Missouri in Columbia.
16
With the nation being distracted by terrorism and war, who is watching
over government priorities for addressing domestic needs? In a 2004
column written by Ronald Brownstein in the St. Petersburg Times titled
“Health Care Safety Net Stretched Thin,”17 Brownstein describes a study from the George Washington University School of Public Health
addressing the financial strain on public hospitals’ abilities to provide health care services to some 43 million uninsured Americans. Insured or
not, Americans are often waiting months to be seen by specialists. One
government hospital described up to a 6-month wait for a neurological
consult: “Practical steps are possible to help millions of low income families live healthier lives and receive more effective care when they need
it. Ignoring that opportunity, while waiting for consensus on coverage,
would be a form of political malpractice.”18 Despite the passage of the Patient Protection and Affordable Care Act, millions of Americans
continue to remain uninsured due to the fact that various provisions of the
Act have yet to take effect. As Congress has been hopelessly deadlocked
for years, the United States Supreme Court will hear oral arguments on the
constitutionality of the Act. Political malpractice is alive and well.
REALITY CHECK: Veterans Lack Insurance Benefits
Bill had a chat with some veterans about their health care benefits.
Most seemed satisfied. Joe, one of the veterans, opening his mouth,
said, “Look at my teeth. [He had but a few teeth in his mouth.] They won’t fix them because they are not considered a war-related injury.” He turned his head sideways, and Bill noticed that an ear was missing.
Joe continued, “Now this ear is gone. I lost it during the war. I was able to get a prosthesis. It needs some work, so I didn’t wear it. I am able to get care for it because it is a war-related injury, but I really could use
some teeth.”
Discussion
1. Would you consider this to be a form of political malpractice?
Discuss your answer.
2. If the hospital was able to arrange care for the veteran outside the
Veterans Administration system, how might your answer change?
3. Based on the politics of both parties during the 2008 presidential
campaign, how would you respond to this veteran’s concern?
Political campaigns are showmanship, not substance. They are attacks on
opponents and distortions of truth.
GP
REALITY CHECK: Approval Rating for Congress
According to political polls, the approval rating of the United States
Congress is at an all-time low. It would be easy to believe that those
who are satisfied with the performance of Congress are those who stand
to gain by government’s continuing inaction to take on difficult issues. The nature of Congress, as well as the business world, is to go merely
on their way while engaging in corrupt business practices and pork
barrel politics. Then we come to the courts, where politicians and CEOs
are merely slapped on the wrists for wrongdoings affecting millions of
Americans’ retirement income and their ability to obtain health insurance, sometimes with short jail sentences with a pile of illegally
gained American dollars waiting for them on release. There are,
without question, two standards: one for the common man and one for
those elected to represent the American people. Government officials
are, for the most part, protected from claims of political malpractice
through their polices of inaction or actions taken that make it more
lucrative for American corporations to leave the country and set up
headquarters and research and manufacturing facilities elsewhere. In
prior years, hospitals were exempt from lawsuits under the Doctrine of
Charitable Immunity. The time has come to remove the immunity status
of politicians. They need to be held accountable for their wrongdoings.
Protectionism for politicians must become a historical fact of “shame
on us” for allowing the degree of indecency that we as Americans have allowed to exist. We need to write this in our history books: How did
we ever let the politicians commit wrongdoing without accountability?
Discussion
1. Discuss how protectionism flies in the face of “justice for all.” 2. Discuss how the ethical theories of beneficence and nonmaleficence
relate to this rating.
NEWSPAPER CLIPPINGS: Patient Ratings to Affect Medicare
Payments to Hospitals
Thought your hospital room was dirty? Did your nurse sometimes
ignore you? If so, the hospital has a new reason to worry: Patient gripes
will soon affect how much hospitals get paid by Medicare. . . .
Medicare has been publishing patient-satisfaction scores on its
Hospital Compare Web site since 2008 but hasn’t used them to adjust payments. Under CMS’s proposal, Medicare will begin holding 1 percent of its payments to hospitals starting in October 2012. That
money—$850 million in the first year—will go into a pool to be doled out as bonuses to hospitals that score above average on several
measures. The agency is poised to release the final rule.
Jordan Rau, The Washington Post, April 28, 2011
Some say, sounds interesting, $850 million a year to be redistributed so
that the poorer inner city hospitals can have fewer dollars and the quality of
care can continue to spiral downhill. Some believe this is a distraction to
the real problems plaguing the nation. Take, for example, the 25 top hedge
fund executives who together made $1 billion in one year and are in a
special 15% tax bracket, paying approximately $3.75 billion based on the
15% tax that is applicable to them. If they paid the 35% applicable to
Americans, they would be paying $8.75 billion. The American citizen who
makes $379,150 or more after deductions is in a 35% tax bracket, not 15%.
Discussion
1. Considering that distributive justice is a principle requiring that all
persons be treated equally and fairly and that no one person, for
example, should get a disproportional share of society’s resources or benefits, discuss how society’s resources are distributed disproportionately.
2. Discuss why you believe the concept of equality for all and equal
access to health care are concepts, not facts. How would you go about
achieving true democracy in a capitalistic system that to many seems to
favor the rich at the expense of the poor?
Democracy for the Wealthy: Fairness and Justice Elusive
As the following newspaper article illustrates, democracy often rewards the
wealthy and punishes the less fortunate. Politicians have sat back and
basically supported, through their passiveness, the unequal distribution of
money by what many would call legalized theft through tax laws that favor
the rich and plunder the poor. Politicians have taken care of themselves and
ignored the masses, providing themselves with the best health insurance;
awarding themselves raises while unemployment soars; and providing
themselves with the best of retirement plans and long summer vacations
while the populace suffers. They fail to show up to vote in Congress, while
others have little to eat and continue to have no jobs and poor access to
health care. The hope of politicians is that the populace continues to
concentrate on operatic antics and bipartisan bickering in Congress.
Distract the people while they are plummeted into debt.
NEWSPAPER CLIPPINGS: Income Gap Widens as Executives
Prosper
For years, statistics have depicted growing income disparity in the
United States, and it has reached levels not seen since the Great
Depression. In 2008, the last year for which data are available, for
example, the top 0.1 percent of earners took in more than 10 percent of
the personal income in the United States, including capital gains, and
the top 1 percent took in more than 20%.
Other recent research, moreover, indicates that executive
compensation at the nation’s largest firms has roughly quadrupled in real terms since the 1970s, even as pay for 90 percent of America has
stalled.
As a result, economists have noted, there is an inherent tension in
market-oriented democracies because while society aims to endow each
person with equal political rights, it allows very unequal economic
outcomes.
Income inequality has been on the rise for decades in several
nations, including the United Kingdom, China and India, but it has been
most pronounced in the United States, economists say.
In 1975 . . . the top 0.1 percent of earners garnered about 2.5
percent of the nation’s income, including capital gains . . . By 2008, that share had quadrupled and stood at 10.4 percent.
In world rankings of income inequality, the United States now falls
among some of the world’s less-developed countries. According to the CIA’s World Factbook . . . the United States is in
the company of developing countries—just behind Cameroon and Ivory Coast and just ahead of Uganda and Jamaica.
“A nation cannot prosper long when it favors only the prosperous,” President Obama said in his inaugural address.
Peter Whoriskey, The Washington Post, June 18, 2011
The question here is, are we a democracy for the wealthy? If we are,
how long can we exist as the divide between the rich and poor continues to
widen? Fairness and justice remain elusive.
Hope Still Looms
There is still hope, although it is quickly fading, that ethics will become
something of value that we practice both in the workplace and in our
personal lives. It is more meaningful than a word to discuss, a book to read,
or a course of study.
NEWSPAPER CLIPPINGS: A City Looks to Its Moral Compass in
Lean Times
Faced with painful choices about who will suffer most from looming
budget cuts, Alexandria officials have taken the unusual step of paying
a professional ethicist to help them grapple with the moral issues
involved.
Michael Laris, The Washington Post, December 14, 2008
ETHICS IN PUBLIC SERVICE
Although not all cities may need to hire an ethicist in order to set priorities,
it may be helpful in certain types of decisions. An independent, unbiased,
professionally trained decision from an “outsider” may be more acceptable to councils, mayors, citizens, employees, or the press than one derived
from inside the political process. This is particularly helpful in the decision
to reduce or eliminate services to the public, especially services to the
elderly, disabled, or less fortunate. 19
Non-Payment of Wrong Procedures
NEWSPAPER CLIPPINGS: Effort to End Surgeries on Wrong
Patient or Body Part Falters
When the president of the Joint Commission, the Chicago-based group
that accredits the nation’s hospitals, unveiled mandatory rules to prevent operations on the wrong patient or body part, he did not mince
words.
“This is not quite ‘Dick and Jane,’ but it’s pretty close,” surgeon Dennis O’Leary declared in a 2004 interview about the “universal protocol” to prevent wrong-site surgery. These rules require preoperative verification of important details, marking of the surgical
site and a timeout to confirm everything just before the procedure
starts.
Sandra G. Boodman, Kaiser Health News/The Washington Post, June
20, 2011
The Centers for Medicare and Medicaid Services (CMS) issued the
Affordable Care Act rule, effective July 1, 2011, that reduces or prohibits
payments to doctors, hospitals, and other health care providers for services
that result from certain preventable health care–acquired illnesses (e.g., hospital-acquired infections or injuries such as wrong site, wrong patient,
wrong surgery). This rule is intended to reward providers who provide
high-quality care to people in Medicaid, leading to better care for patients
and lower costs. The rule prohibits states from making payments to
providers under the Medicaid program for conditions that are reasonably
preventable, with the ultimate goal of reducing costs and improving the
quality of care. 20
CHAPTER REVIEW
1. This chapter presented an overview of federal statutes that were
designed to protect individual rights, including the right to privacy and
self-determination.
2. The United States Office of Government Ethics is an agency within the
executive branch of government responsible for directing executive
branch policies relating to the prevention of conflicts of interest on the
part of Federal executive branch officers and employees.
3. The 14th Amendment to the Constitution of the United States provides
that a state cannot act to deny any person equal protection of the laws.
4. Public policy is that principle of law that holds that no one can lawfully
do that which tends to be injurious to the public or against the public
good. The sources of public policy include legislation; administrative
rules, regulations, or decisions; and judicial decisions. In certain
instances, a professional code of ethics may contain an expression of
public policy.
5. Pursuant to Title VI of the Civil Rights Act of 1964, the guidelines of
HHS prohibit the practice of racial discrimination by any organization
or agency receiving money under any program supported by HHS.
6. The Privacy Act of 1974, Title 5 United States Code (U.S.C.) 552, was
enacted to safeguard individual privacy from the misuse of federal
records, to give individuals access to records concerning themselves
that are maintained by federal agencies, and to establish a Privacy
Protection Safety Commission.
7. HIPAA (Public Law 104-191) was designed to protect the privacy,
confidentiality, and security of patient information. HIPAA standards
are applicable to all health information in all of its formats (e.g.,
electronic, paper, verbal). It applies to both electronically maintained
and transmitted information.
8. EMTALA forbids Medicare-participating hospitals from “dumping” patients out of emergency departments.
9. The HCQIA was enacted in part to provide those persons giving
information to professional review bodies and those assisting in review
activities limited immunity from damages that may arise as a result of
adverse decisions that affect a physician’s medical staff privileges. 10. The AHRQ, established in 1989, is charged with researching ways to
improve the quality of health care, reduce its costs, and broaden access
to essential services.
11. The Ethics in Patient Referral Act of 1989 prohibits physicians who
have ownership interest or compensation arrangements with a clinical
laboratory from referring Medicare patients to that laboratory.
12. The PSDA was enacted to ensure that patients are informed of their
rights to execute advance directives and accept or refuse medical care.
Each state is required under the PSDA to provide a description of the
law in the state regarding advance directives to providers, whether such
directives are based on state statutes or judicial decisions.
13. The Sarbanes-Oxley Act requires, for example, executives of public
corporations to vouch for the financial reports and encourages self-
regulation.
14. The Patient Protection and Affordable Care Act (PPACA) and the
Health Care and Education Reconciliation Act of 2010 made up the
health care reform of 2010. The laws focus on reform of the private
health insurance market.
15. Political malpractice is an instance of negligent or unethical conduct on
the part of an elected official. Like medical malpractice, political
malpractice involves a failure to offer professional services as expected.
Political malpractice usually hurts the citizens to whom the politician is
accountable.
16. Cities should consider the services of ethicists, who can give guidance
in making various decisions such as setting budget priorities.
TEST YOUR UNDERSTANDING
Terminology
Agency for Healthcare Research and Quality
Civil Rights Act
distributive justice
EMTALA
Emergency Medical Treatment and Active Labor Act
Ethics in Patient Referral Act
Health Care Quality Improvement Act
Health Insurance Portability and Accountability Act
Office of Government Ethics
Patient Protection and Affordable Care Act
Patient Self-Determination Act
political malpractice
Privacy Act of 1974
public policy
Sarbanes-Oxley Act
Sherman Antitrust Act
REVIEW QUESTIONS
1. What is the function of the United States Office of Government
Ethics?
2. What is the intent of the 14th Amendment to the U.S. Constitution?
3. Discuss how the federal statutes discussed in this chapter protect
individuals’ rights (e.g., privacy and self-determination). 4. Why was the Sarbanes-Oxley Act of 2002 enacted?
5. Describe the concept of “political malpractice,” as discussed in this chapter.
NOTES
1. Irish politician.
2. Jeffrey M. Jones, “Congressional job approval ties historic low of 13%,” Gallup, August 16, 2011; http://www.gallup.com/poll/149009/congressional-job-approval-ties-historic-low.aspx.
3. Rasmussen Reports, “Congressional performance: Only 9% give congress positive marks,” September 27, 2011; http://www.rasmussenreports.com/public_content/politics/mood_of_
america/congressional_performance.
4. U.S. Office of Government Ethics, http://www.usoge.gov.
5. Pierce v. Ortho Pharmaceutical Corp., 417 A.2d 505, 512 (N.J. 1980).
6. 15 U.S.C. § 1 (1982). 7. 42 U.S.C.A. § 1395dd(a) (1992). 8. 934 F.2d 1362 (5th Cir. Tex. 1991).
9. Courts Uphold Law, Regulations against Patient Dumping, Nation’s Health, August 1991, at 1. 10. Id. at 17.
11. Meyers v. Logan Mem. Hosp., 82 F. Supp. 2d 707 (2000).
12. 42 U.S.C. 1395cc(a)(1).
13. Public Law 101-508, November 5, 1990, sections 4206 and 4751 of the Omnibus Budget
Reconciliation Act.
14. 42 U.S.C. § 1395 (1992). 15. 42 U.S.C. § 1395cc (1992). 16. Ehrenberg, Rachel, “Popular Plastics Chemical Poses Another Threat: This Time Diabetes,”
Science News, September 13, 2008, at 15.
17. Health Care Safety Net Stretched Thin, Ronald Brownstein, St. Petersburg Times, June 4, 2004,
Section A, at 13a.
18. Id.
19. Ethics in Public Service, “Alexandria hires ethics consultant,” April 9, 2009; http://urpa5358group2.wordpress.com/2009/01/31/alexandria-hires-ethics-consultant/.
20. Centers for Medicare & Medicaid Services, “Affordable Care Act gives states tools to improve quality of care in Medicaid, save taxpayer dollars,” June 1, 2011; http://www.cms.gov/apps/media/press/release.asp?Counter=3975
&intNumPerPage=10&checkDate=&checkKey=&srchType=1&
numDays=3500&srchOpt=0&srchData=&keywordType=All&chkNews
Type=1%2C+2%2C+3%2C+4%2C+5&intPage=&showAll=&pYear=&
year=&desc=&cboOrder=date.
chapter eight
Organizational Ethics and the Law
LEARNING OBJECTIVES
The reader upon completion of this chapter will be able to:
• Describe corporate structure. • Describe the value statements that should be included in an
organization’s code of ethics. • Discuss why the conduct of organizations is under scrutiny. • Explain the doctrine of respondeat superior and the concept of
corporate negligence.
• Describe corporate duties and responsibilities, and the ethical and legal risks of organizations.
• Describe various strategies that can be undertaken to restore organizational trust.
INTRODUCTION
The typical health care organization is incorporated under state law as a
freestanding for-profit or not-for-profit corporation. The corporation has a
governing body that has ultimate responsibility for the decisions made in
the organization. The existence of this authority creates certain duties and
liabilities. The governing body, having ultimate responsibility for the
operation and management of the organization, generally delegates
responsibility for the day-to-day operations of the organization to the
organization’s chief executive officer. Although health care organizations may operate as sole proprietorships
or partnerships, most function as corporations. Thus, an important source
of law applicable to governing boards and to the duties and responsibilities
of their members is found in state corporation laws. An incorporated health
care organization is a legal person with recognized rights, duties, powers,
and responsibilities. Because the legal “person” is in reality a “fictitious person,” there is a requirement that certain people are designated to exercise the corporate powers and that they are held accountable for
corporate decision making.
Health care corporations—governmental, charitable, or proprietary— have certain powers expressly or implicitly granted to them by state
statutes. Generally, the authority of a corporation is expressed in the law
under which the corporation is chartered and in the corporation’s articles of incorporation. The existence of this authority creates certain duties and
liabilities for governing bodies and their individual members. Members of
the governing body have both express and implied corporate authority.
Express Corporate Authority
Express Corporate Authority is authority specifically delegated by statute.
Health care corporations derive authority to act from the laws of the state in
which they are incorporated. The articles of incorporation set forth the
purposes of each corporation’s existence and the powers that the corporation is authorized to exercise to carry out its purposes.
Implied Corporate Authority
Implied Corporate Authority is the authority to perform any and all acts
necessary to exercise a corporation’s expressly conferred authority and to accomplish the purposes for which it was created. Generally, implied
corporate authority arises where there is a need for corporate powers not
specifically granted in the articles of incorporation. A governing body, at
its own discretion, may enact new bylaws, rules, and regulations; purchase
or mortgage property; borrow money; purchase equipment; select
personnel; adopt corporate resolutions that delineate decision-making
responsibilities; and so forth. These powers can be enumerated in the
articles of incorporation and, in such cases, would be categorized as
express rather than implied corporate authority.
Ultra Vires Acts
A governing body can be held liable for acting beyond its scope of
authority, which is either express (e.g., in its articles of incorporation) or
implied in law. Acts of this nature are referred to as ultra vires acts. The
state, through its attorney general, has the power to prevent the
performance of an ultra vires act by injunction. Governing bodies should
have their corporate charters reviewed periodically by legal counsel to
make certain that their express powers are consistent with the activities in
which they currently engage or that they plan to undertake in the future.
CODE OF ETHICS FOR ORGANIZATIONS
An organization’s code of ethics should provide guidelines for behavior that help carry out an organization’s mission, vision, and values. Organizational codes of ethics build trust, increase awareness of ethical
issues, guide decision making, and encourage staff to seek advice and
report misconduct. The following list provides some value statements that
should be considered when preparing an organization’s code of ethics.
1. Employees and staff members will comply with the organization’s code of ethics, which includes compassionate care; an understanding and
acceptance of the organization’s mission, vision, and values; and adherence to one’s professional code of conduct.
2. The organization will be honest and fair in dealings with employees.
3. The organization will develop and maintain an environment that fosters
the highest ethical and legal standards.
4. Employers and employees will be impartial when personal interests
conflict with those of others.
5. Employees will be free to speak up without fear of retribution or
retaliation.
6. The pitfalls of groupthink will not be acceptable conduct in the
organization. The preservation of harmony will not become more
important than the critical evaluation of ideas by all employees.
7. Employees will be provided with a safe environment within which to
work.
8. The drive to increase revenues will not be tied to unethical activities,
such as workforce cutbacks as a means to discharge employees when
they are encouraged to speak up and then blacklisted because of their
honesty.
9. Employees will avoid conflict-of-interest situations by not favoring
one’s own interests over those of others, including the organization. 10. Patients will be provided with care that is of the highest quality
regardless of the setting.
11. All patients will be treated with honesty, dignity, respect, and courtesy.
12. Patients will be informed as to the risks, benefits, and alternatives to
care.
13. Patients will be treated in a manner that preserves their rights, dignity,
autonomy, self-esteem, privacy, and involvement in their care.
14. Each patient’s culture, religion, and heritage will be respected and addressed as appropriate.
15. The organization will provide assistance to patients and their families
through a patient advocate.
16. The organization will provide appropriate support services for those
with physical disabilities (e.g., those with language barriers and those
who are hearing- or seeing-impaired).
17. Patients will be provided with a “Patient’s Bill of Rights and Responsibilities” on admission to the hospital.
18. Each patient’s right to execute advance directives will be honored.
ORGANIZATIONAL CONDUCT UNDER SCRUTINY
NEWSPAPER CLIPPINGS: Mistakes Hospitals Don’t Want You to See
Over the past year, hospitals in Washington left “foreign objects” in 36 surgery patients. And twenty-one people got surgery on the wrong body
parts.
Carol M. Ostrom, Seattle Times, October 23, 2007
Multinational corporations often take jobs offshore to avoid complying
with minimum wage laws, tax laws, health benefits, workers’ compensation, and unemployment benefits—the list goes on and on. Not only does this lead to this country’s unemployment rate, but it has a negative effect on the morale of the nation. There needs to be balance
between capitalism and socialism. Capitalists never seem to be satisfied
and always want more, often at the expense of the masses. It is
overindulgence and greed that can destroy a country from within. In many
ways, the masses are “slaves” to the greedy. Organizations, like individuals, must comply with rules of ethical conduct. This chapter
introduces the ethical responsibilities and legal risks to which health care
organizations and their governing bodies can be exposed.
Organizational ethics in the health care setting are being carefully
scrutinized across the nation by state and federal regulatory agencies.
Unethical conduct that is closely being monitored includes:
• Engaging in false advertising • Knowingly using flawed data • Using schemes designed to deny patients insurance benefits • Accepting kickbacks • Entering into financial arrangements that are clearly a conflict of interest
• Covering up wrongdoing • Falsifying records • Engaging in fraudulent activities (e.g., reimbursement schemes)
NEWSPAPER CLIPPINGS: Health Net Ordered to Pay $9 Million
After Canceling Cancer Patient’s Policy
One of California’s largest for-profit insurers stopped a controversial practice of canceling sick policyholders Friday after a judge ordered
Health Net Inc. to pay more than $9 million to a breast cancer patient it
dropped in the middle of chemotherapy.
The ruling by a private arbitration judge was the first of its kind and
the most powerful rebuke to the state’s major insurers whose cancellation practices are under fire from the courts, state regulators
and elected officials.
Calling Woodland Hills-based Health Net’s actions “egregious,” Judge Sam Cianchetti, a retired Los Angeles County Superior Court
judge, ruled that the company broke state laws and acted in bad faith.
Lisa Girion, Los Angeles Times, February 23, 2008 1
PEOPLE STORIES: Are Two Insurances Better Than One?
Whoever thought that buying two insurances could be detrimental? I
pay over $1,000 each month for my primary insurance, and my
husband pays part of his premium ($600 per month) through his
employer, which is my secondary insurance. Having two plans—which are each supposed to provide the best coverage—gave us a false sense of security, with us believing that we would be covered for any medical
problems we could encounter. What we didn’t count on was the greed of some health care providers and how they hide that greed in
confusing bills containing what appear to be secret codes. After
receiving one pain block in my spine for unrelenting nerve pain, I was
sent a bill demanding $109 in addition to what both insurances had
paid. When I reviewed the bill, I discovered that my insurance
company had paid $1,926, and my husband’s company had paid $175. The total bill from the physician was $2,250.
If the charges assigned to me had been less, I probably would have
just paid the bill. However, when we added up what both insurance
companies had paid for one injection, my husband decided to further
investigate the costs by calling the insurance companies and the
physician’s billing company. First, we were told by the billing company representative that they had saved us $200 since my secondary
insurance had deducted my primary insurance company’s deductible of $250. Since this made absolutely no sense, my husband insisted upon
speaking to the manager of the billing company. During that
conversation, the manager admitted to him that if we had had only one
insurance company, the physician would have accepted—as full payment—the agreed-upon contract (between the insurance company and the physician). In this case, if I did not have my own primary
insurance, the physician would have had to have accepted $557 as total
payment instead of the $1,926 he actually received from two insurance
carriers. My husband explained this to the billing department. Their
initial response was, “That’s your problem for carrying two insurances.”
After my husband accused the doctor’s office of “double billing” and numerous ethics violations, the billing office manager agreed to
“forgive” the $109 bill to me, the patient. I am an attorney, and it still took two people to figure out that a health care provider was trying to
slip one by us.
Do not let this scenario fool you into thinking that it is always the
provider at fault. Here is a convoluted insurance scenario, which I am
sure is one of many. On a $100 office visit for me, my primary
insurance carrier paid $80. My husband’s carrier said that we would be responsible for the $20 co-pay. By all knowledgeable people, this was
more than a $20 co-pay. Otherwise, why have two insurances? I guess
the word “coordination” of benefits somehow got lost in some legal or maybe not so legal voodoo contract language.
Patient
Discussion
1. Is it unethical for doctors to bill additional charges when patients
have more than one insurance policy? Defend your answer.
2. What specific steps can be taken to prevent this problem?
I consider ethics, as well as religion, as supplements to law in the
government of man.
THOMAS JEFFERSON
At a time when world leaders have been attempting to cope with the worst
financial crisis since the 1930s, corporate leaders and politicians continue
their stance of blaming others rather than accepting responsibility for their
own failures. Politicians continue their attempts to deflect blame for the
financial crisis by pointing fingers rather than participating in a team
approach to resolve complex budget issues. They have chosen to fill the
airways with criticism of others, such as racist and anti-Semitic slurs, and
so on. Greed in the corporate world continues its wayward path of
rewarding the few and cheating the masses. While Americans are taught to
have balance in their lives, a determination must be made: “What is fair and when is too much too much?” Although politicians often place blame for the financial crisis on Wall Street, the problems are too complex for
most people to understand. It is obvious, however, that personal greed has
become the hallmark of those responsible for this crisis.
The sense of somehow me heating up on Wall Street, I think most folks on
Main Street feel like they got beat up on. . . . There’s a big chunk of the country that thinks that I have been too soft on Wall Street. That’s probably the majority, not the minority.
If you’re making a billion dollars a year after a very bad financial crisis where eight million people lost their jobs and small businesses can’t get loans, then I think that you shouldn’t be feeling put upon.
The notion that somehow me saying maybe you should be taxed more like
your secretary when you’re pulling home a billion dollars or a hundred million dollars a year, I don’t think is me being extremist or being anti- business.
PRESIDENT BARACK OBAMA 2
According to Zen Buddhist priest Kazuro Inamori, “Profit is society’s reward for serving its interests. In order to restore and revitalize capitalism,
it is crucial that business executives regain this attitude.” That would mean, of course, that honesty and candor would once again be perceived to be
strengths and not weaknesses by those in power.
Accreditation of Hospitals and Conflicts of Interest
The mission of accrediting bodies is to improve the quality of care rendered
in the nation’s hospitals through its survey process. The Joint Commission (JC), for example, depends upon the hospitals it surveys/inspects to
reimburse it for the costs of those surveys. This means the JC needs to
maintain satisfied clients, and in so doing, a conflict arises. How credible
can a survey be when the JC is dependent on the organizations it surveys
for financial survival? Further, hospitals evaluate the performance of the
surveyors. The survival of the surveyor in his or her job is dependent upon
good evaluations from the contracting hospitals. Conflicting interests here
encourage surveyors/inspectors to be careful about what they score because
of fear of retaliation by both the organizations surveyed and the JC.
Accrediting organizations are far from effective in protecting the consumer
from the human errors resulting in more than 100,000 deaths and injuries
annually in the nation’s hospitals. The food inspection process is remarkably similar to the hospital
accreditation surveys:
• Food makers often know when inspectors will audit their facilities, and they vigorously prepare for those inspections. This was also true with
hospitals until several years ago, when the Joint Commission decided to
conduct unannounced surveys. This change occurred mostly because of
criticism from its own surveyors, the Centers for Medicare and Medicaid,
the public, as well as some of the surveyed organizations. But the wheels
of change move slowly; more than a decade passed before the Joint
Commission succumbed to the long overdue change.
• Most food makers score high in their inspections and still have recalls and outbreaks.
• As with hospitals, the food companies typically pay food industry inspectors, creating a conflict of interest for inspectors who might fear
they will lose business if they don’t hand out high ratings.
Until several years ago, the Joint Commission rated hospitals. It
eventually discontinued the rating process because of criticism once again
from its own surveyors and others. Because of the competition among
hospitals, the surveyors were pressured to provide high rating scores by the
organizations it surveyed. Large billboards could be seen on Florida
highways advertising hospitals with scores of 100, yet in actuality, these
hospitals may have not provided any better quality of care than a hospital
that scored 80. For example, the following scenarios took place in hospitals
that supposedly scored 100:
• One small-town hospital advertised in a newspaper that it scored 100 on a hospital accreditation survey. This same hospital had no full-time
emergency department physician. An uncle’s niece said, “I would not take my dog to that hospital. They killed my mom.”
• Mr. Dad was having difficulty in breathing. His son convinced him to go to the emergency department. It was a Sunday afternoon and there was
nowhere else to go. An X-ray was taken and the emergency department
physician told Mr. Dad’s son, “It is people like your dad that drive up the costs of health care. By the way, your dad is ok.” Mr. Dad’s son was disturbed with the physician’s remarks but happier that he was given a clean bill of health. Unfortunately, the hospital called Mr. Dad the next
day and said he needed to see his family doctor because he had a
suspicious lesion on his lung. It was cancer, and he has since passed
away.
• Ms. Mom was another story; she had colon cancer and was told she would be placed on a soft diet after surgery. The nurse was queried as to
why Ms. Mom had pork chops on her plate since she had been told she
would be on a soft diet. The nurse said that the diet could not be changed,
and until she could get a soft diet order from the physician, Ms. Mom
would have to remain on a regular diet.
• Ms. Sister had continuous headaches for more than a year. The doctor had diagnosed migraines, and said it was stress related. A brain scan was
eventually ordered more than a year later. She had a brain tumor. She has
since passed away.
• Ms. Wife went to her doctor’s appointment. The doctor asked her to lie down on the examining table. Ms. Wife reached for the doctor’s hand for help lying down on the table. The doctor did not extend her hand. When
the exam was over, Ms. Wife again reached for the doctor’s hand, but the doctor looked away from her and said, “You got down by yourself, you can get up by yourself.”
• The anesthesiologist who attended Ms. Aunt (a happy elderly lady) during anesthesia said to her daughter that he had not seen Ms. Aunt’s medical files. He was not aware of her diagnoses (hiatal hernia, asthma)
and test results (e.g., EKG). He said to the daughter, “If I had seen all of the test results, I would have administered a local anesthetic instead of a
general anesthetic.” Ms. Aunt had to be placed on a ventilator because she developed pneumonia after surgery. Unfortunately, the
anesthesiologist failed to wait for all of the results prior to administering
anesthesia.
• Ms. Aunt was eventually transferred to a nursing home. Ms. Daughter, on her third visit (three days later) to the nursing home, visited with her
mother. She noticed signs of impending death. She hurried to the nursing
station and told the nurses that her mother looked like she was dying. The
nurse said, “How do you know she is dying?” The daughter said, “Look at her feet, they are purple.” The nurse took Ms. Aunt’s blood pressure, which was too low. Ms. Aunt was very restless. The daughter said to the
nurse, “My mother is dying. I see you gave her morphine. You were never supposed to give her morphine unless she is on a ventilator.” They had given her morphine and a relaxant medication. Ms. Daughter said to
her cousin, “My mom was so restless. The nurse was preparing a bath for mom. I am not a nurse and I knew my mother was dying and they are
going to give her a bath and they were going to feed her.” The nurse again said, “How do you know she is dying?” Ms. Daughter again said, “Look, her feet are purple; I can tell by the way she is breathing.” Ms. Aunt passed away shortly after that.
Clearly, the banking industry, the food industry, and the health care
industry all share one major disturbing characteristic: there is a blatant
conflict of interest between the inspecting agencies and the entities they are
inspecting. In the case of the health care industry, the public’s health is at risk to benefit the industry’s bottom line. Someone needs to regulate the regulators.
REALITY CHECK: Integrity Can Be Lost Through Greed
Forever Anonymous, Inc. (FA) employees are prohibited from
inspecting accredited health care organizations during their
employment with FA. In addition, employees are prohibited, for three
years following termination, from consulting with any organizations
they may have surveyed during their tenure with FA.
It is believed that not all members of FA’s leadership have been following this policy after their termination of employment. Employees
were questioning amongst themselves, does this policy apply only to
rank-and-file employees, or does it include FA’s leadership? Should the FA board investigate what former FA leaders have been consulting with
health care organizations and in what capacity? One high-level FA
director was believed to have been consulting in Texas and Hawaii. In
FA lingo, should the board “pull the threads” and investigate what members of leadership have consulted and/or continue to consult? And
what is the propriety of such consultations?
The importance of this policy is apparent. Some hospitals during a
survey, through their leadership, often let it be known to the inspectors,
accidentally of course, what former members of FA’s leadership they have been consulting with to prepare for their annual inspection,
expecting some leniency will be shown by the inspectors during the
inspection process. Yes, unfortunately, there are often some members of
an organization’s leadership who are more concerned about the results of an inspection and how it might affect their jobs than about how it
affects the quality of patient care in their organization.
Discussion
1. How should the FA board address this issue?
2. Does the leadership have an unfair advantage in the consulting
world, not only by virtue of their position, but also by policies that
favor their consulting efforts?
3. Is this more of the same, American greed on the corporate level in a
not-for-profit organization?
4. Is this a form of restraint of trade?
Financial Incentives Disclosed
Dr. Linda Peeno, a Medical Reviewer for Humana, during testimony before
Congress, stated in part: 3
I am here primarily today to make a public confession. In the spring of
1987, as a physician, I denied a man a necessary operation that would
have saved his life and thus caused his death. No person and no group
has held me accountable for this, because in fact, what I did was I
saved a company a half a million dollars for this.
Dr. Peeno, now a physician in Louisville, Kentucky, remains
unsanctioned by her peers and unpunished by the justice system for the act
described here and others that she admitted to committing. This is because
the medical profession remains self-regulating, and the medical licensing
boards are composed mostly of physicians. Moreover, courts are generally
reluctant to get involved with the internal affairs of a professional society
unless any sanctions they impose violate public policy.
Recently, the medical community has turned its attention to the
authority of state medical boards to police improper physician expert
testimony in medical malpractice actions. The discussion has been
broadened to consider whether the presentation of testimony constitutes the
carrying out of the practice of medicine. Depending on the state, some
cases have held that the “carrying out” requirement means that the medical judgment must affect or have the possibility of affecting the patient. For
example, in Murphy v. Board of Medical Examiners, 4 an Arizona court held
that a physician performing prospective utilization review was practicing
medicine because his decisions “could affect” a patient’s health. Dr. Peeno was engaging in prospective utilization review; however, several federal
courts have held that neither prospective nor retrospective review
constituted the practice of medicine; refer to Adnan Varol, M.D., P.C. v.
Blue Cross Blue Shield of Mich., 708 F. Supp. 826 (E.D. Mich. 1989);
Corcoran v. United Health Care, 956 F2d 1321 (5th Cir. 1992).
The public has the right to expect expert physicians to be accurate and
truthful when giving testimony. If the profession cannot police itself, then
the states will be forced to intervene in order to protect the public from
other unrepentant Dr. Peenos.
Truthfulness in Advertising
Earlier in this chapter we described several problems with hospitals that
advertised their perfect accreditation scores. These advertisements gave the
perception that the score was somehow an indicator of the quality of care
provided by the hospitals, implying that hospitals receiving lower scores
delivered inferior care. Eventually this issuing of scores was discontinued
because of misuse of scores as a ranking mechanism and because
organizations concentrated on scores rather than on improving patient care.
From an ethical point of view, health care organizations should not
advertise misleading information to encourage public confidence in the
quality of care provided by the organization.
CASE: FALSE ADVERTISING
An action was filed against the defendant, Managed Care, alleging claims
of false advertising in connection with Managed Care’s sale, marketing, and rendering of medical services. The plaintiff alleged that he was an
enrollee in Managed Care’s health plan. He also alleged that through misleading and deceptive material representations and omissions,
Managed Care had employed a fraudulent, unfair scheme to induce people
to enroll in its plan by misrepresenting that its primary commitment was to
maintain and improve the quality of health care. The plaintiff alleged that
Managed Care had been aggressively engaged in implementing
undisclosed systemic internal policies that were designed to discourage its
primary care physicians from delivering medical services and to interfere
with the medical judgment of its health care providers. The result of these
policies, he alleged, was a reduction in the quality of health care that is
directly contrary to Managed Care’s representations. The plaintiff claimed that Managed Care’s false advertising reduced
the quality of medical services available to the enrollees and decreased the
monetary value of their health coverage. The plaintiff requested restitution,
refund, or reimbursement of monies paid by or on behalf of enrollees and
disgorgement of the excessive and ill-gotten monies obtained by Managed
Care as a result of the unlawful, fraudulent, and unfair business acts and
practices and untrue and misleading advertisements.
Ethical and Legal Issues
1. Describe the ethical issues in this case.
2. Describe the value of a corporate compliance program and how it
could help prevent false advertising.
CASE: APPEARANCE MAY NOT BE
REALITY
General Hospital’s staff aggregated its infection rate data for comparison purposes with four other hospitals in the community. The staff members
were aware that the data were flawed. They presented a false perception
that General Hospital’s postoperative infection rates were lower than those of peer hospitals. The comparison data were published in the local
newspaper. The Jones family, believing the data to be correct, relied on the
data in selecting General Hospital as their preferred hospital.
Ethical and Legal Issues
1. Describe the ethical principles and values violated in this case.
2. Describe what the role of an organization’s ethics committee should be addressing this or similar issues.
DOCTRINE OF RESPONDEAT SUPERIOR
Respondeat superior is a legal doctrine holding employers liable for the
wrongful acts of their agents (employees). This doctrine is also referred to
as vicarious liability, whereby an employer is answerable for the torts
committed by employees. The following elements must exist in order for
liability to be imputed to an employer: (1) a master-servant relationship
must exist between the employer and the employee, and (2) the wrongful
act of the employee must have occurred within the scope of the employee’s employment.
The question of liability frequently rests on whether persons treating a
patient are independent agents (responsible for their own acts) or
employees of the organization. The answer to this depends on whether the
organization can exercise control over the particular act that was the
proximate cause of the injury. The basic rationale for imposing liability on
an employer developed because the employer possesses the right to control
the physical acts of its employees.
The employer is not without remedy if liability has been imposed
against it for an employee’s negligent act. Because the law holds negligent persons responsible for their negligent acts, employees are not absolved
from liability when a health care facility is held liable through the
application of respondeat superior. Not only may the injured party sue the
employee directly, but also the employer, if sued, may seek indemnification
(i.e., compensation for the financial loss caused by the employee’s negligent act) from the employee.
Independent Contractor
An independent contractor relationship is established when the principal
has no right of control over the manner in which the agent’s work is to be performed. The independent contractor therefore is responsible for his or
her own negligent acts; however, some cases indicate that an organization
may be held liable for an independent contractor’s negligence. For example, in Mehlman v. Powell,
5 the court held that a hospital may be
found vicariously liable for the negligence of an emergency department
physician who was not a hospital employee but who worked in the
emergency department in the capacity of an independent contractor. The
court reasoned that the hospital had control over billing procedures,
maintained an emergency department in the main hospital, and represented
to the patient that the members of the emergency department staff were its
employees.
CORPORATE NEGLIGENCE
There are duties that the corporation itself owes to the general public and to
its patients. These duties arise from statutes, regulations, principles of law
developed by the courts, and the internal operating rules of the
organization. If a corporation has a duty and fails in the exercise of that
duty, it has the same liability to the injured party as an individual would
have.
Corporate negligence is a doctrine under which the hospital is liable if
it fails to uphold the proper standard of care owed the patient, which is
to ensure the patient’s safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes
directly to a patient. Therefore, an injured party does not have to rely
on and establish the negligence of a third party. 6
Corporate negligence occurs when a health care corporation fails to
perform those duties it owes directly to a patient or to anyone else to whom
a duty may extend. If such a duty is breached and a patient is injured as a
result of that breach, the organization can be held culpable under the theory
of corporate negligence.
Liability extends to nonemployees who act as a hospital’s ostensible agents. For example, in Thompson v. Nason Hospital,
7 a Pennsylvania
court recognized that hospitals are more than mere conduits through which
health care professionals are brought into contact with patients. Hospitals
owe some nondelegable duties directly to their patients independent of the
negligence of their employees, such as duties to use reasonable care in the
maintenance of safe and adequate facilities and equipment; select and
retain only competent physicians; oversee all persons who practice
medicine within their walls as to patient care; and formulate, adopt, and
enforce adequate rules and policies to ensure quality care for their patients.
CASE: DARLING—HEALTH CARE’S BENCHMARK CASE
In 1965, the landmark case Darling v. Charleston Community Memorial
Hospital had a major impact on the liability of health care organizations. 8
The court enunciated a “corporate negligence doctrine” under which hospitals have a duty to provide adequately trained medical and nursing
staff. A hospital is responsible, in conjunction with its medical staff, for
establishing policies and procedures for monitoring the quality of medicine
practiced within the hospital.
Darling involved an 18-year-old college football player who was
preparing for a career as a teacher and coach. The patient, a defensive
halfback for his college football team, was injured during a play. He was
rushed to the emergency department of a small, accredited community
hospital where the only physician on emergency duty that day was Dr.
Alexander, a general practitioner. Alexander had not treated a major leg
fracture for 3 years.
The physician examined the patient and ordered an X-ray that revealed
that the tibia and the fibula of the right leg had been fractured. The
physician reduced the fracture and applied a plaster cast from a point 3 or
4 inches below the groin to the toes. Shortly after the cast had been
applied, the patient began to complain continually of pain. The physician
split the cast and continued to visit the patient frequently while the patient
remained in the hospital. Not thinking that it was necessary, the emergency
department physician did not call in a specialist for consultation.
After 2 weeks, the student was transferred to a larger hospital and
placed under the care of an orthopedic surgeon. The specialist found a
considerable amount of dead tissue in the fractured leg. During the next 2
months, the specialist removed increasing amounts of tissue in a futile
attempt to save the leg until it became necessary to amputate the leg 8
inches below the knee. The student’s father did not agree to a settlement and filed suit against the emergency department physician and the hospital.
Although the physician later settled out of court for $40,000, the case
continued against the hospital.
The documentary evidence relied on to establish the standard of care
included the rules and regulations of the Illinois Department of Public
Health under the Hospital Licensing Act; the standards for hospital
accreditation, today known as the Joint Commission; and the bylaws, rules,
and regulations of Charleston Hospital. These documents were admitted
into evidence without objection. No specific evidence was offered that the
hospital had failed to conform to the usual and customary practices of
hospitals in the community.
The trial court instructed the jury to consider those documents, along
with all other evidence, in determining the hospital’s liability. Under the circumstances in which the case reached the Illinois Supreme Court, it was
held that the verdict against the hospital should be sustained if the
evidence supported the verdict on any one or more of the 20 allegations of
negligence. Allegations asserted that the hospital was negligent in its
failure to (1) provide a sufficient number of trained nurses for bedside care
of all patients at all times, in this case, nurses who were capable of
recognizing the progressive gangrenous condition of the plaintiff’s right leg, and (2) failure of its nurses to bring the patient’s condition to the attention of the hospital administration and staff so that adequate
consultation could be secured and the condition rectified.
Although these generalities provided the jury with no practical
guidance for determining what constitutes reasonable care, they were
considered relevant to helping the jury decide what was feasible and what
the hospital knew or should have known concerning hospital
responsibilities for the proper care of a patient. There was no expert
testimony characterizing when the professional care rendered by the
attending physician should have been reviewed, who should have reviewed
it, or whether the case required consultation.
Evidence relating to the hospital’s failure to review Alexander’s work, to require consultation or examination by specialists, and to require proper
nursing care was found to be sufficient to support a verdict for the patient.
Judgment was eventually returned against the hospital in the amount of
$100,000.
The Illinois Supreme Court held that the hospital could not limit its
liability as a charitable corporation to the amount of its liability insurance.
[T]he doctrine of charitable immunity can no longer stand . . . a
doctrine which limits the liability of charitable corporations to the
amount of liability insurance that they see fit to carry permits them to
determine whether or not they will be liable for their torts and the
amount of that liability, if any. 9
In effect, the hospital was liable as a corporate entity for the negligent
acts of its employees and physicians. Among other things, the Darling case
indicates the importance of instituting effective credentialing and
continuing medical evaluation and review programs for all members of a
professional staff.
Ethical and Legal Issues
1. Describe the legal issues in this case.
2. Describe how the hospital failed in its ethical duty to the patient.
CORPORATE DUTIES AND RESPONSIBILITIES
Along with the corporate authority that is granted to the governing body,
duties are attached to its individual members. These responsibilities are
considered duties because they are imposed by law and can be enforced in
legal proceedings. Governing body members are considered by law to have
the highest measure of accountability. They have a fiduciary duty that
requires acting primarily for the benefit of the corporation. The general
duties of a governing body are both implied and express. Failure of a
governing body to perform its duties may constitute mismanagement of
such a degree that the appointment of a receiver to manage the affairs of
the corporation may be warranted.
The duty to supervise and manage is applicable to the trustees as it is to
the managers of any other business corporation. In both instances, there is a
duty to act as a reasonably prudent person would act under similar
circumstances. The governing body must act prudently in administering the
affairs of the organization and exercise its powers in good faith.
REALITY CHECK: Ensuring Integrity
Jim, the administrator of General Hospital, was reviewing his mail and
reports placed in his inbox by Carol, his secretary. He noticed a copy of
correspondence that had been forwarded to him from the corporate
office. The letter, describing a donation that had been made, read:
Dear John,
The care received at your East campus was outstanding. As a
result, I am forwarding to your offices a check in the amount of
$500,000,
Sincerely,
After reading his morning mail and reports, Jim placed the letter in
his outbox for filing. Carol later picked up Jim’s mail and other reports
from his outbox. Later that afternoon, Carol walked back into Jim’s office and inquired, “Did you read this letter forwarded to you from the corporate office?” Handing it to Jim, he replied, “Yes, I read it.” Carol then asked, “Do you see anything that piqued your curiosity in this letter?” Jim replied that he had not. Carol, pointing at a strip of whiteout tape, urged Jim to look more closely. She then asked Jim to
turn the letter over and read the words the tape was covering. He turned
the letter over, noting what the letter had said. It appeared that only a
copy had been meant for Jim, not the original correspondence. With the
missing words inserted, the correspondence read:
Dear John,
The care received at your East campus was outstanding. As a
result, I am forwarding to your offices a check in the amount of
$500,000, earmarked for capital projects at your East campus.
Sincerely,
Discussion
1. Discuss why the whiteout tape might have been placed over the
words, “earmarked for capital projects at your East campus.” Take into account the comma placed prior to the word “earmarked.”
2. What action should Jim take? Remember that Jim could not
absolutely determine who placed the whiteout tape on the
correspondence, the letter’s author or some other unknown person. 3. Assuming Jim sent a memo to the corporate chief financial officer
(CFO) to inquire what happened to the donated funds, should the
CFO respond to Jim? In what way?
4. Assuming that the CFO failed to respond to Jim, should Jim take
any further action, and, if so, what action should he consider?
Appoint a CEO
Members of the governing body are responsible for appointing a chief
executive officer (CEO) to act as their agent in the management of the
organization. The CEO is responsible for the day-to-day operations of the
organization. The individual selected as CEO must possess the competence
and the character necessary to maintain satisfactory standards of patient
care within the organization.
The responsibilities and authority of the CEO should be expressed in an
appropriate job description, as well as in any formal agreement or contract
that the organization has with the CEO. Some state health codes describe
the responsibilities of administrators in broad terms. They generally
provide that the CEO/administrator shall be responsible for the overall
management of the organization.
The general duty of a governing body is to exercise due care and
diligence in supervising and managing the organization. This duty does not
cease with the selection of a CEO. A governing body can be liable if the
level of patient care becomes inadequate because of the governing body’s failure to supervise properly the management of the organization. CEOs,
like board members, can be personally liable for their own acts of
negligence that injure others.
CEO Challenges and Responsibilities
Listed below are but a few of the many challenges and responsibilities that
apply to all managers and CEOs. They are expected to:
• Show support and respect to all physicians and staff, knowing that as a team they are the ones who provide bedside care.
• Make daily rounds in the organization. Fix the things they can and find a way to fix the things they think they cannot.
• Develop friendships and supporters who can help the organization to meet those extraordinary goals.
• Implement community caring programs. Reach out, teach, and educate all members of the community on preventative care.
• Not be influenced by power brokers simply because of their position. CEOs and managers must do the right thing, all the time—not in a vacuum, but as a team.
• Show respect to all persons. Treat consultants, accreditation representatives, and inspectors on all levels (e.g., federal, state, local, and
private) with respect, knowing that they are all there to help the
organization become better in its delivery of patient care.
REALITY CHECK: Truthfulness Can Shed Light on Character
This is a true story of a CEO who rudely left a briefing being conducted
by a group of consultants. Consultants had been hired to review the
quality of care being delivered at the hospital where he was employed.
The CEO was unhappy with the report because it contained a list of
things that needed to be addressed to improve the quality of patient
care. As the CEO started to leave the room, he abruptly turned and said,
“This is not just about the hospital! This is about my job!” His managers then rose and followed him out of the room, without looking
back—no goodbyes, just stone-cold faces.
Discussion
1. Using the Socratic method of dialogue, emphasizing discussion and
debate, delve into the values described in this text, and apply them
as you observe how they were present or lacking in this case.
2. Discuss how you might present recommendations to your employer
so as not to threaten or intimidate but to educate and bring about
change for the better. Always remember that it is not always what is
said but how it is said.
CEO Code of Ethics
The following is the preamble to the Code of Ethics of the American
College of Healthcare Executives (ACHE): 10
The purpose of the Code of Ethics of the American College of
Healthcare Executives is to serve as a standard of conduct for affiliates.
It contains standards of ethical behavior for health care executives in
their professional relationships. These relationships include colleagues,
patients, or others served; members of the health care executive’s organization and other organizations, the community, and society as a
whole.
The Code of Ethics also incorporates standards of ethical behavior
governing personal behavior, particularly when that conduct directly
relates to the role and identity of the health care executive.
The fundamental objectives of the health care management
profession are to maintain or enhance the overall quality of life, dignity,
and well-being of every individual needing health care service; and to
create a more equitable, accessible, effective, and efficient health care
system.
Health care executives have an obligation to act in ways that will
merit the trust, confidence, and respect of health care professionals and
the general public. Therefore, health care executives should lead lives
that embody an exemplary system of values and ethics.
In fulfilling their commitments and obligations to patients or others
served, health care executives function as moral advocates and models.
Since every management decision affects the health and well-being of
both individuals and communities, health care executives must
carefully evaluate the possible outcomes of their decisions. In
organizations that deliver health care services, they must work to
safeguard and foster the rights, interests, and prerogatives of patients or
others served.
The role of moral advocate requires that health care executives take
actions necessary to promote such rights, interests, and prerogatives.
Being a model means that decisions and actions will reflect
personal integrity and ethical leadership that others will seek to
emulate.
REALITY CHECK: CEO Warned Not to Appoint Jewish ED
Director
It was a Monday morning. Jack remembers it well. As an administrator
of one hospital in a multi-hospital system, Jack was settling into his
office when his secretary put through a call from Gerard, the CEO, who
was settling into his plush office at corporate headquarters. He said, “I understand you are interviewing the final three candidates today for the
emergency department director opening.” Jack replied, “Yes, I am.” Gerard said, “He has to be a Christian.” Jack interrupted, “I don’t understand what you are saying.” Gerard responded, “This is what the board wants. There are too many Jewish medical directors.” Jack, not pleased with his answer, said, “This is what the board wants?” Gerard, again quickly interrupting, said, “Well no, it’s what I want.” Jack, not believing that Gerard made this decision on his own, replied, “First of all, the selection of director is being conducted by a search committee
that includes myself and the other medical directors as well as
representatives from the general medical staff. The final decision is the
consensus of that committee.” Gerard replied, “You are the administrator, and you can pick who you want.” Jack responded, “Who I want is the most qualified person for the position.” Gerard replied, “You got my message,” and he abruptly hung up the phone.
That afternoon after interviewing the final candidates, the entire
search committee unanimously agreed to select the physician they
considered most qualified, a person who happened to be Jewish.
Later that week, Jack decided to take a vacation day to celebrate the
Feast of San Gennaro in New York City. He received a call on his cell
phone. Jack answered, and his secretary said, “Gerard wants to see you in his office on Monday morning.” Jack said, “I can tell from your voice: it sounds ominous?” She said, “I think it is.”
On Monday morning, Gerard said, “I am planning to move you to the corporate office. I need your skills here.” The corporate office often was jokingly referred to as the deep, dark hole. This was a place where
people seemed to disappear from the face of the earth, never to be heard
from again.
Jack said, “I really prefer to stay at the hospital as the administrator.” Gerard replied, “That’s not an option.” Jack said, “Is this about the selection of the emergency department director? Because
the doctor is Jewish?” Gerard said, “Now why would you think that?” Gerard, pausing for a moment, continued, “I really need your skills here.” Jack replied, “As you probably remember, I have a recorder on my phone. Your conversation about the selection of an emergency room
director was very clear.”
Discussion
1. Discuss what you believe to be the ethical issues of this case. Do
you think that such this scenario could occur in today’s modern hospital?
2. What should Jack do, assuming he really did tape the conversation?
If he had not done so, would that change your mind as to what he
should do? Discuss your answer.
Make Medical Staff Appointments
Staff privileges are both professionally and economically important to
health care professionals in the practice of their chosen professions. Health
care organizations must be selective in granting staff privileges to maintain
quality standards.
The governing board of a hospital must therefore be given great latitude
in prescribing the necessary qualifications for potential applicants. Because
no court should substitute its evaluation of professional competency for
that of a hospital board, a court’s review should be limited to ensuring that the qualifications imposed by a board are reasonably related to the
operation of the hospital and fairly administered.
REALITY CHECK: Disruptive Physician
Stephen, a hospital consultant, selected a complex case on the tenth-
floor orthopedic unit for review. Stephen reviewed the patient’s record. Following several questions about the patient’s care, a staff nurse asked, “Would you like Dr. Smart, the orthopedist, to discuss this case with you?” Stephen said, “Sure, that will be fine.”
Dr. Smart soon arrived and appeared a bit disturbed that he had
been summoned. Stephen introduced himself as a consultant and said
that he just had a few questions he would like to ask. Stephen asked Dr.
Smart which diagnoses the patient related to the organization at the
time of admission and which diagnoses were made during the course of
the patient’s hospitalization. Dr. Smart said, “I am treating the patient for her orthopedic problems, not all of these other diagnoses.” Following a few questions with the physician, Stephen asked to
interview the patient.
Dr. Smart said, “OK.” Stephen asked, “Could you please ask the patient if I could speak with her?” Dr. Smart said, “That’s not necessary.” Dr. Smart and Stephen walked to the entrance of the
patient’s room. Stephen waited outside the patient’s room. Dr. Smart walked into the patient’s room, returned to the hallway, and said, “The patient was sleeping, but I woke her up.”
Upon entry to the patient’s room, realizing Dr. Smart had forgotten Stephen’s name, Stephen introduced himself to the patient. Dr. Smart asked Stephen if he wanted him to leave the room. Stephen, politely,
said, “You can stay if you would like.” The patient said, “Oh, I know what you do. My husband is a nurse.”
Stephen smiled and asked about her care. She said that it was excellent.
She said the food could be better but she was pleased with her overall
care. She talked about her hip fracture and back problems. Dr. Smart,
interrupting the conversation, proceeded to tell the patient about her
orthopedic issues. He described in explicit and frightening detail how
the discs in her back were collapsing and how things could progress
and how she could eventually be confined to a wheelchair.
Following his brief conversation with the patient, Stephen said,
“You will be all right.” The patient smiled and said, “Thank you.” Upon leaving the room, Dr. Smart asked, “What kind of doctor are
you?” Stephen replied, “I am not a doctor; I am a consultant.” Not having listened to Stephen’s answer, Dr. Smart said in a threatening manner, with his eyes darting, just outside the patient’s room, “Don’t you ever tell one of my patients they are going to be OK!” Stephen said calmly, “I was not speaking clinically; I was relating a compassionate goodbye to the patient.” Stephen then extended his hand to Dr. Smart, saying, “Thank you for your time.” Dr. Smart shook Stephen’s hand and then quickly walked away down the corridor.
Discussion
1. What action, if any, should the hospital consider taking to
investigate the physician’s behavior? Discuss your answer. 2. What information should Stephen share with the corporate leaders,
if any? Discuss your answer.
Screen Job Applicants
NEWSPAPER CLIPPINGS: Did Hospitals “See No Evil”?
(CBS) When police in New Jersey arrested a male nurse named Charles
Cullen last year, he made a terrible claim. He said he’d killed as many as 40 patients during the course of his nursing career.
The question remains: How could Cullen have worked at 10
different hospitals in New Jersey and Pennsylvania, over a period of 16
years-despite the fact that at seven of those hospitals, he was under
investigation, fired or forced to resign?
Apparently, not one of those institutions gave Cullen a bad
reference, or told other hospitals he was trouble. It amounted to a policy
of “See no evil-speak no evil”—one that gave Cullen, in effect, a license to kill.
Rebecca Leung, CBSNews.com, December 5, 2007
NEWSPAPER CLIPPINGS: Job Applicants Not Always Screened
Despite the danger of hiring an employee who might jeopardize
assisted living residents, some facilities neglect background screening
of new workers.
More than 1 in 10 facilities inspected by state regulators in seven
states during a two-year period within 2000-2002 picked up at least one
citation for neglecting background checks on prospective
caregivers. . . .
Kevin McCoy, USA Today, May 26, 2004
Employers have a duty to thoroughly screen job applicants. This duty
includes a responsibility to obtain reliable references. In addition to written
references this may involve phone calls to employers and background
checks. In light of the increase in the number of applicants presenting
fraudulent credentials and the resulting harm suffered by patients, as
described previously here, the courts are not tolerant of negligent hiring
practices.
False Statements
In Hoxie v. Ohio State Med. Bd., it was determined that a physician had
made false statements concerning his criminal history when he stated in a
deposition that he had never been arrested. There was sufficient evidence
presented to support permanent revocation of his license to practice
medicine. Certified records held by the state of California indicated that the
physician had been arrested or detained by the Los Angeles Police
Department multiple times in the 1970s and 1980s for possessing
marijuana and PCP, for driving under the influence of alcohol and/or drugs,
and for driving with a suspended license. Although the physician asserted
that documentation of his criminal past had been fabricated by police and
was not credible, law enforcement investigation reports are generally
admissible. The physician himself added to the reliability of the records by
verifying all significant identifying information contained within the
documents and records. 12
Supervise the Medical Staff
A hospital and its governing body were determined to be immune from
liability under the federal Health Care Quality Improvement Act of 1986 in
Taylor v. Kennestone Hosp., 13
for claims arising out of their decision to
deny a physician’s application to renew his medical staff privileges. A peer-review board found that reasonable investigation had adduced
evidence demonstrating that the physician had a history of sexual
misconduct toward both nurses and patients. He admitted that he had
sexual harassment problems, that he stopped seeing patients at the hospital,
and that he sought psychiatric treatment. He admitted that he failed to
comply fully with his own psychiatrist’s plan of care before he resumed seeing patients in the hospital. The evidence established that the peer
reviewers could reasonably believe that their actions were warranted and
that those actions furthered the quality of health care.
Allocate Scarce Resources
NEWSPAPER CLIPPINGS: MDs Weigh Action over Hospital $$
A suit may be in the offing blocking the . . . [multi-system corporation]
from pumping profits made by its [community hospital] into
the . . . [system’s] two financially-ailing sister hospitals. . . .
“It’s a matter of going to the operating room and finding that a particular piece of equipment isn’t working, or finding that certain items are not up to date.”
Although . . . [system] officials would not comment, sources close to
the scene say the . . . [system] will maintain that it has the right to
spend as it sees fit.
Vicky Penner Katz, Smithtown News, July 24, 1980
NEWSPAPER CLIPPINGS: . . . Says Hospitals Won’t Fail
The . . . [system] has been siphoning funds from the financially
stable . . . hospital to make up deficits at the two other hospitals, which
have a large volume of charity cases. The drain has
angered . . . [community] physicians, who complain that it has caused
staff and supply shortages.
Nearly 100 vendors have stopped dealing with the hospital. . . .
Neil S. Rosenfeld, Newsday, January 22, 1981
It is the responsibility of each organization’s governing body, and not the legal system, to provide appropriate staffing and provide adequate
supplies and equipment for patients. Although the courts do not overlook
the importance of maintaining adequate levels of patient care, it is not the
job of the courts to referee disagreements. For example, a disagreement
between the governing body and the local community as to how to allocate
limited resources is not a question for the courts to settle. Questions of this
sort often involve ethical principles and values. How to spend limited
resources that provide good for the many is a value judgment, not a legal
decision. Hospitals are in the business of serving patients with many kinds
of illnesses and disabilities. Recognizing that the medical community is
best equipped to conduct the balancing that medical resource allocations
inevitably require, Congress has declined to give courts a mandate to
arbitrate allocation disputes. 14
REALITY CHECK: Allocating Scarce Funds from Operations to
Capital Projects
At a time when many hospitals were on the brink of bankruptcy and
struggling to survive, Brad, the administrator of a hospital in a multi-
hospital system, had a positive bottom line in the millions. The hospital
was located in an upscale, affluent community. Unfortunately, the
money was siphoned off to support the operations and capital projects
of other hospitals in the system. Meanwhile, Brad’s hospital was suffering from lack of supplies and funds for local capital projects.
The physicians and many community members, aware of the
positive bottom line, were disturbed that the hospital’s funds from operations and donations were being earmarked to fund the day-to-day
operations of the system’s failing hospitals. In addition, at a time when these hospitals were losing money, funds from Brad’s hospital were
being earmarked for major building projects in these hospitals, as well
as, corporate office projects.
It was like trying to squeeze blood out of a stone to get people to
donate to their own community hospital. The community had no trust
their donations would stay in the community.
Corporate leadership was expanding its capital projects, expanding
non-revenue-producing projects, relocating corporate offices to a more
expensive site, building lavish suites, adding staff with vague job
descriptions that only served to burden and penalize the revenue-
producing entities, and jeopardizing patient care with their pet projects
by deluging hospital staff with paperwork so they could produce even
more paperwork to justify their own existence. Hospital staff felt that
corporate staff had become an obstacle to the provision of quality
patient care. No relief from battlefield fatigue seemed to be on the
horizon.
Brad was able to work with some local community leaders (e.g.,
banker, lawyer, physician, newspaper editor, real estate agent) to
establish a fundraising board whose mission was to oversee the local
fundraising process and assure the proper allocation of community
funds to the local hospital. Although many corporate leaders privately
objected to the concept, the corporate board reluctantly recognized the
community board’s existence, hoping to make inroads into the pockets of the wealthy. With half-hearted support by the corporation’s leadership, the death of many of the founding fathers of the community
board, and the resignation of Brad, who had developed the trust and
provided the leadership, the community board slowly faded out of
existence under the leadership of the administrators that followed him.
Discussion
1. Discuss the ethical issues related to Brad’s dilemma regarding cash flow to other entities in the corporation. Do you consider this an
isolated incident or an all too frequent occurrence with the rise of
multi-hospital systems? Explain your answer.
2. Discuss what steps you would take to resolve the resource
allocation issues if you were in Brad’s position.
3. Discuss the community’s reluctance to donate to the local hospital. What would you do?
Comply with Applicable Rules and Regulations
The governing body in general and its agents are responsible for
compliance with federal, state, and local rules and regulations regarding the
operation of the organization. Depending on the scope of the wrong
committed and the intent of the governing body, failure to comply could
subject board members and/or their agents to civil liability and, in some
instances, to criminal prosecution. The following reality check describes
what can happen when an organization fails to comply with the provisions
of the Family and Medical Leave Act (FMLA).
REALITY CHECK: Noncompliance with the FMLA
The FMLA of 1993 was enacted to grant temporary medical leave to
employees up to a total of 12 work weeks of unpaid leave during any
12-month period for such things as the birth and care of an employee’s child, the care of an immediate family member with a serious health
condition, or the inability to work because of a serious health condition.
After an FMLA leave, the employee’s job—or an equivalent job with equivalent pay, benefits, and other terms and conditions of employment
—must be restored. Ten CEOs and human resource directors were randomly queried to
determine their compliance with the FMLA. Specifically, in 9 of the 10
organizations queried, a nurse, for example, would be returned to her
same or a similar position without financial penalty (e.g., pro-rated
salary increase) after her return from family leave.
On appeal by the employee to the United States Department of
Labor, this organization was required to reimburse the employee for
lost wages unlawfully withheld from the employee during the year in
which family leave had been taken.
Discussion
1. Discuss what recourse the employee has when faced with
discriminatory practices, both within the corporation (e.g., register
a complaint with the organization’s human resource department and/or compliance officer) and outside the corporation (e.g., file a
complaint with the Department of Labor).
2. Such activities raise both legal (e.g., interpretation of the law) and
ethical issues (e.g., nonmaleficence and the principle of justice).
Discuss the issues.
Comply with Joint Commission Standards
The governing body, if accredited by the Joint Commission, is responsible
for compliance with applicable standards promulgated by the Joint
Commission. Noncompliance could cause an organization to lose
accreditation, which in turn would provide grounds for third-party
reimbursement agencies (e.g., Medicare) to deny payment for treatment
rendered to patients.
Provide Timely Treatment
NEWSPAPER CLIPPINGS: Doctor’s Suit Faults Care at 2 Clinics
Two medical clinics run by Catholic Charities provided substandard
care to poor immigrants in Maryland and the District, failing to
promptly treat emergency cases, properly process and monitor critical
lab tests, and reliably document serious errors, according to a lawsuit
filed by a former clinic doctor.
Lena H. Sun, The Washington Post, April 7, 2011
Health care organizations can be held liable for delays in treatment that
result in injuries to their patients. For example, the patient in Heddinger v.
Ashford Memorial Community Hospital 15
filed a malpractice action against
a hospital and its insurer, alleging that a delay in treating her left hand
resulted in the loss of her little finger. Medical testimony presented at trial
indicated that if proper and timely treatment had been rendered, the finger
would have been saved. The U.S. District Court entered judgment on a jury
verdict for the plaintiff in the amount of $175,000. The hospital appealed,
and the U.S. Court of Appeals held that even if the physicians who
attended the patient were not employees of the hospital but were
independent contractors, the risk of negligent treatment was clearly
foreseeable by the hospital.
REALITY CHECK: Waiting for a Neurological Consult
Speaking to Gary, his best friend from high school, Ryan related his
first hospital experience. Ryan said, “I have to wait 6 months for a neurology consultation.” Gary said to Ryan, “That’s too long of a wait. If you need a neurological consultation, a lot could happen over 6
months.” Ryan replied, “I know. They told me that if I needed to be seen sooner, they would take me to a local hospital. I discussed my
concern with 3 different people from the hospital. I finally gave up and
am just waiting to go their chosen medical center for the consult. All
three of the staff members were so argumentative. I just couldn’t believe it. Basically I just gave in and said, ‘OK, schedule me whenever.’ My dad and mom were more upset. Maybe I am just too naive.”
Discussion
1. Should Ryan pursue obtaining an earlier consult? Discuss your
answer.
2. What action should the organization pursue in order to obtain
timely care for its patients?
AVOID CONFLICTS OF INTEREST
A conflict of interest involves situations where a person has the opportunity
to promote self-interests that could have a detrimental effect on an
organization with which he or she has a special relationship (e.g.,
employee, board member). The potential for conflict of interest exists for
individuals at all levels within an organization. Disclosure of potential
conflicts of interest should be made so that appropriate action may be taken
to ensure that such conflict does not inappropriately influence important
organization and health care decisions. Board members, physicians, and
employees are required by most organizations to submit a form disclosing
potential conflicts of interest that might negatively impact the
organization’s reputation or financial resources.
Is Your Surgeon Being Bribed?
NEWSPAPER CLIPPINGS: Suspicious Consulting Fees
About 800,000 Americans will get a new hip or knee this year, up 63%
from 491,000 in 2001. Now a U.S. Department of Justice investigation
reveals that many orthopedic surgeons have been pocketing hundreds of
thousands of dollars in “consulting fees” with the understanding that they would implant a particular company’s device—even if it wasn’t the best choice for a patient.
The country’s top five medical device makers, which account for nearly 95% of the knee and hip implants on the market, have been
implicated.
Catherine Guthrie, Oprah Magazine, May 2008
CASE: CORPORATE COVER-UP
The case of Advocat, Inc. v. Sauer 16
involved the care of Mrs. Sauer, a 93-
year-old nursing facility patient. On July 19, 1998, her vital signs began to
decline, and the nursing staff reported this to her treating physician, who
ordered that she be taken to the emergency department at a nearby medical
center. She arrived at the hospital in a semicomatose condition and died
about 16 hours later.
Nursing notes indicated that Sauer had lost 15 pounds in the previous
month and was in need of a feeding tube. There were signs of bedsores on
her body caused by lying in urine and excrement. Sauer’s estate sued for damages.
The trial began and lasted eight days, with 28 witnesses testifying and
24 binders of exhibits. At the trial’s conclusion, the jury retired to consider
four counts: ordinary negligence, medical malpractice, breach of contract,
and wrongful death. The jury returned a verdict for the Sauer Estate on all
counts. Total damages amounted to more than $78 million. On appeal, the
appellants argued that the damage awards for negligence and medical
malpractice were grossly excessive.
The appellants argued that long-term care surveys conducted at the
facility had been admitted into evidence over their objection. They claimed
that the survey results inflamed the jury because the surveys were replete
with statements that there was not enough help in the nursing home to
feed, bathe, or clean residents.
They further argued that testimony submitted by witnesses that the
nursing home had engaged in “false charting” to show more staff than were actually present was prejudicial, because it suggested that the
appellants had staffing inadequacies that they tried to conceal from the
state.
Sauer died of severe malnutrition and dehydration. There was evidence
presented that she was found at times with dried feces under her
fingernails from scratching herself while lying in her own excrement. At
other times, staff did not get her out of her bed as they should have. Often,
Sauer’s food tray was found in her room, untouched, because there was no staff member at the nursing home available to feed her. She was not
provided with range-of-motion assistance when the facility was short of
staff.
Sauer had pressure sores on her back, lower buttock, and arms. A
former staff member remembered seeing Sauer at one time with an open
pressure sore the size of a softball. At times, she had no water pitcher in
her room, nor did she receive a bath for a week or more because of
shortage of staff. Sauer was found to suffer from poor oral hygiene, having
caked food and debris in her mouth.
The appellate court found that the jury verdicts were not based on
passion or prejudice. There was ample testimony and evidence to
demonstrate that plaintiff’s decedent suffered considerably and was not properly cared for in the nursing home, that the home was short-staffed,
and that the home tried to cover this up by “false charting” and by bringing in additional employees on state inspection days. All of that served to
support the estate’s case that the nursing home knew it had staffing
problems and committed negligence as to the decedent because it was
short-staffed due to cutbacks.
The appellate court found that the circuit court abused its discretion by
not granting a new trial due to excessive damages.
Ethical and Legal Issues
1. Describe the ethical and legal issues presented this case.
2. According to a federal study, nearly 90% of the nation’s nursing homes are poorly staffed and find it difficult to provide basic services, such as
cleaning, dressing, grooming, and feeding their residents. 17
Assuming
the accuracy of this number, discuss how you would distribute limited
dollars to address this issue. Consider how your decision may affect
the allocation of funds to other health-related programs (e.g.,
immunizations, prenatal care, and preventative medicine). Assume that
no new dollars can be allocated for the new health care budget year.
Provide a Safe Environment
NEWSPAPER CLIPPINGS: Hospital Errors Common and
Underreported
Sorrel King’s 18-month-old daughter Josie was recovering from second-degree burns at Johns Hopkins Hospital in Baltimore when a
communication breakdown caused a deadly misstep.
As King watched, a nurse gave Josie a methadone injection despite
verbal orders to the contrary, assuring King that the order had been
changed.
Josie, who was about to be released from the hospital, went into
cardiac arrest.
“I took one look at her, ran into the hallway, and screamed for help,” King said.
Josie died two days later.
Hospital errors, like the one that led to Josie’s death, are common. As many as one-third of hospital visits leads to hospital-related injuries,
according to a report published today in Health Affairs.
Katie Moisse, ABC News Medical Unit, April 7, 2011 18
Hospitals are required to provide a safe environment for patients,
visitors, and staff. Safety concerns in hospitals flow from general
mechanical safety to direct patient care in the operating room.
NEWSPAPER CLIPPINGS: Efforts to End Surgeries on Wrong
Patient or Body Part Falters
“Health care has far too little accountability for results. . . . All the pressures are on the side of production; that’s how you get paid,” said Hopkins’s [Peter] Pronovost [safety expert and medical director of the John Hopkins Center for Innovation in Quality Patient Care], who adds
that increased pressure to turn over operating rooms quickly has
trumped patient safety, increasing the chance of error.
Sandra G. Boodman, Kaiser Health News, June 20, 2011 19
NEWSPAPER CLIPPINGS: Drug Overuse Threatens Nursing
Home Residents
More than five years after the federal government warned that drugs
routinely prescribed to nursing-home residents posed serious threats,
including an increased risk of death, inappropriate use remains high,
according to a recent analysis by the American Society of Health-
System Pharmacists (ASHP).
Consumer Reports, December 2010
It is essential that employers provide a safe environment for patients,
visitors, and employees. Although one cannot guard against the
unforeseeable, a health care organization is liable, as noted in the case
below, for injuries resulting from dangers that it knowingly failed to guard
against or those that it should have known about and failed to guard
against. An organization has a duty to safeguard the welfare of its patients,
even from harm by third persons, and that duty is measured by the ability
of the patient to provide for his or her own safety.
CASE: CHALLENGING THE OBVIOUS:
RUNAWAY ELEVATOR
Approximately 100 years ago, the Maryland Court of Appeals held that
one who “is engaged in the undertaking of running an elevator as a means of personal transportation” is required to use the “highest degree of care and diligence practicable under the circumstances,” which is the same standard that common carriers are required to meet.
On August 30, 2000, Jane Correia was a passenger in an elevator
owned and operated by Johns Hopkins Health Services Company and
Johns Hopkins Hospital. The elevator came to a sudden stop because of a
mechanical defect. Due to injuries allegedly caused by this malfunction,
Mrs. Correia and her husband sued Johns Hopkins, and others, in the
Circuit Court for Baltimore City for negligence. A jury considered the
matter in October 2005.
The Correias introduced evidence that showed that, in the six months
prior to the accident, Johns Hopkins had received thirty-two complaints
about the elevator Mrs. Correia was in when the accident occurred. The
thirty-two complaints, if accurate, indicated that at various times prior to
the accident the elevator was dropping, jumping, jerking, skipping, and
sometimes trapping passengers.
At the end of a nine-day trial, the court gave the jury the following
instruction:
The owner of a passenger elevator, in this case . . . Johns Hopkins is
the owner of the passenger elevator, is bound to exercise to the highest
degree of care and skill and diligence . . . practicable under the
circumstances to guard against injury to individuals riding on those
elevators. This rule of law applies to the owner of the elevator only. It
does not apply to the service company [co-defendant] Schindler
[Elevator Company].
The jury returned a verdict in favor of Mrs. Correia in the amount of
$264,500 and a separate $35,500 verdict in favor of Mr. and Mrs. Correia,
jointly, for loss of consortium. Both verdicts were against Johns Hopkins;
the jury found that co-defendant Schindler Elevator Company was not
negligent.
Johns Hopkins appealed, contending, among other things, that the trial
judge committed reversible error in giving the instruction quoted above.
On appeal, the Maryland Court of Appeals held that, from the record, it
did not appear that this was a “close case” as to whether Johns Hopkins exercised the highest degree of care for Mrs. Correia’s safety. There was strong evidence that it had not met its duty, especially in light of the
numerous complaints about the elevator in the six months prior to the
accident. The case, it appears, was “close” as to the issue of causation in that there was room for doubt as to whether an abrupt stop of a low-speed
elevator could have caused the extensive injuries claimed.
The Court of Special Appeals of Maryland determined that the trial
judge did not abuse his discretion in denying the motion for mistrial. The
judgment was affirmed, with costs to be paid by Johns Hopkins Hospital
and John Hopkins Health Service Company. 20
Discussion
1. Do you believe that this case should have been settled out of court?
Discuss your answer.
2. Looking at the pillars of moral strength (Appendix A, Figure A-1),
how would you have handled this case? Discuss your answer.
Patient Fall
The patient in Thomas v. Sisters of Charity of the Incarnate Word 21
fell
three stories to his death after he became locked out on the hospital roof
and sat on a ledge in an apparent attempt to attract someone to get
assistance. The trial court found that the fire exit configuration that allowed
the patient access to the roof created an unreasonable risk of harm that was
in fact the cause of his death.
There was testimony that the lack of signage violated both the Life
Safety and 1988 Standard Building Codes. Standard building code required
that signs direct an individual to the exit discharge or ultimate exit to the
outside of the building. A lack of signage also violated hospital policy
requiring that the roof should have been marked as a restricted area. The
exit configuration was unsafe for either ordinary or emergency use because
of the confusion encountered by an individual locked out of the building
without any direction or instruction on where to go. Given the hospital’s duty regarding this exit, its breach of that duty was clear. The door to the
roof contained no warning that it would lock the patient out of the building
if he exited. Whether the patient exited the building voluntarily or out of
momentary confusion, the hospital breached its duty to warn him that he
would be locked out and to direct him across the catwalk to the fire exit
stairwell.
CASE: SEXUAL ASSAULT IN THE RECOVERY
ROOM
The plaintiff, a young woman, was recovering from vaginal surgery, when
she was sexually assaulted by a surgical resident employed by the hospital.
There is no dispute about the assault or the resident’s liability. The question here is whether the hospital may be liable under a theory of
vicarious liability or for negligence in its duty to protect the plaintiff.
The plaintiff, under the effects of anesthesia following surgery, was
placed in a small four-bed recovery room. Nurse R, accompanied by
another nurse, admitted the plaintiff to the unit and monitored her vital
signs. Minutes later, the nurses turned their attention to a second patient
who had been placed on an adjacent bed two feet away and were soon
joined by Nurse G, their supervisor. Privacy curtains between the plaintiff
and the second patient had not been drawn.
A surgical resident wearing hospital scrubs and an identification badge
entered the recovery room and went to the plaintiff’s bed. He was not one of the physicians listed on the plaintiff’s chart, and none of the nurses knew him. According to the plaintiff, she awoke to find the resident
pulling up her hospital gown and performing an “internal pelvic exam,” which was con-traindicated in light of the nature of the plaintiff’s surgery. The plaintiff tried to sit up and cover herself with the gown and repeatedly
asked him to stop. On her third plea, the physician hastily began to leave
the recovery room. After the plaintiff complained to the nurses about what
had taken place, the supervising nurse confronted the resident, who
admitted that he had examined the plaintiff without the presence of a
female witness, as required by hospital rules. After an investigation, the
hospital terminated the resident.
The Appellate Division Majority reasoned that a direct negligence
claim must fail because the resident’s misconduct was not foreseeable. The court also dismissed the vicarious liability claim against the hospital
because the physician was acting outside the scope of his authority.
Two dissenting judges disagreed with the majority. They noted that the
majority’s holding on the direct negligence cause of action failed to consider the actual foreseeability of harm, indicated by observations the
hospital staff could or should have made at the time immediately preceding
the actual wrongdoing.
Nurse R had acknowledged that residents were not directly assigned to
the recovery room. Her deposition testimony further indicated that she was
aware of the identity of all of the plaintiff’s physicians and that the resident was not one of those assigned to the plaintiff’s care. In fact, all of the nurses in the recovery room were unacquainted with the resident. All of
the nurses knew of the hospital’s policy requiring the presence of a female staff member during a male physician’s pelvic examination of a female patient.
Despite the nurses’ assertions that they saw or heard nothing, an additional key question of credibility arises from the inference created by
the undisputed close proximity of all of the nurses to the plaintiff’s bed.
In contrast to the Appellate Division majority opinion, the dissenting
judges considered that this confluence of factors provided a sufficient basis
from which a jury could determine that the nurses unreasonably
disregarded that which was readily there to be seen and heard, alerting
them to the risk of misconduct against the plaintiff by the resident, which
could have been prevented. Accordingly, the Appellate Division order was
modified by remitting the case to the Supreme Court (trial court in New
York) for further proceedings. 22
Ethical and Legal Issues
1. Describe the ethical and legal issues presented in this case.
2. Describe how the physician’s professional code of ethics was breached.
Provide Adequate Supplies and Equipment
In order for an organization to fulfill its mission of quality patient care, the
governing body must ensure that there are adequate supplies and equipment
on hand in each of its facilities. If the board is unable to provide the
necessary supplies and equipment, it must consider finding the funds
necessary to fulfill its mission or scaling back operations and, if necessary,
consider other options, such as filing for bankruptcy or selling the
organization’s assets to a competing organization.
REALITY CHECK: Diversion of Funds and a Challenge to Survive
It all began when Brad decided to leave his position at a local hospital
to become the second-in-command at another hospital just minutes
from where he lived. His boss coached him not to leave, but Brad saw
opportunity at the relatively new hospital. Brad had no clue what he
was about to face when he accepted the job—the head administrator resigned his position just 9 months after Brad’s arrival. Following a long search for a new administrator, Brad was appointed the head
administrator of the hospital, which was one entity of a multi-hospital
system. At first Brad was managing a profitable hospital, but he quickly
faced challenges on many fronts, including a continuing battle to obtain
supplies from vendors due to the transfer of funds from his hospital by
corporate leadership to prop up other failing entities in the system
outside the state where his hospital was located. The following timeline
documents his struggle to keep the hospital afloat:
July 2010—Phone Message from the Director of Procurement
Proctor and Gamble has cut us off from all delivery of supplies.
Johnson & Johnson has cut off all deliveries of supplies. Scott Labs
and Anthony Medical have cut us off from all deliveries. If we
don’t soon get supplies, the lab will be forced to close.
August 2010—Lack of OR Sutures Dr. Plastics entered Brad’s office and said, “I can’t perform surgery without the proper suture materials. I have a patient on the table and
they don’t have the sutures I prefer to close the surgical incision.” He then turned to return to the OR, looking back and apologizing, “I know you don’t control where the money goes.”
Brad discussed the lack of sutures material with Marcy, the OR
supervisor. Marcy, in tears, said, “Brad, supply shortages are making my job difficult enough and now the physicians are taking out their
frustrations on me. Dr. Plastics, who complained to you, had other
suture options, but like all surgeons, he had his own preferences,
probably, I suspect, based on a salesman’s pressure.” Brad replied, “I can’t second-guess the surgeon’s selection of sutures; however, I understand your frustrations and I will continue to bring them up with
the corporate CEO. I can assure you that the board members are well
aware of the continuing supply shortages.”
August 2010—Lack of X-Ray Film One Friday at 5:00 PM a radiologist went to Brad’s office to report, “I know you are under a lot of pressure, but we do not have sufficient X-
ray film to get through the weekend!” After Brad arranged to borrow X-ray film from a local state
hospital, he called the corporate accounts payable department to inquire
about payment of the vendor—a task that was beginning to be a daily occurrence for Brad.
September 2010—Message Relayed from Administrative Secretary
“Dr. Wild stormed in. He is furious! The fetal monitor machine is out of commission. He was lied to and told it was working but it wasn’t. This is a life-saving instrument and failure to have it fixed is intolerable (and
a few more adjectives I couldn’t get down in shorthand) and inexcusable and a legal matter—this is just the tip of the iceberg. If
things don’t start to improve he will pull his entire practice out of the hospital.”
April 2011—Memo from the President of the Medical/Dental Staff
We have been reduced to using menstrual pads for abdominal
dressings. On two occasions last week a major disaster was
narrowly averted in the Operating Room only because of the
proximity of . . . City Hospital and their willingness to supply us
with emergency equipment.
March 2012—Input from Department of Supply Procurement
The director of supply procurement wrote a memo stating that the acute
shortages of OR material and X-ray film were putting patients at risk at
this facility. The memo recommended considering an orderly closing of
the facility. Those present at a meeting to discuss the issue unanimously
agreed that without immediate intervention regarding the specific
needs, closing of the hospital should begin on a specified date. Ms.
Nurse added that ensuring an adequate supply of sutures was critical.
June 2012—Phone Message from Dr. Orthopedics
Dr. Orthopedics called at noon today (6/12). He said about a week
ago he was here at night and there were no finger splints. Dr.
Orthopedics said he had to resort to the use of popsicle sticks that
he obtained in the hospital coffee shop for splints.
September 2012—Memo from Dr. ER
Over the past three to four weeks the supply of orthopedic-related
supplies in the emergency room has dwindled to a dangerous level.
Something must be done soon.
October 2012—Letter from Dr. Peds
I was on call for the emergency room . . . on Friday, October 23,
2012. I was disappointed to note that important casting materials
were not available. . . . I can repeat what others have said: if the
hospital is to continue to provide high-quality care, a certain
minimum level of supplies must be available.
January 2013—Memo from Dr. Orthopedics
Once again, I am forced to bring to your attention the abysmal state
of affairs with reference to your credit ratings with various surgical
vendors. It is a continual source of embarrassment to me to have to
call in personal favors with salesmen and vendors so as to provide
my patients with prostheses and equipment they need for their
optimal health care.
April 2013—Board Minutes
Father requested that Brad and the president of the medical staff
work together in locating the areas of greatest concern with regard
to supply shortages. Father asked that this information be available
at the next board meeting.
May 2013—Brad Speaks with the Corporate CEO Brad called the corporate office to discuss the ongoing seriousness of
the supply issues. The purchase, storage, and distribution of supplies
had been centralized in a corporate location off site. At the same time,
Accounts Payable was also centralized and was accused of paying
vendors on the basis of who screamed the loudest rather than on patient
need.
June 2013—Joint Memo to the Board from the Administrator and Medical Staff President
We sincerely believe that as a result of the supply shortages, the
negative impact on morale of patients and employees during the
past five years is substantial. The serious nature of these concerns
are noted in the following paragraphs.
Major Vendors Requiring Advanced Payment
2010 18
2011 53
2012 129
2013 350
The system CEO was distressed that Brad had provided the above
listed information to the board, complaining to him, “You’re out to get me.” Brad responded, “I am complying with the board’s request, and it’s in the board minutes. Besides, I gave you an advance copy of the memorandum.”
Discussion
1. Discuss the ethical issues that this case raises.
2. Are there any circumstances in which CEOs should attempt to keep
information from their boards?
3. Brad is in a multi-hospital system making major profits but cannot
control the flow of funds out of the community hospital. The
governing body is aware of the serious nature of the supply crisis.
What should the board do?
4. If you were Brad or on the board, what action would you take?
5. What action should the community and government authorities
take, considering there is a systemic problem throughout the state?
Maintain a Culture of Safety
Organizations are expected to maintain a culture that supports patient
safety and an environment that fosters respect and trust, integrity and
honesty, compassionate care, privacy, confidentiality, communication
between the patient and caregivers, and education.
REALITY CHECK: Summary Case
Anytown Hospital has an outstanding reputation for surgical services.
The operating room supervisor and a surgical nurse told Bob Wright
that Dr. Flipton, an anesthesiologist, is abusing the use of anesthesia
gases in the hospital’s dental suite. He was reportedly seen by operating staff testing “laughing gas” by holding a mask against his face for short periods of time. This scene would be followed by a string of silly,
seemingly meaningless jokes. Bob has repeatedly discussed this matter
with the medical executive committee. The medical executive
committee refuses to take any action without definitive action by the
department chair. Bob suspects that if he pursues the matter further with
the governing board, he could end up without a job. The governing
body is generally unable to resolve disciplinary actions against a
physician without support of the medical executive committee.
Ethical and Legal Issues
1. What do you believe the ethical issues are for Bob? For Bob, doing
the right thing and survival are competing concerns.
2. Which of the following would you do if you were in Bob’s position, with two children in college and hefty mortgage payments?
• Voluntarily leave my job • Aggressively pursue the problem
• Secretly enlist the aid of the medical staff • Confront Dr. Flipton • Other option (explain)
Address Patient Concerns and Complaints in a Timely Manner
Organizations need to adopt policies and procedures that address patient
complaints. Most organizations have a patient advocate to address patient
concerns. The procedures to be followed generally are spelled out in a
patient handbook. Often a telephone number is provided to assist the
patient in registering a complaint.
NEWSPAPER CLIPPINGS: Sloppy Medical Procedures at LA
Hospital Caused Fatal Bacterial Outbreak
A bacterial outbreak that killed two infants at a Los Angeles hospital
was caused by a failure to properly sterilize surgical instruments,
according to a report by inspectors from the California Department of
Health Services.
On December 4, White Memorial Medical Center closed its
neonatal intensive care unit for two weeks after five infants contracted
Pseudomonas aeruginosa infections. The deaths of two of the children
have been attributed to the infection.
David Gutierrez, NaturalNews.com, January 30, 2007
The following story never reached the trial stage. This case is presented
specifically for classroom review and discussion.
PEOPLE STORIES: Infections Run Rampant
My wife, Mrs. Smith, was admitted to a 34-bed surgical unit at one of
the world’s top 10 hospitals with a diagnosis of thoracic outline
syndrome. She was scheduled for surgical removal of her first cervical
rib. Upon admission to the medical center, it was noted that the bed
railings had a sufficient buildup of filth that it could have been scraped
off with a utility knife. A suction jar attached to the wall at the head of
the bed was filled with body fluids. Blood was splattered on the wall
behind the bed. The mattress had multiple tears, which allowed body
fluids to seep into the mattress from previously admitted patients. The
mattress appeared to have been in service for many years. Culture
studies of that mattress would most likely have shown the existence of
numerous organisms. There was one sink, located near her bed, in the
4-bed room. Surgical residents would enter the room and go from bed
to bed examining pre- and postsurgical patients without washing their
hands between patients.
A patient in one bed had been admitted for the removal of a leg.
She had hidden a thermometer and Tylenol in her pocketbook. The staff
was unaware of her hidden stash. She was popping Tylenol because she
was fearful her surgery would be canceled because of a fever that she
had.
Throughout my wife’s stay, the room temperature fluctuated between 65 and 90 degrees on any given day. Her temperature
fluctuated between 103 and 106 degrees.
Postoperative nursing care was nonexistent the first 24 hours
following surgery. On or about February 24, 1980, a nurse indicated
that there were only two registered nurses on duty to care for 27
surgical patients and that it was difficult to render good patient care.
The attending physician failed to seek timely consultations from
other specialists until requested to do so by me, the spouse. When the
specialist, Dr. Berry, eventually did arrive, he stated that drainage tubes
should have been inserted much sooner. Dr. Berry, infecticious disease
specialist, was overheard commenting, “I am appalled! Why wasn’t I called sooner?”
Antibiotics had to be requested by me. Once antibiotics were
approved, there was an ongoing failure to have them administered in a
timely fashion. On one occasion, I asked a resident to see if the resident
could administer my wife’s antibiotic. The resident responded, “That’s not my job.” Antibiotics had been ordered to be administered at 9:00 AM but were not brought to my wife’s room until 8:00 PM. Delays of
this nature served only to prolong her stay and were detrimental to her
health and early recovery. The situation became so frustrating that on
two occasions I called Mr. Thompson, the medical center’s chief executive officer, in a frantic attempt to obtain his assistance. The calls
were never returned. Dr. Plaster, the Chief of Surgery, was called for
assistance and was told that his intervention was necessary because of a
lack in the coordination of my wife’s care. There was a failure to maintain my wife on her antibiotic once it
had been prescribed. The IV was pulled out on the night of February 2
at 5:30 AM and was not restarted upon discovery. It was later
determined that my wife should have been maintained on the antibiotic
for a longer period of time.
There was also a failure of the residents and interns to follow
appropriate safety precautions in changing wound dressings. The
spread of infection from one patient to the next was evident. A patient
previously discharged from the room was returned to the hospital with
an infection. It was only a matter of days until every surgical patient in
the room developed an infection. The question remains as to what
extent the infection may have spread to other patients on the patient
care unit.
The hospital failed to provide my wife with any special care, which
is considered standard procedure. A physician who said my wife might
not make it through the night related this information to me.
Unfortunately I had to play doctor and force the care my wife needed.
My wife was discharged with a pocket of fluid between her rib cage
and spleen, which was discovered during a sonogram at another
hospital following discharge. The pocket of fluid continues to cause
pain and discomfort.
Spouse
Discussion
1. What medical/legal issues can you identify in this case?
2. If this case had reached the courts, would your decision be for the
plaintiff or the defendant?
3. What would be the reasoning of your finding?
Prevent Decisions That Collide with Professional Ethics
Management’s financial decisions can at times be on a collision course with practice and professional codes of ethics. The principles of
autonomy, beneficence, and justice and the ability to practice what is right
according to such principles often collide when organizations have to, for
example, ration scarce resources. Such rationing may require managers to
cut costs at the expense of quality.
Disclose Financial Incentives
Greg Ganske addressed the House of Representative on March 28, 2000: 23
Let me give my colleagues one example out of many of a health plan’s definition of medically necessary services. “Medical necessity means the shortest, least expensive or least intense level of treatment, care or
service rendered or supply provided as determined by us.” Well, Mr. Speaker, contracts like this demonstrate that some health plans are
manipulating the definition of medical necessity to deny appropriate
patient care by arbitrarily linking it to saving money, not the patient’s medical needs.
The patient in Shea v. Esensten 24
died after suffering a heart attack.
Although the patient had recently visited his primary care physician and
presented with symptoms of cardiac problems and the patient also had a
family history of cardiac trouble, the physician did not refer the patient to a
cardiologist. The patient’s widow sued the health management organization for failing to disclose the financial incentive system it provided to its
physicians to minimize referrals to specialists. The United States Court of
Appeals for the Eighth Circuit agreed that knowledge of financial
incentives that affect a physician’s decisions to refer patients to specialists is material information requiring disclosure, and it reversed a lower court’s dismissal of the claim.
A Life Needlessly Shortened
An action filed against a health insurance company alleged that the way
the insurer handled the insured’s chemotherapy needlessly shortened her life, causing her last days to be more painful than they should have been.
The jury awarded the plaintiff $49 million. The punitive damages award
was considered excessive under Ohio law, and the trial court’s failure to find as such was so unreasonable as to constitute abuse of discretion. A
$30 million award was appropriate given the profits of the corporations
involved and appropriate in the scheme of past punitive damages awards
in Ohio. 25
Build and Restore Trust
The lack of trust is slowly deteriorating the people’s faith in the nation’s health care system. A lack of trust in the physician, hospital, and insurer is
pervasive throughout the health care system. The horror stories in
newspapers—malpractice suits, the Institute of Medicine’s report on health care mistakes, among others—not only identify problems but provide a catalyst for encouraging lawsuits.
Organizations need to make a concerted effort to develop strategies to
build and restore trust in the health care industry. An ethical organizational
culture would recognize the following strategies in building consumer
trust:
• Conduct business in compliance with applicable laws, rules, and regulations.
• Adhere to the highest of ethical standards. • Provide cost-effective care. • Fairly and accurately represent the organization’s capabilities when
treating a patient’s ailments. • Maintain a uniform standard of care throughout the organization,
regardless of a person’s ability to pay, race, creed, color, and/or national origin.
• Consider patient values and preferences as part of recognizing the organization’s legal responsibilities.
• Inform patients of their responsibilities. • Develop and recommend guidelines that assist and support patients and
their families in exercising their rights.
• Describe the process to patients by which hospital staff interact and care for them.
Trust must begin within the organization between management and
employees. As the following Reality Check describes, organizations can
often become dysfunctional and cause employee turnover and resentment
among employees.
REALITY CHECK: Equal Pay for Equal Work?
The annual Health Systems Consulting conference was held at the New
York City Hilton. During the closing session on Friday, the company’s leadership sat onstage summarizing the week’s training and conducting a question-and-answer period. Prior to the session, Frank, an
administrator consultant, had asked his manager, “The grapevine is telling me that nurses have been placed at a higher pay rate than
administrators. Is that true?” His manager replied, “You asked a direct question, so I will answer it, even though per company policy we don’t generally share such information. The answer is yes. It was
implemented several weeks ago. The consulting process is more and
more clinical and therefore nurses are getting a higher starting salary.” Frank answered, “That is true, but we still all do the same work.” His manager replied, “That’s the way it is,” and walked away.
Discussion
1. Discuss the legal issue as it relates to equal pay for equal work.
2. What ethical concerns do you see in this case?
3. If you were Frank, what action would you pursue, if any?
REALITY CHECK: Questions Solicited Not Necessarily Welcomed
When you question a company policy, even after company insistence
that all questions are welcomed, there can be a price to be paid. Gerard
asked anyway, “Since the health survey process is leaning more toward the clinical side of care and we are attempting to get more physician
involvement in the patient care review process, why aren’t physicians the team leaders? After all, they have the best clinical judgment.”
The leadership were basically at a loss of what to say, but in the end
gave the usual response by stating they would look into it. One
physician stood and said, “Nurses are better at this process than physicians.” The room became silent and the physician received some glares from his colleagues. The leadership quickly moved on to the next
question.
Gerard later received several conflicting comments from his
colleagues in the lobby:
Nurse Consultant 1: “I knew you were an ****. Now, I know you are an ****. I will give you the dirtiest work on the survey when you
are on a consulting job with me!” Nurse 2: “You’re senile!” Nurse 3: “You had the courage to say what you think.” AF Nurse Practitioner/Consultant 4: “You stood up for something you believed in. I admire you for that.” Nurse Consultant 5: “Nurses are more clinically adept than physicians.” Nurse 6: “Gerard, some of those nurses were pretty awful to you. Why don’t you join us for something to eat?” Nurse 7: “We don’t agree with all you said, but we respect your opinion.” Nurse 8: “You had the courage to say what you think.” Physician Consultant 1: “You will most likely find a horse’s head in your bed in the morning.” Physician Consultant 3: “Gerard, I agreed with you, but was it really worth it?” Physician Consultant 4: “I see you’re still alive.”
Gerard, somewhat despondent, walked away and into the lobby gift
shop. He spotted an article in the Washington Post:
NEWSPAPER CLIPPINGS: The Role of Nurses Extends Beyond
the Hospital Ward
A nurse is a doctor’s best friend, according to Marvin M. Lipman, Consumers Union’s chief medical adviser. This advice was given to him by a hospital ward’s head nurse when he was a third-year medical student making contact with patients for the first time, along with the
suggestion that he’d do well not to forget it. Over the years, those words continued to echo in Lipman’s mind. In
part because hospital nurses work for the institution and many doctors
work for themselves, occasional conflicts between the two are
inevitable. When encountering such situations, he has generally tended
to take the side of the nurses, sometimes to the chagrin of his fellow
physicians. But he explains that his loyalty comes from the many times
he has seen nurses go that extra step to make a patient more
comfortable or more at ease.
Nurse Practitioners . . . Studies have found that their ability to
diagnose illnesses, order and interpret tests, and treat patients is
equivalent to that of primary-care physicians. They also tend to spend
more time with patients during routine office visits than physicians, and
they are more likely to discuss preventative health measures. As of
2010, 140,000 NPs were working in the United States.
Nurse practitioners are poised to become even more visible with the
passage last year of the Patient Protection and Affordable Care Act,
which could add nearly 35 million people to the ranks of the insured.
Consumers Union of United States Inc., The Washington Post, May 30,
2011
Discussion
1. Gerard is a congenial, humorous, and respected person. His
colleagues know that he does give his opinion if his sees a wrong
that should be righted, whether it is for him or others. Should he
have spoken up or remained silent? Discuss your answer.
2. Based on the Washington Post article, do you think Gerard might
have had second thoughts about his concerns?
3. Describe the actions of Gerard’s colleagues and what ethical theories might apply.
PROVIDE FOR EFFECTIVE COMMUNICATIONS
NEWSPAPER CLIPPINGS: Don’t Let Hospitals Make You Sick
The problem is not that we have an epidemic of negligent doctors.
Rather, it’s that the health-care system has grown so complicated that there is a greater chance than ever of things falling through the
cracks. . . .
Another problem is that hospitals produce massive amounts of data,
including lab and X-ray reports, medication lists, doctors’ orders, and dietary restrictions. It is easier than ever for critical communications to
get lost, and hospitals often don’t have thorough backup systems.
Dr. Ranit Mishori, Parade Magazine, February 8, 2009
CHAPTER REVIEW
1. This chapter introduces the reader to the ethical responsibilities and
legal risks to which health care organizations and their governing
bodies are exposed.
2. An organization’s code of ethics provides guidelines for behavior that help carry out an organization’s mission, vision, and values. Organizational codes of ethics build trust, increase awareness of ethical
issues, guide decision making, and encourage staff to seek advice and
report misconduct.
3. Organizational ethics in the health care setting are being carefully
scrutinized across the nation by state and federal regulatory agencies.
Unethical conduct that is closely being monitored includes, for
example, false advertisements and fraudulent reimbursement schemes.
4. It is unethical for health care organizations to advertise misleading
information in an effort to encourage public confidence in the quality
of care that they provide.
5. Organizations are expected to maintain a culture that supports patient
safety and an environment that fosters respect and trust, integrity and
honesty, compassionate care, privacy, confidentiality, communication
between the patient and caregivers, and education.
6. The typical health care organization is incorporated under state law as
either a freestanding for-profit or not-for-profit corporation. The
corporation has a governing body that has ultimate responsibility for
the decisions made in the organization.
7. Generally, the authority of a corporation is expressed in the law under
which the corporation is chartered and in the corporation’s articles of incorporation. Members of the governing body have both express and
implied corporate authority.
8. Respondeat superior is a legal doctrine holding employers liable, in
certain cases, for the wrongful acts of their agents (employees). This
doctrine also has been referred to as vicarious liability, whereby an
employer is answerable for the torts committed by employees.
9. Corporate negligence occurs when a health care corporation fails to
perform those duties it owes directly to a patient or to anyone else to
whom a duty may extend. If such a duty is breached and a patient is
injured as a result of that breach, the organization can be held culpable
under the theory of corporate negligence.
10. The benchmark case in the health care field, which has had a major
impact on the liability of health care organizations, was Darling v.
Charleston Community Memorial Hospital. 26
The court here
enunciated a “corporate negligence doctrine,” under which hospitals have a duty to provide adequately trained medical and nursing staff.
11. Organizational ethics are often on a collision course with practice and
professional codes of ethics. The principles of autonomy, beneficence,
and justice and the ability to practice what is right according to such
principles often collide when organizations have to, for example, ration
scarce resources.
12. Organizational duties and responsibilities of health care organizations
include an appointment of a CEO, medical staff appointments and
supervision, allocation of scarce resources, compliance with rules and
regulations, compliance with Joint Commission standards, provision of
timely treatment, and provision of a safe environment.
TEST YOUR UNDERSTANDING
Terminology
conflict of interest
corporate authority
corporate negligence
Darling v. Charleston Community Memorial Hosp.
express corporate authority
implied corporate authority
independent contractor
respondeat superior
REVIEW QUESTIONS
1. Discuss what value statements should be included in an
organization’s code of ethics. 2. Describe the kinds of unethical conduct in health care under
scrutiny.
3. Describe express and implied corporate authority.
4. What is an ultra vires act?
5. Discuss the importance of the Darling case as it relates to corporate
negligence.
6. Describe the various duties and responsibilities of health care
corporations as discussed in this text.
7. Describe the strategies an organization can implement to improve
consumer trust.
NOTES
1. Lisa Girion, “Health Net ordered to pay $9 million after canceling cancer patient’s policy,” Los Angeles Times, February 23, 2008; www.latimes.com/business/la-fi-
insure23feb23,0,6265000.story.
2. Available at http://www.youtube.com/watch?v=Yu-DBWyLTOY.
3. Available at http://wn.com/Linda_Peeno.
4. 949 P2d 530,535 (Ariz. Ct. App. 1997).
5. 46 U.S.I.W.2227 (Md. 1977).
6. Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. 1991).
7. Id.
8. 211 N.E.2d 253 (Ill. 1965).
9. Id. at 260.
10. From http://www.ache.org/abt_ache/code.cfm.
11. CBSNews.com, “Did hospitals ‘see no evil’?” April 4, 2004; http://www.cbsnews.com/stories/2004/04/02/60minutes/main610047.shtml.
12. No. 05AP-681 (Ohio App. 2006).
13. No. A03A2308 (Ga. App. 2004).
14. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (2002).
15. 734 F.2d 81 (1st Cir. 1984).
16. 111 S.W.3d 346 (2003).
17. Christopher Newton, “90% of nursing homes providing substandard care-federal report,” Seattle Times, February 20, 2002, at A1.
18. Katie Moisse, “Hospital errors common and underreported,” ABC News, April 7, 2011; http://abcnews.go.com/Health/hospital-errors-common-underreported-study/story?
id=13310733.
19. Sandra G. Boodman, “Effort to end surgeries on wrong patient or body part falters,” June 20, 2011; http://www.kaiserhealthnews.org/Stories/2011/June/21/wrong-site-surgery-errors.aspx.
20. The Johns Hopkins Hospital, et al. v. Jane E.S. Correia, et ux., 174 Md. App. 359, 921 A.2d
837 (2007).
21. No. 38,170 (La. App. 2004).
22. N.X. v. Cabrini Med. Ctr., 765 N.E.2d 844 (2002).
23. House of Representatives, “Important issue facing House-Senate Conference on Health Care Reform,” March 28, 2000; http://www.fenichel.com/Ganske.shtml.
24. http://biotech.law.lsu.edu/cases/hmo/shea_v_esensten.htm
25. 107 F.3d 625 & 8th Circuit (1997).
26. Dardinger, Exr. v. Anthem Blue Cross and Blue Shield, 2002 Ohio 7113 (Ohio 2002).
chapter nine
Health Care Professionals’ Ethical and Legal Issues
Ethics is nothing else than reverence for life.
ALBERT SCHWEITZER
LEARNING OBJECTIVES
The reader on completion of this chapter will be able to:
• Understand how ethics and the law impact health care professionals. • Recognize similarities in the various professional codes of ethics. • Understand how ethical and legal issues described in any single case
have applicability to the various health professions.
• Explain the difference between the certification and licensure of a health care professional.
• Discuss helpful advice for health care professionals.
INTRODUCTION
My life is my message.
MAHATMA GANDHI
This chapter presents an overview of how ethics and the law impact a
variety of health care professions. Health care professionals are governed
by ethical codes, which demand a high level of integrity, honesty, and
responsibility. The Center for the Study of Ethics in the Professions at the
Illinois Institute of Technology received a grant from the National Science
Foundation to put a collection of over 850 codes of ethics on the Internet.
This center’s website includes links to the ethical codes of professional societies, corporations, and government and academic institutions
(http://www.iit.edu/departments/csep/PublicWWW/codes/index.html).
Professional codes of ethics for health care professionals have been
developed to provide guidance to those faced with ethical dilemmas.
Codes of ethics are created in response to actual or anticipated ethical
conflicts. Considered in a vacuum, many codes of ethics would be
difficult to comprehend or interpret. It is only in the context of real life
and real ethical ambiguity that the codes take on any meaning.
Codes of ethics and case studies need each other. Without guiding
principles, case studies are difficult to evaluate and analyze; without
context, codes of ethics are incomprehensible. The best way to use
these codes is to apply them to a variety of situations and see what
results. It is from the back and forth evaluation of the codes and the
cases that thoughtful moral judgments can best arise. 1
The contents of codes of ethics vary depending on the risks associated with
a particular profession. Ethical codes for psychologists, for example, define
relationships with clients in greater depth because of the personal one-to-
one relationship they have with their clients. Laboratory technicians and
technologists, on the other hand, generally have little or no personal contact
with patients but can have a significant impact on their care. Laboratory
technologists in their ethical code “pledge accuracy and reliability in the performance of tests.”2 The importance of this pledge was borne out in a March 11, 2004, report by the Baltimore Sun wherein state health officials
discovered that a hospital’s laboratory personnel overrode controls in testing equipment showing results that might be in error and then mailed
them to patients anyway. 3
CHIROPRACTOR
Chiropractors are required to exercise the same degree of care, judgment,
and skill exercised by other reasonable chiropractors under like or similar
circumstances. They are expected to maintain the integrity, competency,
and standards of their profession, as well as avoid even the appearance of
professional impropriety.
Chiropractors have a duty to determine whether a patient is treatable
through chiropractic means and to refrain from chiropractic treatment when
a reasonable chiropractor would or should be aware that a patient’s condition will not respond to chiropractic treatment. Failure to conform to
the standard of care can result in liability for any injuries suffered.
CASE: POOR JUDGMENT
The chief medical officer of the Nebraska Department of Health and
Human Services Regulation and Licensure entered an order revoking
Poor’s license to practice as a chiropractor in the state of Nebraska.4 Poor engaged in a conspiracy to manufacture and distribute a mis-
branded substance, and he introduced into interstate commerce misbranded
and adulterated drugs with the intent to defraud and mislead. He was
arrested for driving under the influence and was convicted of that offense.
In addition, Poor knowingly possessed cocaine. He conceded that these
factual determinations were understood as beyond dispute.
The district court’s determination that Poor had engaged in “grossly immoral or dishonorable conduct” was not based on “trivial reasons.” The appeals court found that Poor’s conduct clearly fell within the plain and ordinary meaning of grossly immoral or dishonorable conduct. In its order
finding Poor to be unfit, the district court relied in part on Poor’s denial of conduct underlying a previous felony conviction. The court stated, “Poor’s denial now, after taking advantage of a plea bargain, that he committed any
of the acts he admitted to in the United State[s] District Court is disturbing
and is not consistent with the integrity and acceptance of responsibility
expected by persons engaged in a professional occupation.” Chiropractic medicine is a regulated health care profession. Patients
necessarily rely on a chiropractor’s honesty, integrity, sound professional judgment, and compliance with applicable governmental regulations. Poor
argued that there was absolutely no testimony or evidence to the effect that
anything he did constituted a threat of harm to his patients.
The Supreme Court of Nebraska determined that due to the seriousness
of Poor’s felony conviction and its underlying conduct, his subsequent lack of candor with respect to that conduct, as well as his lack of sound
judgment demonstrated by his driving-under-the-influence conviction,
revocation of Poor’s license was an appropriate sanction.
Ethical and Legal Issues
1. Did the chiropractor in this case violate his professional code of ethics?
Explain your answer.
2. Describe how an individual’s personal life can impact one’s professional career.
DENTIST
Dentists are expected to respect patient rights and to avoid harm to their
patients. They are expected to treat patients within their scope of practice.
Such did not occur in the following cases.
CASE: PRACTICING OUTSIDE THE SCOPE
OF PRACTICE
Practicing outside one’s scope of practice involves both ethical and legal issues. For example, plaintiff Brown, in Brown v. Belinfante,
5 sued a
dentist for performing several elective cosmetic procedures, including a
facelift, eyelid revision, and facial laser resurfacing. The dentist was not a
physician. He was licensed to practice dentistry in Georgia. Brown claims
that after the cosmetic procedures, she could not close her eyes completely,
developed chronic bilateral eye infections, and required remedial
corrective surgery. Brown alleged that the dentist’s performance of the cosmetic procedures constituted negligence because he exceeded the scope
of the practice of dentistry.
The primary purposes of the Georgia Dental Act are to define and
regulate the practice of dentistry. The statute limits the scope of the
practice of dentistry. Such limitation protects the health and welfare of
patients who submit themselves to the care of dentists by guarding against
injuries caused by inadequate care or by unauthorized individuals. Brown
falls within that class of persons the statute was intended to protect, and
the harm complained of was of the type the statute was intended to guard
against. In performing the elective cosmetic procedures, the dentist
violated the Dental Practice Act by exceeding the statutory limits of the
scope of dentistry.
Ethical and Legal Issues
1. Describe the ethical issues presented here.
2. Describe the legal issues in this case.
CASE: DENTIST’S INAPPROPRIATE SEXUAL CONDUCT
Revocation of a dentist’s license on charges of professional misconduct was properly ordered in Melone v. State Education Department
6 on the
basis of substantial evidence that while acting in a professional capacity
the dentist had engaged in physical and sexual contact with five different
male patients within a 3-year period. Considering the dentist’s responsible position, the extended time period during which the sexual contacts
occurred, the age and impressionable nature of the victims (7 to 15 years
of age), and the possibility of lasting effects on the victims, the penalty
was not shocking to the court’s sense of fairness.
Ethical and Legal Issues
1. Describe the ethical and legal issues of this case.
2. Describe what procedures could be implemented in a dentist’s office to help reduce the likelihood of sexual abuses.
DENTAL HYGIENIST
Dental hygienists are expected to treat patients with respect and to disclose
all relevant information so that they can make informed choices about their
care. Patient information must be kept confidential. Dental hygienists have
an obligation to provide services in a manner that protects all patients and
minimizes harm to them.
CASE: DENTAL HYGIENIST’S UNLAWFUL ADMINISTRATION OF NITROUS OXIDE
This case 7 arises from a complaint by a dental hygienist against a former
employer, Lowenberg and Lowenberg Corporation. The dental hygienist
alleged that the defendant allowed dental hygienists to administer nitrous
oxide to patients. Under state law, dental hygienists may not administer
nitrous oxide. The Department of Education’s Office of Professional Discipline investigated the complaint by using an undercover investigator.
The investigator made an appointment for teeth cleaning. At the time of
her appointment, she requested that nitrous oxide be administered.
Agreeing to the investigator’s request, the dental hygienist administered the nitrous oxide. There were no notations in the patient’s chart indicating that she had been administered nitrous oxide.
A hearing panel found the dental hygienist guilty of administering
nitrous oxide without being properly licensed. In addition, the hearing
panel found that the dental hygienist had failed to record accurately in the
patient’s chart that she had administered nitrous oxide. The New York Supreme Court, Appellate Division, held that the
investigator’s report provided sufficient evidence to support the hearing panel’s determination. There is adequate evidence in the record to support a finding that the dentist’s conduct was such that it could reasonably be said that he permitted the dental hygienist to perform acts that she was not
licensed to perform.
Ethical and Legal Issues
1. Discuss how the ethical values seen in the Pillars of Moral Strength
(Appendix A, Figure A-1) in were violated in this case.
2. Describe how both ethical and legal issues are intertwined in this case.
CASE: NEGLIGENT ACT
The plaintiff in Hickman v. Sexton Dental Clinic 8 brought a malpractice
action against a dental clinic for a serious cut under her tongue. The dental
assistant, without being supervised by a dentist, placed a sharp object into
the patient’s mouth, cutting her tongue while taking impressions for dentures. The court of common pleas entered a judgment on a jury verdict
in favor of the plaintiff, and the clinic appealed. The court of appeals held
that the evidence presented was sufficient to infer without the aid of expert
testimony that there was a breach of duty to the patient. The testimony of
Dr. Tepper, the clinic dentist, was found pertinent to the issue of the
common knowledge exception in which the evidence permits the jury to
recognize breach of duty without the aid of expert testimony. Tepper
presented the following testimony regarding denture impressions: 9
Q. You also stated that you have taken, I believe, thousands?
A. Probably more than that.
Q. Of impressions?
A. Yes, sir.
Q. This never happened before?
A. No, sir, not a laceration.
Q. Would it be safe and accurate to say that if someone’s mouth were to be cut during the impression process, someone did something
wrong?
A. Yes, sir.
Ethical and Legal Issues
1. Do you see any ethical issues in this case? Explain your answer.
2. Describe the legal issues of this case.
DIETICIANS
NEWSPAPER CLIPPINGS: How Medical Errors Took a Little
Girl’s Life
Tragedy: After being scalded in a bathtub accident, 18-month-old Josie
King was recovering at Johns Hopkins. Then something went terribly
wrong.
The day before her heart stopped, Josie’s weight had dropped precipitously—nearly 20 percent—in itself a life-threatening emergency. Her diarrhea had become so severe that she soiled her
diaper 14 times in 24 hours. Josie had become so dehydrated that her
body began to shut down.
In its mildest form, dehydration is easily treated by administering
fluids, usually by mouth. Moderate dehydration also can be treated
successfully, often with intravenous fluids.
But severe dehydration can lead to seizures, brain damage or death.
It can significantly reduce blood volume and cause blood pressure to
drop so much that the blood can’t deliver oxygen and vital nutrients to the heart, brain and other organs. Past a certain point, there is no
correcting the harm it does, even with a massive infusion of fluids.
Paidas would say later that the critical time for Josie was the 12
hours before her heart stopped. It is unclear how much fluid would
have been needed to reverse her downward course. Paidas and McKee
wonder now whether Josie’s “ins and outs” had been recorded properly. The child’s urine output, a sign of hydration, had been noted as adequate or better for several days. But even so, the team had missed
other warning signs.
“I’m just as culpable as anyone, as the captain of the ship,” Paidas said. “There is something that eats away at every physician who took care of her.”
Erika Niedowski, Baltimore Sun, December 14, 2003
Incidence and Recognition of Malnutrition in Hospital
Abstract
Objectives: To determine incidence of malnutrition among patients
on admission to hospital, to monitor their changes in nutritional status
during stay, and to determine awareness of nutrition in different
clinical units.
Design: Prospective study of consecutive admissions.
Setting: Acute teaching hospital.
Subjects: 500 patients admitted to hospital: 100 each from general
surgery, general medicine, respiratory medicine, orthopaedic surgery,
and medicine for the elderly.
Main outcome measures: Nutritional status of patients on admission
and reassessment on discharge, review of case notes for information
about nutritional status.
Results: On admission, 200 of the 500 patients were undernourished
(body mass index less than 20) and 34% were overweight (body mass
index >25). The 112 patients reassessed on discharge had mean
weight loss of 5.4% with greatest weight loss in those initially most
undernourished. But the 10 patients referred for nutritional support
showed mean weight gain of 7.9%. Review of case notes revealed
that, of the 200 undernourished patients, only 96 had any nutritional
information documented.
Conclusion: Malnutrition remains a largely unrecognized problem in
hospital and highlights the need for education on clinical nutrition.
J. P. McWhirter and C. R. Pennington, “Incidence and Recognition of Malnutrition in Hospital,” BMJ 308:945, April 9, 1994
The news article and abstract above are reminders of how the
nutritional needs of patients are often neglected or poorly addressed in the
hospital setting. At the time of admission, patients are usually provided
general nutritional screenings by a nurse, often to meet regulatory or
accreditation requirements. The nurse’s screenings are based on specific questions asked of the patient that would trigger a full nutritional
assessment by a dietitian. A patient’s hydration and nutritional needs are often neglected or just overlooked because of the narrow and poorly
designed questions asked that are designed to trigger a full assessment by a
dietitian. A patient’s short hospital stay also contributes to poor screenings and assessments. The inability to provide the necessary staff to address the
nutritional needs of patients is due in part to the financial constraints placed
on hospitals.
Although the participation of pharmacists in the patient care setting is
becoming the norm on patient care units, the use of dieticians remains in
the dark ages of medicine. Although the screening trigger questions posed
by the nurse are asked and documented, full nutritional assessments are
often lacking, even though they are crucial to the recovery of the patient.
The burden is placed upon nurses due to an insufficient number of
dietitians to address each patient’s nutritional needs. Dietitians are expected to exercise professional judgment and practice
dietetics based on scientific principles and current practice. Yet few health
care organizations have truly integrated them into the care team. Rural
outpatient centers are generally understaffed and barely have time to
address the patient’s presenting complaints, let alone provide staffing to address the unique nutritional issues of many patients. Frequently, however,
patients with poor nutritional status often return over the years with more
severe, costly, and debilitating medical conditions (e.g., diabetes and heart
disease). Rather than funding preventive measures to improve patient
nutrition, both government and health care organizations instead have to
deal with the consequences.
CASE: DIETITIANS’ FAILURE TO MEET DIETARY REQUIREMENTS
Health care organizations must provide each patient with a nourishing,
palatable, well-balanced diet that meets the daily nutritional and special
dietary needs of each patient. Failure to do so can lead to negligence suits.
The daughter of the deceased in Lambert v. Beverly Enterprises, Inc. 10
filed an action claiming that her father had been mistreated. The notice of
intent to sue indicated that the deceased suffered various injuries and
malnutrition as a direct result of the acts or omissions of dietary personnel
and that the plaintiff’s father suffered actual damages that included substantial medical expenses and mental anguish because of the injuries he
sustained. A motion to dismiss the case was denied.
Ethical and Legal Issues
1. Identify the ethical issues in this case.
2. How might the dietitians’ professional ethical code have been violated in this case?
EMERGENCY DEPARTMENT STAFF
NEWSPAPER CLIPPINGS: Wait Times Lengthen at Emergency
Rooms
Emergency-room patients are waiting ever longer to see a doctor, a
potentially dangerous development as rising numbers of uninsured and
underin-sured Americans turn to ERs for medical care. . . .
Theo Francis, The Wall Street Journal, January 15, 2008
Federal and state statutes impose a duty on hospitals to provide emergency
care. The statutes require hospitals to provide some degree of emergency
service. If the public is aware that a hospital furnishes emergency services
and relies on that knowledge, the hospital has a duty to provide those
services to the public.
CASE: WHAT COMMON SENSE MADE
EVIDENT
Hospitals are expected to notify specialty on-call physicians when their
particular skills are required in the emergency department. An on-call
physician who fails to respond to a request to attend a patient can be liable
for injuries suffered by the patient because of his or her failure to respond.
In Thomas v. Corso, 11
a Maryland court sustained a verdict against the
hospital and physician. The patient had been brought to the hospital
emergency department after he was struck by a car. A physician did not
attend to him even though he had dangerously low blood pressure and was
in shock. There was some telephone contact between the nurse in the
emergency department and the physician who was providing on-call
coverage. The physician did not act on the hospital’s call for assistance until the patient was close to death, and the patient did die. The court
reasoned that expert testimony was not even necessary to establish what
common sense made evident: that a patient who had been struck by a car
may have suffered internal injuries and should have been evaluated and
treated by a physician. Lack of attention in such cases is not reasonable
care by any standard. The concurrent negligence of the nurse, who failed
to contact the on-call physician after the patient’s condition had worsened, did not relieve the physician of liability for his failure to come to the
emergency department at once. Rather, under the doctrine of respondeat
superior, the nurse’s negligence was a basis for holding the hospital liable as well.
Ethical and Legal Issues
1. Describe how both the physician and nurse failed in their ethical
responsibilities to the patient.
2. Describe what actions the hospital can take to prevent future
occurrences of this nature.
3. What are the legal concerns for the physician, nurse, and hospital?
Failure to Respond
Treatment rendered by hospitals is expected to be commensurate with that
available in the same or similar communities or in hospitals generally. In
Fjerstad v. Knutson, 12
the South Dakota Supreme Court found that a
hospital could be held liable for the failure of an on-call physician to
respond to a call from the emergency department. An intern who attempted
to contact the on-call physician and was unable to do so for 3½ hours treated and discharged the patient. The hospital was responsible for
assigning on-call physicians and ensuring that they would be available
when called. The patient died during the night in a motel room as a result
of asphyxia resulting from a swelling of the larynx, tonsils, and epiglottis
that blocked the trachea. Testimony from the laboratory director indicated
that the emergency department’s on-call physician was to be available for consultation and was assigned that duty by the hospital. Expert testimony
also was offered that someone with the decedent’s symptoms should have been hospitalized and that such care could have saved the decedent’s life. The jury could have believed that an experienced physician would have
taken the necessary steps to save the decedent’s life.
Timely Response May Require a Phone Call
Hospitals are not only required to care for emergency patients, but also
required to do so in a timely fashion. In Marks v. Mandel, 13
a Florida trial
court was found to have erred in directing a verdict against the plaintiff. It
was decided that the relevant inquiry in this case was whether the hospital
and the supervisor should bear ultimate responsibility for failure of the
specialty on-call system to function properly. Jury issues had been raised
by evidence that the standard for on-call systems was to have a specialist
attending the patient within a reasonable time of being called.
Emergency rooms are aptly named and vital to public safety. There
exists no other place to find immediate medical care. The dynamics that
drive paying patients to a hospital’s emergency rooms are known well. A sudden injury occurs, a child breaks his arm, an individual suffers a heart
attack, an existing medical condition worsens, a diabetic lapses into a
coma, demanding immediate medical attention at the nearest emergency
room. The catch-phrase in legal nomenclature “time is of the essence” takes on real meaning. Generally, one cannot choose to pass by the nearest
emergency room, and after arrival, it would be improvident to depart in
hope of finding one that provides services through employees rather than
independent contractors. The patient is there and must rely on the services
available and agree to pay the premium charged for those services. 14
The public not only relies on the medical care rendered by emergency
departments, but also considers the hospital as a single entity providing all
of its medical services. A set of commentators observed: 15
[T]he 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 hospital’s 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.
The change in public reliance and public perceptions, as well as the
regulations imposed on hospitals, has created an absolute duty for hospitals
to provide competent medical care in their emergency departments.
Given the cumulative public policies surrounding the operation of
emergency departments and the legal requirement that hospitals provide
emergency services, hospitals must be accountable in tort for the actions of
caregivers working in their emergency departments.
PEOPLE STORIES: Our Lifeline
Emergency departments are the lifeline for millions of people around
the nation each day. For those with and those without insurance, each
day we know someone out there cares. Often forgotten is the
compassion that caregivers show each day. One such occurrence was
observed when a young man walked into the emergency room at
General Hospital. He described symptoms of severe chest pain. He was
afraid but was soon rushed to a room where he was attended to by a
physician, a nurse, an EKG technician, and a laboratory technician. He
had blood drawn, an EKG, and a history and physical. As I watched,
his fear turned to gratitude as treatment was administered and his pain
alleviated. Fear faded away and the young man left with instructions for
follow-up care. Fear turned to happiness for this young man. His smile
spoke a million words.
Anonymous
EMERGENCY MEDICAL TECHNICIAN
Many states have enacted legislation that provides civil immunity to
paramedics who render emergency life-saving services. In Morena v. South
Hills Health Systems, 16
the Pennsylvania Supreme Court held that
paramedics were not negligent in transporting a victim of a shooting to the
nearest available hospital, rather than to another hospital located 5 or 6
miles farther away where a thoracic surgeon was present. The paramedics
were not capable, in a medical sense, of accurately diagnosing the extent of
the decedent’s injury. Except for the children’s center and the burn center, there are no emergency trauma centers specifically designated for the
treatment of particular injuries.
The plaintiff in Riffe v. Vereb Ambulance Service, Inc. 17
alleged that,
while responding to an emergency call, an emergency medical technician
began administering lidocaine to the patient, as ordered over the telephone
by the medical command physician at the defendant hospital. While en
route to the hospital, the patient was administered 44 times the normal
dosage of lidocaine. Consequently, normal heart function was not restored,
and the patient was pronounced dead at the hospital shortly thereafter.
The superior court held that the liability of medical technicians could
not be imputed to the hospital. The court noted the practical impossibility
of the hospital carrying ultimate responsibility for the quality of care and
treatment given patients by emergency medical services.
MEDICAL TECHNOLOGIST
Medical technologists are expected to protect the welfare of patients and
the tests conducted above all else. They are expected to avoid dishonest,
unethical conduct or behavior. An organization’s laboratory provides data that are vital to a patient’s treatment. Among its many functions, the laboratory monitors therapeutic ranges, measures blood levels for toxicity,
places and monitors instrumentation on patient units, provides education
for the nursing staff (e.g., glucose monitoring), provides valuable data used
in research studies, supplies data on the most effective and economical
antibiotic for treating patients, serves in a consultation role, and provides
important data as to the nutritional needs of patients.
CASE: REFUSAL TO PERFORM
LABORATORY TESTS
A laboratory technician was found to have been properly dismissed from
her job for refusing to perform chemical examinations on vials with AIDS
warnings attached in Stepp v. Review Board of the Indiana Employment
Security Division. 18
The court of appeals held that the employee was
dismissed for just cause and that the laboratory did not waive its right to
compel employees to perform assigned tasks.
Ethical and Legal Issues
1. Describe the ethical issues presented in this case.
2. Do you believe the technician should have the right to refuse to
perform laboratory tests out of fear? Explain your answer.
CASE: TESTING MANIPULATED
According to the March 11, 2004, edition of the Baltimore Sun, a city
hospital’s HIV testing was manipulated: “Evidence of false results ignored by lab workers at Maryland General, state says . . . More than 400 people
affected . . . Hospital president says patients will be notified to return for
free re-tests.”19
Ethical and Legal Issues
1. Describe a laboratory technician’s professional responsibility to report accurate laboratory tests.
2. Should a laboratory technician report less than accurate laboratory
reports if required to do so by his or her supervisor? Explain your
answer.
MEDICAL ASSISTANT
The medical assistant is an unlicensed person who provides administrative,
clerical, and/or technical support to a licensed practitioner. A licensed
practitioner is generally required to be physically present in the treatment
facility, medical office, or ambulatory facility when a medical assistant is
performing procedures. 20
Employment of medical assistants is expected to grow much faster than
the average for all occupations through the year 2012 as the health services
industry expands. This growth is due in part to technological advances in
medicine and a growing and aging population. Increasing use of medical
assistants in the rapidly growing health care industry will most likely result
in continuing employment growth for the occupation. 21
Medical assistants work in physicians’ offices, clinics, nursing homes, and ambulatory care settings. The duties of medical assistants vary from
office to office, depending on the location and size of the practice and the
practitioner’s specialty. In small practices, medical assistants usually are generalists, handling both administrative and clinical duties. Those in large
practices tend to specialize in a particular area, under supervision.
Administrative duties often include answering telephones, greeting
patients, updating and filing patients’ medical records, filling out insurance forms, handling correspondence, scheduling appointments, arranging for
hospital admission and laboratory services, and handling billing and
bookkeeping. Clinical duties vary according to state law and include
assisting in taking medical histories, recording vital signs, explaining
treatment procedures to patients, preparing patients for examination, and
assisting the practitioner during examinations. Medical assistants collect
and prepare laboratory specimens or perform basic laboratory tests on the
premises, dispose of contaminated supplies, and sterilize medical
instruments. They instruct patients about medications and special diets,
prepare and administer medications as directed by a physician, authorize
drug refills as directed, provide telephone prescriptions to a pharmacy,
prepare patients for X-rays, perform electrocardiograms, remove sutures,
and change dressings.
Medical assistants who specialize have additional duties. Podiatric
medical assistants make castings of feet, expose and develop X-rays, and
assist podiatrists in surgery. Ophthalmic medical assistants help
ophthalmologists provide eye care. They conduct diagnostic tests, measure
and record vision, and test eye muscle function. They also show patients
how to insert, remove, and care for contact lenses, and they apply eye
dressings. Under the direction of the physician, ophthalmic medical
assistants may administer eye medications. They also maintain optical and
surgical instruments and may assist the ophthalmologist in surgery. 22
CASE: LOOKING FOR HELP
On July 12, Mrs. Smith had severe pain in the left side of her head while at
work. She was not speaking coherently and eventually lost consciousness
for a few minutes. She was taken to her physician’s office by a co-worker. Mrs. Smith’s physician suggested that she get some imaging tests at the hospital’s outpatient imaging center to rule out a transient ischemic attack. A medical assistant at the imaging center told Mrs. Smith that her tests
could not be scheduled until July 14.
Mrs. Smith arrived early on July 14 for her imaging test. On her arrival
to the imaging center, a medical assistant told Mrs. Smith, “I am sorry, but we cannot perform your test. Your doctor faxed us an unsigned and
undated order sheet. It is confusing to us what imaging studies he wants.
He checked a box on the physician’s order sheet indicating that he wanted a CT scan of the head. In addition, there was a handwritten note on the
form indicating that your physician wants an MRI to rule out a transient
ischemic attack. We are not sure if he wants one or both tests. You will
have to get clarification from the physician as to exactly what procedure he
wants.” Mr. Smith, after having parked his wife’s car, arrived at the front desk and saw his wife somewhat distressed. The medical assistant
explained the problem. Mr. Smith asked the medical assistant, “Could you please contact the physician and ask him to clarify and fax back to the
center exactly what tests he wants?” The medical assistant replied, “We are very busy; however, you can use our phone and ask the physician to clarify
his order and have him fax us a new order.” Mr. Smith replied, “What is your fax number?” The medical assistant (pointing to a wall) replied, “It is posted there on the wall by the phone. You can use that phone.” The medical assistant suggested that Mrs. Smith could complete the patient
intake paperwork while Mr. Smith contacted the physician. Mr. Smith was
able to get a new faxed order.
Ethical and Legal Issues
1. Should the medical assistant have clarified the physician’s order before the patient arrived? Discuss your answer.
2. What would you think if you learned that Mrs. Smith had to wait 48
hours before she could get her imaging studies scheduled? Would your
thinking be influenced if the patient were your spouse, parent, or
child?
3. How would you feel walking in the patient’s shoes and learning that the imaging studies showed evidence of a minor stroke?
4. What advice would you give to both Mr. and Mrs. Smith if you
overheard Mrs. Smith say to Mr. Smith, “I know that you would never have believed this happened unless you were there. This is how my
last 6 years of life have been in fighting this horrendous disease.”
CASE: UNTIMELY DIAGNOSIS
In 1987, the patient-plaintiff in Follett v. Davis 23
had her first office visit
with Dr. Davis. In the spring of 1988, the plaintiff discovered a lump in her
right breast and made an appointment to see Davis. The clinic had no
record of her appointment. The clinic’s employees directed her to radiology for a mammogram. Neither Davis nor any other physician at the
clinic offered the plaintiff an examination. In addition, she was not
scheduled for a physician’s examination as a follow-up to the mammogram. A technician examined the plaintiff’s breast and confirmed the presence of a lump in her right breast. After the mammogram, clinic
employees told her that she would hear from Davis if there were any
problems with her mammogram.
The radiologist explained in his deposition that the mammogram was
not normal. Davis received and reviewed the mammogram report and
considered it to be negative for malignancy. He did not know of the new
breast lump because none of the clinic employees had informed him about
it. The clinic, including Davis, never contacted the plaintiff about her lump
or the mammogram. On April 6, 1990, the plaintiff called the clinic and
was told that there was nothing to worry about unless she heard from
Davis. On September 24, 1990, the plaintiff returned to the clinic after she
had developed pain associated with that same lump. A mammogram
performed on that day gave results consistent with cancer. Three days later,
Davis made an appointment for the plaintiff with a clinic surgeon for a
biopsy and treatment. She kept her appointment with the surgeon.
Nevertheless, this was her last visit with the clinic, as she subsequently
transferred her care to other physicians. In October 1990, the biopsy
confirmed the diagnosis of cancer.
In August 1992, the plaintiff filed a lawsuit. The evidence showed that
after the patient found a lump in her breast, she went to Davis, her regular
obstetrician/gynecologist, and to the clinic for aid. Davis and the clinic,
through the clinic’s employees and agents, undertook to treat her ailment. That undertaking ended when the clinic’s surgeon performed the biopsy and therefore was continuous in nature. The evidence demonstrated that
had clinic procedures been followed, Davis or another physician at the
clinic would have had occasion to make a more timely diagnosis.
Ethical and Legal Issues
1. Describe the ethical and legal issues presented in this case.
2. Describe how similar incidents can be prevented in the future.
MEDICAL RECORDS
Health care organizations are required to maintain a medical record for
each patient in accordance with accepted professional standards and
practices. The main purposes of the medical record are to provide a
planning tool for patient care; to record the course of a patient’s treatment and the changes in a patient’s condition; to document the communications between the practitioner responsible for the patient and any other health
care professional who contributes to the patient’s care; to assist in protecting the legal interests of the patient, the organization, and the
practitioner; to provide a database for use in statistical reporting,
continuing education, and research; and to provide information necessary
for third-party billing and regulatory agencies. Medical records must be
complete, accurate, current, readily accessible, and systematically
organized.
NURSE
To Be a Nurse: Swedish Hospital, Seattle, Washington
• Nursing is the honor and privilege of caring for the needs of individuals in their time of need. The responsibility is one of growth to develop the
mind, soul, and physical well-being of oneself as well as the one cared
for.
• In memory of all those patients that have enriched my life and blessed me with their spirit of living—while they are dying.
• There are many things I love about being an RN, but as a Recovery Room nurse, my favorite by far is being able to tell a groggy but anxious
patient, “It was benign.” • Excellence is about who we are, what we believe in, what we do with
everyday of our lives. And in some ways we are a sum total of those who
have loved us and those who we have given ourselves to.
• I have been with a number of people/patients when they die and have stood in awe. Nursing encompasses the sublime and the dreaded. We are
regularly expected to do the impossible. I feel honored to be in this
profession.
• To get well I knew I had to accept the care and love that were given to me —when I did healing washed over me like water.
• Through all of this I was never alone. • Thank you! • In the caring for one another both are forever changed. • A friend takes your hand and touches your heart. • To all of you whose names were blurred by the pain and the drugs. • Don’t ever underestimate your role in getting patients back on their feet. • Will I lose my dignity? Will someone care? Will I wake tomorrow from
this nightmare?
• You exist as women living between heaven and hell. Inside a machine that demands absolute vigilance. I hated every minute of my stay with you;
however, I totally realize the value of your efforts. Please accept my
heartiest thank you.
UNKNOWN AUTHORS
NEWSPAPER CLIPPINGS: Immigration and Healthcare
Employers—Realistic Short-Term Solutions to Staffing Shortages
According to the Institute of Medicine, the current physician deficit
will increase in the next 10 years from 7,000 to 100,000 across all
specialties. The Health Resources and Services Administration (HRSA)
projects a shortage of 1 million registered nurses in 2020. Similar
shortfalls are expected to affect other fields in healthcare.
In the short term, there is only one realistic solution for employers
in need: find and employ qualified foreign-born workers to fill the gaps
left in the workforce.
Frances O’Connell Taylor and Mary E. Ryan, The Maryland Bar Journal, September/October 2011
NEWSPAPER CLIPPINGS: Grappling with a Nursing Shortage
As it turns out, nurses want better working conditions more than they
do extra money. Hospitals are responding now by introducing
technology to dramatically reduce paperwork, offering more flexible
hours, reducing caseloads, paying for advance training and giving them
more authority.
“Autonomy is a big thing,” said [Jennifer] Dimmick, who has been [a nurse at Fairfax Hospital in Virginia] for 7½ years. “It’s important for me to know that what I do matters.”
Dion Haynes, The Washington Post, September 14, 2008
This section provides an overview of the ethical responsibilities and legal
issues of nursing practice. Although nurses traditionally have followed the
instructions of attending physicians, physicians realistically have long
relied on nurses to exercise independent judgment in many situations. 24
The role of nurses in patient care is in a continuous state of flux.
When people are hospitalized, in a nursing home, having a baby, or
learning to manage a chronic condition in their own home—at some of their most vulnerable moments—nurses are the health care providers they are most likely to encounter; spend the greatest amount of time
with; and, along with other health care providers, depend on for their
recovery.
Research is now beginning to document what physicians, patients,
other health care providers, and nurses themselves have long known:
how well we are cared for by nurses affects our health, and sometimes
can be a matter of life or death. 25
Although most states have similar definitions of nursing, differences
generally revolve around the scope of practice permitted.
Registered Nurse
A registered nurse is one who has passed a state registration examination
and has been licensed to practice nursing. The scope of practice of a
registered professional nurse includes patient assessment, analyzing
laboratory reports, patient teaching, health counseling, executing medical
regimens, and operating medical equipment as prescribed by a physician,
dentist, or other licensed health care provider. The nursing profession “is in a period of rapid and progressive change in response to the advances in
technology, changes in patterns of demand for health services, and the
evolution of professional relationships among nurses, physicians and other
health professions.”26
Nurse Anesthetist
Administration of anesthesia by a nurse anesthetist requires special training
and certification. Nurse-administered anesthesia was the first expanded role
for nurses requiring certification. Oversight and availability of an
anesthesiologist are required by most organizations.
The major risks for nurse anesthetists include improper placement of an
airway, failure to recognize significant changes in a patient’s condition, and the improper use of anesthetics (e.g., wrong anesthetic, wrong dose, wrong
route).
Nurse Midwife
Nurse midwives provide comprehensive prenatal care, including delivery
for patients who are at low risk for complications. For the most part, they
manage normal prenatal, intrapartum, and postpartum care. Provided that
there are no complications, normal newborns are also cared for by a nurse
midwife. Nurse midwives often provide primary care for women’s health issues from puberty to postmenopause.
Nurse Practitioner
A nurse practitioner (NP) is a registered nurse who has completed the
necessary education to engage in primary health care decision making. The
NP is trained in the delivery of primary health care and the assessment of
psychosocial and physical health problems, such as performing routine
examinations and ordering routine diagnostic tests. The NP provides
primary health care services in accordance with state nurse practice laws.
Clinical Nurse Specialist
The clinical nurse specialist is a professional registered nurse with an
advanced academic degree, experience, and expertise in a clinical specialty
(e.g., obstetrics, pediatrics). The clinical nurse specialist functions in a
leadership capacity as a clinical role model, assisting the nursing staff to
continuously evaluate patient care; acts as a resource for the management
of patients with complex needs and conditions; participates in staff
development activities related to his or her clinical specialty; makes
recommendations for establishing standards of care for patients; functions
as a change agent by influencing attitudes, modifying behavior, and
introducing new approaches to nursing practice; and collaborates with
other members of the health care team to develop and implement the
therapeutic plan of care for patients.
Special Duty Nurse
A special duty nurse is a nurse employed by a patient or patient’s family to perform nursing care for the patient. An organization is generally not liable
for the negligence of a special duty nurse unless a master–servant relationship can be determined to exist between the organization and the
special duty nurse. If a master–servant relationship exists between the organization and the special duty nurse, the doctrine of respondeat superior
may be applied to impose liability on the organization for the nurse’s negligent acts. Although the patient employs the special duty nurse and the
organization has no authority to hire or fire the nurse, the organization does
have the responsibility to protect the patient from incompetent or
unqualified special duty nurses.
Float Staff
There are staff members who are rotated from unit to unit based on staffing
needs. Float staff can present a liability to the organization if they are
assigned to work in an area outside their expertise.
Agency Personnel
Health care organizations are at risk for the negligent conduct of agency
personnel. Because of this risk, it is important to ensure that agency
workers have the necessary skills and competencies to carry out the duties
and responsibilities assigned by the organization.
Nursing Assistants
A nursing assistant is an aide who has been certified and trained to assist
patients with activities of daily living. The nursing assistant provides basic
nursing care to non-acutely ill patients and assists in the maintenance of a
safe and clean environment under the direction and supervision of a
registered nurse or licensed practical nurse. The nursing assistant helps
with positioning, turning, and lifting patients and performs a variety of tests
and treatments. The nursing assistant establishes and maintains
interpersonal relationships with patients and other hospital personnel while
ensuring confidentiality of patient information. Common areas of
negligence for nursing assistants include failure to follow or improperly
perform procedures; failure to assist patients and prevent falls, unsafe
placement, or positioning of equipment; failure to maintain equipment
properly; failure to observe a patient and take vital signs at appropriate
intervals; failure to chart pertinent information regarding a patient’s changing condition (e.g., vital signs); and failure to respond to a patient’s call for help (e.g., call bells).
Student Nurses
Student nurses are entrusted with the responsibility of providing nursing
care to patients. When liability is being assessed, a student nurse serving at
a health care facility is considered an agent of the facility. Student nurses
are personally liable for their own negligent acts, and the facility is liable
for their acts on the basis of respondeat superior.
A student nurse is held to the standard of a competent professional
nurse when performing nursing duties. The courts have taken the position
that anyone who performs duties customarily performed by a professional
nurse is held to the standard of care required of a professional nurse. Every
patient has the right to expect competent nursing services even if students
provide the care as part of their clinical training.
The Nursing Shortage
The more-than-a-decade-old nursing shortage continues to require hospitals
to search for foreign-trained registered nurses. New immigration laws have
complicated the hiring and immigration process. Many countries are facing
similar shortages, thus raising ethical dilemmas when recruiting nurses
from countries with shortages of their own.
As one searches the literature pertaining to the shortage of nurses in the
United States, one quickly realizes that the above article from the Maryland
Bar Journal is discouraging in that it illustrates the ongoing problem.
Higher salaries and incentives, although important, have done little to
reduce the need for more nurses. One would think that the 9%
unemployment rate would have provided incentive to enter the field of
nursing. Perhaps more robust junior college training programs, along with
an increase in hospital-based training programs, would help encourage
entry into the profession. For more detailed information, see “Facts on the Nursing Shortage in North America” at the Honor Society of Nursing website: http://www.nursingsociety.org/Media/Pages/shortage.aspx.
Negligent Acts in Nursing
The following cases illustrate some of the acts or omissions constituting
negligence that all nurses should be aware of. They are by no means
exhaustive and merely represent the wide range of potential legal pitfalls in
which nurses might find themselves.
Nurse Assessments and Diagnosis
The defendant physicians in Cignetti v. Camel 27
ignored a nurse’s assessment of a patient’s diagnosis, which contributed to a delay in treatment and injury to the patient. The nurse had testified that she told the
physician that the patient’s signs and symptoms were not those associated with indigestion. The defendant physician objected to this testimony,
indicating that such a statement constituted a medical diagnosis by a nurse.
The trial court permitted the testimony to be entered into evidence. Section
335.01(8) of the Missouri Revised Statutes (1975) authorizes a registered
nurse to make an assessment of persons who are ill and to render a nursing
diagnosis. On appeal, the Missouri Court of Appeals affirmed the lower
court’s ruling, holding that evidence of negligence presented by a hospital employee, for which an obstetrician was not responsible, was admissible to
show the events that occurred during the patient’s hospital stay.
Ambiguous Medication Order
A nurse is responsible for making an appropriate inquiry if there is
uncertainty about the accuracy of a physician’s medication order in a patient’s record. The medication order in Norton v. Argonaut Insurance Co.,
28 as entered in the medical record, was incomplete and subject to
misinterpretation. Believing the order to be incorrect because of the dosage,
the nurse asked two physicians present on the patient care unit whether the
medication should be given as ordered. The two physicians did not
interpret the order as the nurse did and therefore did not share the same
concern. They advised the nurse that the attending physician’s instructions did not appear out of line. The nurse did not contact the attending physician
but instead administered the misinterpreted dosage of medication. As a
result, the patient died due to a fatal overdose of the medication.
The nurse was negligent by failing to consult with the attending
physician before administering the medication. The nurse was held liable,
as was the physician who wrote the ambiguous order that led to the fatal
dose. In discussing the standard of care expected of a nurse who encounters
an apparently erroneous order, the court stated that not only was the nurse
unfamiliar with the medication in question, but she also violated the rule
generally followed by members of the nursing profession in the
community, which requires that the prescribing physician be called when
there is doubt about an order. The court noted that it is the duty of a nurse
to make absolutely certain what the physician intended regarding both
dosage and route.
Wrong Dosage of a Medication
NEWSPAPER CLIPPINGS: State Cites Safety Drug Lapses at
Cedars-Sinai
Cedars-Sinai Medical Center’s handling of high-risk drugs placed its pediatric patients in immediate jeopardy of harm, the state said
Wednesday in its response to an overdose involving the newborn twins
of actor Dennis Quaid.
In a 20-page report, the California Department of Public Health said
the prestigious Los Angeles hospital gave the twins and another child
1,000 times the intended dosage of the blood thinner heparin Nov. 18.
“This violation involved multiple failures by the facility to adhere to established policies and procedures for safe medication use,” state inspectors wrote.
Charles Ornstein, Los Angeles Times, January 10, 2008
NEWSPAPER CLIPPINGS: More Heparin Overdoses, This Time
in Texas
Add at least 17 Texas infants to the number of children mistakenly
given overdoses of heparin in the hospital. At least one of those infants
died, and an autopsy is planned to determine whether the blood thinner
played a role. Another is still in critical condition. 29
Tami Dennis, Los Angeles Times, July 9, 2008
In one case, the wrong dosage of Haldol was administered to a patient
on seven occasions while a certain nurse was employed at a nursing
facility. 30
The patient’s physician had prescribed a 0.5-mg dosage of Haldol. The patient’s medication record indicated that the nurse had been administering doses of 5 mg, which were being sent to the patient care unit
by the pharmacy. The nurse had admitted that she administered the wrong
dosage and that she was aware of the facility’s medication administration policy, which she breached by failing to check the dosage supplied by the
pharmacy against the dosage ordered by the patient’s physician. The commissioner of the Department of Health made a determination that the
administration of the wrong dosage of Haldol on seven occasions
constituted patient neglect.
Medicating the Wrong Patient
A patient’s identification bracelet must be checked before administering any medication. To ensure that the patient’s identity corresponds to the name on the patient’s bracelet, the nurse should address the patient by name when approaching the patient’s bedside to administer any medication. Should a patient unwittingly be administered another patient’s medication, the attending physician should be notified and appropriate
documentation placed on the patient’s chart.
Failure to Note an Order Change
Failure to review a patient’s record before administering a medication to ascertain whether an order has been modified may render a nurse liable for
negligence. The physician in Larrimore v. Homeopathic Hospital
Association 31
wrote an instruction on the patient’s order sheet changing the method of administration from injection to oral medication. The nurse
mistakenly gave the medication by injection. Perhaps the nurse had not
reviewed the order sheet after being told by the patient that the medication
was to be given orally; perhaps the nurse did not notice the physician’s entry. Either way, the nurse’s conduct was held to be negligent. The court went on to say that the jury could find the nurse negligent by applying
ordinary common sense to establish the applicable standard of care.
Failure to Follow Instructions
Failure of a nurse to follow the instructions of a supervising nurse to wait
for her assistance before performing a procedure can result in the
revocation of the nurse’s license. The nurse in Cafiero v. North Carolina Board of Nursing
32 failed to heed instructions to wait for assistance before
connecting a heart monitor to an infant. The incorrect connection of the
heart monitor resulted in an electrical shock to the infant. The board of
nursing, under the Nursing Practice Act, revoked the nurse’s license. The board had the authority to revoke the nurse’s license even though her work before and after the incident had been exemplary. The dangers of electric
cords are within the realm of common knowledge. The record showed that
the nurse failed to exercise ordinary care in connecting the infant to the
monitor.
Failure to Report Physician Negligence
An organization can be liable for the failure of nursing personnel to take
appropriate action when a patient’s personal physician is clearly unwilling or unable to cope with a situation that threatens the life or health of the
patient. In a California case, Goff v. Doctors General Hospital, 33
a patient
was bleeding seriously after childbirth because the physician failed to
suture her properly. The nurses testified that they were aware of the
patient’s dangerous condition and that the physician was not present in the hospital. Both nurses knew the patient would die if nothing was done, but
neither contacted anyone except the physician. The hospital was liable for
the nurses’ negligence in failing to notify their supervisors of the serious condition that caused the patient’s death. Evidence was sufficient to sustain the finding that the nurses who attended the patient and who were aware of
the excessive bleeding were negligent and that their negligence was a
contributing cause of the patient’s death. The measure of duty of the hospital toward its patients is the exercise of that degree of care used by
hospitals generally. The court held that nurses who knew that a woman
they were attending was bleeding excessively were negligent in failing to
report the circumstances so that prompt and adequate measures could be
taken to safeguard her life.
Failure to Question Patient Discharge
A nurse has a duty to question the discharge of a patient if he or she has
reason to believe that such discharge could be injurious to the health of the
patient. Jury issues were raised in Koeniguer v. Eckrich 34
by expert
testimony that the nurses had a duty to attempt to delay the patient’s discharge if her condition warranted continued hospitalization. By
permissible inferences from the evidence, the delay in treatment that
resulted from the premature discharge contributed to the patient’s death. Summary dismissal of this case against the hospital by a trial court was
found to have been improper.
Patient’s Changing Condition Failure to note changes in a patient’s condition can lead to liability on the part of the nurse and the organization. The recovery room nurse in Eyoma
v. Falco 35
(who had been assigned to monitor a postsurgical patient) left
the patient and failed to recognize that the patient had stopped breathing.
Nurse Falco had been assigned to monitor the patient in the recovery room.
She delegated that duty to another nurse and failed to verify that the other
nurse accepted that responsibility.
Nurse Falco admitted she never got a verbal response from the other
nurse, and, when she returned, there was no one near the decedent. She
acknowledged that Dr. Brotherton told her to watch the decedent’s breathing but claimed that she was not told that the decedent had been
given narcotics. She maintained that on her return she checked the decedent
and observed his respirations to be eight per minute.
Thereafter, Brotherton returned and inquired about the decedent’s condition. Falco informed the doctor that the patient was fine; however, on
his personal observation, Brotherton realized that the decedent had stopped
breathing. Decedent, because of oxygen deprivation, entered a comatose
state and remained unconscious for over a year until his death. 36
The jury held the nurse to be 100 percent liable for the patient’s injuries. The court held that there was sufficient evidence to support the
verdict.
Failure to Remove Endotracheal Tube
The court in Poor Sisters of St. Francis v. Catron 37
held that the failure of
nurses and an inhalation therapist to report to the supervisor that an
endotracheal tube had been left in the plaintiff longer than the customary
period of 3 or 4 days was sufficient to allow the jury to reach a finding of
negligence. The patient experienced difficulty speaking and underwent
several operations to remove scar tissue and open her voice box. At the
time of trial, she could not speak above a whisper and breathed partially
through a hole in her throat created by a tracheotomy. The hospital was
found liable for the negligent acts of its employees and the resulting
injuries to the plaintiff.
Medical Records and the Nurse
The nurse is generally the one medical professional the patient sees more
than any other. Consequently, the nurse is in a position to monitor the
patient’s illness, response to medication, display of pain and discomfort, and general condition. The patient’s care, as well as the nurse’s observations, should be recorded on a regular basis. The nurse should
comply promptly and accurately with the physician orders written in the
record. Should the nurse have any doubt as to the appropriateness of a
particular order, he or she is expected to verify with the physician the intent
of the prescribed order.
PHARMACIST
Because of the immense variety and complexity of medications now
available, it is impossible for nurses or physicians to keep up with all of the
information required for safe medication use. The pharmacist has become
an essential resource in modern hospital practice. 38
Among nonoperative adverse events, medication errors are considered
a leading cause of medical injury in the United States. Antibiotics,
chemotherapeutic drugs, and anticoagulants are the three categories of
drugs responsible for most drug-related adverse events. The prevention of
medication errors requires recognition of common causes and the
development of practices to help reduce the incidence of errors. With
thousands of drugs, many of which look alike and sound alike, it is
understandable that medication errors are so common. The more common
types of medication errors include prescription errors, transcription errors
(often caused by illegible handwriting and improper use of abbreviations),
dispensing errors, and administration errors.
The practice of pharmacy essentially includes preparing, compounding,
dispensing, and retailing medications. These activities may be carried out
only by a pharmacist with a state license or by a person exempted from the
provisions of a state’s pharmacy statutes. The entire stock of drugs in a pharmacy is subject to strict government regulation and control. The
pharmacist is responsible for developing, coordinating, and supervising all
pharmacy activities and reviewing the drug regimens of each patient.
Dispensing and Administration of Drugs
The dispensing of medications is the processing of a drug for delivery or
for administration to a patient pursuant to the order of a health care
practitioner. It consists of checking the directions on the label with the
directions on the prescription or order to determine accuracy; selecting the
drug from stock to fill the order; counting, measuring, compounding, or
preparing the drug; placing the drug in the proper container; and adding to
a written prescription any required notations.
The administration of medications is the act of giving a single dose of a
prescribed drug to a patient by an authorized person in accordance with
federal and state laws and regulations. The complete act of administration
includes removing an individual dose from a previously dispensed,
properly labeled container (including a unit dose container); verifying it
with the physician’s order; giving the individual dose to the proper patient; and recording the time and dose given.
Licensed persons, in accordance with state regulations, may administer
medications. Each dose of a drug administered must be recorded on the
patient’s clinical records. A separate record of narcotic drugs must be maintained. The record must contain a separate sheet for each narcotic of
different strength or type administered to the patient. The narcotic record
must contain the following information: date and time administered,
physician’s name, signature of person administering the dose, the balance of the narcotic drug on hand, and the proper recording of any drugs
wasted/destroyed.
In the event that an emergency arises requiring the immediate
administration of a particular drug, the patient’s record should be documented properly, showing the necessity for administration of the drug
on an emergency basis. Procedures should be in place for handling
emergency situations.
Drug Substitution
Drug substitution may be defined as the dispensing of a different drug or
brand in place of the drug or brand ordered. Several states prohibit this, and
penal sanctions, including loss of license, are imposed for violation of the
law.
Health care organizations use a “formulary system” whereby physicians and pharmacists create a formulary listing drugs used in the institution. The
formulary contains the brand names and generic names of drugs. Under the
formulary system, a physician agrees that his or her prescription calling for
a brand name drug may be filled with the generic equivalent of that drug
(i.e., a drug that contains the same active ingredients in the same
proportions).
Authorization for using a generic equivalent should be given by the
physician at the time of prescribing a formulary drug and should be
evidenced by a written consent on the face of the prescription. When a
formulary system is in use, the prescribing physician can require the use of
a particular brand name drug, when he or she deems it necessary or
desirable, by expressly prohibiting the use of the formulary system.
A pharmacist can be subject to liability for mishandling or misuse of
drugs. Failure to meet and maintain required standards in handling drugs
can lead to criminal or civil liability and even to the revocation of a
pharmacist’s license.
Expanding Role of the Pharmacist
Historically, the role of the pharmacist was centered on management of the
pharmacy and accurate dispensing of drugs. The duties and responsibilities
of pharmacists have moved well beyond the concept of filling prescriptions
and dispensing drugs. Schools of pharmacy have recognized the ever-
expanding role of the pharmacist into the clinical aspects of patient care, so
much so that the educational requirements are getting more stringent, with
emphasis on clinical education and application. Pharmacists now, among
other duties, maintain patient medication profiles and monitor patient
profiles, looking for incompatibilities between drugs and for food–drug interactions.
Duty to Monitor Patient’s Medications In Baker v. Arbor Drugs, Inc.,
39 a Michigan court imposed a duty on a
pharmacist to monitor a patient’s medications. Three different prescriptions were prescribed by the same physician and filled at the same pharmacy.
The pharmacy maintained a computer system that detected drug
interactions. The pharmacy advertised to consumers that it could, through
the use of a computer monitoring system, provide a medication profile of a
customer for adverse drug reactions. Because the pharmacy advertised and
used the computer system to monitor the medications of a customer, the
pharmacist voluntarily assumed a duty of care to detect the harmful drug
interaction that occurred.
The pharmacist is playing an ever-expanding interdisciplinary
collaborative role on the clinical side of health care. For example,
pharmacists often maintain a separate telephone line in hospitals for
caregivers and practitioners to use to ask questions and discuss such issues
as treatment plans for patients and proper dosing. Pharmacists are playing
an important role when they respond and participate in reviving patients in
cardiac arrest. Their knowledge of drugs, potential drug interactions, and
proper dosing can mean the difference between life and death.
Warning Patients About Potential for Overdose
A Pennsylvania court held that a pharmacy failed to exercise due care and
diligence because the patient was not warned about the maximum dosage
of a medication. 40
This failure resulted in an overdose, causing the patient
permanent injuries. Expert testimony focused on the fact that a pharmacist
who receives inadequate instructions as to the maximum recommended
dosage of a medication has a duty to ascertain whether the patient is aware
of the limitations concerning the use of the drug or, alternatively, to contact
the prescribing physician regarding the inadequacy of the prescription.
Refusal to Honor a Questionable Prescription
In Hooks v. McLaughlin, 41
the Indiana Supreme Court held that a
pharmacist had a duty to refuse to refill prescriptions at an unreasonably
faster rate than prescribed pending directions from the prescribing
physician. The Indiana Code provides that a pharmacist is immune from
civil prosecution or civil liability if he or she, in good faith, refuses to
honor a prescription because, in his or her professional judgment, honoring
of the prescription would aid or abet an addiction of habit. 42
Billing Fraud
The court of appeals in State v. Beatty 43
upheld a lower court’s finding that the evidence submitted against the defendant pharmacist was sufficient to
sustain a conviction for Medicaid fraud. The state was billed for
medications that were never dispensed, for more medications than some
patients received, and in some instances, for the more expensive trade
name drugs when cheaper generic drugs were dispensed.
The pharmacists in People v. Kendzia 44
were convicted of selling
generic drugs in vials with brand name labels. Investigators, working
undercover, were provided with Medicaid cards and fictitious prescriptions
requiring brand name drugs to be dispensed as written. Between April and
October 1979, the investigators had taken the prescriptions to the
pharmacy, where they were filled with generic substitutions in vials with
the brand name labels.
PHYSICAL THERAPIST
Physical therapy is the art and science of preventing and treating
neuromuscular or musculoskeletal disabilities through the evaluation of an
individual’s disability and rehabilitation potential and the use of physical agents—heat, cold, electricity, water, and light—and neuromuscular procedures that, through their physiologic effect, improve or maintain the
patient’s optimum functional level. Because of different physical disabilities brought on by various injuries and medical problems, physical
therapy is an extremely important component of a patient’s total health care. As the following cases illustrate, there can be both ethical and legal
issues when a therapist incorrectly interprets a physician’s orders for physical therapy.
Incorrectly Interpreting Physician’s Orders Pontiff, in Pontiff v. Pecot & Assoc.,
45 filed a petition for damages against
Pecot and Associates and Morris. Pontiff alleged that Pecot and Associates
had been negligent in failing to train, supervise, and monitor its employees
properly, including Morris, and that Pecot and Associates was otherwise
negligent. Pontiff alleged that employee Morris failed to exercise the
degree of care and skill ordinarily exercised by physical therapists, failed to
heed his protests that he could not perform physical therapy treatments she
was supervising, and failed to stop performing physical therapy treatments
after he began to complain he was in pain. Pontiff claimed he felt a muscle
tear while he was exercising on the butterfly machine, a resistive exercise
machine.
Pontiff’s expert, Boulet, a licensed practicing physical therapist, testified that Pecot deviated from the standard of care of physical therapists
by introducing a type of exercise that, according to her, was not prescribed
by Dr. deAraujo, the treating physician. She stated that Pecot had added
resistive or strengthening exercises to Pontiff’s therapy and that these were not a part of the physician’s prescription. Pecot argued that resistive exercises were implicitly part of the prescription, even if her interpretation
of the prescription was not reasonable.
Legally, under Louisiana law, a physical therapist may not treat a
patient without a written physical therapy prescription. Ethically, the
Physical Therapists’ Code of Ethics, Principle 3.4, states that “any alteration of a program or extension of services beyond the program should
be undertaken in consultation with the referring practitioner.” Because resistive exercises were not set forth in the original prescription, Boulet
stated that consultation with the physician was necessary before Pontiff
could be advanced to that level. Only in the case where a physician has
indicated on the prescription that the therapist is to “evaluate and treat” would the therapist have such discretion. There was no such indication on
the prescription written by deAraujo.
Davis, a physical therapist in private practice and Pecot’s expert witness, testified that the program that Pecot designed for Pontiff was
“consistent with how she interpreted the prescription for therapy that the physician wrote.” Davis, however, did not at any time state that Pecot’s
interpretation was a reasonable one. In fact, Davis herself would not have
interpreted the prescription in the manner that Pecot did. Davis testified
only that Pecot’s introduction of resistive exercises was reasonable based on her interpretation of the prescription.
It is clear that Pecot, as a licensed physical therapist, owed a duty to
Pontiff, her client. Pecot’s duty is defined by the standard of care of similar physical therapists and the American Physical Therapy Association. If
Pecot found the prescription to be ambiguous, she had a duty to contact the
prescribing physician for clarification. The appeals court found that the
trial court was correct in its determination that Pontiff presented sufficient
evidence to show that this duty was breached and that Pecot’s care fell below the standard of other physical therapists.
Resident Neglect
In Zucker v. Axelrod, 46
a physical 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. Undisputed
evidence at a hearing showed that the petitioner refused to allow the
resident to be excused to go to the bathroom. The petitioner claimed that
her refusal was because she assumed that the resident had gone to the
bathroom before going to therapy and that the resident was undergoing a
bladder-training program. The petitioner had not mentioned when she was
interviewed after the incident or during her hearing testimony that she
considered bladder training a basis for refusing to allow the resident to go
to the bathroom. It is uncontroverted that the nursing facility had a policy
of allowing residents to go to the bathroom whenever they wished to do so.
The court held that the finding of resident neglect was supported
sufficiently by the evidence.
REALITY CHECK: Multidisciplinary Approach to Patient Care
Do patients believe that care is always well coordinated? Are patients at
times treated based on short “handwritten notes” by the prescribing physician? Are mistakes sometimes made because of illegible
handwriting? Is it helpful to the radiologist if the ordering physician
notes on the order sheet why a particular imaging study is required? Do
nurses sometimes find it necessary to clarify medication orders? Do
pharmacists find it necessary to contact the physician when there are
dosing questions? Would it be helpful for the prescribing physician to
discuss a patient’s needs with the treating therapist? Would it be helpful if the physician reviewed the imaging studies of his or her patient with
serious neck injuries, prior to treatment by a therapist? Does
understaffing affect the quality of care?
Jill recently visited a pain center where the medical director had
integrated a pain therapist into the hospital’s pain management program. After several visits to the hospital’s pain management program, Jill complimented the staff as to their multidisciplinary
approach to her care.
The medical director stated that the success of the hospital’s pain management program was due to the multidisciplinary approach
practiced in the hospital. He stated that pain management is often
poorly practiced because of the failure of the treating physician to
become more involved in the patient’s therapy. A patient’s pain is often exacerbated because of a superficial treatment plan that fails to include
the physician, and the failure to provide the images to the treating
therapist. Both the physician and treating therapist, and most
importantly the patient’s care, are optimized when there is ongoing communication among caregivers. The medical director further stated
that professionalism and satisfaction among caregivers improve when
communications flow freely.
Jill again complimented the staff and stated that she would not
hesitate to recommend the hospital’s pain management program to her family and friends.
The next time a patient is treated by a caregiver, the patient should
ask, What records have you seen? Have you discussed my treatment
plan with my physician? What were my physician’s specific orders? May I see them? What precautions have you been asked to follow with
me? Have you seen my imaging studies? Has anyone discussed them
with you?
My pledge as a patient: I will ask myself, am I being treated in an
assembly-line fashion, assembled in a room like cattle, without privacy
in cramped corridors by a caregiver who, because of understaffing, is
frantically moving from patient to patient, or am I truly getting
individualized care and treatment in a style worthy of the words “I am receiving quality care”?
Discussion
1. Regardless of your profession or health care setting, discuss how
the multidisciplinary approach to patient care might be improved in
your organization.
2. Consider and discuss what questions you might ask if you were the
patient undergoing treatment.
PHYSICIAN ASSISTANT
Physicians are increasingly employing physician assistants (PAs) as an
extension of their practices. According to the American Academy of
Physician Assistants, there were 46,002 PAs in the United States in the
beginning of 2003, a nearly 110% increase since 1993. PAs are licensed to
practice medicine under a physician’s supervision and can practice only under a physician’s license. They can conduct physician exams, diagnose and treat illnesses, order and interpret tests, and write prescriptions in most
states.
One of the solutions to the shortage of physicians in certain rural and
inner-city areas has been to train allied health professionals such as PAs to
perform the more routine and repetitive medical functions. A physician
may delegate to a PA such tasks as suturing minor wounds, administering
injections, and performing routine history and physical examinations. A
physician may not delegate a task when regulations specify that the
physician must perform it personally or when the delegation is prohibited
under state law or by the facility’s own policies. PAs are responsible for their own negligent acts. The employer of a PA
can be held liable for the PA’s negligent acts on the basis of respondeat superior. A physician, as an employer of a PA, also can be held liable on
the basis of respondeat superior.
To limit the potential risk of liability for a PA’s negligent acts, PAs should be monitored and supervised by a physician. Guidelines and
procedures also should be established to provide a standard mechanism for
reviewing a PA’s performance.
PSYCHOLOGIST
Psychologists are expected to safeguard the welfare and rights of those
with whom they interact professionally. They must establish relationships
of trust with those with whom they work. They must uphold professional
standards of conduct, clarify their professional roles and obligations, and
accept responsibility for their behavior.
Unethical Conduct
Sturm, a licensed psychologist who has taught professional ethics since
1985 and who served on the ethics committee of the Oregon Psychological
Association for 6 years, testified that testimony about the best interests of
children in a custody dispute by a therapist who had not observed both
parents’ interactions with the children was unethical. Sturm further stated that a psychologist has an obligation to adopt an impartial stance and to
avoid actions that would escalate an adversarial nature of the relationship
between the parents. Sturm explained that psychologists have “an ethical responsibility to anticipate the possible purposes” behind a request to prepare an affidavit to be used in a custody dispute in order to prevent
misuse of the evaluation and agreed that practices such as making
evaluative statements about persons or relationships not observed directly
are blatantly unethical. The petitioner’s affidavit made such statements, and it was not until the show-cause hearing that petitioner admitted to her bias
toward her patient. 47
Psychologist’s Improprieties with Clients A defense that sexual improprieties with clients did not take place during
treatment sessions is unacceptable conduct. The Board of Psychologist
Examiners in Gilmore v. Board of Psychologist Examiners 48
revoked a
psychologist’s license because of sexual improprieties. The psychologist petitioned for judicial review. She argued that therapy had terminated
before the sexual relationships began. The court of appeals held that
evidence supported the board conclusion that the psychologist had violated
an ethical standard in caring for her patients. When a psychologist’s personal interests intrude into the practitioner–client relationship, the practitioner is obliged to seek objectivity through a third party. The board’s findings and conclusions indicated that the petitioner failed to maintain that
objectivity.
Alleged Abuse: Immunity Provided to Psychologist
Two children were placed in the temporary custody of a foster family. One
child was referred to a licensed psychologist for evaluation. After two
interviews, the psychologist formed the professional opinion that the child
had been sexually molested. Based in part on statements made by the child,
the psychologist further believed that the perpetrator of the suspected
molestation was the father. At a hearing before the juvenile court, the court
determined that the evidence did not support a finding that the child had
been abused by his father. Custody was returned to the parents. The child’s parents subsequently initiated an action for medical malpractice against the
psychologist. The psychologist claimed immunity from liability, as
provided by a state child abuse reporting statute. The trial court and the
parents appealed, arguing that the immunity provisions of the statute do not
apply to the psychologist because she was not a “mandatory reporter” under that statute.
49
The Georgia Court of Appeals held that the statute’s grant of immunity from liability extended to the psychologist. The evidence did not establish
bad faith on the part of the psychologist so as to deprive her of such
immunity. The statute provides that any person participating in the making
of a report or participating in any judicial proceeding or any other
proceeding resulting in a report of suspected child abuse is immune from
any civil or criminal liability that might otherwise be incurred or imposed,
provided such participation pursuant to the statute is made in good faith.
The grant of qualified immunity covers every person who, in good faith,
participates over time in the making of a report to a child welfare agency.
Proof of negligent reporting or bad judgment is not proof that the
psychologist refused to fulfill her professional duties out of some harmful
motive or that she consciously acted for some dishonest purpose. There
was no competent evidence that the psychologist acted in bad faith.
RESPIRATORY THERAPIST
Respiratory care and therapy refer to the allied health profession
responsibility for the treatment, management, diagnostic testing, and
control of patients with cardiopulmonary deficits. A respiratory therapist is
a person employed in the practice of respiratory care who has the
knowledge and skill necessary to administer respiratory care.
Respiratory therapists are responsible for their negligent acts. A
respiratory therapist’s employer is responsible for the negligent acts of the therapist under the legal doctrine of respondeat superior. The respiratory
therapist, for example, in State University v. Young 50
was suspended for
using the same syringe for drawing blood from a number of critically ill
patients. The therapist had been warned several times of the dangers of that
practice and that it violated the state’s policy of providing quality patient care.
CASE: RESTOCKING THE CODE CART
In Dixon v. Taylor, 111 N.C. App. 97, 431 S.E.2d 778 (1993), Dixon had
been admitted to the hospital and was diagnosed with pneumonia in her
right lung. Dixon’s condition began to deteriorate, and she was moved to the intensive care unit (ICU). A code blue was eventually called,
signifying that her cardiac and respiratory functions were believed to have
ceased. During the code, a decision was made to intubate by inserting an
endotracheal tube into Dixon so that she could be given respiratory support
by a mechanical ventilator.
As Dixon’s condition stabilized, Dr. Taylor, Dixon’s physician at that time, ordered that she be gradually weaned from the respirator. Blackham,
a respiratory therapist employed by the hospital, extubated Dixon at 10:15
PM. Taylor left Dixon’s room to advise her family that she had been extubated.
Blackham decided an oxygen mask would provide better oxygen to
Dixon but could not locate a mask in the ICU; thus, he left ICU and went
across the hall to the critical care unit. When Blackham returned to
Dixon’s room with the oxygen mask and placed it on Dixon, he realized that she was not breathing properly. Blackham realized that she would
have to be reintubated as quickly as possible.
A second code was called and Shackleford, a nurse in the cardiac
critical care unit, responded to the code. Shackleford recorded on the code
sheet that she arrived in Dixon’s room at 10:30 PM. She testified that Blackham said he had too short of a blade and he needed a medium, a
Number 4 MacIntosh laryngoscope blade which was not on the code cart.
The code cart is a cart equipped with all the medicines, supplies, and
instruments needed for a code emergency. The code cart in the ICU had
not been restocked after the first code that morning; thus, Shackleford was
sent to obtain the needed blade from the critical care unit across the hall.
When Shackleford returned to the ICU, the blade was passed to Taylor,
who had responded to the code and was attempting to reintubate Dixon.
After receiving the blade, Taylor was able to quickly intubate Dixon.
Dixon was placed on a ventilator, but she never regained consciousness.
After the family was informed there was no hope that Dixon would
recover the use of her brain, the family requested that no extraordinary
measures be taken to prolong her life.
A medical negligence claim was filed against Taylor and the hospital.
The jury found that Taylor was not negligent. Evidence presented at trial
established that the hospital’s breach of duty in not having the code cart properly restocked resulted in a 3-minute delay in the intubation of Dixon.
Reasonable minds could accept from the testimony at trial that the
hospital’s breach of duty was a cause of Dixon’s brain death, without which the injury would not have occurred. Foreseeability on the part of the
hospital can be established from the evidence introduced by the plaintiff
that the written standards for the hospital require every code cart be
stocked with a Number 4 MacIntosh blade. This evidence permits a
reasonable inference that the hospital should have foreseen that the failure
to have the code cart stocked with the blade could lead to critical delays in
intubating a patient. Accordingly, there was substantial evidence that the
failure to have the code cart stocked with the proper blade was a proximate
cause of Dixon’s fatal injuries.
Ethical and Legal Issues
1. Describe the ethical issues involved in this case.
2. Describe how this case satisfies the elements of negligence.
3. Describe how the hospital could be liable for the therapist’s decision to leave the patient.
4. How can the likelihood of similar occurrences be prevented in the
future?
RADIOLOGY TECHNOLOGIST
Radiology technologists are expected to conduct themselves in a
professional manner, respond to patient needs, and support colleagues and
associates in providing quality patient care.
Failure to Restrain Caused Patient Fall
The plaintiff in Cockerton v. Mercy Hospital Medical Center 51
was
admitted to the hospital for the purpose of surgery. Her physician ordered
postsurgical X-rays for her head and face to be taken the next day. A
hospital employee took the plaintiff from her room to the X-ray department
by wheelchair. A nurse had assessed her condition as slightly “woozy” and drowsy. An X-ray technician took charge of the plaintiff in the X-ray room.
After the plaintiff was taken inside the X-ray room, she was transferred
from a wheelchair to a portable chair for the procedure. After being moved,
the plaintiff complained of nausea. The technician did not use the restraint
straps to secure the plaintiff to the chair. At some point during the
procedure, the plaintiff had a fainting seizure. The technician called for
help. When another hospital employee entered the room, the technician was
holding the plaintiff in an upright position. She appeared nonresponsive.
The plaintiff only remembered being stood up and having a lead jacket
placed across her back and shoulders. The technician maintains that the
plaintiff did not fall. At the time the plaintiff left the X-ray room, her level
of consciousness was poor. The plaintiff’s physician noticed a deflection of the plaintiff’s nose but had difficulty assessing it because of the surgical procedure from the day before. The following day, the deflection of the
plaintiff’s nose was much more evident. A specialist was contacted, and an attempt was made to correct the deformity. The specialist made an
observation that it would require a substantial injury to the nose to deflect it
to that severity.
The plaintiff instituted proceedings against the hospital, alleging that
the negligence of the nurses or technicians allowed her to fall during the
procedure and subsequently caused injury. The jury concluded that the
hospital was negligent in leaving the plaintiff unattended or failing to
restrain her, which proximately caused her fall and injury.
The X-ray technician testified that during the X-ray the plaintiff
appeared to have a “seizure episode.” She also testified that she left the plaintiff unattended for a brief period of time and that she did not use the
restraint straps that were attached to the portable X-ray chair. Using the
restraint straps would have secured the plaintiff to the portable chair during
the X-ray examination.
SOCIAL WORKER
NEWSPAPER CLIPPINGS: Caseworker Fired After Baby Dies
A District of Columbia social worker was fired Tuesday following the
death of a baby who was reported as neglected, city officials said.
The city’s Child and Family Service Agency received a call about the 6-month-old boy in March, but the social worker assigned to the
case never visited the child, interim Attorney General Peter Nickles
said.
Nikita Stewart, The Washington Post, July 8, 2008
As with many professions, social workers are often overlooked and
underutilized when it comes to the team approach to health care. It has,
over the years, been a low priority with hospitals to hire an effective team,
adequately staffed to address the myriad of issues that need to be addressed
in the delivery of patient care. The allocation of hospital resources with
dwindling dollars has served only to make the hiring of social workers a
low priority for health care organizations.
CERTIFICATION OF HEALTH CARE PROFESSIONALS
Certification of health care professionals is the recognition by a
governmental or professional association that an individual’s expertise meets the standards of that group. The standards established by
professional associations generally exceed those required by government
agencies. 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.
LICENSING HEALTH CARE PROFESSIONALS
Licensure can be defined as the process by which some competent
authority grants permission to a qualified individual or entity to perform
certain specified activities that would be illegal without a license. As it
applies to health care personnel, licensure refers to the process by which
licensing boards, agencies, or departments of the several states grant to
individuals who meet certain predetermined standards the legal right to
practice in a health care profession and to use a specified health care
practitioner’s title. The commonly stated objectives of licensing laws are to limit and control admission to the different health care occupations and to
protect the public from unqualified practitioners by promulgating and
enforcing standards of practice within the professions. Health professions
commonly requiring licensure include dentists, nurses, pharmacists, PAs,
osteopaths, physicians, and podiatrists.
The authority of states to license health care practitioners is found in
their regulating power. Implicit in the power to license is the authority to
collect license fees, establish standards of practice, require certain
minimum qualifications and competency levels of applicants, and impose
on applicants other requirements necessary to protect the general public
welfare. This authority, which is vested in the legislature, may be delegated
to political subdivisions or to state boards, agencies, and departments. In
some instances, the scope of the delegated power is made specific in the
legislation; in others, the licensing authority may have wide discretion in
performing its functions. In either case, however, the authority granted by
the legislature may not be exceeded.
Suspension and Revocation of License
Licensing boards have the authority to suspend or revoke the license of a
health care professional who is 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.
Suspension and revocation procedures are most commonly contained in
a state’s licensing act; in some jurisdictions, however, the procedure is left to the discretion of the board or is contained in the general administrative
procedure acts.
REALITY CHECK: Making Change for the Good Is Possible!
There I was, sitting at a conference table on a patient care unit in a
hospital in Mississippi reviewing the care being delivered to patients. I
particularly remember how polite the staff was. Additional chairs were
brought into the room and they had soon been filled, with standing
room only. The nurses, dietitians, physical therapists, social workers,
and managers appeared eager to meet the sometimes-feared inspector
who would show up periodically unannounced to review the quality of
care being delivered to patients.
The staff at first appeared reluctant to talk, but soon reached a
comfort zone and spoke with confidence about the care they were
providing a randomly selected patient that was chosen by record
number. As the questions were asked, the staff responded confidently
and competently as to the care being delivered the patient. The time
allotted for this interview was about to end as the minute hand on the
clock in the conference room was approaching 12:00 PM. As my review
was nearly over, I asked, “Do you have any questions for me?” A nurse, who was quiet during the review but was following the
conversation intently, looked at me and said, “Have you been to many
states in your job?” I responded that I had. She continued, “We have a bad reputation in other states, don’t we?” I hesitated for a moment, looking at her, realizing the seriousness of her question. I then asked
her, “Could you be more specific?” She responded with two words: “Mississippi Burning.” I responded, “Why don’t you make it Mississippi Shining?”
She asked, “And how do we do that?” I sat for a moment, as so many thoughts raced through my mind as the staff waited patiently for
my response. I smiled as I looked around the crowded conference
room, thinking, if only the community could have watched the staff in
action during this interview. I thought as my mind raced, here is a story,
this interview should be placed on the front page of the local
newspaper. Not my questions, but their caring attitude toward their
patients and the eloquence with which they spoke.
My thoughts skipped to how a community could recognize the
talent in this hospital and the caring spirit of those who work in it.
Finally, I gave my answer: “You can see the beginning of change in 30 days. The news media has helped create the image of not only
Mississippi but also many cities and states by how they report troubling
news on Page 1, placing the best stories in the back pages of your
newspaper. It’s called sensationalism, believing that only the ugly sells newspapers. You can change that image in 30 days by beginning with
one person and one phone call.” The staff discussed to whom that phone call could be placed, the mayor, the governor, congressperson,
president . . .
Following some discussion with the staff, I said, “No, those calls have already been made. One call can move a mountain. That call
should be made to the local newspaper, calling the editor and canceling
the paper and explaining why. You give the reason why you are
canceling in your own words describing how you have had enough of
the negative news on the front page and you want to see the positive
stories on that page. The many successes in your hospital, health care,
education, research, and so on. Not the one thing that went wrong as
though the wrong were the norm in your city. Now, we know that the
news editor will not pay much attention to one cancellation. Therefore,
on day two, the first individual canceling the newspaper must find two
other individuals willing to cancel the newspaper for this cause. Again,
in their own words, stating their reasons for cancelling. If they don’t get the paper, ask them to call two others who do. Continue this process for
up to 30 days, if necessary. Multiply the cancellations over a 30-day
period. You will either see change in reporting or the newspaper will be
out of business. The probability of the newspaper changing the news on
the front page is more likely than the paper choosing to go out of
business. The major obstacle is getting people to work together on a
common cause.” I suggested, “If the newspaper provides Page 1 stories that you can be proud of, reorder it and find others willing to subscribe
to support your local paper. If you do this, you will be the first state to
be a beacon to other states, our nation, and example to the world that
light can outshine darkness.”
Anonymous
HELPFUL ADVICE FOR CAREGIVERS
• Abide by the ethical code of your profession. • Do not criticize the professional skills of others. • Maintain complete 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 diagnostic and therapeutic procedures. • Inform the patient of the risks, benefits, and 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 patient equipment regularly, and monitor it for safe use. • When terminating a professional relationship, give 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, and allow each patient sufficient time to express fears
and anxieties.
• Develop and implement an interdisciplinary plan of care for each patient. • Safely administer patient medications. • Closely monitor each patient’s response to treatment. • Provide education and teaching to patients. • Foster a sense of trust and feeling of significance. • Communicate with the patient and other caregivers. • Provide cost-effective care without sacrificing quality.
CHAPTER REVIEW
1. Practicing outside one’s scope of practice has both ethical and legal concerns.
2. Legislation in many states imposes a duty on hospitals to provide
emergency care. If the public is aware that a hospital furnishes
emergency services and relies on that knowledge, the hospital has a
duty to provide those services to the public.
3. Hospitals are expected to notify specialty on-call physicians when their
particular skills are required in the emergency department. A physician
who is on call and fails to respond to a request to attend a patient can
be liable for injuries suffered by the patient because of his or her failure
to respond.
4. There can be both ethical and legal repercussions if a professional
incorrectly interprets a physician’s orders. 5. A defense that sexual improprieties with clients did not take place
during treatment sessions is unacceptable conduct.
6. Scope of practice refers to the permissible boundaries of practice for
health care professionals, as is often defined in state statutes, which
define the actions, duties, and limits of professionals in their particular
roles.
7. A professional who exceeds his or her scope of practice as defined by
state practice acts can be found to have violated licensure provisions or
to have performed tasks that are reserved by statute for another health
care professional.
8. The power and authority to regulate drugs, their products, packaging,
and distribution rest primarily with federal and state governments.
9. Certification of health care professionals is the recognition by a
governmental or professional association that an individual’s expertise meets the standards of that group.
10. Licensure can be defined as the process by which some competent
authority grants permission to a qualified individual or entity to
perform certain specified activities that would be illegal without a
license.
REVIEW QUESTIONS
1. Describe how ethics and the law impact on the various health care
professions discussed in this chapter.
2. Discuss the ethical and legal implications of practicing outside
one’s scope of practice. 3. Under what circumstances does a hospital have a duty to provide
emergency services to the public?
4. Are sexual improprieties acceptable with clients as long as they do
not take place during treatment? Explain your answer.
5. Consider under what circumstances a professional’s legal responsibilities may overlap with his or her ethical duties.
6. Describe how and why the scope of practice for various
professionals (e.g., nurses and pharmacists) is changing.
7. If a caregiver disagrees with a physician’s written orders and is sure that he or she is right, should that caregiver violate the orders?
Explain your answer.
8. Describe a professional’s responsibilities if a patient’s condition takes a turn for the worse.
9. Describe the difference between the certification and licensing of a
health care professional.
NOTES
1. From
http://ethics.iit.edu/index1.php/Programs/Codes%20of%20Ethics/Using%20a%20Code%20of
%20Ethics.
2.
http://www.iit.edu/departments/csep/PublicWWW/codes/coe/American%20Medical%20Techn
ologists%20code%20of%20ethics.html.
3. Walter F. Roche, Jr., “City hospital’s HIV testing manipulated,” Baltimore Sun, March 11, 2004; http://www.baltimoresun.com/news/local/bal-lab0311,0,6183061.story?coll5bal-local-
headlines.
4. Poor v. State, No.S-02-472, 266 Neb. 183 (Neb. 2003).
5. 557 S.E.2d 339 (2001).
6. 495 N.Y.S.2d 808 (N.Y. App. Div. 1985).
7. Lowenbergv. Sobol, 594 N.Y.S.2d 874 (N.Y. App. Div. 1993).
8. 367 S.E.2d 453 (S.C. 1988).
9. Id. at 455–456. 10. 753 F. Supp. 267 (W.D. Ark. 1990).
11. 288 A.2d 379 (Md. 1972).
12. 271 N.W.2d 8 (S.D. 1978).
13. 477 So. 2d 1036 (Fla. Dist. Ct. App. 1985).
14. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). 15. Martin C. McWilliams, Jr. & Hamilton E. Russell, III, Hospital Liability for Torts of
Independent Contractor Physicians, 47 S.C. L. REV. 431, 473 (1996).
16. 462 A.2d 680 (Pa. 1983).
17. 650 A.2d 1076 (Pa. Super. 1994).
18. 521 N.E.2d 350 (Ind. Ct. App. 1988).
19. Walter F. Roche Jr., “City hospital’s HIV testing manipulated,” Baltimore Sun, March 11, 2004; http://articles.baltimoresun.com/2004-03-11/news/0403110206_1_test-results-maryland-
general-hospital-hospital-officials.
20. See Certmedassistant.com, “Certified medical assistant,” http://www.certmedassistant.com/what-medical-assistant.html.
21. U.S. Department of Labor, Bureau of Labor Statistics, “Occupational outlook handbook, 2010- 11 edition”; http://www.bls.gov/oco/ocos164.htm#outlook.
22. Ibid.
23. 636 N.E.2d 1282 (Ind. Ct. App. 1994).
24. Fraijo v. Hartland Hosp., 160 Cal. Rptr. 252 (Ct. App. 1979).
25. Institute of Medicine, “Keeping patients safe: Transforming the work environment of nurses.” Washington, DC: The National Academies Press, at 2. Available at
http://www.nap.edu/openbook.php?isbn=0309090679.
26. Department of Health, Education & Welfare, “Extending the scope of nursing practice: A report of the Secretary’s Committee to Study Roles for Nurses,” Pub. No. (HSM) 73-2037, 8 (1971).
27. 692 S.W.2d 329 (Mo. Ct. App. 1985).
28. 144 So. 2d 249 (La. Ct. App. 1962).
29. Tami Dennis, “More heparin overdoses, this time in Texas,” Los Angeles Times, July 9, 2008; http://latimesblogs.latimes.com/booster_shots/2008/07/more-heparin-ov.html.
30. Harrison v. Axelrod, 599 N.Y.S.2d 96 (N.Y. App. Div. 1993).
31. 181 A.2d 573 (Del. 1962).
32. 403 S.E.2d 582 (N.C. Ct. App. 1991).
33. 333 P.2d 29 (Cal. Ct. App. 1958).
34. 422 N.W.2d 600 (S.D. 1988).
35. 589 A.2d 653 (N.J. Super. App. Div. 1991).
36. Id. at 655.
37. 435 N.E.2d 305 (Ind. Ct. App. 1982).
38. Institute of Medicine, “To err is human: Building a safer health system,” supra note 1, at 194. 39. 544 N.W.2d 727 (Mich. Ct. App. 1996).
40. Riff v. Morgan Pharmacy, 508 A.2d 1247 (Pa. Super. Ct. 1986).
41. 642 N.E.2d 514 (Ind. 1994).
42. Ind. Code A4 25-26-13-16(b)(3) (1993).
43. 308 S.E.2d 65 (N.C. Ct. App. 1983).
44. 478 N.Y.S.2d 209 (N.Y. App. Div. 1984).
45. 780 So. 2d 478 (2001).
46. 527 N.Y.S.2d 937 (N.Y. App. Div. 1988).
47. Loomis v. Board of Psychologist Exam’rs, 954 P.2d 839 (1998). 48. 725 P.2d 400 (Or. Ct. App. 1986).
49. Michaels v. Gordon, 439 S.E.2d 722 (Ga. Ct. App. 1993).
50. 566 N.Y.S.2d 79 (N.Y. App. Div. 1991).
51. 490 N.W.2d 856 (Iowa Ct. App. 1992).
chapter ten
Physicians’ Ethical and Legal Issues
LEARNING OBJECTIVES
The reader on completion of this chapter will be able to:
• Describe the principles of medical ethics. • Discuss the credentialing process for physicians. • Explain the hospital’s duty to ensure the competency of physicians. • Understand how ethics and the law impact on physicians. • Identify the variety and complexity of patient care issues that
physicians face daily.
• Describe how practicing one’s professional code of ethics can assist in resolving the day-to-day issues that arise during the care of
patients.
• Explain the importance of understanding the physician–patient relationship.
INTRODUCTION
The Hippocratic Oath:
I SWEAR by Apollo the physician, and Aesculapius, and Health, and
All-heal, and all the gods and goddesses, that, according to my ability and
judgment, I will keep this Oath and this stipulation—to reckon him who taught me this Art equally dear to me as my parents, to share my substance
with him, and relieve his necessities if required; to look upon his offspring
in the same footing as my own brothers, and to teach them this art, if they
shall wish to learn it, without fee or stipulation; and that by precept, lecture,
and every other mode of instruction, I will impart a knowledge of the Art to
my own sons, and those of my teachers, and to disciples bound by a
stipulation and oath according to the law of medicine, but to none others. I
will follow that system of regimen which, according to my ability and
judgment, I consider for the benefit of my patients, and abstain from
whatever is deleterious and mischievous. I will give no deadly medicine to
any one if asked, nor suggest any such counsel; and in like manner I will
not give to a woman a pessary to produce abortion. With purity and with
holiness I will pass my life and practice my Art. I will not cut persons
laboring under the stone, but will leave this to be done by men who are
practitioners of this work. Into whatever houses I enter, I will go into them
for the benefit of the sick, and will abstain from every voluntary act of
mischief and corruption; and, further from the seduction of females or
males, of freemen and slaves. Whatever, in connection with my
professional practice or not, in connection with it, I see or hear, in the life
of men, which ought not to be spoken of abroad, I will not divulge, as
reckoning that all such should be kept secret. While I continue to keep this
Oath unviolated, may it be granted to me to enjoy life and the practice of
the art, respected by all men, in all times! But should I trespass and violate
this Oath, may the reverse be my lot! 1
NEWSPAPER CLIPPINGS: Concern Is Growing That the Elderly
Get Too Many Medical Tests
Increasingly, questions are being raised about the over testing of older
patients, part of a growing skepticism about the widespread practice of
routine screening for cancer and other ailments of people in their 70s,
80s, and even 90s. Critics say there is little evidence of benefit—and considerable risk—from common tests for colon, breast and prostate cancer, particularly for those with serious problems such as heart
disease or dementia that are more likely to kill them.
“The most important thing on any referral is the date of birth,” said [Washington radiologist Mark] Klein, who said he tries to talk some
older patients and their doctors out of pursuing tests and treatments he
considers overly aggressive. “The game is not finding things, it’s can you improve mortality? And if you do find something, it’s very hard for a doctor to say, ‘Don’t do anything.’ ”
Telling someone that screening is no longer necessary can be dicey,
as California family physician Pamela Davis discovered when she
advised her robust 86-year-old mother to stop getting mammograms
and routine colon tests.
Her mother was incensed . . .
Sandra G. Boodman, Kaiser Health News, September 12, 2011
Do you consider this article useful and well balanced? In answering this
question, consider the following quoted abstract.
The costs of providing dialysis for patients 70 years and over are
largely shaped by the treatment costs rather than by use of
community health and social services. Though age above 80 and
co-morbidity are associated with increased resource use, average
treatment costs are not higher than estimates for dialysis patients in
general. This suggests that there is no case for providing treatment
to younger patients and denying it to elderly patients on grounds of
cost.
From R. P. Grün, N. Constantinovici, C. Normand, D. L. Lamping, and for the North Thames Dialysis Study (NTDS) Group, 2003, “Cost of Dialysis for Elderly People in the UK,” Nephrology Dialysis Transplantation, 18, no. 10, pp. 2122–2127.
Is this type of thinking the beginning of a slippery downhill slide that
merely grows over time? Consider what is the magic age at which we
should discourage more tests. There are 50-year-olds who look 70 and
70-year-olds who look 50. And there are some whose age is well
hidden beneath their skin. Who are we to judge by one’s age? Is this kind of thinking the beginning of the downfall of a compassionless
society? As medicine becomes safer as to how surgeries are performed
(e.g., robotic surgery), why should age be the criteria break point for
who gets what?
Discussion
1. Would you choose Dr. Klein in the news article to care for your
loved ones? Would you want a physician who would decide your
fate using age as a criteria for life? Do our constitutional rights
diminish after age 70?
2. Could this type of thinking be a downhill spiral, the beginning of a
new ethical theory, or does it fit into the category of one that
already exists? Discuss your answer in light of the following ethical
theories: normative ethics, consequential ethics, utilitarian ethics,
deontological ethics, nonconsequential ethics, and ethical
relativism.
3. Who should decide whether a test is valuable for a person over 40,
50, or 70?
PEOPLE STORIES: 50 and You Lived Your Life?
I recall teaching an ethics course to nurses in a master’s degree program in New York. As we were discussing care for the elderly, a young
nurse, about 23 years of age, said, “I think we should not be providing expensive tests and treatments for patients over 50 years of age. People
at that age have basically lived their life.” Although most of the nurses in the class were in their late 40s and early 50s, there was silence across
the room. My assumption is the nurse was unaware of the age group in
the class, as she was the youngest nurse. As to the older nurses, I am
not sure as to why they remained so silent. To my surprise, no one
uttered a word and the class moved on as though nothing was said. I
must say that I, being 33, was speechless.
Anonymous
PEOPLE STORIES: Two Standards of Care for the Young and the
Old
I was undergoing some minor revisions to a surgical procedure that I
had 5 years earlier. I distinctly remember the surgeon speaking to one
of his assistants during the surgery, as he wielded a scalpel in his hand,
“I definitely take more time on younger patients, especially children, than older patients.” As the patient, lying there on a small treatment table in the surgeon’s office, what do I say? I could’ve smacked him in the face for being so rude, especially in this setting. He spoke as though
I lay there on that treatment table motionless and speechless. If a friend
told me that this happened, I would most likely have found it hard to
believe. A surgeon should always do his best, regardless of a patient’s age. But then maybe I am living in La La land.
Anonymous
PRINCIPLES OF MEDICAL ETHICS
NEWSPAPER CLIPPINGS: Are Self-Referrals Proper?
Doctors in many specialties [are] referring patients to facilities in which
they have a financial interest, possibly leading to unneeded and
sometimes dangerous procedures and adding to the nation’s bloated medical bill.
Meanwhile, the U.S. Government Accountability Office is
launching a probe into the practice of self-referrals nationally that will
focus in part on IMRT for prostate cancer, GAO officials said. “We need to figure out what’s best for patients, not the bank accounts of urologists and radiation oncologists,” said Rep. Pete Stark (D-Calif.), one of three lawmakers who requested the inquiry.
In the case of IMRT, critics argue that urologists are exploiting the
allure of the latest therapy to profit from federal reimbursement and
private insurance.
“I think it’s one of the biggest scandals in America today,” said Peter Grimm, executive director of the Prostate Cancer Treatment
Center in Seattle.
The practice of doctors referring their own patients to their own
facilities was contained by legislation Stark first sponsored in 1989.
The law permits doctors to “self-refer” patients in cases where it makes sense to quickly diagnose and treat some conditions.
“It’s being exploited throughout the healthcare system. The gastroenterologists are doing it. So are the dermatologists. Every ear-
nose-and-throat doctor seems to have their own CT scan machine. It’s a
huge driver of overutilization,” said Jean M. Mitchell, a health economist at Georgetown University.
Rob Stein, The Washington Post, March 2, 2011
The medical profession has long subscribed to a body of ethical statements
developed primarily for the benefit of the patient. As a member of this
profession, a physician must recognize responsibility to patients first and
foremost, as well as to society, to other health professionals, and to him- or
her self. The following principles adopted by the American Medical
Association are not laws but standards of conduct that define the essentials
of honorable behavior for the physician.
Code of Medical Ethics:
I. A physician shall be dedicated to providing competent medical care,
with compassion and respect for human dignity and rights.
II. A physician shall uphold the standards of professionalism, be honest
in all professional interactions, and strive to report physicians
deficient in character or competence, or engaging in fraud or
deception, to appropriate entities.
III. A physician shall respect the law and also recognize a responsibility
to seek changes in those requirements that are contrary to the best
interests of the patient.
IV. A physician shall respect the rights of patients, colleagues, and other
health professionals, and shall safeguard patient confidences and
privacy within the constraints of the law.
V. A physician shall continue to study, apply, and advance scientific
knowledge; maintain a commitment to medical education; make
relevant information available to patients, colleagues, and the public;
obtain consultation; and use the talents of other health professionals
when indicated.
VI. A physician shall, in the provision of appropriate patient care, except
in emergencies, be free to choose whom to serve, with whom to
associate, and the environment in which to provide medical care.
VII. A physician shall recognize a responsibility to participate in activities
contributing to the improvement of the community and the
betterment of public health.
VIII. A physician shall, while caring for a patient, regard responsibility to
the patient as paramount.
IX. A physician shall support access to medical care for all people.
[Source: Code of Medical Ethics, A9 2001, American Medical
Association.]
Compassion
Compassion is a moral value expected of all caregivers. Those who lack
compassion have a weakness in their moral character. Recall Dr. Linda
Peeno, who showed her compassion as she testified before the Committee
on Commerce regarding her part in denying a health claim that could have
saved the life of a patient.
Although Dr. Peeno came forward with her story, the lack of
compassion for others plagues the health care industry in a variety of
settings.
REALITY CHECK: Staff Affects Physician Practice Image
Mark was waiting to be seen by his physician in a multispecialty
physician office practice. As Mark was waiting to see his physician, he
observed a woman, most likely in her late 70s, limping into the office.
She had a large leg brace that ran from her thigh to the calf of her leg.
She struggled to push her husband in a wheelchair into the office. She
carefully parked the wheelchair and approached the check-in counter.
She apologized for being late for her appointment as she was late
getting out of another physician’s office. The patient was told, “You are late for your appointment. The office has a 15-minute late arrival rule.
You will have to reschedule your appointment.” She apologized for being late but said that she did tell the office staff she would be late.
She was then told, “You can wait, and I will try to squeeze you into the schedule, but I don’t know how long you will have to wait.” The lady said, “I don’t want to bother anyone. I will reschedule my appointment.” She was directed around the corner to another desk to reschedule her appointment. Mark got up out of his chair, walked over
to the scheduler, and said, “I don’t believe this. Her husband is sitting in a wheelchair, and she is having difficulty walking. She can have my
appointment, and I can reschedule.” The lady suddenly turned to Mark
and gave him a big hug. The scheduler asked, “Who is your physician?” Mark told her, and she said, “I am sorry, but this lady has a different physician.” The lady, now a bit teary eyed, continued to make her appointment.
Discussion
1. Describe the ethical issues involved in this observation.
2. Consider and discuss how this event could have had a more
pleasant outcome.
REALITY CHECK: Physician Lacks Compassion
Mrs. Smith arranged for an appointment to see Dr. Mean, a
rheumatologist, who was a specialist in her particular disease process,
systemic scleroderma. After scheduling her appointment, Mrs. Smith
was asked to have her medical records faxed to Mean’s office before her scheduled appointment on March 27. Two days before her
scheduled appointment with Mean, Mrs. Smith called Mean’s office to confirm that her records had arrived. She was told at that time that she
was on Mean’s calendar for March 23, not March 27. She had missed her appointment. Mrs. Smith had waited 2 months for this date, and her
illness had gotten progressively worse. Mrs. Smith, desperate for help,
pleaded with the scheduler to reschedule her as soon as possible. The
scheduler explained to Mrs. Smith that Mean was a busy physician and
that she could not schedule a new appointment until April 27, a month
later.
Discussion
1. Describe how Dr. Mean violated the professional code of ethics for
a physician.
2. What role, if any, should a hospital ethics committee play in
addressing Dr. Mean’s insensitivity to Mrs. Smith’s needs? Explain your answer.
CREDENTIALING PROFESSIONALS
Credentialing is a process for validating the background of health care
professionals and assessing their qualifications to provide health care
services in an organization. The process is an objective evaluation of a
professional’s current licensure, training, or experience; competence; and ability to perform the services or procedures requested. Credentialing
occurs during both the initial appointment and reappointment. The process
may include granting and review of specific clinical privileges. Privileges
are authorizations granted by the governing body of an institution to
provide specific health care services. The granting of privileges is based on
a person’s license, education, training, experience, and competence. The governing body is ultimately responsible for the selection of the
organization’s professional staff and the delineation of clinical privileges. The duty to select members of the medical staff is legally vested in the
governing body charged with managing the organization. Although
cognizant of the importance of medical staff membership, the governing
body must meet its obligation to maintain standards of good medical
practice in dealing with matters of staff appointment, credentialing, and the
disciplining of physicians for such things as disruptive behavior,
incompetence, psychological problems, criminal actions, and substance
abuse.
Appointment to the medical staff and medical staff privileges should be
granted only after there has been a thorough investigation of the applicant.
The delineation of clinical privileges should be discipline-specific and
based on appropriate predetermined criteria that adhere to national
standards.
A physician’s right to practice medicine is subject to the licensing laws contained in the statutes of the state in which the physician resides. The
right to practice medicine is not a vested right but is a condition of a right
subordinate to the police power of the state to protect and preserve public
health. Although a state has power to regulate the practice of medicine for
the benefit of the public health and welfare, this power is restricted.
Regulations must be reasonably related to the public health and welfare and
must not amount to arbitrary or unreasonable interference with the right to
practice one’s profession.
HOSPITAL’S DUTY TO ENSURE COMPETENCY Hospitals have a responsibility to take reasonable steps to ensure that
physicians using hospital facilities are qualified for the privileges granted.
Failure to screen a medical staff applicant’s credentials properly can lead to liability for injuries suffered by patients as a result of that omission.
Hospitals must adhere to procedures established under both their own
bylaws and state statutes. The measure of quality and the degree of quality
control exercised in a hospital are the direct responsibilities of the medical
staff. Hospital supervision of the manner of appointment of physicians to
its staff is mandatory, not optional.
Masquerading as a Physician
An action was brought against Canton (who was masquerading as a
physician, Dr. LaBella), a hospital, and others in Insinga v. LaBella 2 for the
wrongful death of a 68-year-old woman whom Canton had admitted. The
patient died while she was in the hospital. Canton was found to be a
fugitive from justice in Canada, where he was under indictment for the
manufacture and sale of illegal drugs. He fraudulently obtained a medical
license from the state of Florida and staff privileges at the hospital by using
the name of LaBella, a deceased physician. Canton was extradited to
Canada without being served process. The U.S. District Court for the
Southern District of Florida directed a verdict in favor of the hospital. On
appeal, the Florida Supreme Court held that the corporate negligence
doctrine imposes on hospitals an implied duty to patients to select
competent physicians who, although they are independent practitioners,
would be providing in-hospital care to their patients through staff
privileges. Hospitals are in the best position to protect their patients and
consequently have an independent duty to select competent independent
physicians.
Physician Supervision and Monitoring
NEWSPAPER CLIPPINGS: What Went Wrong?
The son of a prominent doctor . . . was on his way to becoming a
leading surgeon in his own right when a bizarre blunder interrupted his
climb: He left his patient on the operating table so he could cash his
paycheck. A series of arrests followed, exposing a life of arrogance,
betrayal, and wasted promise. . . .
Neil Swidey, boston.com (The Boston Globe), March 21, 2004
The medical staff is responsible to the governing body for the quality of
care rendered by members of the medical staff. The landmark decision in
this area occurred in Darling v. Charleston Community Memorial
Hospital, 3 in which it was decided that the hospital’s governing body had a
duty to establish a mechanism for the medical staff to evaluate, counsel,
and when necessary take action against physicians who pose an
unreasonable risk of harm to a patient arising from the patient’s treatment by a physician. Physician monitoring is best accomplished through a
system of peer review. Most states provide statutory protection from
liability for peer review activities when they are conducted in a reasonable
manner and without malice.
CASE: STANDARDS OF ETHICS AND MORAL
COMMITMENT
A physician received a letter from a hospital informing him that his
clinical privileges at the hospital had been summarily suspended. The
medical executive committee reviewed the suspension and recommended
that it be upheld. The hospital board ultimately revoked the physician’s staff privileges. The physician received a hearing before a fair hearing
panel, which recommended that he be reinstated. The board, however,
upheld the revocation.
The physician alleged, among other things, wrongful termination and
intentional infliction of emotional distress. The defendants argued that the
courts do not have jurisdiction to review staffing decisions made by
private, nonprofit hospitals.
The Court of Civil Appeals of Oklahoma, Division II, found that
judicial tribunals are not equipped to review the action of hospital boards
in selecting or refusing to appoint physicians to their medical staffs. The
authorities of hospitals endeavor to serve in the best possible manner the
sick and the afflicted. Not all professionals have identical ability,
competence, experience, character, and standards of ethics. The mere fact
that a physician is licensed to practice a profession does not justify any
inference beyond the conclusion that a physician has met the minimum
requirements for that purpose.
Without regard to the absence of any legal liability, the hospital in
granting a physician privileges to practice in its facilities extends a moral
or official approval to him in the eyes of the public. Not all professionals
have personalities that enable them to work in harmony with others, and to
inspire confidence in their peers and in patients. Courts should not
substitute their evaluation in such matters. It is the board, not the court,
that is charged with the responsibility of providing a competent staff of
physicians. The board has chosen to rely on the advice of its medical staff,
and the court cannot surrogate for the medical staff in executing this
responsibility. Human lives are at stake, and the board must be given
discretion in its selection so that it can have confidence in the competence
and moral commitment of its staff. 4
Ethical and Legal Issues
1. Do you agree with the court’s decision? Explain. 2. Discuss under what circumstances you believe a court should become
involved in an organization’s disciplinary processes (e.g., age discrimination).
REALITY CHECK: Post-Cath Note Completed Before the
Procedure Began
Dr. Benjamin, a physician consultant, noted that a cardiologist had
documented a post-procedure catheterization note before the procedure
was completed. The physician consultant discussed with the
cardiologist the inappropriate record entry and had a peer-to-peer
discussion to help the surgeon understand the ramifications of his
actions. The organization was most grateful for the way the physician
surveyor managed the situation as it made their job much easier in
addressing the issue with the surgeon, whose non-adherence to hospital
and medical staff policy the organization had difficulty trying to handle
over the past year. They were pleased with the process.
Discussion
1. Should Dr. Benjamin have spent an afternoon of a 3-day consulting
assignment to assist the organization in resolving this issue, or
could his time have been utilized by conducting a thorough review
of the organization to determine the areas that needed
improvement, as per the contract with the organization and the
reason the physician was conducting the overall organization
patient care review? Discuss your answer.
2. Who should have handled the discipline issues with the physician?
Explain your answer.
3. How should the hospital deal with the cardiologist?
Disruptive Physicians
Disruptive physicians can have a negative impact on an organization’s staff, ultimately affecting the quality of patient care. Having the right
policies in place as they relate to “conflict resolution” is imperative for an effective working environment. Criteria other than academic credentials
(e.g., a physician’s ability to work with others) should be considered before granting medical staff privileges. The court held in Ladenheim v. Union
County Hospital District 5 that the physician’s inability to work with other
members of the staff was in itself sufficient grounds to deny him staff
privileges. The physician’s record was replete with evidence of his inability to work effectively with other members of the hospital staff. As stated in
Huffaker v. Bailey, 6 most other courts have found that the ability to work
smoothly with others is reasonably related to the objective of ensuring
patient welfare. The conclusion seems justified because health care
professionals are frequently required to work together or in teams. A staff
member who, because of personality characteristics or other problems, is
incapable of getting along with others could severely hinder the effective
treatment of patients. A physician’s demonstrated lack of ability to work with others in the hospital setting is sufficient to support the denial of his or
her application for admission to the medical staff.
HONORING A PATIENT’S RIGHT TO AUTONOMY Where there are two or more medically acceptable treatment approaches to
a particular medical problem, the informed consent doctrine, medical
ethics, and the standard of care all provide that a competent patient has the
absolute right to select from among these treatment options after being
informed of the relative risks and benefits of each approach. Basic to the
informed consent doctrine is that a physician has a legal, ethical, and moral
duty to respect patient autonomy and to provide only authorized medical
treatment. It is inappropriate for physicians to pursue a treatment
alternative other than the one to which their patient has given consent. This
means that unless the patient consents to the physician’s recommended treatment approach, the physician may not proceed with that approach even
if the physician personally believes the recommended approach to be in the
patient’s best interests.7
FAILURE TO PROVIDE INFORMED CONSENT
The doctrine of informed consent is a theory of professional liability
independent from malpractice. A physician’s duty to disclose known and existing dangers associated with a proposed course of treatment is imposed
by law. The patient in Leggett v. Kumar 8 was awarded $675,000 for pain
and disfigurement resulting from a mastectomy procedure. The physician
in this case failed to advise the patient of treatment alternatives. He also
failed to perform the surgery properly.
It is the physician’s role to provide the necessary medical facts and the patient’s role to make a subjective decision concerning treatment based on his or her understanding of those facts. Before subjecting a patient to a
course of treatment, the physician has a duty to disclose information that
will enable the patient to evaluate options available and the risks attendant
to a specific procedure. A failure to disclose any known and existing risks
of proposed treatment when such risks might affect a patient’s decision to forgo treatment constitutes a prima facie violation of a physician’s duty to disclose. If a patient can establish that a physician withheld information
concerning the inherent and potential hazards of a proposed treatment,
consent is abrogated. Consent for a medical procedure may be withdrawn
at any time before the act consented to is accomplished.
ABANDONMENT
Physicians have both a legal and ethical obligation to attend to their
patients’ needs. Physicians licensed in Illinois, for example, are specifically prohibited from abandoning their patients.
9 Furthermore, the American
Medical Association’s Council on Ethical and Judicial Affairs mandates that “once having undertaken a case, the physician should not neglect the patient.”10
The relationship between a physician and a patient, once established,
continues until it is ended by the mutual consent of the parties, the patient’s dismissal of the physician, the physician’s withdrawal from the case, or the fact that the physician’s services are no longer required. A physician who decides to withdraw his or her services must provide the patient with
reasonable notice so that the services of another physician can be obtained.
Premature termination of treatment is often the subject of a legal action for
abandonment, the unilateral termination of a physician–patient relationship by the physician without notice to the patient. The following elements must
be established in order for a patient to recover damages for abandonment:
• Medical care was unreasonably discontinued. • The discontinuance of medical care was against the patient’s will.
Termination of the physician–patient relationship must have been brought about by a unilateral act of the physician. There can be no issue of
abandonment if the relationship is terminated by mutual consent or by
dismissal of the physician by the patient.
• The physician failed to arrange for care by another physician. Refusal by a physician to enter into a physician–patient relationship by failing to respond to a call or render treatment is not considered a case of
abandonment. A plaintiff will not recover for damages unless he or she
can show that a physician–patient relationship had been established. • Foresight indicated that discontinuance might result in physical harm. • Actual harm was suffered by the patient.
Abandonment and the Hippocratic Oath
Scripps is a group medical practice governed by a group of physicians who
represent Scripps’s physicians. The governing physicians established a policy to terminate further medical care for all patients and their families
on the receipt of an intent-to-sue letter; however, Scripps would not
terminate care for a patient unless it determined that another medical care
system could duplicate the services Scripps had been providing and the
transfer would not jeopardize the patient’s care given his or her current medical state.
Scripps initiated this policy because a lawsuit compromises the
physician–patient relationship, thereby potentially compromising the care rendered to the patient. Furthermore, patient litigants’ sense of what is important to communicate to other Scripps physicians could be colored by
a lawsuit, making it difficult for physicians to determine what is true and
unbiased. Patients may also believe that other Scripps physicians will not
give them balanced care. For example, a patient may believe that a
physician who does not return a telephone call in a timely manner is
punishing the patient. Continuing the physician–patient relationship might also put a physician in the awkward position of testifying against a
colleague.
Patricia Thompson was in a serious accident. At the time, Scripps
provided medical care to the Thompsons through their health insurance
provider, Health Net. Alleging negligent treatment of Patricia’s broken clavicle, the Thompsons filed a medical malpractice claim against Dr.
Thorne and Dr. Carpenter, both of whom were affiliated with Scripps. At
the time the malpractice action was filed, Patricia was no longer being
treated by Thorne and Carpenter, but was being treated by other Scripps
physicians: Drs. Botte and Froenke for the broken clavicle and Dr. Harkey
for endometriosis.
Binford, a Scripps employee, sent a letter to the Thompsons informing
them that Scripps had been notified about the legal action the Thompsons
had taken against the group. Because of the legal action, the Scripps Clinic
requested that Health Net immediately terminate the Thompsons with the
Scripps Clinic and transfer their membership to another medical group. The
letter advised the Thompsons to contact Health Net’s Member Services for
assistance in selecting a new medical group in their area. The Thompsons
were asked to transition to a new group by July 1, 2000. They were told
that in the interim the Urgent Care Center at the Torrey Pines campus was
open from 7:00 AM to 10:00 PM daily and that the Urgent Care Center at
Rancho Bernardo was open from 9:00 AM to 9:00 PM for their
urgent/emergent needs.
When Patricia received Binford’s letter, she immediately requested Health Net to reassign the couple to a new medical group. Health Net
transferred the Thompsons to University of California, San Diego Medical
Group, effective July 1, 2000. As the result of Scripps’s actions, Patricia had to cancel a follow-up visit with Dr. Harkey that had been scheduled
near the end of June even though Patricia was still suffering severe pain
and bleeding. Before Patricia could be referred to a new gynecologist at
University of California, San Diego Medical Group, she had to schedule a
visit with her new primary care physician and receive authorization.
Patricia’s care was also delayed until University of California, San Diego Medical Group, received her medical records from Scripps.
The Thompsons sued Scripps and Binford for damages arising from the
termination of care. It has long been the law in California that a physician
can lawfully abandon a patient only after due notice and an ample
opportunity afforded to secure the presence of other medical attendant. In
the absence of the patient’s consent, the physician must notify the patient that he or she is withdrawing and allow ample opportunity to secure the
presence of another physician.
Scripps contends that because it gave adequate notice to the
Thompsons, and because Health Net transferred them to University of
California, San Diego Medical Group, the Thompsons did not raise a
triable issue of fact as to breach. The court disagreed. There was a 2-week
hiatus between the time Scripps denied the Thompsons access to its
physicians for nonemergency services and the time the Thompsons were
assigned to University of California, San Diego Medical Group. The
Thompsons raised a triable issue of fact as to whether they were given
ample time to retain other physicians.
It is of interest that the Hippocratic Oath provides, “The regimen I adopt shall be for the benefit of my patients according to my ability and
judgment, and not for their hurt or for any wrong.”11
AGGRAVATION OF A PREEXISTING CONDITION
Aggravation of a preexisting condition through negligence may cause a
physician to be liable for malpractice. If the original injury is aggravated,
liability will be imposed only for the aggravation, rather than for both the
original injury and its aggravation.
Damages were awarded in Argus v. Scheppegrell 12
for the wrongful
death of a teenage patient with a preexisting drug addiction. It was
determined that the physician had wrongfully supplied the patient with
prescriptions for controlled substances in excessive amounts, with the
result that the patient’s preexisting drug addiction had worsened, causing her death of a drug overdose. The Louisiana Court of Appeal held that the
suffering of the patient caused by drug addiction and deterioration of her
mental and physical condition warranted an award of $175,000. Damages
of $120,000 were to be awarded for the wrongful death claims of the
parents, who not only suffered during their daughter’s drug addiction caused by the physician’s wrongfully supplying the prescription, but who also were forced to endure the torment of their daughter’s slow death in the hospital.
ALTERNATIVE PROCEDURES: TWO SCHOOLS OF
THOUGHT
The potential for liability affects the choice of treatment a physician will
follow in treating his or her patient. The use of unprecedented procedures
that create an untoward result may cause a physician to be found negligent
even though due care was taken. A physician will not be held liable for
exercising his or her judgment in applying a course of treatment supported
by a reputable and respected body of medical experts even if another body
of expert medical opinion would favor a different course of treatment. The
two-schools-of-thought doctrine is applicable only in medical malpractice
cases in which there is more than one method of accepted treatment for a
patient’s disease or injury. Under this doctrine, a physician will not be liable for medical malpractice if he or she follows a course of treatment
supported by reputable, respected, and reasonable medical experts.
A physician’s efforts do not constitute negligence simply because they were unsuccessful in a particular case. A physician cannot be required to
guarantee the results of his or her treatment. The mere fact that an adverse
result may occur following treatment is not in and of itself evidence of
professional negligence. Innovation in the treatment for minor ailments
more likely would be questioned than would innovation in the treatment of
a major disease. A physician treating a patient with a new procedure for an
ordinary cold runs a greater risk of liability than does a physician treating a
patient with a new procedure for an acute and painful disease.
It is assumed by law that it is unreasonable for two physicians to have
differing opinions on the proper method of treating injuries or illnesses. If
there is reason for the difference, the courts have held that neither side can
be proven erroneous by the “proof” of the other.
CONFIDENTIAL COMMUNICATIONS
Respect for the privacy of medical information is a central feature of the
physician–patient relationship. Under the Hippocratic Oath and modern principles of medical ethics derived from it, physicians are ethically bound
to maintain patient confidences.
The physician–patient privilege imposes on a physician an obligation to maintain the confidentiality of each patient’s communications. This obligation applies to all health care professionals. An exception to the rule
of confidentiality of patient communications is the implied right to make
necessary information available to others involved in the patient’s care. Information received by a physician in a confidential capacity relating to a
patient’s health should not be disclosed without the patient’s consent. Disclosure may be made under compelling circumstances (e.g., suspected
child abuse) to a person with a legitimate interest in the patient’s health. The Code of Medical Ethics both requires the confidentiality of
information obtained by a physician in plaintiff’s position and the reporting of physicians who violate that confidentiality. Section 6530 (23) of the
New York State Education Law defines professional misconduct as the
“revealing of personally identifiable facts, data or information obtained in a professional capacity without the consent of the patient.” The State of New York Department of Health has set forth a penalty of censure, reprimand,
suspension of license, revocation of license, annulment of license,
limitation on further license, or fine for a person found guilty of
professional misconduct (Public Health Law A4 230-a), which includes
revealing patient information without consent or failing to maintain
accurate information. The Department of Health is responsible for
maintaining the standards and ethics of the profession and for enforcing
those standards. In addition, the Principles of Medical Ethics of the
American Medical Association states that physicians, including physicians
employed by industry, have an ethical and legal duty to protect patient
confidentiality. 13
FALSIFICATION OF RECORDS
The intentional alteration, falsification, or destruction of medical records to
avoid liability for one’s medical negligence is generally sufficient to show actual malice, and punitive damages may be awarded whether or not the act
of altering, falsifying, or destroying records directly causes compensable
harm. The evidence in Dimora v. Cleveland Clinic Foundation 14
had
shown that the patient had fallen and broken five or six ribs; nevertheless,
on examination, the physician noted in the progress notes that the patient
was smiling and laughing pleasantly, exhibiting no pain on deep palpation
of the area. Other testimony indicated that she was in pain and crying. This
discrepancy between the written progress notes and the testimony of the
witnesses who observed the patient was sufficient to raise a question of fact
as to the possible falsification of documents by the physician to minimize
the nature of the incident and the injury of the patient because of the
possible negligence of the hospital personnel. The testimony of the
witnesses, if believed, would have been sufficient to show that the
physician falsified the record or intentionally reported the incident
inaccurately in order to avoid liability for the negligent care of the patient.
Tampering with records sends the wrong signal to jurors and can shatter
one’s credibility. Altered records can create a presumption of negligence. The court in Matter of Jascalevich
15 held that “a physician’s duty to a
patient cannot but encompass his affirmative obligation to maintain the
integrity, accuracy, truth, and reliability of the patient’s medical record. His obligation in this regard is no less compelling than his duties respecting
diagnosis and treatment of the patient since the medical community must,
of necessity, be able to rely on those records in the continuing and future
care of that patient. Obviously, the rendering of that care is prejudiced by
anything in those records that is false, misleading, or inaccurate. A
deliberate falsification by a physician of his patient’s medical record, to protect his own interests at the expense of his patient’s, is regarded as gross malpractice endangering the health or life of his patient.”16
FAILURE TO RESPOND: EMERGENCY DEPARTMENT
CALL
Physicians on call for a specific service in an emergency department are
expected to respond to requests for emergency assistance when considered
necessary. Failure to respond is grounds for negligence should a patient
suffer injury as a result of no emergency assistance.
FAILURE TO READ NURSES’ NOTES On October 17, the medical record indicated that Todd’s sternotomy wound and the mid-lower left leg incision were reddened and his temperature was
99.6 degrees F. Dr. Sauls did not commonly read the nurses’ notes but instead preferred to rely on his own observations of the patient. In his
October 18 notes, he indicated that there was no drainage. The nurses’ notes, however, show that there was drainage at the chest tube site. In
contrast to the medical records showing that Todd had a temperature of
101.2 degrees F, Sauls noted that the patient was afebrile.
On October 19, Sauls noted that Todd’s wounds were improving, and he did not have a fever. Nurses’ notes indicated redness at the surgical wounds and a temperature of 100 degrees F. No white blood count had
been ordered. Again on October 20, the nurses’ notes indicated a wound redness and a temperature of 100.8 degrees F. No wound culture had yet
been ordered. Dr. Kamil, one of Todd’s treating physicians, noted that Todd’s nutritional status needed to be seriously confronted and suggested that Sauls consider supplemental feeding. Despite this, no follow-up to his
recommendation appeared and the record is void of any action by Sauls to
obtain a nutritional consult.
Todd was transferred to the intensive care unit on October 21 because
he was gravely ill with profoundly depressed ventricular function. The
following day the nurses’ notes described the chest tube site as draining foul-smelling bloody purulence. The patient’s temperature was recorded to have reached 100.6 degrees F. This was the first time that Sauls had the test
tube site cultured. On October 23, the culture report from the laboratory
indicated a staph infection, and Todd was started on antibiotics for
treatment of the infection.
On October 25, at the request of family, Todd was transferred to St.
Luke’s Hospital. At St. Luke’s, Dr. Leatherman, an internist and invasive cardiologist, treated Todd. Dr. Zeluff, an infectious disease specialist,
examined Todd’s surgical wounds and prescribed antibiotic treatment. On his admission to St. Luke’s, every one of Todd’s surgical wounds was infected. Despite the care given at St. Luke’s, Todd died on November 2, 1988. The family brought a malpractice suit against the surgeon. The
District Court entered judgment on a jury verdict for the defendant, and the
plaintiff appealed, claiming the surgeon breached his duty of care owed to
the patient by failing to (1) aggressively treat the surgical wound infections,
(2) read the nurses’ observations of infections, and (3) provide adequate nourishment, allowing the patient’s body weight to waste away rapidly.
Sauls committed medical malpractice when he breached the standard of
care he owed to Todd. Todd was effectively ineligible for a heart transplant,
which was his only chance of survival because of the infections and
malnourishment caused by Sauls’s malpractice. Sauls’s testimony convinced the Louisiana Court of Appeals that he failed to treat the surgical
wound infections aggressively, that he chose not to take advantage of the
nurses’ observations of infection, and that he allowed Todd’s body weight to waste away, knowing that extreme vigilance was required because of
Todd’s already severely impaired heart. In cases in which a patient has died, the plaintiff need not demonstrate
that the patient would have survived if properly treated. Rather, he need
only prove that the patient had a chance of survival and that his chance of
survival was lost as a result of the defendant/physician’s negligence. The defendant/physician’s conduct must increase the risk of a patient’s harm to the extent of being a substantial factor in causing the result, but need not be
the only cause. Sauls’s medical malpractice exacerbated an already critical condition and deprived Mr. Todd of a chance of survival.
FAILURE TO REFER FOR CONSULTATION
NEWSPAPER CLIPPINGS: 1 in 4 Cancer Cases Missed: GPs Send
Away Alarming Number of Patients, Delaying Vital Treatment
Tens of thousands of patients are initially told that their symptoms are
“nothing to worry about” or advised to take painkillers or antibiotics for months.
They have to make repeated trips to their doctor before being given
a correct diagnosis, the report concludes.
Britain has one of the lowest cancer survival rates in Europe despite
billions being invested in treatment over the last decade.
Experts blame late diagnosis for the alarmingly high death rates and
say many tumours are spotted only when it is too late for successful
treatment.
More than half of those with rarer cancers—which comprise 50 per cent of all cases—are being forced to see their GP repeatedly before they are finally referred to a specialist.
Sophie Borland and David Wilkes, Daily Mail, March 1, 2011 17
When a practitioner determines or should have determined that a patient’s ailment is beyond his or her scope of knowledge, technical skill or ability,
or capacity to treat with a likelihood of reasonable success, he or she is
under a duty to disclose such determination to the patient. The patient
should be advised of the necessity of other or different treatments.
A physician has a duty to consult and/or refer a patient whom he or she
knows or should know needs referral to a physician familiar with and
clinically capable to treat the patient’s particular ailments. Whether the failure to refer constitutes negligence depends on whether referral is
demanded by accepted standards of practice. To recover damages, the
plaintiff must show that the physician deviated from the standard of care
and that the failure to refer resulted in injury.
The California Court of Appeals found that expert testimony is not
necessary where good medical practice would require a general physician
to suggest a specialist’s consultation.18 The court ruled that because specialists were called in after the patient’s condition grew worse, it is reasonable to assume that they could have been called in sooner. The jury
was instructed by the court that a general practitioner has a duty to suggest
calling in a specialist if a reasonably prudent general practitioner would do
so under similar circumstances.
A physician is in a position of trust, and it is his or her duty to act in
good faith. If a preferred treatment in a given situation is outside a
physician’s field of expertise, it is his or her duty to advise the patient. Failure to do so could constitute a breach of duty. Today, with the rapid
methods of transportation and easy means of communication, the duty of a
physician is not fulfilled merely by using the means at hand in a particular
area of practice.
FAILURE TO OBTAIN ADEQUATE HISTORY AND
PHYSICAL
Failure to obtain an adequate family history and perform an adequate
physical examination violates a standard of care owed to the patient. In
Foley v. Bishop Clarkson Memorial Hospital, 19
Mr. Foley sued the hospital
for the death of his wife. During her pregnancy, the patient was under the
care of a private physician. She gave birth in the hospital on August 20,
1964, and died the following day. During July and August, her physician
had treated her for a sore throat. Several days after her death, one of her
children was treated in the hospital for a strep throat infection. There was
no evidence in the hospital record that the patient had complained about a
sore throat while in the hospital. The hospital rules required a history and
physical examination to be written promptly (within 24 hours of
admission). No history had been taken, although the patient had been
examined several times in regard to the progress of her labor. The trial
judge directed a verdict in favor of the hospital. On appeal, the appellate
court held that the case should have been submitted to the jury for
determination. A jury might reasonably have inferred that if the patient’s condition had been treated properly, the infection could have been
combated successfully and her life saved. It also might have been
reasonably inferred that if a history had been taken promptly when she was
admitted to the hospital the throat condition would have been discovered
and hospital personnel alerted to watch for possible complications of the
nature that later developed. Quite possibly, this attention also would have
helped in diagnosing the patient’s condition, especially if it had been apparent that she had been exposed to a strep throat infection. The court
held that a hospital must guard not only against known physical and mental
conditions of patients, but also against conditions that reasonable care
should have uncovered.
CASE: DOCUMENTATION ISSUES
Smith was admitted to Community Hospital for surgery. The hospital’s policy requires that history and physical examinations be completed prior
to patients’ undergoing surgery. Smith’s attending physician did not complete the form. He simply drew a diagonal line from the top right to
the bottom left of the history and physical form, indicating that the patient
had no history of or current disease processes.
The patient’s nurse, per hospital policy, completed a nursing assessment. The nurse documented on the patient admission assessment
form that the patient had a history of transient ischemic attacks, diabetes,
and hypothyroidism.
The anesthesiologist did not perform an anesthesia assessment before
surgery. General anesthesia was administered without knowing the
patient’s previous experiences, if any, with anesthesia. Failure of the attending physician to complete an appropriate history
and physical examination and of the anesthesiologist to perform a
preanesthesia assessment placed the patient’s life and health at risk. The physician did not complete the history and physicals. He merely went
through the motions of completing a history and physical examination
because it was mandated that the patient have a history and physical in his
medical record prior to surgery.
Ethical and Legal Issues
1. Discuss the ethical issues and principles violated in this case.
2. What are the potential legal issues of concern in this case?
3. Discuss what actions the organization could take to improve the quality
of history and physical documentation.
INFECTION CONTROL ISSUES
Nosocomial, hospital-acquired infections are a leading cause of injury and
unnecessary deaths. Such infections have been linked to unsanitary
conditions in the environment and poor practices (e.g., handwashing
technique). The Centers for Disease Control and Prevention estimates that
nearly 2 million patients annually get a hospital-acquired infection. There
are estimates that as many as 90,000 of these patients die annually as a
result of these infections. 20
A district court of appeals held in Gill v. Hartford Accident &
Indemnity Co. 21
that the physician who performed surgery on a patient in
the same room as the plaintiff should have known that the infection the
patient had was highly contagious. The failure of the physician to
undertake steps to prevent the spread of the infection to the plaintiff and his
failure to warn the plaintiff led the court to find that hospital authorities and
the plaintiff’s physician caused an unreasonable increase in the risk of injury. As a result, the plaintiff suffered injuries causally related to the
negligence of the defendant.
MEDICATIONS
With thousands of brand and generic drugs in use, it is no surprise that
medication error is one of the leading causes of patient injuries. Physicians
should encourage the limited and judicious use of all medications and
should document periodically the reason for their continuation. They
should be alert to any contraindications and incompatibilities among
prescription and over-the-counter drugs, and herbal supplements. The
negligent administration of medications is often due to the following errors:
the wrong medication, the wrong patient, the wrong dose, the wrong route,
and/or the wrong site.
Abuse of Controlled Substances
The Board of Regents in Moyo v. Ambach 22
determined that a physician
had prescribed methaqualone fraudulently and with gross negligence to 20
patients. The Board of Regents found that the physician did not prescribe
methaqualone in good faith or for sound medical reasons. His abuse in
prescribing controlled substances constituted the fraudulent practice of
medicine. Expert testimony established that it was common knowledge in
the medical community that methaqualone was a widely abused and
addictive drug. Methaqualone should not have been used for insomnia
without first trying other means of treatment. On appeal, the court found
that there was sufficient evidence to support the board’s finding.
MISDIAGNOSIS
PEOPLE STORIES: My Physician Would Not Listen
I was left undiagnosed for over a year and a half. I had to endure
extended chemotherapy for a stage III cancer because my GP would not
listen to my concerns at first and then again 1.5 years later when the
cancer had spread throughout my body to my lungs causing a nasty
cough. I should’ve taken him to the GMC [Britain’s General Medical Council] at the time but was more interested in getting better first! I
made a diary all about it, just google my name it’s easy to find. I’m very grateful to be alive but it has left me broke, nothing or no one can
fix that.
Tim Stollery
Misdiagnosis is the most frequently cited injury event in malpractice suits
against physicians. Although diagnosis is a medical art and not an exact
science, early detection can be critical to a patient’s recovery. Misdiagnosis may involve the diagnosis and treatment of a disease different from that
which the patient actually suffers or the diagnosis and treatment of a
disease that the patient does not have. Misdiagnosis in and of itself will not
necessarily impose liability on a physician, unless deviation from the
accepted standard of care and injury can be established.
Fractured Skull, Not Intoxication
In Ramberg v. Morgan, 23
a police department physician at the scene of an
accident examined an unconscious man who had been struck by an
automobile. The physician concluded that the patient’s insensibility was a result of alcohol intoxication, not the accident, and ordered the police to
remove him to jail instead of the hospital. The man, to the physician’s knowledge, remained semiconscious for several days and finally was taken
from the cell to the hospital at the insistence of his family. The patient
subsequently died, and the autopsy revealed massive skull fractures. The
court found that any physician should reasonably anticipate the presence of
head injuries when a person is struck by a car. Failure to refer an accident
victim to another physician or a hospital was actionable neglect of the
physician’s duty. Although a physician does not ensure the correctness of the diagnosis
or treatment, a patient is entitled to such thorough and careful examination
as his or her condition and attending circumstances permit, with such
diligence and methods of diagnosis as usually are approved and practiced
by medical people of ordinary or average learning, judgment, and skill in
the community or similar localities.
OBSTETRICS AND GYNECOLOGY
One of the most vulnerable medical specialties with significant risk
exposure to malpractice suits is obstetrics/gynecology. Obstetrical
negligence claims often stem from errors in physician judgment, whereas
gynecologic claims are often the result of inadequate technical
performance. The following case illustrates why the risks are high.
The plaintiff in Lucchesi v. Stimmell 24
brought an action against a
physician for intentional infliction of emotional distress, claiming that the
physician had failed to be present during unsuccessful attempts to deliver
her premature fetus and that he thereafter had failed to disclose to her that
the fetus was decapitated during attempts to achieve delivery by pulling on
the hip area to free the head. The judge instructed the jury that it could
conclude that the physician had been guilty of extreme and outrageous
conduct for staying at home and leaving the delivery in the hands of a first-
year intern and a third-year resident, neither of whom was experienced in
breech deliveries.
PHYSICIAN–PATIENT RELATIONSHIP
NEWSPAPER CLIPPINGS: The Pain of Wrong-Site Surgery
Hospitals find it hard to protect patients from wrong-site surgery
“It’s disheartening that we haven’t moved the needle on this,” said Peter Pronovost, a prominent safety expert and medical director of the
John Hopkins Center for Innovation in Quality Patient Care. “I think we made national policy with a relatively superficial understanding of
the problem.” Pronovost suggests that doctors’ lip service to the rules, which he calls “ritualized compliance,” may be a key factor. Studies of wrong-site errors have consistently revealed a failure by physicians to
participate in a timeout.
Wrong-site mistakes have multiple causes, experts say: mixing up
the left and right sides; operating on a patient who was accidentally
given test results belonging to someone else; marking the incorrect
vertebrae in spinal surgery; neglecting to mark the site at all. Some
occur even though a member of the surgical team thinks something
might be wrong but fails to speak up, fearful of slowing the process or
challenging the surgeon in charge.
Sandra G. Boodman, Kaiser Health News, June 20, 2011 25
The physician–patient relationship entails special obligations for the physician to serve the patient’s health and well-being. The physician’s primary commitment must always be the patient’s best welfare and best interests, whether the physician is preventing or treating illness or helping
the patient to cope with illness, disability, and death. It has long been
recognized that the health and well-being of the patient depends on a
collaborative effort between the physician and the patient. The physician
must support the dignity of all persons and respect their uniqueness.
The interests of the patient should always be promoted regardless of
financial arrangements, the health care setting, and patient characteristics
such as decision-making capacity or social status.
At the beginning of a physician–patient relationship, the physician must understand the patient’s complaints, underlying feelings, and goals and expectations. The physician must be professionally competent, act
responsively, and treat the patient with compassion and respect. The patient
should understand prior to consenting to recommended treatments.
Patients assume that information acquired by the physician will be held
in confidence. They also expect that the physician will not disclose
confidential communications or information related to treatment unless the
patient consents or the disclosure is required by law. Mutual trust and
confidence are essential to the physician–patient relationship, and from these elements flow the physician’s obligations to fully inform the patient of his or her condition, to continue to provide medical care after the
physician–patient relationship has been established, to refer the patient to a specialist if necessary, and to obtain the patient’s informed consent to the medical treatment proposed.
PEOPLE STORIES: Pain
I have been with Angie, my wife, on many of her appointments. One
such appointment I vividly remember was at the university hospital
pain center, described by some as one of the top medical centers in the
country. Here, after poking by several residents, the residents left the
room. They later returned with their supervising attending physician.
He stood over my Angie as she lay on the examination table. Looking
down at her, he said, “We treat bone pain here.” Angie replied, “You advertise yourself as a pain-management center. I don’t understand.” The attending physician replied, “Anything we do for you would be very risky and most likely will not work.” Angie described a new
implantable device being used at Duke University Medical Center. The
attending responded, “We never heard of that; however, we can suggest other procedures, but they do have associated risks.” The attending then proceeded to describe the procedures to Angie. Both Angie and I
thought, “This is a major teaching hospital? Why won’t the physicians suggest looking into Duke’s procedure as to the potential risks and benefits for Angie?” The attending suggested, “Why don’t you think about the procedures we have discussed. Just schedule a new
appointment before you leave.”
Spouse
Discussion
1. Should the physicians have conducted research to determine if the
Duke device might be helpful to Angie? Explain your answer.
2. What would you do, if you were Angie?
CHAPTER REVIEW
1. The medical profession has long subscribed to a body of ethical
statements developed primarily for the benefit of the patient. As a
member of this profession, a physician must recognize responsibility to
patients first and foremost, as well as to society, to other health
professionals, and to self.
2. Credentialing is a process for validating the background and assessing
the qualifications of health care professionals to provide health care
services in an organization.
3. Physicians have a legal, ethical, and moral duty to respect patient
autonomy and to provide only authorized medical treatment. It is
inappropriate for physicians to pursue a treatment alternative other than
the one to which their patient has given consent.
4. The American Medical Association’s Council on Ethical and Judicial Affairs mandates that “once having undertaken a case, the physician should not neglect the patient.” The relationship between a physician and a patient, once established, continues until it is ended by the mutual
consent of the parties, the patient’s dismissal of the physician, the physician’s withdrawal from the case, or the fact that the physician’s services are no longer required.
5. A physician’s efforts do not constitute negligence simply because they were unsuccessful in a particular case. A physician cannot be required
to guarantee the results of his or her treatment.
6. Respect for the privacy of medical information is a central feature of
the physician–patient relationship. 7. A deliberate falsification by a physician of his or her patient’s medical
record to protect his or her own interests at the expense of his patient’s is regarded as gross malpractice endangering the health or life of his or
her patient.
8. Physicians can be held liable for failure to order diagnostic tests, read
nurses’ notes, seek consultation, obtain a second opinion, obtain an adequate family history, perform an adequate physical examination,
and provide an accurate diagnosis.
REVIEW QUESTIONS
1. Discuss the basic elements of the physician’s code of medical ethics as articulated by the American Medical Association.
2. Describe a physician’s moral responsibilities to his or her patients (e.g., privacy, informed consent).
3. Discuss the ethical and legal implications of a physician who
falsifies the entries on a patient’s medical record. 4. When is a physician considered to have abandoned his or her
patient? What are the ethical and legal implications of abandoning
a patient?
5. What are the ethical and legal implications of failing to refer a
patient to a specialist?
NOTES
1. Hippocrates, written 400 BC, translated by Francis Adams.
2. 543 So. 2d 209 (Fla. 1989).
3. 211 N.E.2d 253 (Ill. 1965).
4. Medcalf v. Coleman, No. 98906 (2003).
5. 394 N.E.2d 770 (Ill. App. Ct. 1979).
6. 540 P.2d 1398, 1400 (Or. 1975).
7. See Bankert v. United States, 937 F. Supp. 1169, 1173 (D. Md. 1996).
8. 570 N.E.2d 1249 (Ill. App. Ct. 1991).
9. Bloomington Urological Associates v. Scaglia, 686 N.E.2d 389 (1997).
10. American Medical Association Code of Medical Ethics: Current Opinions with Annotations,
8.11 (1996).
11. Scripps Clinic v. Superior Ct., 134 Cal. Rptr. 2d 101 (2003).
12. 489 So. 2d 392 (La. Ct. App. 1986).
13. Horn v. New York Times, 100 N.Y.2d 85 (2003).
14. 683 N.E.2d 1175 (Ohio App. 1996).
15. 442 A.2d 635 (N.J. Super. Ct. 1982).
16. Id. at 644–45. 17. Sophie Borland and David Wilkes, “1 in 4 cancer cases missed: GPs send away alarming
number of patients, delaying vital treatment,” MailOnline, March 1, 2001; http://www.dailymail.co.uk/health/article-1361269/1-4-cancer-cases-missed-GPs-delaying-
vital-treatment.html.
18. Valentine v. Kaiser Found. Hosps., 15 Cal. Rptr. 26 (Cal. Ct. App. 1961) (dictum).
19. 173 N.W.2d 881 (Neb. 1970).
20. Burke JP. Infection control—a problem for patient safety. N. Engl. J. Med. 2003;348; 651–56. 21. 337 So. 2d 420 (Fla. Dist. Ct. App. 1976).
22. 23 N.Y.S.2d 645 (N.Y. App. Div. 1988).
23. 218 N.W.2d 492 (Iowa 1928).
24. 716 P.2d 1013 (Ariz. 1986).
25. Sandra G. Boodman, “Effort to end surgeries on wrong patient or body part falters,” Kaiser Health News, June 20, 2011; http://www.kaiserhealthnews.org/Stories/2011/June/21/wrong-
site-surgery-errors.aspx
chapter eleven
Employee Rights and Responsibilities
Education/Learning as a Value: It is expected that each professional
have current understanding of one’s area of specialization and practice. Education has value and is a legal necessity in order to be in
conformity with the national standard of care of one’s profession. Every professional is responsible to be current in his or her knowledge and
skills. This comes by reading one’s professional literature, attending continuing education programs, and mentoring.
UNKNOWN
LEARNING OBJECTIVES
The reader on completion of this chapter will be able to:
• Describe and understand the rights of employees. • Describe and understand the responsibilities of employees. • Discuss what professionals can do to improve professional
relationships between one another as well as between caregivers and
patients.
INTRODUCTION
This chapter presents an overview of the rights and responsibilities of
employees in the health care setting, many of which are expressed in both
federal and state laws. Health care organizations are not exempt from the
impact of these laws and are required to take into account such matters as
employment practices (e.g., wages, hours, working conditions), union
activity, workers’ compensation laws, occupational safety and health laws, and employment discrimination laws.
EMPLOYEE RIGHTS
Employment at will does not abrogate employee rights. There are
employers who treat employees as though they have no rights. Employees
have encountered employers who have treated them unfairly. Many have
faced discrimination involving unfair pay and benefits, wrongful
termination, or any one of a host of common labor issues. A variety of
federal and state laws protect employees’ right to be treated fairly at work. The following is a listing of but a few of the many rights that employees
have.
Equal Pay for Equal Work
The Equal Pay Act (EPA) of 1963 is essentially an amendment to the
Federal Labor Standards Act that was passed to address wage disparities
based on gender. The EPA prohibits gender discrimination in the payment
of wages for women and men performing substantially equal work in the
same establishment. Under the EPA, a lawsuit may be filed by the Equal
Employment Opportunity Commission (EEOC) or by individuals on their
own behalf. If a complainant is paid full back wages under EEOC
supervision or if the EEOC takes legal action first, a private suit may not be
filed.
The EPA is applicable wherever the minimum wage law is applicable
and is enforced by the EEOC. The EPA requires that employees who
perform equal work receive equal pay. There are situations in which wages
may be unequal as long as they are based on factors other than gender, such
as in the case of a formalized seniority system or a system that objectively
measures earnings by the quantity or quality of production.
Refuse to Participate in Care
Caregivers have a right to refuse to participate in certain aspects of patient
care and treatment. This can occur when there is conflict with one’s cultural, ethical, and/or religious beliefs, such as the administration of
blood or blood products, participation in elective abortions, and end-of-life
issues such as disconnecting a respirator. In the attempt to honor staff
rights, a patient’s health must not be compromised. Questionable requests not to participate in certain aspects of a patient’s care should be referred to an organization’s ethics committee for review and consultative advice.
CASE: RIGHT TO REFUSE TO PARTICIPATE
IN ABORTIONS
Caregivers have a right to refuse to participate in abortions and can abstain
from involvement in abortions as a matter of conscience, religious beliefs,
or moral conviction. In a Missouri case, Doe v. Poelker, 1 the city was
ordered to obtain the services of physicians and personnel who had no
moral objections to participating in abortions. The city also was required to
pay the plaintiff’s attorneys’ fees because of the wanton disregard of the indigent woman’s rights and the continuation of a policy to disregard and/or circumvent the U.S. Supreme Court’s rulings on abortion.
Ethical and Legal Issues
1. Describe the ethical issues raised in this case.
2. Should a caregiver have a right to refuse to participate in abortions?
Explain your answer.
Question a Patient’s Care A caregiver has the right to question the care being rendered to a patient by
another caregiver if there is reason to believe that the care is likely to be
detrimental to the well-being of the patient. If for example, a caregiver
believes that a particular order appears to be questionable, the caregiver has
the responsibility to seek verification from the prescribing physician. If the
prescribing physician believes the order to be correct and the caregiver still
questions the order, the concern must be relayed to the employee’s supervisor for verification and further follow-up if necessary.
CASE: PAVING HER WAY TO HEAVEN
The nurse-plaintiff in Kirk v. Mercy Hosp. Tri-County 2 was employed as a
charge nurse with supervisory duties. A short time after one of her patients
had been admitted to the hospital, the nurse diagnosed that the patient was
suffering from toxic shock syndrome. The nurse believed that the
physician would order antibiotics. After a period of time had passed
without having received those orders from the physician, she discussed the
patient’s situation with the director of nursing. The nurse was told by the director to document what had happened. She was told to report the facts
and stay out of the matter.
The nurse discussed the patient’s condition and lack of orders with the chief of staff. Although the chief of staff took appropriate steps to treat the
patient, the patient died. A member of the patient’s family had told the nursing director that the nurse-plaintiff offered to obtain the medical
records. The nursing director was later told that the nurse-plaintiff had told
the family member that the physician was “paving [the patient’s] way to heaven.” The director terminated the plaintiff.
After her termination, the nurse received a service letter from the
hospital that directed her to refrain from making any further false
statements about the hospital and its staff.
The trial court entered a summary judgment for the defendant, stating
that there were no triable issues of fact, and there was no public policy
exception to the nurse’s at-will termination. The nurse appealed. The Missouri Court of Appeals held that the Nursing Practice Act
provided a clear mandate of public policy that the nurses had a duty to
provide the best possible care to patients. Public policy clearly mandates
that a nurse has an obligation to serve the best interests of patients;
therefore, if the plaintiff refused to follow her supervisor’s orders to stay out of a case where the patient was dying from a lack of proper medical
treatment, there would be no grounds for her discharge under the public
policy exception to the employment-at-will doctrine.
Pursuant to the Nursing Practice Act, the plaintiff risked discipline if
she ignored improper treatment of the patient. Her persistence in
attempting to get the proper treatment for the patient was her absolute duty.
The hospital could not lawfully require that she stay out of a case that
would have obvious injurious consequences to the patient. Public policy,
as defined in case law, holds that no one can lawfully do that which tends
to be injurious to the public or against the public good.
Ethical and Legal Issues
1. Describe the ethical and legal issues in this case.
2. Did the hospital violate the rights and responsibilities of the nurse?
Explain your answer.
3. Would the nurse’s professional code of ethics support her actions in this case? Explain your answer.
Freedom from Sexual Harassment
Employees and staff have a right to be free from sexual harassment. Sexual
harassment can be verbal or physical, and it includes a request for a sexual
favor, sexual advances made as a condition of employment and
unreasonably interfering with an employee’s work performance, and creating an intimidating or offensive working environment. In 1980, the
EEOC issued landmark sexual harassment guidelines that prohibit
unwelcome sexual advances or requests that are made as a condition of
employment. The guidelines also prohibit conduct that creates a hostile
work environment. The U.S. Supreme Court held that a hostile work
environment refers not only to conduct that is psychologically injurious but
also to conduct that is perceived as abusive.
Suggest Changing Physician
There are circumstances in which a caregiver has a right to suggest that a
patient or patient’s family change their physician. For example, in one case a patient began losing weight and having hallucinations. A nurse
documented the patient’s difficulties and attempted on several occasions to call the patient’s physician. The physician failed to return the nurse’s calls. When the patient’s condition deteriorated further, the family contacted the nurse. After the nurse told the patient’s family about her concerns, a member of the patient’s family asked her what they should do. The nurse advised that she would reconsider their “choice of physicians.” The nurse was subsequently terminated because she had advised the patient’s family to consider changing physicians.
The nurse brought a lawsuit for wrongful discharge in violation of
public policy. The language in the Nursing Practice Act of North Carolina
and regulations of the Board of Nursing describe the practice of nursing as
assessing a patient’s health, which entails a responsibility to communicate, counsel, and provide accurate guidance to clients and their families. The
nurse’s comments that resulted in her termination were made in fulfillment of these responsibilities.
The North Carolina Court of Appeals held that the nurse stated a claim
for wrongful discharge in violation of public policy. The nurse’s termination for fulfilling her responsibilities as a practicing nurse violated
state public policy and was a factual question for jury determination.
Although there may be a right to terminate at-will employment for no
reason or for an arbitrary or irrational reason, there can be no right to
terminate such employment for an unlawful reason or purpose that
contravenes public policy.
Be Treated with Dignity and Respect
One’s dignity may be assaulted, vandalized, and cruelly mocked, but it cannot be taken away unless it is surrendered.
AUTHOR UNKNOWN
Each employee has the right to be treated with dignity and respect and in a
fair and consistent manner by the employer. Employers have a
responsibility to pay attention to employees’ expressions, complaints, and concerns regarding their rights and entitlements. Furthermore, employers
should respond promptly to all employees’ questions, especially when employees are working away from the corporate site.
REALITY CHECK: Call for Help—No Response
Three consultants were assigned by their employer, International
Consulting (IC), to review the human resources department of XYZ
Corporation. XYZ was larger and more complex than the consultants
expected. In addition, it was located in a different state than IC’s headquarters. On the first day of the consulting assignment, the
consultants called the offices of IC to discuss the need for additional
help. The manager responsible for addressing field requests did not
respond.
Despite the lack of a follow-up call from the corporate manager, the
team covered the assigned task. XYZ’s leadership expressed their appreciation to the consultants for a job well done.
Discussion
1. Assuming that the manager received the message, what, if any,
specific disciplinary action should be taken against him for failing
to respond to his employees? Explain.
2. Discuss the training opportunities for corporate managers
responsible for providing support for field consultants.
Employment at Will and Fair Treatment
An at-will prerogative without limits could be suffered only in an anarchy,
and there not for long; it certainly cannot be suffered in a society such as
ours without weakening the bond of counter-balancing rights and
obligations that holds such societies together.
SIDES V. DUKE HOSPITAL 3
The common-law “employment-at-will” doctrine provides that employment is at the will of either the employer or the employee. The
employer or employee may terminate employment for any or no reason,
unless there is a contract in place that specifies the terms and duration of
employment. Historically, termination of employees for any reason was
widely accepted; however, contemporary thinking does not support this
concept.
In recent years, the rule that employment for an indefinite term is
terminable by the employer whenever and for whatever cause he chooses
without incurring liability has been the subject of considerable scholarly
debate and judicial and legislative modification. Consequently, there has
been a growing trend toward a restricted application of the at-will
employment rule whereby the right of an employer to discharge an at-will
employee without cause is limited by either public policy considerations or
an implied covenant of good faith and fair dealing. 4
In Sides v. Duke Hospital, the North Carolina Court of Appeals found it
to be an: 5
obvious and indisputable fact that in a civilized state where reciprocal
legal rights and duties abound, the words “at will” can never mean “without limit or qualification,” as so much of the discussion and the briefs of the defendants imply; for in such a state the rights of each
person are necessarily and inherently limited by the rights of others
and the interests of the public. An at-will prerogative without limits
could be suffered only in an anarchy, and there not for long; it
certainly cannot be suffered in a society such as ours without
weakening the bond of counter-balancing rights and obligations that
holds such societies together. . . .
If we are to have law, those who so act against the public interest
must be held accountable for the harm inflicted thereby; to accord them
civil immunity would incongruously reward their lawlessness at the
unjust expense of their innocent victims.
The concept of the employment-at-will doctrine is embroiled in a
combination of legislative enactments and judicial decisions. Some states,
such as New York, have a tendency to be more employer-oriented, whereas
others, such as California, emerge as being much more forward-thinking
and in harmony with the constitutional rights of the employee.
The employment-at-will common law doctrine is not truly applicable
in today’s society and many courts have recognized this fact. In the last century, the common law developed in a laissez-faire climate that
encouraged industrial growth and improved the right of an employer
to control his own business, including the right to fire without cause
an employee at will. . . . The twentieth century has witnessed
significant changes in socioeconomic values that have led to
reassessment of the common law rule. Businesses have evolved from
small- and medium-size firms to gigantic corporations in which
ownership is separate from management. Formerly there was a clear
delineation between employers, who frequently were owners of their
own businesses, and employees. The employer in the old sense has
been replaced by a superior in the corporate hierarchy who is himself
an employee. 6
“Is it fair?” is the ultimate question that a supervisor must ask when considering a termination. In general, bad-faith and inexplicable
terminations are subject to the scrutiny of the courts. Some courts and
legislative enactments have overturned the view that employers have total
discretion to terminate workers who are not otherwise protected by
collective bargaining agreements or civil service regulations. Montana
legislation grants every employee the right to sue the employer for
wrongful discharge. The mere fact that an employment contract is
terminable at will does not give the employer an absolute right to terminate
it in all cases.
REALITY CHECK: Fairness—When 6 + 1 = 9
Bill had 9 evaluations during 7 consulting assignments. One
corporation submitted 1 original evaluation and 2 copies of the same
evaluation. Policy requires that each corporation submit 1 evaluation
per consulting project. Unfortunately for Bill, the evaluation that was
submitted three times was negative in two of the asked 20 evaluative
questions. This skewed Bill’s overall performance average in those 2 categories to an overall score of “meets expectations.” Bill—being a perfectionist—had “exceeds expectations” in all of the categories over the past 10 years. Bill believed that the data were flawed, and he
approached Vinnie, his supervisor, to discuss his concerns. Vinnie
brushed off Bill’s concerns and said everything would average out. Bill later learned that Vinnie was responsible for assuring the
accuracy of aggregate data in the organization. Bill thought to himself,
“If the performance data are flawed, how can I trust any other data that he presents at corporate meetings?”
Bill decided to e-mail his concerns to Vinnie about the use of
invalid data in his evaluations. He decided to make the analogy that, if
he had 7 algebra exams and in 6 he scored 100 and in 1 he scored 70,
the aggregate data would be flawed if the score of 70 was wrongly
counted three times. Bill was sure Vinnie would understand this
analogy. Not so. Vinnie said to Bill, “We have already had this discussion. I don’t want to hear about it again.”
Discussion
1. Discuss what values are at play in this scenario.
2. Should Bill pursue his concerns, or should he accept the
performance downgrade that has resulted from the use of flawed
data? Discuss your answer.
3. Was Vinnie impervious to reasoning, thinking, “I’ve made up my mind, don’t confuse me with the facts”?
Public Policy Exceptions
The public policy exception to the employment-at-will doctrine provides
that employees may not be terminated for reasons that are contrary to
public policy. Public policy originates with legislative enactments that
prohibit, for example, the discharge of employees on the basis of handicap,
age, race, color, religion, gender, national origin, pregnancy, filing of safety
violation complaints with various agencies (e.g., the Occupational Safety
and Health Administration), or union membership. Any attempt to limit,
segregate, or classify employees in any way that would deprive any
individual of employment opportunities on these bases is in contrast to
public policy.
Public policy also can arise as a result of judicial decisions that address
those issues not covered by statutes, rules, and regulations. “[I]t can be said that public policy concerns what is right and just and what affects the
citizens of the state collectively. It is to be found in the state’s constitution and statutes and, when they are silent, in its judicial decisions.”7
Public policy favors the exposure of crime, and the cooperation of
citizens possessing knowledge thereof is essential to effective
implementation of that policy. Persons acting in good faith, who have
probable cause to believe crimes have been committed, should not be
deterred from reporting them by fear of a lawsuit by those accused. 8
In those instances in which state and federal laws are silent, not all
courts concur with the use of judicial decisions as a means for determining
public policy. A California court has determined that a public policy
exception to the at-will employment doctrine must be based on
constitutional or statutory provisions rather than judicial policy making. 9
Freedom from Intimidation
There is a tendency for those in power to abuse that power through threats,
abuse, intimidation, and retaliatory discharge, all of which are cause for
legal action. Employees who become the targets of a vindictive supervisor
often have difficulty proving a bad-faith motive. In an effort to reduce the
probability of wrongful discharge, some states, such as Connecticut, 10
Maine, 11
Michigan, 12
and Montana, 13
have enacted legislation that protects
employees from terminations found to be arbitrary and capricious. The
Montana Supreme Court upheld state legislation that protects workers
against arbitrary discharge, while limiting the damages they can win.
The National Labor Relations Act and other labor legislation illustrate
the governmental policy of preventing employers from using the right
of discharge as a means of oppression. . . . Consistent with this policy,
many states have recognized the need to protect employees who are not
parties to a collective bargaining agreement or other contract from
abusive practices by the employer. . . . Those states have recognized a
common law cause of action for employees-at-will who were
discharged for reasons that were in some way “wrongful.” The courts in those jurisdictions have taken various approaches: some recognizing
the action in tort, some in contract. 14
Dismissal of an employee shortly after a request for a grievance hearing
regarding a salary discrepancy with another employee can raise an issue of
liability for retaliatory discharge. The physician in Jones v. Westside-Urban
Health Center 15
was found to have established a prima facie case of
retaliatory discharge in which the record indicated that he had been fired
from the hospital 5 days after his request for a grievance hearing on an
alleged salary discrepancy.
REALITY CHECK: Employee Satisfaction Survey
The human resources department manager was reporting on an
employee satisfaction survey at a leadership roundtable session with the
organization’s employees. To maintain employee confidentiality, a third-party consulting firm had conducted the survey. Approximately
49% of employees had responded to the survey, compared with 47%
three years earlier. The HR manager commented that it is was the first
satisfaction survey conducted in 3 years and that the results were
excellent, with a 4.2% rise in overall employee satisfaction.
Management was all smiles as they sat listening to the report. The HR
manager had actually briefed the organization’s leadership prior to the roundtable session. Following the report, she asked if there were any
questions. The silence was deadly—no one responded. Finally, one employee, Richard, placed his hands on the table to stand up, but he felt
a nudge on his right shoulder from Phil, a physician friend. Phil
whispered, “Richard, are you sure you want to ask any questions? There is nothing to gain here.” Richard, looking down with a smile, said, “I agree, but I can’t help myself.” Richard then stood up and asked the HR manager, “Do you know what the employee turnover rate has been during the past 3 years?” She responded, “Well, ugh, yes, it was about 30%.” Richard replied, “So, then, does this report reflect that we have had a 30% turnover?” The manager replied, “Good point, I will have to get back to you on that.” When he returned to his seat, Phil said, “Do you really think you will ever hear back an answer to your question?” Richard smiled and replied, “Not really.” He was right; he never did.
Discussion
1. Discuss why employees are often reluctant to ask questions when
their questions are solicited by leadership.
2. Knowing that the HR manager never followed up with Richard,
should Richard have followed up with the manager? Explain your
answer.
Privacy and Confidentiality
Like patients, employees have a right to privacy and confidentiality, such
as information about their health status. However, modern technology
makes it possible for employers to monitor their employees’ activities through their computer site visits, electronic e-mails, voicemail, and video
monitoring (though video monitoring is not permissible in bathrooms and
locker rooms). Such monitoring is generally unregulated, and unless an
organization’s policy specifically states otherwise, the employer may listen to, watch, and read an employee’s workplace communications.
Employee rights often ride a fine line as related to privacy. As the
following reality check illustrates, it is sometimes difficult to know where
to draw the line between corporate integrity and employee rights.
REALITY CHECK: Your Mail Has Been Intercepted
The XYZ Corporation has decided to open all mail sent to employees
who work in the field. A memorandum was sent to the field staff
saying, “Sorry, your mail will be either opened or returned to the sender if it is delivered to your workplace. If the sender is from a health care
organization, it will be opened to determine if its contents relate to
XYZ’s business. If the mail is from any other person or place, it will be returned unopened to the sender. This action is necessary from a cost-
savings standpoint. XYZ cannot afford to forward the on average 60
pieces of mail that it receives each month addressed to field staff.” What happens to opened mail that is not XYZ’s business remains a mystery. What is it that drives an organization to make such decisions?
Is it fear of competition, paranoia, distrust, or some other hidden issue?
The answer remains elusive.
Although it is legal for an organization to open all mail before
sorting and delivering it, employees should be told that they should
have no expectation of privacy and that they should not have anything
personal sent to work that they don’t want others to see. Managers should not be allowed to open an employee’s mail indiscriminately, because the invasion of privacy will undermine employee morale.
Policy should prohibit managers from opening employees’ personal mail without good reason.
16
Discussion
1. Discuss under what circumstances an organization should open an
employee’s mail. 2. Discuss any legal and ethical concerns (e.g., right to privacy).
3. What should happen to the mail of an employee that is opened and
is not intended for the organization? What if that information is
confidential in nature and is shared with others?
4. What safeguards should organizations put into place to safeguard
personal information?
REALITY CHECK: Trust is Pivotal to Success
Without trust, privacy and confidentiality become meaningless. The
most vital resource in a health care organization is the staff. The CEO
must assign responsibilities to both line and staff employees on the
basis of capability. The CEO must recognize the differences and needs
of each individual, develop their strengths, and provide guidance in
times of weakness. Like a conductor in a symphony orchestra, the CEO
must produce organizational harmony among the staff, knowing—as the saying goes—a house divided against itself cannot stand. The CEO sets the tone for building trust in the organization. Therefore, it is
imperative that he or she be attuned to the needs of those in the front
line, those employees who conduct the real business of the organization
and support its mission.
Jack, the newly appointed CEO of XYZ, has been working for 2
years in his position. Staff members have criticized his physical
absence and his once-a-year appearance at employee luncheons. Except
for the occasional memorandum drafted by other staff members, many
employees at XYZ have become discouraged and distrustful of the top-
tier vice presidents who were appointed by Jack to conduct business for
XYZ. Employees are beginning to leave, and business is going
elsewhere.
Discussion
1. Discuss why the CEO must earn the respect and trust of his or her
staff. Discuss why:
a. Without trust, one cannot lead.
b. Being heard and not seen is not leadership.
2. What should Jack do to build trust in the organization?
EMPLOYEE RESPONSIBILITIES
I believe that every right implies a responsibility; every opportunity, an
obligation; every possession, a duty.
JOHN D. ROCKEFELLER, JR.
Rights and responsibilities run parallel to one another. With every right
there is a corresponding duty to respect the rights of others. It is easy to
remember one’s rights and responsibilities. The following pages describe a few of the many responsibilities required of health care employees.
Advocate for Patients
Caregivers have a responsibility to advocate for their patients. Because
patients are often helpless and unable to speak for themselves, all
caregivers, whether they are volunteers or paid staff, should consider
themselves to be patient advocates. Many states have mandated by
legislation the establishment of ombudsman programs.
Show Compassion
How far you go in life depends on you being tender with the young,
compassionate with the aged, sympathetic with the striving and tolerant of
the weak and strong. Because someday in your life you will have been all
of these.
GEORGE WASHINGTON CARVER
The ability to show strength of character through compassion leads this list
of employee responsibilities. Compassionate caregivers make the
difference in the lives of both patients and coworkers. They guide patients
who are struggling through illness, pain, and suffering, and provide hope
when there seems to be none.
Honor Patient Wishes
Caregivers have a responsibility to honor a patient’s right to participate in decisions regarding his or her care, including the right to formulate advance
directives and have those directives honored.
Maintain Confidentiality
The duty of employees and staff to maintain confidentiality encompasses
both verbal and written communications. This requirement also applies to
consultants, contracted individuals, students, and volunteers. Information
about a patient, regardless of the method in which it is acquired, is
confidential and should not be disclosed without the patient’s permission. Those who come into possession of the most intimate personal information
about patients have both a legal and an ethical duty not to reveal
confidential communications. The legal duty arises because the law
recognizes a right to privacy. To protect this right, there is a corresponding
duty to obey. The ethical duty is broader and applies at all times.
All health care professionals who have access to medical records have a
legal, ethical, and moral obligation to protect the confidentiality of the
information in the records. The communications between a physician and
his or her patient and the information generated during the course of the
patient’s illness are generally accorded the protection of confidentiality. Health care professionals have a clear legal and moral obligation to
maintain this confidentiality. As noted previously, medical records, with
proper authorization, may be used for the purposes of research, statistical
evaluation, and education. The information obtained from medical records
must be dealt with in a confidential manner; otherwise, an organization
could incur liability.
Maintain Employee Privacy and Confidentiality
The duty of employees to maintain confidentiality is applicable to other
employees as well as to patients. Those in positions of trust can maintain
their individual integrity only by being trustworthy. An employee who is
involved in illegal activities or unethical conduct has given up the right to
privacy, regardless of his or her rank in the organization.
REALITY CHECK: Compliance Officer and Confidentiality
The employee who decides to place confidence and trust in a corporate
compliance officer must understand the following points, among others,
prior to filing a complaint against any organizational practice,
individual, and/or department within or entity owned by the
organization:
• The compliance officer is hired by and is responsible to the corporation by which he or she is hired.
• Compliance officers often report directly to the organization’s corporate counsel and/or chief executive officer and/or board of
directors/trustees.
• The compliance officer is expected to abide by the laws of the land and follow the code(s) of ethics applicable to compliance officers in
general and any ethical principles or codes of ethics that apply to his
or her profession. For example, a compliance officer who is a lawyer
is expected to adhere to those professional code(s) of ethics that apply
to lawyers from both a professional and state licensing standpoint.
Failure to do so can result in professional discipline and sanctions
against the compliance officer.
• Compliance officers are expected to maintain confidentiality of the names of employees who file complaints.
• Organizations often have compliance hotlines to protect the identity of employees who file complaints.
The compliance officer has a difficult balancing act in maintaining
the confidentiality of employees, working for the organization,
adhering to standards of ethical conduct, and abiding by applicable
federal and state laws. This is no easy task, as Phil was about to learn.
Phil, having exhausted all other appeals, called Beth, the
compliance officer, to speak with her about a decision that the human
resources department had made that he believed was out of compliance
with the Federal Equal Pay Act. The office assistant, Mary, stated,
“Beth will not be in the office until next week.” Phil then scheduled a telephone conference with Beth for the following week. He asked
Mary, “Will my telephone conference with Beth remain confidential?” Mary said, “Most certainly. Our office is here for you. Everything in our office remains confidential.”
The following week Phil called Beth to discuss his concern that
certain professionals were performing the same work as he was and
were getting paid more. He described the specifics of his concern. Beth
asked, “Is it OK for me to reveal your name to human resources so that I can obtain the necessary records that I would need from them to see if
you are being paid equally to others for the same work?” Phil agreed to Beth’s request.
During his discussion with Beth, Phil asked that his conversations
with her remain confidential. Beth responded, “If you wanted confidentiality, then you should have asked for it before speaking to
me.”
Discussion
1. What lessons could employees learn from Phil’s experience? 2. Discuss how this scenario can end with a win-win conclusion for
both the employee and the compliance officer.
Adhere to Safe Practices
Caregivers have a responsibility to adhere to safe practices in order to
minimize patient injuries. This responsibility requires employees to adhere
to national patient safety goals (e.g., handwashing, patient identification,
verification of operative site), the purpose of which is to protect the health
of the patient.
Comply with Sterile Technique Protocols
The Centers for Disease Control and Prevention has estimated that
“nosocomial [hospital-acquired] bloodstream infections are a leading cause of death in the United States. If we assume a nosocomial infection rate of
5%, of which 10% are bloodstream infections, and an attributable mortality
rate of 15%, bloodstream infections would represent the eighth leading
cause of death in the United States.”17 It is believed that such infections have resulted in as many as 100,000 deaths and billions of dollars in
additional health care costs. These numbers do not reflect non-hospital-
acquired infections that have occurred in physicians’ offices. The seriousness of these numbers should awaken all caregivers as to
the importance of complying with sterile practice techniques through
recommended handwashing and maintaining a sterile environment for
patients.
PEOPLE STORIES: Doctor’s Integrity Questioned
I went to an ear, nose, and throat specialist. There was an untrained
college student at the reception desk. There were chairs folded up in the
waiting room. This should have been my first clue that something was
wrong in the office. The treatment room had two chairs, a stool for the
physician and one for me to sit on. While waiting for the physician to
enter the treatment room, I noticed a stainless steel tray with some
instruments with goo on them. The physician entered the room. As he
began to place some medical instruments into what appeared to be a
clean drawer, I pointed out to the physician, “Those instruments are dirty.” He replied, “They are not dirty. They are clean.” He proceeded to place them into the drawer. That should have been my last clue to
leave. I stayed but decided not to pay him. He has never followed up
for collection.
Patient
Exercise Judgment
Caregivers have a responsibility to exercise discretion and good judgment.
This is especially true of physicians, who are bound to exercise their
judgment without interference from others. The Hippocratic Oath requires
that the physician use his or her power to help the sick to the best of his or
her ability and judgment. Such discretion, however, has limits and must
consider the autonomous rights of patients.
Adhere to Professional Standards
Caregivers have a responsibility to maintain a professional attitude in the
performance of their work. Unprofessional conduct, incompatibility, and
lack of cooperation in a hospital are appropriate considerations for
discharging an employee or denying staff privileges. The ability to work
with others is a reasonably definite standard proscribing the conduct on
which discharge or other adverse action is based. Today’s health care environment has become increasingly complex. The operation of a hospital
requires the coordination of numerous employees and departments, each
with different responsibilities that build and depend on each other. Thus,
staff cooperation and communication are essential to ensuring a high
quality of patient care. Disruptive behavior in the workplace can affect the
morale and teamwork of the staff, as well as cause actual harm to patients.
A hospital’s evaluation of an employee or physician’s attitude and ability to work with others is not unduly vague and is directly related to the goal
of good patient care. 18
Maintain Professional Relationships
Employees are responsible for maintaining an appropriate professional
relationship with patients, families, coworkers, and others who come into
contact with the organization (e.g., consultants).
REALITY CHECK: Shoot the Consultant
Justin, a new consultant, was assigned to review an organization’s human resources department and provide recommendations on how to
improve processes and systems. As Justin was new to the job, Mel, a
more seasoned consultant, was assigned to work with him. Justin was
working on a preliminary report to be presented to the organization
later that day. Judy, the organization’s coordinator assigned to work with Justin, was asked to provide additional information on its staffing
process. Justin believed that the organization’s staffing processes were well done. Mel, whispering in Justin’s ear, out of Judy’s eyesight, said, “I disagree. These processes are not what we would expect to see in place, but then, this is your assignment. I am just here to evaluate you.” Justin understood his message. Justin described to Judy his concerns
about human resources staffing processes as Mel stood in the back of
the room watching their interaction. Judy turned to Mel and said,
“Don’t you think Justin is wrong?” Mel quickly replied, “I am just an observer.” Judy left the room as Justin completed his report.
Later that afternoon Justin presented his report to the organization’s leadership. Justin made his suggestions for improvement. After his
report, the CEO asked whether there were any questions regarding
Justin’s report. Mel was sitting to the immediate left of Justin, and Judy was to the left of Mel. Judy, leaning over to look at Justin, pointing at
him, said, “I could just shoot him.” After a few moments of silence, followed by a few thank-yous and goodbyes, Justin handed his report to
the CEO. He, along with Mel, got up to leave the room. Judy, ignoring
Justin, shook Mel’s hand and hugged him goodbye as she looked at Justin with disdain.
Discussion
1. Assuming that Mel adequately explained his recommendations,
discuss what other actions, if any, Justin might have taken to defuse
Judy’s discontent. 2. What action should the CEO take regarding Judy’s apparent
disrespect? Explain your answer.
Health care professionals must not breach their ethical obligations by, for
example, engaging in sexual affairs with their patients, even if the affairs
are consensual. Sexual harassment cases are often litigated in both civil and
criminal arenas. Health care professionals finding themselves in such
unprofessional relationships should seek help for themselves as well as
refer their patients to other appropriate professionals. Besides being subject
to civil and criminal litigation, health care professionals also are subject to
having their licenses revoked for sexual improprieties. The following cases
illustrate the pervasiveness of sexual improprieties by professionals in a
variety of settings.
Organizations should take action to prevent claims of sexual
improprieties by training supervisory personnel to recognize and correct
questionable behavior before it becomes a problem. Policy and procedures
regarding sexual harassment should be included in an organization’s orientation programs.
Nurse’s Relationship with Patient A nurse’s sexual relations with a patient can give rise to disciplinary action resulting in the nurse’s loss of license. In Heinecke v. Department of Commerce,
19 a male nurse lost his license after having a sexual relationship
with a patient, even though she was no longer a patient at the hospital
where they met. The fact that the nurse resigned from the hospital and was
living with the patient was not a sufficient defense to support such
behavior.
Physician’s Inappropriate House Call A hospital technologist in Copithorne v. Framingham Union Hospital
20
alleged that a staff physician raped her during the course of a house call.
The technologist’s claim against the hospital had been summarily dismissed for lack of proximate causation. On appeal, the dismissal was
found to be improper when the record indicated that the hospital had
received notice of allegations that the physician had assaulted patients on
and off the hospital’s premises. The hospital had instructed the physician to have another individual present when visiting female patients and had
instructed nurses to “keep an eye on him.” The physician’s sexual assault was foreseeable. There was evidentiary support for the proposition that
failure to withdraw the physician’s privileges had caused the rape when the technologist asserted that it was the physician’s good reputation in the hospital that had led her to seek his services.
Avoid Relationships with a Patient’s Spouse The sexual relationship that a psychiatrist had with the spouse of a patient
was found to be improper in Richard v. Larry. 21
California Civil Code
Section 43.5, abolishing causes of action for alienation of affection,
criminal conversation, and seduction of a patient over the age of consent,
did not bar damages for emotional distress caused by the alleged
professional negligence of the psychiatrist who had sexual relations with
the plaintiff’s wife. The psychiatrist owed a special duty to use due care for his patient’s health. The statute was not intended to lower the standard of care that psychiatrists owed their patients. Besides an action against the
psychiatrist, allegations that the psychiatrist was an agent of the hospital
stated a cause of action against the hospital.
The Bureau of Professional Medical Conduct had charged the petitioner
in Goldberg v. De Buono, 22
a licensed physician and psychiatrist, with
moral unfitness, gross negligence and incompetence, negligence on more
than one occasion, and incompetence by reason of his alleged sexual
relationship with a patient. After a hearing, a Hearing Committee of the
State Board for Professional Medical Conduct sustained the specifications
of moral unfitness, gross negligence, and negligence, and the committee
recommended revocation of the petitioner’s license. The New York Supreme Court, Appellate Division, rejected the
petitioner’s assertion that the committee erred in crediting the testimony of Patient A and her daughter. Issues of credibility, even as to witnesses with
psychiatric illnesses, are exclusively for the administrative fact-finder to
determine. The petitioner conceded his sexual relationship with Patient A,
but contended that the physician–patient relationship had been terminated at the time the sexual relationship occurred. Inasmuch as the respondent’s medical expert testified that the relationship was not terminated and the
petitioner’s relationship with Patient A constituted a serious deviation from accepted standards of practice, the court was satisfied that the committee’s determination was supported by substantial evidence.
Report Unethical Behavior
Caregivers have both a right and responsibility to report impaired,
incompetent, and unethical colleagues in accordance with the legal
requirements of each state. Unethical behavior includes conduct that
threatens patient care or welfare, behavior that violates state licensing
provisions, and conduct that violates criminal statutes.
Protect Patients from Harm
Caregivers have an ethical and legal responsibility to protect patients from
harm. The rules of ethics applicable to nurses, for example, specifically
recognize a nurse’s obligation to safeguard not only patients’ health but their safety as well. These are not duties invented by courts of equity, but
rather tenets of ethical responsibility issued by the profession itself.
Report Patient Abuse
Caregivers have both a right and responsibility to report patient abuse.
Statutes protect employees against retaliation by employers for reporting
patient abuse. An employer may not, therefore, discharge an employee for
fulfilling this societal obligation.
Whistleblowing and Reporting Unethical Conduct
NEWSPAPER CLIPPINGS: Lawsuit Claims Poor Care at Catholic
Charities’ Clinics in MD, District
The whistleblower lawsuit, filed Thursday in D.C. Superior Court,
identifies the plaintiff, Charles Briggs, as the sole staff doctor at the
clinic from March 2008 until October 1, 2010, when he was fired.
Briggs, 66, says in the suit that he was fired in retaliation for raising
concerns about patient care with supervisors who did little to address
them. . . .
For those patients, “Catholic Charities was the place they trusted to go for quality health care,” said Alexis Ronickher, a lawyer with Katz, Marshall & Banks, which is representing Briggs. “. . . Instead of addressing the problems, Catholic Charities took the all too common
approach of shooting the messenger.”
Lena H. Sun, The Washington Post, April 7, 2011
Employees have both a right and responsibility to report unethical conduct.
Whistleblowing has been defined as an act of someone “who, believing that the public interest overrides the interest of the organization he serves,
publicly blows the whistle if the organization is involved in corrupt, illegal,
fraudulent, or harmful activity.”23 According to the public policy exception, an employer may not rely on
the at-will doctrine as a basis for escaping liability for discharging an
employee because of the doing of, or the refusing to do, such an act.
Moreover, statutes in several jurisdictions protect an employee from an
employer’s retaliation for engaging in certain types of protected activities, such as whistleblowing.
24
Given the concern of the public about ethical behavior in government,
the strong policy statement of the legislature in enacting the whistle-blower
statute, and the explicit inclusion of the state within its reach, the
Whistleblower Act operates as an implied waiver of the statutory immunity
provision of Minn. Stat. A4 3.736. A decision to shield potential
government wrongdoing, as urged by the state, would exacerbate public
cynicism about the ethics of public officials, and this we do not choose to
do. 25
HELPFUL ADVICE
• Do not blame others for your mistakes. • Do not say “we are short staffed”; solve the problem. • Do not say the physician is not here when he or she is. • Do not say the physician will soon be here when he or she has already left
the building.
• Do not say that this will not hurt, when you know it will. • Do not say that you are busy when you are not. • Take responsibility for caring and communicating. • Include the patient in the decision-making process. Encourage, do not
discourage, the patient to participate in his or her health care decisions.
• Take the time to explain to patients the risks, the benefits, and alternatives to each course of treatment.
• Avoid the paternalistic approach to medical care. Do not withhold information from the patient in an attempt to sway the patient to accept
your point of view.
• Be careful not to get anxious—for example, because of time constraints —and push the patient into making hasty and, sometimes, regretted decisions.
• Show respect and sensitivity to the patient’s needs. • Show that you value the patient’s decisions. • Accept and honor the fact that the patient has his or her own needs and
desires.
• Assure the patient that you will honor his or her care decisions in compliance with law.
• Listen to what the patient is saying without interruption. • Do not make fun of a patient’s decision-making capacity. Patients are
human and have the frailties that we all must someday endure.
• Concentrate on the patient’s wishes and instructions. • Be firm but polite when others attempt to speak for the patient. • Hold strong by honoring the patient’s wishes. • Prohibit others from demeaning and criticizing a patient’s wishes because
of his or her frail condition.
• Remember that your feelings and those of family may be different from those of the patient. It is, however, the patient who faces the
consequences of his or her decisions. You are, therefore, responsible for
considering the patient’s wishes sacred and protecting the patient from those who would disregard them.
• Avoid the pitfalls of prejudice and bias.
THE CAREGIVER’S PLEDGE • I will be compassionate. • I will not neglect my duties and responsibilities. • I will read instructions and follow protocols. • I will seek verification of questionable orders. • I will report concerns for patient safety (e.g., staffing concerns). • I will not assume responsibilities beyond my capabilities. • I will call for help when a patient’s medical needs suddenly change. • I will continuously improve my skills and participate in continuing
education opportunities.
CHAPTER REVIEW
1. Staff rights include:
• Equal pay for equal work • Refusing to participate in care (e.g., abortions) • Questioning a patient’s care • Being free from sexual harassment • Suggesting that a patient change physician • Being treated with respect and dignity • Employment at will and fair treatment • Freedom from intimidation • Privacy and confidentiality
2. Staff responsibilities include:
• Being a patient advocate • Showing compassion • Honoring a patient’s autonomy • Maintaining confidentiality of both patients and other employees • Following professional codes of ethics • Adhering to safe practices • Exercising good judgment • Maintaining professional relationships • Not sexually harassing others • Reporting unethical behavior • Protecting patients from harm • Reporting patient abuse • Being a whistleblower if necessary
REVIEW QUESTIONS
1. Describe the rights of employees as discussed in this chapter.
2. What was the purpose of the Equal Pay Act of 1963?
3. Are there any circumstances under which an employee has a right
to refuse to participate in a patient’s procedure? Explain your answer.
4. Does a nurse have a right to question the care being rendered to a
patient? Explain your answer.
5. Is the employment-at-will concept appropriate in today’s society? 6. What are the pros and cons of the employment-at-will doctrine?
7. Describe the responsibilities of employees as described in this
chapter.
8. Discuss, as reviewed in this chapter, the meaning of this:
“Employees are responsible for maintaining professional relationships with patients.”
NOTES
1. 515 F.2d 541 (8th Cir. 1975).
2. 851 S.W.2d 617 (Mo. Ct. App. 1993).
3. 328 S.E.2d 818 (N.C. Ct. App. 1985).
4. 44 A.L.R. 4th 1136 (1986).
5. Sides v. Duke Hosp., 328 S.E.2d 818 (N.C. Ct. App. 1985).
6. Pierce v. Ortho Pharm. Corp., 417 A.2d 505, 509 (N.J. 1980).
7. Palmateer v. International Harvester Co., 421 N.E.2d 876, 878 (Ill. 1981).
8. Joiner v. Benton Community Bank, 411 N.E.2d 229, 231 (Ill. 1980).
9. Gantt v. Sentry Ins., 824 P.2d 680, 687–688 (Cal. 1992). 10. Conn. Gen. Stat. Ann. A4 31–51m(a) (West 1987). 11. Me. Rev. Stat. Ann. 26, A4A4 831–840 (West 1987). 12. Mich. Comp. Laws Ann. A4A4 15.361–369 (West 1981). 13. Mont. Code Ann. A4 39-2-901 (1987).
14. Pierce v. Ortho Pharm. Corp., 417 A.2d 505, 509 (N.J. 1980).
15. 760 F. Supp. 1575 (D.C. Ga. 1991).
16. Alexander Hamilton Institute, “Mail policy considerations: Maintaining the right to open employee mail,” BusinessManagement Daily, November 9, 2001; http://www.legalworkplace.com/maintaining-right-open-employee-mail-pla.aspx.
17. Richard P. Wenzel and Michael B. Edmond, “The impact of hospital-acquired bloodstream infections,” Emerg Infect Dis [Internet serial], March/April 2001; http://wwwnc.cdc.gov/eid/article/7/2/70-0174.htm.
18. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (2002).
19. 810 P.2d 459 (Utah 1991).
20. 520 N.E.2d 139 (Mass. 1988).
21. 243 Cal. Rptr. 807 (Cal. Ct. App. 1988).
22. 711 N.Y.S.2d 81 (N.Y. App. Div. 2000).
23. Whistleblowing: The Report of the Conference of Professional Responsibility 6 (1972); see also
Annotation, 99 A.L.R. Fed. 778.
24. Annotation, 99 A.L.R. Fed. 775.
25. Gambee v. State Bd. of Med. Exam’rs, 923 P.2d 679 (1996).
chapter twelve
Patient Consent
LEARNING OBJECTIVES
The reader on completion of this chapter will be able to:
• Describe a patient’s right to self-determination. • Describe consent and its various aspects:
Informed consent
Consent and ethical codes
Assessing capacity to consent
Adequacy of consent
Proof of consent
Authorization for consent
Implied consent
Right to refuse treatment
Statutory consent
INTRODUCTION
. . . no right is held more sacred, or is more carefully guarded, by the
common law, than the right of every individual to the possession and
control of his own person.
UNION PACIFIC RY. CO. V. BOTSFORD 1
Consent is the voluntary agreement by a person who possesses sufficient
mental capacity to make an intelligent choice to allow something proposed
by another to be performed on himself or herself. Consent changes
touching that otherwise would be nonconsensual to touching that is
consensual. Consent can be either express or implied.
Express consent can take the form of either a verbal agreement or can
be accomplished through the execution of a written document authorizing
medical care. Implied consent is determined by some act of silence, which
raises a presumption that consent has been authorized.
Consent must be obtained from the patient or from a person authorized
to consent on the patient’s behalf before any medical procedure can be performed. Every individual has a right to refuse to authorize a touching.
This chapter reviews many of the issues surrounding consent in the health
care setting.
INFORMED CONSENT
Informed consent is a legal concept that provides that a patient has a right
to know the potential risks, benefits, and alternatives of a proposed
procedure. The right to be free of unwanted medical treatment has long
been recognized in this country. An “individual’s right to make decisions vitally affecting his private life according to his own conscience . . . is
difficult to overstate . . . because it is, without exaggeration, the very
bedrock on which this country was founded.”2 The right to control the integrity of one’s own body spawned the
doctrine of informed consent. 3 The United States Supreme Court has held
that a competent adult patient has the right to decline any and all forms of
medical intervention, including lifesaving or life-prolonging treatment. 4
Informed consent is predicated on the duty of the physician to disclose
to the patient sufficient information to enable the patient to evaluate a
proposed medical or surgical procedure before submitting to it. Informed
consent requires that a patient have a full understanding of that to which he
or she has consented. An authorization from a patient who does not
understand to what he or she is consenting is not effective consent.
Hospitals generally do not have an independent duty to obtain informed
consent or to warn patients of the risks of a procedure to be performed by a
physician who is not an agent of the hospital. It is the treating physician
who has the education, expertise, skill, and training necessary to treat a
patient and determine what information a patient should have in order to
give informed consent.
CASE: PATIENT AND PROVIDER
OBLIGATIONS
Any glimmer of uncertainty as to a patient’s desires in an emergency situation should be resolved “in favor of preserving life.” The patient in Matter of Hughes
5 signed a standard blank hospital form entitled “Refusal
to Permit Blood Transfusion.” There was no indication on the form that the consequences of her refusal had been explained to her in the context of the
elective surgical procedure she was about to undergo. The form should
have contained an unequivocal statement that under any and all
circumstances blood is not to be used and an acknowledgment that the
consequences of the refusal were fully explained. The form should fully
release the physician, all medical personnel, and the hospital from liability
should complications arise from the failure to administer blood, thereby
resolving any doubt as to the physician’s responsibility to his patient. If Hughes had refused to sign such a form, her physician could then have
decided whether to continue with Hughes’s treatment or to aid her in finding a physician who would carry out her wishes.
The court emphasized that this case arose in the context of elective
surgery. This was not an emergency situation where the physician and
patient did not have time to discuss fully the potential risks, benefits, and
alternatives of the planned surgery and the conflict arising over the
patient’s religious beliefs. Patients have an obligation to make medical preferences known to the treating physician, including the course to follow
if life-threatening complications should arise. This protects the patient’s right to freedom of religion and self-determination. In addition, it is helpful
to the hospital when faced with the dilemma of trying to preserve life
whenever possible and honoring the patient’s wishes to forgo sustaining treatment.
Ethical and Legal Issues
1. Describe the relevant ethical principles violated in this case.
2. Describe the relevant legal issues in this case. What actions could the
parties to this lawsuit have taken beforehand to prevent this case from
becoming a legal issue?
CONSENT AND ETHICAL CODES
The first American Medical Association Code of Medical Ethics was
written in 1847. Section I of the 1998-1999 edition, entitled “Fundamental Elements of the Patient-Physician Relationship,” provides “the patient has the right to receive information from physicians and to discuss the benefits,
risks, and costs of appropriate treatment alternatives.” Because the American Medical Association is an organization composed of experts in
the field of medicine, its code of ethics and the duties of physicians
prescribed therein should be understood to reflect the standard of care of
the profession on the issue of informed consent. Social policy does not
accept the “paternalistic” view that the physician may remain silent because divulgence might prompt the patient to forgo needed therapy.
The American Dental Association Code of Ethics also reflects the
standard of care for the dental profession. Part III, Section 1, of the
American Dental Association Code of Ethics, entitled “Principle: Patient Autonomy,” provides “the dentist has a duty to respect the patient’s rights to self-determination and confidentiality,” and Section 1A provides that “the dentist should inform the patient of the proposed treatment, and any reasonable alternatives, in a manner that allows the patient to become
involved in treatment decisions.” These American Medical Association and American Dental Association ethical standards embrace the doctrine of
informed consent.
ASSESSING DECISION-MAKING CAPACITY
A patient is considered competent to make medical decisions regarding his
or her care unless a court determines otherwise. Generally speaking,
medical personnel make the determination of a patient’s decision-making capacity. The clinical assessment of decision-making capacity should
include the patient’s ability to understand the risks, benefits, and alternatives of a proposed test or procedure; evaluate the information
provided by the physician; express his or her treatment options/plan; and
voluntarily make decisions regarding his or her treatment plan without
undue influence by family, friends, or medical personnel.
Determining Incapacity
If a patient is unable to make decisions by reason of age or incapacity, a
patient-appointed decision maker may “substitute his or her judgment” on behalf of the patient. Before declaring an individual incapacitated, the
attending physician must find with a reasonable degree of medical certainty
that the patient lacks capacity. A notation should be placed in the patient’s medical record describing the cause, nature, extent, and probable duration
of incapacity. Before withholding or withdrawing life-sustaining treatment,
a second physician must confirm the incapacity determination and make an
appropriate entry on the medical record before honoring any new decisions
by a health care agent.
CASE: LACK OF CONSENT AND PATIENT
DEATH
Four siblings, in Riser v. American Medican Int’l, Inc.,6 brought a medical malpractice action against Dr. Lang, a physician who performed a femoral
arteriogram on their 69-year-old mother, who died due to the procedure.
Riser had been admitted to Hospital A experiencing impaired circulation in
her lower arms and hands. She had multiple medical diagnoses, including
diabetes mellitus, end-stage renal failure, and arteriosclerosis. Her
physician, Dr. Sottiurai, ordered bilateral arteriograms to determine the
cause of the patient’s impaired circulation. Hospital A could not accommodate Sottiurai’s request, and Riser was transferred to Dr. Lang, a radiologist at Hospital B. Lang performed a femoral arteriogram rather
than the bilateral brachial arteriogram ordered by Sottiurai. The procedure
seemed to go well, and the patient was prepared for transfer back to the
hospital; however, shortly after the ambulance departed the hospital, the
patient suffered a seizure in the ambulance and was returned to Hospital B.
Riser’s condition deteriorated, and she died 11 days later. The plaintiffs claimed in their lawsuit that Riser was a poor risk for the procedure. The
district court ruled for the plaintiffs, awarding damages in the amount of
$50,000 for Riser’s pain and suffering and $100,000 to each of Riser’s children. Lang appealed.
The Louisiana Court of Appeal held that Lang failed to obtain consent
from the patient. Riser was under the impression that she was about to
undergo a brachial arteriogram, not a femoral arteriogram. Two consent
forms were signed; neither form authorized the performance of a femoral
arteriogram. O’Neil, one of Riser’s daughters, claimed that her mother said, following the arteriogram, “Why did you let them do that to me?”7
Ethical and Legal Issues
1. Describe how the physician violated his professional duty to the
patient.
2. Should the hospital have intervened and prevented the femoral
arteriogram? Explain your answer.
ADEQUACY OF CONSENT
A physician should provide as much information about treatment options as
is necessary based on a patient’s personal understanding of the physician’s explanation of the risks of treatment and the probable consequences of the
treatment. The needs of each patient can vary depending on age, maturity,
and mental status.
Some courts have recognized that the condition of the patient may be
taken into account to determine whether the patient has received sufficient
information to give consent. The individual responsible for obtaining
consent must weigh the importance of giving full disclosure to the patient
against the likelihood that such disclosure will seriously and adversely
affect the condition of the patient.
CASE: FAILURE TO INFORM— ALTERNATIVE PROCEDURES
The operation you get often depends on where you live. One patient
underwent a mastectomy only to learn that a less destructive alternative
procedure was available in a region near her home. The procedure, a
lumpectomy, has the same survival rate as a mastectomy. The patient
claims that the surgeon never informed her about the alternative.
Ethical and Legal Issues
1. Describe the ethical and legal issues involved in failing to discuss
alternative treatments with a patient.
2. Should a physician describe every possible alternative treatment
procedure with his or her patient? Explain your answer.
When questions do arise as to whether adequate consent has been
given, some courts take into consideration the information that is ordinarily
provided by other physicians. A physician must reveal to his or her patient
information just as a skilled practitioner of good standing would provide
under similar circumstances. A physician must disclose to the patient the
potential of death, serious harm, and other complications associated with a
proposed procedure.
PROOF OF CONSENT
Oral Consent
Oral consent, if proved, is as binding as written consent, for there is, in
general, no legal requirement that a patient’s consent be in writing; however, an oral consent is more difficult to corroborate.
Written Consent
Written consent provides visible proof of a patient’s wishes. Because the function of a written consent form is to preserve evidence of informed
consent, the nature of the treatment, the risks, benefits, and consequences
involved should be incorporated into the consent form. States have taken
the view that consent, to be effective, must be “informed consent.” An informed consent form should include the following elements:
• The nature of the patient’s illness or injury • The name of the proposed procedure or treatment • The purpose of the proposed treatment • The risks and probable consequences of the proposed treatment • The probability that the proposed treatment will be successful • Any alternative methods of treatment along with their associated risks
and benefits
• The risks and prognosis if no treatment is rendered • An indication that the patient understands the nature of any proposed
treatment, the alternatives, the risks involved, and the probable
consequences of the proposed treatment
• The signatures of the patient, physician, and witnesses • The date the consent is signed
Health care professionals have an important role in the realm of
informed consent. They can be instrumental in averting major lawsuits by
being observant as to a patient’s doubts, changes of mind or confusion, or misunderstandings expressed by a patient regarding any proposed
procedures he or she is about to undergo.
Emergency Consent
When immediate treatment is required to preserve the life of a patient or to
prevent an impairment of the patient’s health and it is impossible to obtain the consent of the patient or representative legally authorized to consent for
him or her, an emergency exists, and consent is implied. This privilege to
proceed in emergencies without consent is accorded to physicians because
inaction at this time may cause greater injury to the patient and would be
contrary to good medical practice; however, if possible, consultation should
be undertaken before a procedure is commenced, and every effort must be
made to document the medical need for proceeding with treatment without
consent. The patient’s record should clearly indicate the nature of the threat to life or health, its immediacy, and its magnitude.
WHO MAY AUTHORIZE CONSENT?
Consent of the patient ordinarily is required before treatment. When a
patient is either physically unable or legally incompetent to consent and no
emergency exists, consent must be obtained from a person who is
empowered to consent on the patient’s behalf. The person who authorizes treatment of another must have sufficient information to make an
intelligent judgment on behalf of the patient.
Competent Patients
A competent adult patient’s wishes concerning his or her person may not be disregarded. The court in In re Melideo
8 held that every human being of
adult years has a right to determine what shall be done with his or her own
body and cannot be subjected to medical treatment without his or her
consent. When there is no compelling state interest that justifies overriding
an adult patient’s decision, that decision should be respected. State interests include preserving life, preventing suicide, safeguarding the integrity of the
medical profession, and protecting innocent third parties.
Spousal Consent
The patient in Greynolds v. Kurman 9 suffered a transient ischemic attack, a
sudden loss of neurological function caused by vascular impairment to the
brain. He was taken to an emergency department. Because of the patient’s prior medical history, which included transient ischemic attacks, he was at
high risk for a stroke. After receiving the results of noninvasive tests, Dr.
Rafecas, a consulting physician, ordered a cerebral angiogram. Dr. Kurman
performed the angiogram, and the patient suffered a stroke during the
procedure that left him severely disabled.
The patient and his wife filed a medical malpractice action against
Rafecas and Kurman, asserting that Rafecas had negligently recommended
the procedure and that Kurman had performed the procedure without
obtaining informed consent. The court of appeals held that the evidence
was sufficient to support a judgment in favor of the patient and his wife.
The jury needed to determine that the risks involved in the cerebral
angiogram were not disclosed, that the risks involved in the procedure
materialized and caused the stroke, and that a reasonable person in the
position of the patient would have decided against having the angiogram
had the risks associated with the procedure been disclosed. The jury
concluded that the patient did not consent to the angiogram because he
“was not . . . capable of comprehending the consent form” and further noted that Kurman should have sought consent from the next of kin,
specifically the spouse. Given the evidence of the patient’s condition when he signed the consent forms, his past medical history, and his increased risk
of suffering complications during an angiogram, the court found that
evidence supported a finding of lack of informed consent.
Guardianship
A guardian is an individual who by law is invested with the power and
charged with the duty of taking care of a patient by protecting the patient’s rights and managing the patient’s estate. Guardianship is often necessary in those instances in which a patient is incapable of managing or
administering his or her private affairs because of physical and/or mental
disabilities or because he or she is under the age of majority.
Temporary Guardianship
The courts can grant temporary guardianship if it is determined necessary
for the well-being of the patient.
CASE: PHYSICIAN AND ADMINISTRATOR
FILE FOR TEMPORARY GUARDIANSHIP
The court in In re Estate of Dorone granted temporary guardianship. 10
In
this case, the physician and administrator petitioned the court on two
occasions for authority to administer blood. A 22-year-old male patient
brought to the Hospital Center by helicopter after an automobile accident
was diagnosed as suffering from an acute subdural hematoma with a brain
contusion. It was determined that the patient would die unless he
underwent a cranial operation. The operation required the administration
of blood, to which the parents would not consent because of their religious
beliefs. After a hearing by telephone, the court of common pleas appointed
the hospital’s administrator as temporary guardian, authorizing him to consent to the performance of blood transfusions during emergency
surgery. A more formal hearing did not take place because of the
emergency situation that existed. Surgery was required a second time to
remove a blood clot, and the court once again granted the administrator
authority to authorize administration of blood. The superior court affirmed
the orders, and the parents appealed. The Pennsylvania Supreme Court
held that the judge’s failure to obtain direct testimony from the patient’s parents and others concerning the patient’s religious beliefs were not in error when death was likely to result from withholding blood. The judge’s decisions granting guardianship and the authority to consent to the
administration of blood were considered absolutely necessary in the light
of the facts of this case. Nothing less than a fully conscious contemporary
decision by the patient himself would have been sufficient to override the
evidence of medical necessity.
Ethical and Legal Issues
1. Can a hospital act to save a patient’s life if he or she has not given written consent to a procedure?
2. What types of monetary awards should the court give the plaintiff, if
any? Why?
Parents Refuse Transfusion for Their Child
When parents in In re Guardianship of L.S. 11
refused to consent to
medically necessary care for their minor child based on their religious
convictions, the trial court appointed the hospital as a temporary guardian
to make decisions to provide medically necessary, lifesaving treatment for
the child. The evidence presented to the trial court in the form of an
affidavit from a hospital physician stated that the parents were refusing
medically necessary blood transfusions, that the child would require blood
transfusions to survive, and that the child was unable to respond to this
risk. The trial court reasonably concluded from this information that the
child was at risk of substantial and immediate physical harm. The trial
court’s decision to appoint a temporary guardian was based on the child’s best interest and protected the state’s interest in the welfare of children within the state.
In the midst of an emergency, the district court was confronted with the
task of balancing the competing interests of the child, the parents, the
hospital, and the state. Throughout the proceedings, the district court took
numerous steps to protect the interests of the child and the parents,
including requiring notice and a hearing within 24 hours after the original
order, allowing the parents time to obtain counsel before reaching a final
determination.
“Substantive due process guarantees that no person shall be deprived of life, liberty, or property for arbitrary reasons.” The due process clause of the 14th Amendment protects those liberty interests that are deemed
fundamental and are “deeply rooted in this Nation’s history and tradition.” Certain family privacy rights, including the parent-child relationship, have
therefore been recognized as fundamental rights. The Nevada Supreme
Court adopted a “reasonableness test” to address family privacy cases involving “competing interests within the family.”
Although a parent has a fundamental liberty interest in the “care, custody, and management” of his or her child, that interest is not absolute. “The state also has an interest in the welfare of children and may limit parental authority,” even permanently depriving parents of their children; therefore, although the parents have a parental interest in the care of their
son, both the state and L.S. have an interest in preserving the child’s life.
As L.S. is unable to make decisions for himself, the state’s interest is heightened. The parents’ liberty interest in practicing their religion must also give way to the child’s welfare. Hence, the district court found that the parents’ refusal to consent to treatment put L.S.’s life at substantial risk. Additionally, the state has an interest in protecting “the ethical integrity of the medical profession” and in allowing hospitals the full opportunity to care for patients under their control, especially when medical science is
available to save that patient’s life. Here, the child’s interest in self-preservation and the state’s interests in
protecting the welfare of children and the integrity of medical care
outweigh the parents’ interests in the care, custody, and management of their children, as well as their religious freedom. The combined weight of
the interests of the child and the state are great and therefore mandate
interference with parental rights.
The Supreme Court of Nevada affirmed the order of the district court
appointing Valley Hospital as temporary guardian.
Consent for Minors
The courts have held, as a general proposition, that the consent of a minor
to medical or surgical treatment is ineffective and that the physician must
secure the consent of the minor’s parent or someone standing in loco parentis; otherwise, he or she will risk liability. Although parental consent
should be obtained before treating a minor, treatment should not be delayed
to the detriment of the child.
Parental consent is not necessary when the minor is married or
otherwise emancipated. Most states have enacted statutes making it valid
for married and emancipated minors to provide effective consent. Several
courts have held the consent of a minor to be sufficient authorization for
treatment in certain situations. In any specific case, a court’s determination that the consent of a minor is effective and that parental consent is
unnecessary will depend on such factors as the minor’s age, maturity, mental status, and emancipation and the procedure involved, as well as
public policy considerations.
Incompetent Patients
The attending physician, who is in the best position to make the
determination that a patient is incompetent, should become familiar with
his or her state’s definition of legal incompetence. In any case in which a physician doubts a patient’s capacity to consent, the consent of the legal guardian or next of kin should be obtained. If there are no relatives to
consult, application should be made for a court order that would allow the
procedure. It may be the duty of the court to assume responsibility of
guardianship for a patient who is non compos mentis. The most frequently
cited conditions indicative of incompetence are mental illness, mental
retardation, senility, physical incapacity, and chronic alcohol or drug abuse.
A person who is mentally incompetent cannot legally consent to
medical or surgical treatment; therefore, consent of the patient’s legal guardian must be obtained. When no legal guardian is available, a court
that handles such matters must be petitioned to permit treatment.
Subject to applicable statutory provisions, when a physician doubts a
patient’s capacity to consent, even though the patient has not been judged legally incompetent, the consent of the nearest relative should be obtained.
If a patient is conscious and mentally capable of giving consent for
treatment, the consent of a relative without the consent of the competent
patient would not protect the physician from liability.
IMPLIED CONSENT
Implied consent is determined by some act or silence, which raises a
presumption that consent has been authorized. Although the law requires
consent for the intentional touching that involves medical or surgical
procedures, exceptions do exist with respect to emergency situations.
Implied consent will generally be presumed when immediate action is
required to prevent death or permanent impairment of a patient’s health. If it is impossible in an emergency to obtain the consent of the patient or
someone legally authorized to give consent, the required procedure may be
undertaken without liability for failure to procure consent.
Unconscious patients are presumed under law to approve treatment that
appears to be necessary. It is assumed that such patients would have
consented if they were conscious and competent; however, if a patient
expressly refuses to consent to certain treatment, such treatment may not be
instituted after the patient becomes unconscious. Similarly, conscious
patients suffering from emergency conditions retain the right to refuse
consent.
If a procedure is necessary to protect one’s life or health, every effort must be made to document the medical necessity for proceeding with
medical treatment without consent. It must be shown that the emergency
situation constituted an immediate threat to life or health.
In Luka v. Lowrie, 12
involving a 15-year-old boy whose left foot had
been run over and crushed by a train, consultation by the treating physician
with other physicians was an important factor in determining the outcome
of the case. On the boy’s arrival at the hospital, the defending physician and four house surgeons decided that it was necessary to amputate the foot.
The court said that it was inconceivable that had they been present, the
parents would have refused consent in the face of a determination by five
physicians that amputation would save the boy’s life. Thus, despite testimony at the trial that the amputation may not have been necessary,
professional consultation before the operation supported the assertion that a
genuine emergency existed and could have implied consent.
Consent also can be implied in nonemergency situations. For example,
a patient may voluntarily submit to a procedure, implying consent, without
any explicitly spoken or written expression of consent. In the
Massachusetts case of O’Brien v. Cunard Steam Ship Co.,13 a ship’s passenger who joined a line of people receiving injections was held to have
implied his consent to a vaccination. The rationale for this decision is that
individuals who observe a line of people and who notice that injections are
being administered to those at the head of the line should expect that if they
join and remain in the line they will receive an injection. The plaintiff
entered the line voluntarily. The plaintiff had opportunity to see what was
taking place at the head of the line. The jury appropriately determined this
to be consent to the injection. The O’Brien case contains all of the elements necessary to imply consent from a voluntary act: The procedure was a
simple vaccination. The proceedings were visible at all times, and the
plaintiff was free to withdraw up to the instant of the injection.
Whether a patient’s consent can be implied is frequently asked when the condition of a patient requires some deviation from an agreed-on
procedure. If a patient expressly prohibits a specific medical or surgical
procedure, consent to the procedure cannot be implied. The same consent
rule applies if a patient expressly prohibits a particular extension of a
procedure even though the patient voluntarily submitted to the original
procedure.
RIGHT TO REFUSE TREATMENT
The individual’s right to make decisions vitally affecting his private life according to his own conscience . . . is difficult to overstate . . . because it
is, without exaggeration, the very bedrock on which this country was
founded.
WONS V. PUBLIC HEALTH TRUST 14
Patients have a right to refuse treatment and be secure from any touching,
and they are free to reject recommended treatment. A competent patient’s refusal to consent to a medical or surgical procedure must be adhered to,
whether the refusal is grounded on lack of confidence in the physician, fear
of the procedure, doubt as to the value of a particular procedure, or mere
whim. The U.S. Supreme Court stated that the “notion of bodily integrity has been embodied in the requirement that informed consent is generally
required for medical treatment” and the “logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to
consent, that is, to refuse treatment.”15 The common-law doctrine of informed consent is viewed as generally encompassing the right of a
competent individual to refuse medical treatment.
The question of liability for performing a medical or surgical procedure
without consent is separate and distinct from any question of negligence or
malpractice in performing a procedure. Liability may be imposed for a
nonconsensual touching of a patient, even if the procedure improved the
patient’s health. The eminent Justice Cardozo, in Schloendorff v. Society of New York Hospital, stated:
16
Every human being of adult years and sound mind has a right to
determine what shall be done with his own body, and a surgeon who
performs an operation without his patient’s consent commits an assault, for which he is liable in damages, except in cases of emergency where
the patient is unconscious and where it is necessary to operate before
consent can be obtained.
The courts perform a balancing test to determine whether or not to override
a competent adult’s decision to refuse medical treatment. The courts balance state interests, such as preservation of life, protection of third
parties, prevention of suicide, and the integrity of the medical profession,
against a patient’s rights of bodily integrity and religious freedom. The most frequently used state right to intervene in a patient’s decision-making process is for the protection of third parties. In In re Fetus Brown,
17 the
state of Illinois asserted that its interest in the well-being of a viable fetus
outweighed the patient’s right to refuse medical treatment. The state argued that a balancing test should be used to weigh state interests against patient
rights. The appellate court held that it could not impose a legal obligation
on a pregnant woman to consent to an invasive medical procedure for the
benefit of her viable fetus.
Adult patients who are conscious and mentally competent have the
right to refuse medical care to the extent permitted by law even when the
best medical opinion deems it essential to life. Such a refusal must be
honored whether it is grounded in religious belief or mere whim. Every
person has the legal right to refuse to permit a touching of his or her body.
Failure to respect this right can result in a legal action for assault and
battery. If a patient refuses consent, every effort should be made to explain
the importance of the procedure. Coercion through threat, duress, or
intimidation must be avoided.
Case law over the past several decades has developed to a point where
any person, regardless of religious beliefs, has the right to refuse any
medical treatment. As part of their religious beliefs, Jehovah’s Witnesses generally have refused the administration of blood, even in emergency
situations.
A hospital generally has no common-law right or obligation to thrust
unwanted medical care on a patient who, having been sufficiently informed
of the consequences, competently and clearly declines such care. A
patient’s common-law right of bodily self-determination is entitled to respect and protection.
Before a patient leaves a health care facility against medical advice,
every attempt should be made to have a release form completed and
attached to the patient’s chart. All reasonable steps should be taken to (1) inform the patient of the
benefits and risks of treatment and (2) secure the patient’s written informed
consent to refuse examination and treatment. If the patient refuses to sign
the “refusal to consent form,” documentation of the refusal should be made and maintained by the hospital.
CASE: A MOTHER’S RIGHT, A CHILD’S
DEATH
Harrell, a Jehovah’s Witness, was 6 months pregnant when physicians discovered a life-threatening blood condition that could rapidly deteriorate,
placing both her life and the life of the fetus in jeopardy. Because of her
religious beliefs, Harrell objected to a blood transfusion. After an
emergency hearing during which the Harrells could not summon an
attorney, the court ruled that a blood transfusion could be given to Harrell
if it was necessary to save the life of the fetus and that after the child was
born a blood transfusion could be given to the child if necessary to save
the child’s life. The Harrells appealed. The child was delivered by Caesarean section and died 2 days later. No blood transfusion was given to
Harrell or to the child. As a result, the hospital and the state claimed that
the appeal of the trial court’s order was moot. Because of the hospital’s serious misunderstanding about its standing to bring such proceedings, the
Florida District Court of Appeal addressed the issue as capable of
repetition yet evading review.
The Florida constitution guarantees that a competent person has the
constitutional right to choose or refuse medical treatment and that right
extends to all relevant decisions concerning one’s health. The state has a duty to ensure that a person’s wishes regarding medical treatment are respected. That obligation serves to protect the rights of the individual
from intrusion by the state unless the state has a compelling interest great
enough to override this constitutional right (e.g., protection of innocent
third parties).
Harrell argued that the hospital should not have intervened in her
private decision to refuse a blood transfusion. She claimed that the state
had never been a party in this action, had not asserted any interest, and that
the hospital had no authority to assume the state’s responsibilities.18
The Florida District Court of Appeal concluded that a health care
provider must not be forced into the position of having to argue against the
wishes of the facility’s own patient. Patients do not lose their right to make decisions affecting their lives when they enter a health care facility. A
health care provider’s function is to provide medical treatment in accordance with the patient’s wishes and best interests, not supervene the wishes of a competent adult. A health care provider must comply with the
wishes of a patient to refuse medical treatment unless ordered to do
otherwise by a court of competent jurisdiction. A health care provider
cannot act on behalf of the state to assert state interests. When a health care
provider, acting in good faith, follows the wishes of a competent and
informed patient to refuse medical treatment, the health care provider is
acting appropriately and cannot be subjected to civil or criminal liability.
Ethical and Legal Issues
1. Is the Florida District Court of Appeal’s conclusion binding in all states?
2. Do you think the hospital made the correct decisions in this case?
Discuss your answer.
CASE: MOTHER REFUSES BLOOD, SPOUSE
DISAGREES
What would you do if a patient, a Jehovah’s Witness, signs a consent form refusing a blood transfusion and her husband, who is not a Jehovah’s Witness, consents to a blood transfusion to save his wife’s life?
Plaintiff Perkins, in Perkins v. Lavin, 19
was a Jehovah’s Witness. She gave birth to a baby at the defendant’s hospital. After going home, she began hemorrhaging and returned to the hospital. She specifically
informed the defendant’s employees that she was not to be provided any blood or blood derivatives, and she signed a form to that effect:
20
I request that no blood or blood derivatives be administered to
[plaintiff] during this hospitalization, notwithstanding that such
treatment may be deemed necessary in the opinion of the attending
physician or his assistants to preserve life or promote recovery. I
release the attending physician, his assistants, the hospital, and its
personnel from any responsibility whatever for any untoward results
due to my refusal to permit the use of blood or its derivatives.
Because of the plaintiff’s condition, it became necessary to perform an emergency dilation and curettage on her. She continued to bleed, and her
condition deteriorated dramatically. Her blood count dropped,
necessitating administration of blood products as a lifesaving measure. Her
husband, who was not a Jehovah’s Witness, consented to a blood transfusion, which was administered. The plaintiff recovered and filed an
action against the defendant for assault and battery. The plaintiff’s claim as to assault and battery was sustained.
The plaintiff specifically informed the defendant that she would
consider a blood transfusion an offensive contact. Although both parties
have noted that the plaintiff’s husband provided his consent for the transfusion, the defendant has not argued that his consent was sufficient to
overcome plaintiff’s direction that she was not to receive a transfusion. The plaintiff submitted sufficient evidence to the trial court to establish
that there was, at least, a genuine issue as to whether the defendant
intentionally invaded her right to be free from offensive contact. Because
of the plaintiff’s recognition that the defendant acted to save her life, a jury may find that she is entitled to only nominal damages.
Ethical and Legal Issues
1. Should the court be the ultimate decision maker when there is a dispute
over whether or not a lifesaving measure should be taken with a
nonconsenting person?
2. Should a parent have the right to refuse a lifesaving treatment (e.g.,
transfusion) for a minor? Explain.
CASE: MOTHER REFUSES TREATMENT,
SPOUSE AGREES
Vega, a Jehovah’s Witness, executed a release requesting that no blood be administered to her during her hospitalization. Vega’s husband also signed the release. She delivered a healthy baby. After the delivery, Vega bled
heavily. Her obstetrician, Dr. Sood, recommended a dilation and curettage
(D&C) to stop the bleeding. Although Vega agreed to permit Sood to
perform the D&C, she refused to allow a blood transfusion. Before
undergoing the procedure, she signed a second release refusing any
transfusions and releasing the hospital from liability. Despite the D&C,
Vega continued to hemorrhage.
Because Sood and the other physicians involved in Vega’s care believed that it was essential that she receive blood in order to survive, the
hospital requested that the court issue an injunction that would permit the
hospital to administer blood transfusions. The trial court convened an
emergency hearing at the hospital and appointed Vega’s husband as her guardian. At the hearing testimony, Vega’s husband testified that, on the basis of his religious beliefs as a Jehovah’s Witness, he continued to support his wife’s decision to refuse transfusions and believed that she would take the same position if she were able to participate in the hearing.
The court, relying on the state’s interests in preserving life and protecting innocent third parties, granted the hospital’s request for an injunction permitting it to administer blood transfusions. Vega was given
blood transfusions. She recovered and was discharged from the hospital.
Vega sued, arguing that if her refusal of blood transfusions interfered
with certain state interests, it should be the state itself, not a private
hospital, that asserts state’s interests. The hospital responded that because it was charged with Vega’s care it had a direct stake in the outcome of the controversy and was a proper party to bring the action.
The hospital had a legitimate interest in receiving official guidance in
resolving the “ethical dilemma” it faced: whether to practice medicine by trying to save a patient’s life despite that patient’s refusal to consent to treatment or to practice medicine in accordance with the patient’s wishes
and likely watch the patient die, knowing nonetheless that it had the power
to save her life. The hospital had conflicting interests and was in the role
not of opposing its patient but of a party seeking the court’s guidance in determining its obligations under the circumstances.
Vega claimed that the state’s interest in the welfare of her child is not sufficiently compelling as to outweigh her interest in refusing blood
transfusions. Vega maintained that the trial court’s injunction, issued at the behest of the hospital, violated her common-law right of self-
determination, her federal constitutional right to bodily self-determination,
her federal constitutional right to free exercise of religion, and her state
constitutional right of religious liberty. The court concluded that, under the
circumstances of this case, the issuance of the injunction, followed by the
administration of blood transfusions, violated Vega’s common-law right of bodily self-determination.
Although the hospital’s interests are sufficient to confer standing on it in this case, they are not sufficient to take priority over Vega’s common- law right to bodily integrity, even when the assertion of that right threatens
her own life. The hospital had no common-law right or obligation to thrust
unwanted medical care on a patient who, having been sufficiently
informed of the consequences, competently and clearly declined that care.
The hospital’s interests were sufficiently protected by Vega’s informed choice, and neither it nor the trial court was entitled to override that choice.
Vega’s common-law right of bodily self-determination was entitled to respect and protection.
21
Ethical and Legal Issues
1. What would you do if a patient refused a blood transfusion and the
spouse agreed with her decision, knowing that a blood transfusion may
be necessary to save her life?
2. Should a hospital challenge a patient’s refusal of lifesaving blood transfusions?
3. Does the administration of a blood transfusion violate a patient’s common-law right to bodily self-determination?
STATUTORY CONSENT
The age of consent is the minimum age at which a person is considered to
be legally competent to consent to medical care. Many states have adopted
legislation concerning emergency care. An emergency in most states
eliminates the need for consent. When a patient is clinically unable to give
consent to a lifesaving emergency treatment, the law implies consent on the
presumption that a reasonable person would consent to lifesaving medical
intervention.
When an emergency situation does arise, there may be little opportunity
to contact the attending physician, much less a consultant. The patient’s records, therefore, must be complete with respect to the description of his
or her illness and condition, the attempts made to contact the physician as
well as relatives, and the emergency measures taken and procedures
performed. If time does not permit a court order to be obtained, a second
medical opinion, when practicable, is advisable.
CHAPTER REVIEW
1. Patients have the right to make decisions regarding their own health
care.
2. Consent is voluntary agreement by a person to allow something
proposed by another to be performed on one’s body. A person can consent to something only if he or she has sufficient mental capacity to
make an intelligent choice.
3. The legal concept that protects a patient’s right to know the potential risks, benefits, and alternatives of a proposed procedure is referred to
as informed consent. Most often, the duty to inform the patient and to
decide what information the patient should be given falls to the treating
physician.
4. If an individual is found incompetent to give consent and if there are no
relatives or other parties from whom to obtain consent, an application
should be made for a court order that would allow the procedure.
5. Implied consent is generally presumed when immediate action is
required to prevent death or permanent impairment of a patient’s health. In such cases, documentation justifying the need to treat before
obtaining consent should be maintained.
6. Over the past few decades, case law has developed in such a way that
any person, regardless of religious beliefs, has the right to refuse any
medical treatment.
7. Hospitals have a legitimate interest in receiving official guidance when
resolving the ethical dilemmas they face: whether to practice medicine
by trying to save a patient’s life despite that patient’s refusal to consent to treatment or to practice medicine in accordance with the patient’s wishes and likely watch the patient die, knowing nonetheless that they
had the power to save that patient’s life.
TEST YOUR UNDERSTANDING
Terminology
consent
express consent
guardianship
implied consent
informed consent
oral consent
statutory consent
written consent
REVIEW QUESTIONS
1. What is consent?
2. Describe the difference between express and implied consent.
3. What are the two basic forms of express consent?
4. What is informed consent?
5. Why is it important to assess a patient’s decision-making capacity? 6. Who should be responsible for reviewing with the patient the risks,
benefits, and alternatives of a proposed diagnostic test or
treatment?
7. Describe what information a patient should be provided before
undergoing a risky procedure so that consent is “informed.” 8. Who can authorize consent?
9. Why is it important to obtain consent from a patient prior to
proceeding with a risky procedure?
10. Can a patient give consent and then withdraw it?
11. Can a parent refuse to consent to a lifesaving procedure for his or
her child? Discuss your answer.
12. Can a competent patient refuse treatment?
13. How much information is sufficient for informed consent to be
effective?
14. Describe both the ethical and legal implications of consent.
15. What is the purpose of statutory consent?
NOTES
1. 141 U.S. 250, 251 (1891).
2. Wons v. Public Health Trust, 500 So. 2d 679, 687 (Fla. Dist. Ct. App. 1987), aff’d 541 So. 2d 96 (Fla. 1989).
3. In re Duran, 769 A.2d 497 (Pa. 2001).
4. Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990). 5. 611 A.2d 1148 (N.J. Super Ct. 1992).
6. 620 So. 2d 372 (La. Ct. App. 1993).
7. Id. at 380.
8. 390 N.Y.S.2d 523 (N.Y. Sup. Ct. 1976).
9. 632 N.E.2d 946 (Ohio Ct. App. 1993).
10. 534 A.2d 452 (Pa. 1987).
11. No. 38242 (Nev. 2004).
12. 136 N.W. 1106 (Mich. 1912).
13. 28 N.E. 266 (Mass. 1891).
14. 500 So. 2d 679, 687 (Fla. Dist. Ct. App. 1987), aff’d 541 So. 2d 96 (Fla. 1989). 15. Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 269 (1990). 16. 105 N.E. 92, 93 (N.Y. 1914).
17. 689 N.E.2d 397 (Ill. App. Ct. 1997).
18. Harrell v. St. Mary’s Hosp., Inc., 678 So. 2d 455 (Fla. Dist. Ct. App. 1996). 19. 648 N.E.2d 839 (Ohio App. 9 Dist. 1994).
20. Id. at 840.
21. Stamford Hosp. v. Vega, 674 A.2d 821 (Conn. Super. Ct. 1996).
chapter thirteen
Patient Abuse
LEARNING OBJECTIVES
The reader on completion of this chapter will be able to:
• Understand the pervasiveness of senior and child abuse. • Identify the signs of abuse. • Describe the reporting requirements for abuse.
INTRODUCTION
Love and knowledge led upwards to the heavens, but always pity brought
me back to earth; cries of pain reverberated in my heart of children in
famine, of victims tortured, and of of old peopfe left helpless. I long to
alleviate the evil, but I cannot, and I too suffer. This has been my life; I
found it worth living.
BERTRAND RUSSELL (ADAPTED)
Patient abuse refers to the mistreatment or neglect of individuals who are
under the care of a health care organization. Abuse in the health care
setting often occurs to those who are most vulnerable and dependent on
others for care (e.g., patients diagnosed with dementia and Alzheimer’s disease, those who are physically weak). Abuse is not limited to an
institutional setting and may occur in an individual’s home as well as in an institution. Abuse can take many forms—physical, psychological, medical, financial, and so forth. It is not always easy to identify because injuries can
often be attributed to other causes. This chapter reviews child and senior
abuse in a variety of settings.
CHILD ABUSE
NEWSPAPER CLIPPINGS: Child Abuse Fears Must Be Reported
by Doctors, But Some Cases Pose Dilemmas
. . . As she turned her head on the way out the door, I noticed minor
swelling around her eye.
When I asked about it, she said, without hesitation, “Oh, my father hit me.”
Like all pediatricians, I am mandated by law to report any concern
of child abuse.
Each year in the United States, an estimated 2,400 children die as a
result of mistreatment, and more than 500,000 are seriously injured or
disabled. Certainly, mandatory reporting protects children, and, until
this case, I’d never questioned my role in the system.
The authorities had visited her home, and she was afraid her father
would be deported. She couldn’t go to college now, she said. . . . But her biggest fear was that her father would never forgive her.
Day after day, she begged me to rescind the report. “Please call the caseworker and tell her I lied, that nothing happened. Please.”
After four weeks of visits from my distraught patient and silence
from Child Protective Services, the young woman stopped coming to
my office. I received a handwritten note from the agency telling me that
the case had been closed without any action.
Meanwhile, we pediatricians worry about a child’s well-being once he or she enters this bureaucratic maze.
. . . [T]his spring, I received a message from her. She’d be home from college in the summer, she wrote. Could she shadow me at work
as she explored a possible career in health care?
Her e-mail gave me hope. Perhaps some day when she is wearing
her white coat and sitting on her red stool across from a crying
teenager, she won’t feel as helpless as I did.
Ilana Sherer, The Washington Post, August 15, 2011
The physically abused or neglected child presents a medical, social, and
legal problem. What constitutes an abused child is difficult to determine
because it is often impossible to ascertain whether a child was injured
intentionally or accidentally.
Definition
An abused child is one who has suffered intentional serious mental,
emotional, sexual, and/or physical injury inflicted by a parent or other
person responsible for the child’s care. Some states extend the definition to include a child suffering from starvation. Other states include moral neglect
in the definition of abuse. Others mention immoral associations;
endangering a child’s morals; and the location of a child in a disreputable place or in association with vagrant, vicious, or immoral persons.
Sexual abuse also is enumerated as an element of neglect in the statutes
of some states. An abused child is generally defined as a person younger
than 18 years of age whose parent or other person legally responsible for
his or her care does any of the following: inflicts, or allows to be inflicted,
on that child physical injury by nonaccidental means that causes or creates
a substantial risk of death, serious or protracted disfigurement, protracted
impairment of physical or emotional health, or protracted loss or
impairment of the function of any bodily organ; commits, or allows to be
committed, a sex offense against that child; and/or allows, permits, or
encourages the child to engage in an act considered unlawful.
Child abuse statutes have been enacted in most states to provide civil
immunity for those making or participating in good-faith reports of
suspected child abuse. Most states also provide immunity from criminal
liability. The New York State Social Services Law provides that “[a]ny person, official, or institution participating in good faith in the making of a
report, the taking of photographs, or the removal or keeping of a child
pursuant to this title shall have immunity from any liability, civil or
criminal, that might otherwise result by reason of such actions.”1 Even in states that do not provide immunity, it is unlikely that anyone making a
good-faith report of suspected child abuse would be subject to criminal
liability. State laws generally specify what persons (e.g., physicians, nurses,
social workers) are required to report suspected child abuse that comes
before them in their official capacities. In some states, failure to report a
case of suspected child abuse carries criminal penalties as well as civil
liability for the damages resulting from such failure. 2
Reporting Abuse
All states have enacted laws to protect abused children. Most states protect
the persons required to report cases of child abuse. In a few states, certain
identified individuals who are not required to report instances of child
abuse, but who do so, are protected. Child abuse laws may or may not
provide penalties for failure to report. Those in the health care setting who
are required to report or cause a report to be made when they have
reasonable cause to suspect that a child has been abused include the
following: administrators, physicians, interns, registered nurses,
chiropractors, social service workers, psychologists, dentists, osteopaths,
optometrists, podiatrists, mental health professionals, and volunteers in
residential facilities.
Detecting Abuse
An individual who reports child abuse should be aware of the physical and
behavioral indicators of abuse and maltreatment that appear to be part of a
pattern (e.g., bruises, burns, broken bones). In reviewing the indicators of
abuse and maltreatment, the reporter does not have to be absolutely certain
that abuse or maltreatment exists before reporting. Rather, abuse and
maltreatment should be reported whenever they are suspected, based on the
existence of the signs of abuse and maltreatment and in light of the
reporter’s training and experience. Behavioral indicators include, but are not limited to, substantially diminished psychological or intellectual
functioning, failure to thrive, no control of aggression, self-destructive
impulses, decreased ability to think and reason, acting out and misbehavior,
or habitual truancy. Such impairment must be clearly attributable to the
unwillingness or inability of the person responsible for the child’s care to exercise a minimum degree of care toward the child.
Good-Faith Reporting
Any report of suspected child abuse must be made with a good-faith belief
that the facts reported are true. The definition of good faith as used in a
child abuse statute may vary from state to state; however, when a health
care practitioner’s medical evaluation indicates reasonable cause to believe a child’s injuries were not accidental and when the health care practitioner is not acting from his or her desire to harass, injure, or embarrass the
child’s parents, making the report will not result in liability. Statutes generally require that when a person covered by a statute is
attending a child and suspects child abuse, the staff member must report
such concerns. Typical statutes provide that an oral report be made
immediately, followed by a written report.
The criminal and civil risks for health care professionals lie not in
good-faith reporting of suspected incidents of child abuse, but in failing to
report such incidents. Most states have legislated a variety of civil and
criminal penalties for failure to report suspected child abuse incidents. New
York, for example, provides: 3
1. Any person, official, or institution required by this title to report a case
of suspected child abuse or maltreatment who willfully fails to do so
shall be guilty of a Class A misdemeanor.
2. Any person, official, or institution required by this title to report a case
of suspected child abuse or maltreatment who knowingly and willfully
fails to do so shall be civilly liable for the damages proximately caused
by such failure.
Immunity and Good-Faith Reporting
A minor child and his mother brought an action for damages against
physicians for failing to diagnose disease and filing erroneous child abuse
reports in Awkerman v. Tri-County Orthopedic Group. 4 The Wayne County
Circuit Court granted the physicians’ motions for partial summary judgment, and the plaintiffs appealed. The Michigan Court of Appeals held
that the child abuse reporting statute provides immunity to persons who file
child abuse reports in good faith even if the reports were filed because of
negligent diagnosis of the cause of the child’s frequent bone fractures, which was eventually diagnosed as osteogenesis imperfecta. The court of
appeals also held that damages for shame and humiliation were not
recoverable pursuant to Michigan statute. Immunity from liability did not
extend to damages for malpractice that may have resulted from the failure
to diagnose the child’s disease as long as all the elements of negligence were present.
SENIOR ABUSE
People at their weakest are often treated the worst.
NINA SANTUCCI
A USA Today review of 2 years of inspection records (between 2000 and
2002) for more than 5,300 assisted-living facilities found that what should
be havens for senior persons may in reality be exposing them to deadly
risks. The study indicates that medication errors and poor staff training
resulted in many of the injuries identified. 5
Senior abuse is the harmful treatment of older people and includes
abandonment; emotional, financial (e.g., theft or misuse of an senior
individual’s money or property by a person in a position of trust), verbal, mental, sexual, or physical abuse; corporal punishment; and involuntary
restraint and seclusion. Neglect is the failure to provide the care necessary
to prevent physical harm (e.g., the failure of staff to turn a patient
periodically to prevent pressure sores) or mental anguish.
Most states have enacted statutes mandating the reporting of senior
abuse. In general, senior abuse is less likely to be reported than child abuse.
Physical and emotional neglect, as well as verbal and financial abuse, are
perceived as the most prevalent form of senior abuse. Seniors often fail to
report incidents of abuse because they fear retaliation and not being
believed. Threats of placement in a nursing home or shame that a family
member is involved often prevent the person from seeking help.
Signs of Abuse
Signs of senior abuse or neglect of a senior include the following:
• Abandonment Desertion of an elder at a hospital, a nursing facility, or other similar
institution
Desertion of an elder at a shopping center or other public location
Elder’s own report of being abandoned • Emotional or Psychological Abuse
Verbal assaults, insults, threats, intimidation, humiliation, and
harassment
Hesitation to talk openly
No opportunity to speak for himself or herself, or see others, without
the presence of the caregiver
Implausible stories
Sudden and unexpected emotional outbursts, agitation, or withdrawal
• Physical Abuse Broken bones
Pressure sores
Bruises, welts, discoloration, burns
Absence of hair and/or hemorrhaging below scalp
Unexplained or unexpected death
Heavy medication and sedation used in place of adequate nursing staff
• Neglect Dehydration
An untreated medical condition
Malnourishment without illness-related cause
• Financial or Material Exploitation Improper use of an elder’s funds, property, or assets; unusual activity in bank accounts
Power of attorney given or recent changes to or creation of a will when
the person is incapable of making such decisions
Cashing an elderly person’s checks without authorization or permission Forging an older person’s signature Misusing or stealing an older person’s money or possessions Coercing or deceiving an older person into signing any document (e.g.,
contracts or will); the improper use of conservatorship, guardianship,
or power of attorney
Missing personal belongings
• Sexual Abuse Bruises around the breasts or genital area
Unexplained venereal disease or genital infections
Unexplained vaginal or anal bleeding
Torn, stained, or bloody underclothing
Elder’s report of being sexually assaulted or raped • Self-Neglect
The definition of self-neglect excludes a situation in which a mentally
competent older person, who understands the consequences of his or
her decisions, makes a conscious and voluntary decision to engage in
acts that threaten his or her health or safety as a matter of personal
choice.
Refusal or failure to provide oneself with adequate food, water,
clothing, shelter, personal hygiene, medication (when indicated), and
safety precautions.
Dehydration, malnutrition, untreated or improperly attended medical
conditions, and poor personal hygiene.
Hazardous or unsafe living conditions/arrangements (e.g., improper
wiring, no indoor plumbing, no heat, no running water).
Unsanitary or unclean living quarters (e.g., animal/insect infestation, no
functioning toilet, fecal/urine smell).
Inappropriate and/or inadequate clothing, lack of the necessary medical
aids (e.g., eyeglasses, hearing aids, dentures).
Grossly inadequate housing or homelessness. 6
NEWSPAPER CLIPPINGS: Hidden Camera
Gale . . . wasn’t prepared for the rough treatment and cruel taunts she says her ailing mother suffered at the nursing home. She cried as a
nurse’s aide chastised her mother for failing to straighten her arthritic- stricken legs. And she watched in disbelief as an assistant jerked her
mother off her rubber bed pad and pushed her into the bed’s metal rails. All of these images were caught . . . by a “granny cam”—a camera hidden in her mother’s room.
USA Today, September 14, 1999
Documentation
Caregivers who suspect abuse are expected to report their findings.
Symptoms and conditions of suspected abuse should be defined clearly and
objectively.
The abuse of senior individuals is not a localized or isolated problem.
Unfortunately, it permeates our society. Behind Closed Doors, a landmark
book on family violence, stated that the first national study of violence in
American homes estimated that one in two homes was the scene of family
violence at least once a year. 7
We have always known that America is a violent society. . . . What is
new and surprising is that the American family and the American home
are perhaps as much or more violent than any other single institution or
setting (with the exception of the military, and only then in the time of
war). Americans run the greatest risk of assault, physical injury and
even murder in their own homes by members of their own families. 8
It is difficult to determine the extent of senior abuse because the abused
are reluctant to admit that their children or loved ones have assaulted them.
Unfortunately, the abuse of senior persons remains hidden from the public,
and the findings of the 1990 report are as current today as when they were
first published in 1990 when the Senate Select Committee on Aging
reported the following: 9
• Senior abuse is less likely to be reported than child abuse. • Physical violence, including negligence, and financial abuse appear to be
the most common forms of abuse, followed by abrogation of basic
constitutional rights and psychological abuse.
• Most instances of senior abuse are recurring events rather than one-time occurrences.
• Victims are often 75 years of age or senior, and women are more likely to be abused than men.
• Senior people are often ashamed to admit that their children or loved ones abuse them, or they may fear reprisals if they complain.
• Many middle-aged family members, finally ready to enjoy time to themselves, are resentful of a frail and dependent senior parent.
• Finally, the majority of the abusers are relatives.
The plaintiffs in In re Estate of Smith v. O’Halloran10 instituted a lawsuit in an effort to improve deplorable conditions at many nursing
homes. The court concluded that: 11
The evidentiary record . . . supports a general finding that all is not well
in the nation’s nursing homes and that the enormous expenditures of public funds and the earnest efforts of public officials and public
employees have not produced an equivalent return in benefits. That
failure of expectations has produced frustration and anger among those
who are aware of the realities of life in some nursing homes, which
provide so little service that they could be characterized as orphanages
for the aged.
Surveyors of health care organizations should look for signs of patient
abuse by watching for the following:
• Physician’s order for restraints • Time-limited orders • The number of patients that are physically restrained • The types of restraints being used • Whether or not the restraints are applied correctly • How often restrained patients are observed by the staff • Signs of overmedication • Signs of mental and physical abuse of patients • Signs of harassment, humiliation, or threats from staff or patients • Whether patients are comfortable with the staff • The numbers of patients with bruises or other injuries • Evidence of patient neglect or patients left in urine or feces without
cleaning
CASE: WANTON NEGLECT OF RESIDENTS
The defendant in State v. Cunningham, 12
the owner and administrator of a
residential care facility, housed 30 to 37 mentally ill, mentally retarded,
and senior residents. The Iowa Department of Inspections and Appeals
conducted various surveys at the defendant’s facility between October 1989 and May 1990. All of the surveys except for one resulted in a $50
daily fine assessed against the defendant for violations of the regulations.
On August 16, 1990, a grand jury filed an indictment charging the
defendant with several counts of wanton neglect of a resident in violation
of Iowa Code section 726.7 (1989), which provides, “A person commits wanton neglect of a resident of a health care facility when the person
knowingly acts in a manner likely to be injurious to the physical, mental,
or moral welfare of a resident of a health care facility. . . . Wanton neglect
of a resident of a health care facility is a serious misdemeanor.” The district court held that the defendant had knowledge of the
dangerous conditions that existed in the health care facility but willfully
and consciously refused to provide or to exercise adequate supervision to
remedy or attempt to remedy the dangerous conditions. The residents were
exposed to physical dangers and unhealthy and unsanitary physical
conditions and were grossly deprived of much-needed medical care and
personal attention. The conditions were likely to and did cause injury to
the physical and mental well-being of the facility’s residents. The defendant was found guilty on five counts of wanton neglect. The district
court sentenced the defendant to 1 year in jail for each of the five counts,
to run concurrently. The district court suspended all but 2 days of the
defendant’s sentence and ordered him to pay $200 for each count, plus a surcharge and costs, and to perform community service. A motion for a
new trial was denied, and the defendant appealed.
The Iowa Court of Appeals held that there was substantial evidence to
support a finding that the defendant was responsible for not properly
maintaining the nursing facility, which led to prosecution for wanton
neglect of the facility’s residents. The defendant was found guilty of knowingly acting in a manner likely to be injurious to the physical or
mental welfare of the facility’s residents by creating, directing, or
maintaining hazardous conditions and unsafe practices; fire hazards and
circumstances impeded safety from fire. The facility was not properly
maintained (e.g., findings included broken glass in patients’ rooms, excessive hot water in faucets, dried feces on public bathroom walls and
grab bars, insufficient towels and linens, cockroaches and worms in the
food preparation area, no soap available in the kitchen, at one point only
one bar of soap and one container of shampoo found in the entire facility).
Dietary facilities were unsanitary and inadequate to meet the dietary needs
of the residents. There were inadequate staffing patterns and supervision in
the facility, and improper dosages of medications were administered to the
residents. 13
The defendant argued that he did not “create” the unsafe conditions at the facility. The court of appeals disagreed. The statute does not require
that the defendant create the conditions at the facility to sustain a
conviction. The defendant was the administrator of the facility and
responsible for the conditions that existed.
Ethical and Legal Issues
1. Do you agree with the court’s finding? Discuss your answer. 2. Discuss how both ethics and the law are intertwined in this case.
CASE: ABUSE AND REVOCATION OF
LICENSE
The operator of a nursing facility appealed an order by the Department of
Public Welfare revoking his license because of resident abuse in Nepa v.
Commonwealth Department of Public Welfare. 14
Substantial evidence
supported the department’s finding. Three former employees testified that the nursing facility operator had abused residents in the following
incidents: 15
He unbuckled the belt of one of the residents, causing his pants to drop,
and then grabbed a second resident, forcing them to kiss. (Petitioner’s
excuse for this behavior was to shame the resident because of his
masturbating in public.)
On two occasions he forced a resident to remove toilet paper from a
commode after she had urinated and defecated in it. (Denying that there
was fecal matter in the commode, the petitioner made the excuse that this
would stop the resident from filling the commode with toilet paper.)
He verbally abused a resident who was experiencing difficulty in
breathing and accused him of faking as he attempted to feed him liquids.
The nursing facility operator claimed that the findings of fact were not
based on substantial evidence and that even if they were the incidents did
not amount to abuse under the code. The defendant attempted to discredit
the witnesses with allegations from a resident and another employee that
one of his former employees got into bed with a resident and that another
had taken a picture of a male resident while in the shower and had placed a
baby bottle and a humiliating sign around the neck of another resident. The
court was not impressed. Although these incidents, if true, were
reprehensible, they were collateral matters that had no bearing on the
witnesses’ reputation for truthfulness and therefore could not be used for impeachment purposes. The court held that there was substantial evidence
supporting the department’s decision and that the activities committed by the operator were sufficient to support revocation of his license:
16
We believe Petitioner’s treatment of these residents as found by the hearing examiner to be truly disturbing. These residents were elderly
and/or mentally incapacitated and wholly dependent on Petitioner
while residing in his home. As residents, they are entitled to maintain
their dignity and be cared for with respect, concern, and compassion.
Petitioner testified that he did not have adequate training to deal
with the patients he received who suffered from mental problems.
Petitioner’s lack of training in this area is absolutely no excuse for the reprehensible manner in which he treated various residents.
Accordingly, DPW’s order revoking Petitioner’s license to operate a personal care home is affirmed.
Ethical and Legal Issues
1. Do the facts of this case support the court’s finding? Discuss your answer.
2. Discuss why senior citizens are often reluctant to report abuse.
CASE: ABUSIVE SEARCH
A nurse in People v. Coe 17
was charged with a willful violation of the
Public Health Law in connection with an allegedly abusive search of an
86-year-old resident at a geriatric center and with the falsification of
business records in the first degree. The resident, Mr. Gersh, had heart
disease and difficulty in expressing himself verbally. Another resident
claimed that two $5 bills were missing. Nurse Coe assumed that Gersh had
taken them because he had been known to take things in the past. The
nurse proceeded to search Gersh, who resisted. A security guard was
summoned, and another search was undertaken. When Gersh again
resisted, the security guard slammed a chair down in front of him and
pinned his arms while the defendant nurse searched his pockets, failing to
retrieve the two $5 bills. Five minutes later, Gersh collapsed in a chair
gasping for air. Coe administered cardiopulmonary resuscitation but was
unsuccessful, and Gersh died.
Coe was charged with violation of the New York Penal Law for
falsifying records because of the defendant’s “omission” of the facts relating to the search of Gersh. These facts were considered relevant and
should have been included in the nurse’s notes regarding this incident. “The first sentence states, ‘Observed resident was extremely confused and talks incoherently. Suddenly became unresponsive . . .’ This statement is simply false. It could only be true if some reference to the search and the
loud noise was included.”18 A motion was made to dismiss the indictment at the end of the trial.
The court held that the search became an act of physical abuse and
mistreatment, that the evidence was sufficient to warrant a finding of guilt
on both charges, and that the fact that searches took place frequently did
not excuse an otherwise illegal procedure: 19
It may well be that this incident reached the attention of the criminal
justice system only because, in the end, a man had died. In those
instances which are equally violative of residents’ rights and equally contrary to standards of common decency but which do not result in
visible harm to a patient, the acts are nevertheless illegal and subject to
prosecution. A criminal act is not legitimized by the fact that others
have, with impunity, engaged in that act.
Ethical and Legal Issues
1. With the number of senior abuse cases occurring so frequently, discuss
why society waits for extreme violence to occur before preventative
actions are taken.
2. Having studied ethics and the moral breakdown that appears to have
occurred in society, what steps do you believe can be taken to reverse
the trend of violence faced by our seniors?
CASE: FORCIBLE ADMINISTRATION OF
MEDICATIONS
The medical employee in In re Axelrod 20
sought review of a determination
by the commissioner of health that she was guilty of resident abuse.
Evidence showed that the employee, after a resident refused medication,
“held the patient’s chin and poured the medication down her throat.”21 There was no indication or convincing evidence that an emergency existed
that would have required the forced administration of the medication. The
court held that substantial evidence supported the commissioner’s finding that the employee had been guilty of resident abuse.
Ethical and Legal Issues
1. Discuss the ethical and legal ramifications of this case.
2. What sentence should the employee receive? Why?
3. What message should the court be sending to other potential abusers of
patients?
Intimidation of Abusive Resident/Disciplinary Overkill
A difficult and abusive 80-year-old resident of a veteran’s home in Beasley v. State Personnel Board
22 slapped the face of an aide who was assisting
him. The resident, referring to his inability to have sex, said that he might
as well have his penis cut off. The aide, Beasley, stated that she said to the
resident if he did not behave, then she might accommodate him. A nursing
supervisor who passed by at that moment noted that a nursing assistant and
a hospital aide who were standing nearby laughed and did nothing to
intervene. Beasley was fired and the other two employees were suspended
for 10 days. After the state board upheld the punishments, the three
employees went by mandate to the superior court, where Beasley’s dismissal was ruled too severe. The trial court found that action against the
nursing assistant and hospital aide, although harsh, was within discretion.
On appeal, the court held that Beasley’s comments did not constitute misconduct, and the veterans’ home nursing assistant and hospital aide did not commit actionable conduct by “sort of laughing.” When this incident was viewed in its context and in light of the whole record, it did not support
the state personnel board’s finding that Beasley’s attitude toward patients was poor.
CASE: CARE GIVEN DECEASED DEFICIENT
In Montgomery Health Care Facility v. Ballard, 23
three nurses testified
that the facility was understaffed. “One nurse testified that she asked her supervisor for more help but that she did not get it.”24 A nursing home resident, Mrs. Stovall, expired as the result of multiple infected bedsores.
The estate of the patient brought a malpractice action against the nursing
home. First American Health Care, Inc., is the parent corporation of the
Montgomery Health Care Facility, a nursing home. The trial court entered
a judgment on a jury verdict against the home, and an appeal was taken.
The Alabama Supreme Court held that reports compiled by the Alabama
Department of Public Health concerning deficiencies found in the nursing
home were admissible as evidence. Evidence showed that the care given to
the deceased was deficient in the same ways as noted in the survey and
complaint reports, which indicated that deficiencies in the home
included: 25
Inadequate documentation of treatment given for decubitus ulcers; 23
patients found with decubitus ulcers, 10 of whom developed those
ulcers in the facility; dressings on the sores were not changed as
ordered; nursing progress notes did not describe patients’ ongoing conditions, particularly with respect to descriptions of decubitus
ulcers; ineffective policies and procedures with respect to sterile
dressing supplies; lack of nursing assessments; incomplete patient care
plans; inadequate documentation of doctor’s visits, orders, or progress notes; am care not consistently documented; inadequate documentation
of turning of patients; incomplete “activities of daily living” sheets; “range of motion” exercises not documented; patients found wet and soiled with dried fecal matter; lack of bowel and bladder retaining
programs; [and] incomplete documentation of ordered force fluids.
From a corporate standpoint, the parent corporation of the nursing
facility could be held liable for the nursing facility’s negligence, where the parent company controlled or retained the right to control the day-to-day
operations of the home. The defendants had argued that the punitive
damage award of $2 million against the home was greater than what was
necessary to meet society’s goal of punishing them. The Alabama Supreme Court, however, found the award not to be excessive. “The trial court also found that because of the large number of nursing home residents
vulnerable to the type of neglect found in Mrs. Stovall’s case, the verdict would further the goal of discouraging others from similar conduct in the
future.”26
Ethical and Legal Issues
1. Could any legislation be enacted or policies and procedures, rules, and
regulations be implemented as proactive measures to prevent this type
of widespread abuse? Describe your answer.
2. Do you agree with the court that the award will discourage others from
similar behavior? Explain.
LOOK CLOSER, SEE ME
Donna Fannin read the poem “Look Closer, See ME” to every nursing assistant class she ever taught. This wonderful poem was found among the
meager belongings of an 89-year-old nursing home patient in Scotland
following her death. It has been widely published since her passing. It is a
reminder to us all that our bodies and relationships continue to change, and
someday many of us will experience what she has felt. 27
Look Closer, See ME
What do you see, Nurses?/What do you see?/What are you thinking?/When
you’re looking at me? A crabbit old woman,/Not very wise/Uncertain of habit/With faraway
eyes?
Who dribbles her food/And makes no reply/When you say in a loud
voice,/“I do wish you’d try!” Who seems not to notice/The things that you do,/And forever is losing/A
stocking or shoe?
Who, resisting or not,/Lets you do as you will,/With bathing and
feeding,/The long day to fill.
Is that what you’re thinking?/Is that what you see?/Then open your eyes, Nurse,/You’re not looking at ME. I’ll tell you who I am/As I sit here so still/As I do at your bidding/As I eat at your will.
I’m a small child of ten,/With a Mother and Father,/Brothers and sisters/Who love one another.
A young girl of sixteen,/With wings on her feet,/Dreaming that soon,/A
lover she’ll meet. A bride soon at twenty,/My heart gives a leap./Remembering the vows/We
have promised to keep.
At twenty-five now,/I have young of my own,/Who need me to guide
them,/And a secure happy home.
A woman of thirty/My young they grow fast,/Bound to each other/With ties
that should last.
At forty, my young sons/Have grown and have gone,/But my man’s beside me/To see I don’t mourn.
At fifty, once more/Babies play round my knee,/Again we know
children,/My husband and me.
Dark days are upon me,/My husband is dead./I look to the future/And
shudder with dread.
For my young are all rearing/Young of their own,/And I think of the
years/And the love I have known.
I’m an old woman now,/And nature is cruel,/Tis her jest to make old age/Look like a fool.
The body, it crumbles,/Grace and vigor depart/There is now a
stone,/Where I once had a heart.
But inside this old carcass,/A young girl still dwells,/And now and
again,/My battered heart swells.
I remember the joys,/I remember the pain,/And I’m living and loving/All over again.
I think of the years,/All too few, gone too fast,/And accept the stark
fact/That nothing can last.
So, open your eyes, people,/Open and see,/Not a crabbit old woman,/Look
closer, See ME.
ANONYMOUS
CHAPTER REVIEW
1. Patient abuse is the mistreatment or neglect of individuals who are
under the care of a health care organization. Abuse is not limited to an
institutional setting and may occur in an individual’s home as well as in an institution.
2. Abuse can be physical, psychological, medical, financial, or otherwise.
It is not always easy to identify because injuries often can be attributed
to other causes.
3. An abused child is one who has suffered intentional serious mental,
emotional, sexual, and/or physical injury inflicted by a parent or other
person responsible for the child’s care. 4. The various states have enacted various child abuse statutes to provide
civil immunity for those making or participating in good-faith reports
of suspected child abuse.
5. An individual who reports child abuse should be aware of the physical
and behavioral indicators of abuse and maltreatment that appear to be
part of a pattern (e.g., bruises, burns, broken bones).
6. Seniors often fail to report incidents of abuse because they fear
retaliation and not being believed.
7. Signs of elder abuse include unexplained or unexpected death; broken
bones; sudden and unexpected emotional outbursts, agitation, or
withdrawal; bruises, welts, discoloration, or burns; absence of hair;
dehydration and malnourishment without an illness-related cause;
hesitation to talk openly; implausible stories; and unusual or
inappropriate bank account activity.
8. Caregivers who suspect abuse are expected to report their findings.
Symptoms and conditions of suspected abuse should be defined clearly
and objectively.
9. Senior abuse is less likely to be reported than child abuse.
REVIEW QUESTIONS
1. What is patient abuse?
2. What are the signs of abuse?
3. What should a caregiver do when he or she suspects that a patient is
being abused by another person (e.g., caregiver, family member)?
4. Based on the cases reviewed in this chapter, discuss why patients
are often reluctant to complain about their health care.
5. When a health care provider reports abuse, should the accuser be
able to know the identity of his or her accuser? Explain your
answer.
6. Should a health care provider be sanctioned for reporting abuse if it
proves to be false?
7. Discuss both the ethical and legal issues of abuse.
NOTES
1. N.Y. Soc. Serv. Law A4 419 (McKinney 1992).
2. N.Y. Soc. Serv. Law A4 420 (McKinney 1992).
3. N.Y. Soc. Serv. Law A4 420 (McKinney 1992).
4. 373 N.W.2d 204 (Mich. Ct. App. 1985).
5. “Havens for elderly may expose them to deadly risks,” USA Today, May 25, 2004, at 1. 6. Adapted from National Center on Elder Abuse, “Major types of elder abuse,” available at
http://www.ncea.aoa.gov/NCEAroot/Main_Site/FAQ/Basics/Types_Of_
Abuse.aspx.
7. Richard J. Gelles, Murray A. Strauss, & Suzanne K. Steinmetz, Behind Closed Doors: Violence
in the American Family, Anchor Press/Doubleday: Garden City, NY (1980).
8. Id.
9. Senate Subcommittee on Health And Long-Term Care, supra note 53.
10. 557 F. Supp. 289 (D. Colo. 1983).
11. Id. at 293.
12. State v. Cunningham, 493 N.W.2d 884 (Iowa Ct. App. 1992).
13. Id. at 887-888.
14. 551 A.2d 354 (Pa. Commw. Ct. 1988).
15. Id. at 355.
16. Id. at 357.
17. 501 N.Y.S.2d 997 (N.Y. Sup. Ct. 1986).
18. Id. at 1001.
19. Id.
20. 560 N.Y.S.2d 573 (N.Y. App. Div. 1990).
21. Id.
22. 178 Cal. Rptr. 564 (Cal. Ct. App. 1981).
23. 565 So. 2d 221, 224 (Ala. 1990).
24. Id. at 224.
25. Id. at 223-224.
26. Id. at 226.
27. Donna Fannin, “Your Granny’s Nurses: Look Closer, See ME,” Gather.com, May 16, 2006; http://www.gather.com/viewArticle.action?articleId=281474976752728.
chapter fourteen
Patient Rights and Responsibilities
The unexamined Life is not worth living.
SOCRATES
LEARNING OBJECTIVES
The reader on completion of this chapter will be able to:
• Describe and understand patient rights. • Describe and understand patient responsibilities.
INTRODUCTION
NEWSPAPER CLIPPINGS: Partnership for Patients: Better Care,
Lower Costs
The Obama Administration has launched the Partnership for Patients:
Better Care, Lower Costs, a new public-private partnership that will
help improve the quality, safety, and affordability of health care for all
Americans. The Partnership for Patients brings together leaders of
major hospitals, employers, physicians, nurses, and patient advocates
along with state and federal governments in a shared effort to make
hospital care safer, more reliable, and less costly.
The two goals of this new partnership are to:
• Keep patients from getting injured or sicker. By the end of 2013, preventable hospital-acquired conditions would decrease by 40%
compared to 2010. Achieving this goal would mean approximately
1.8 million fewer injuries to patients with more than 60,000 lives
saved over three years.
• Help patients heal without complication. By the end of 2013, preventable complications during a transition from one care setting
to another would be decreased so that all hospital readmissions
would be reduced by 20% compared to 2010. Achieving this goal
would mean more than 1.6 million patients would recover from
illness without suffering a preventable complication requiring re-
hospitalization within 30 days of discharge.
Achieving these goals will save lives and prevent injuries to
millions of Americans, and has the potential to save up to $35 billion
across the health care system, including up to $10 billion in Medicare
savings, over the next three years. Over the next ten years, it could
reduce costs to Medicare by about $50 billion and result in billions
more in Medicaid savings. This will help put our nation on the path
toward a more sustainable health care system.
From http://www.healthcare.gov/center/programs/partnership.
Every person possesses certain rights guaranteed by the Constitution of
the United States and its Amendments, including freedom of speech,
religion, and association and the right not to be discriminated against on the
grounds of race, creed, color, or national origin. The Supreme Court has
interpreted the Constitution as also guaranteeing certain other rights not
expressly mentioned, such as the right to privacy and self-determination
and the right to accept or reject medical treatment. Keeping those
Constitutional guarantees and interpretations in mind, this chapter provides
a brief overview of both the rights and responsibilities of all patients.
PATIENT RIGHTS
NEWSPAPER CLIPPINGS: Misdiagnosed: What to Do When
Your Doctor Doesn’t Know
What You Can Do
Knowing how and why diagnoses are missed might help you steer your
own doctor in the right direction. Here are some steps you can follow.
• Keep detailed records • Come prepared to ask the right questions • Be assertive • Be honest • Explore new avenues • Trust your gut • In the absence of a diagnosis, treat your symptoms
Mary A. Fischer, AARP Newsletter, July/August 2011
Patients of the various states have certain rights and protections
guaranteed by state and federal laws and regulations. Patient rights include
the right to participate in health care decisions and to understand treatment
options. Patients have a right to receive a clear explanation of tests,
diagnoses, treatment options, prescribed medications, and prognosis. 1
It is recognized that a professional relationship between the physician
and the patient is essential for the provision of proper medical care. The
traditional physician/patient relationship takes on a new dimension when
care is rendered within an organizational structure. Legal precedent has
established that not only does the institution have responsibility to the
patient but that the patient also has responsibility to the institution.
Patients have the right to choose the medical care they wish to receive.
As medical technology becomes more advanced, these decisions become
increasingly difficult to decide. Should I have the surgery? Do I want to be
maintained on a respirator? Frequently, these decisions involve not only
medical questions, but moral and ethical dilemmas as well. What has the
greater value, the length of life or the quality of life? What is the right
choice for the patient? Although patients have a right to make their own
care and treatment decisions, they often face conflicting religious and
moral values in their decision-making process. Often, it is difficult to make
a choice when two roads may seem equally desirable.
Help! I’m Wrestling with My Values! • Should I accept a blood transfusion if it will save my life? • Should I refuse a blood transfusion and risk death because it is against my
religious beliefs?
• Did I do a bad thing by refusing blood to save my life? • Was I immoral to accept death rather than choose life?
Patient rights may be classified as either legal, those emanating from
law, or human statements of desirable ethical principles, such as the right to
health care or the right to be treated with human dignity. Both staff and
patients should be aware of and understand not only their own rights and
responsibilities but also the rights and responsibilities of one another.
Right to Know Their Rights
On admission for care, patients have a right to receive a copy of an
organization’s Patient’s Bill of Rights and Responsibilities. It is expected that observing a patient’s bill of rights will contribute to more effective patient care and greater satisfaction for patients, caregivers, and health care
organizations alike.
Right to Explanation of Their Rights
Patients have a right to receive an explanation of their rights and
responsibilities. An organization’s description of patient rights and responsibilities should be viewed as a document with legal significance
whether or not the state in question has adopted a similar code. The rights
of patients must be respected at all times. Each patient is an individual with
unique health care needs. The patient has a right to make decisions
regarding his or her medical care, including the decision to discontinue
treatment, to the extent permitted by law.
Organization policy should provide that on admission, each patient will
be provided with a written statement of his or her rights and
responsibilities, and a privacy notice. This statement includes the rights of
the patient to make decisions regarding medical care and information
regarding protected health information. Patients have a right to receive an
explanation of the patient’s bill of rights.
Right to Know Hospital’s Adverse Events The Florida Supreme Court in the cases Florida Hospital Waterman, Inc.,
etc. v. Teresa M. Buster, et al. and Notami Hospital of Florida, Inc., etc. v.
Evelyn Bowen, et al. 2 ruled that hospitals under Amendment 7 (approved
by the voters on November 2, 2004, and codified as Article X, Section 25
of the Florida Constitution) must reveal their records of past acts of
malpractice that have been performed at the hospital. In Florida, patients
now have a right to know about, ask for, and/or receive records about
adverse medical incidents that have happened at the hospital.
Amendment 7 to the Florida Constitution reads in part:
Section 25. Patients’ right to know about adverse medical incidents.
(a) Patients have a right to have access to any records made or received
in the course of business by a health care facility or provider
relating to any adverse medical incident.
(b) In providing such access, the identity of patients involved in the
incidents shall not be disclosed, and any privacy restrictions
imposed by federal law shall be maintained.
Right to Admission
Whether a person is entitled to admission to a particular facility depends on
the statute establishing that organization. Governmental hospitals, for
example, are by definition creatures of some unit of government; their
primary concern is service to the population within the jurisdiction of that
unit. Military hospitals, for example, have been established to care for
those persons who are active members of the military.
Although persons who are not within the statutory classes have no right
of admission, hospitals and their employees owe a duty to extend
reasonable care to those who present themselves for assistance and are in
need of immediate attention. With respect to such persons, governmental
hospitals are subject to the same rules that apply to private hospitals. For
example, the patient-plaintiff in Stoick v. Caro Community Hospital 3
brought a medical malpractice action against a government physician in
which she alleged that the physician determined that she was having a
stroke and required hospitalization but refused to hospitalize her. The
plaintiff’s daughter-in-law called the defendant, Caro Family Physicians, P.C., where the patient had a 1:30 PM appointment. She was told to take the
patient to the hospital. On arriving at the hospital, there was no physician
available to see the patient, and a nurse directed her to Dr. Loo’s clinic in the hospital. On examination, Loo noted right-sided facial paralysis,
weakness, dizziness, and an inability to talk. He told the patient that she
was having a stroke and that immediate hospitalization was necessary. Loo
refused to admit her because of a hospital policy that only the patient’s family physician or treating physician could admit her. The plaintiff went
to see her physician, Dr. Quines, who instructed her to go to the hospital
immediately. He did not accompany her to the hospital. At the hospital, she
waited approximately 1 hour before another physician from the Caro
Family Physicians arrived and admitted her. Loo claimed that he did not
diagnose the patient as having a stroke and that there was no bad faith on
his part.
The court of appeals reversed, holding that the plaintiff did plead
sufficient facts constituting bad faith on the part of Loo. His failure to
admit or otherwise treat the patient was a ministerial act for which
governmental immunity does not apply and might be found by a jury to
constitute negligence.
Right to Quality Care
Health care professionals are expected to monitor the quality of each
patient’s care beginning with the history and physical and followed by the development of the treatment plan and, ultimately, the delivery of care to
the patient.
REALITY CHECK: Right to Thorough History and Physical
A quality review includes a review of the thoroughness of a health care
professional’s documentation of the patient’s history and physical— from which flows the treatment plan, follow-up care, and discharge
instructions. This is often due to the nature of human beings, thus the
need for satisfaction surveys, peer review, performance evaluations,
data collection, and so on.
The beginning point of patient care involves taking a full and
complete patient history and physical that involves a total systems
review of the patient in order to develop a treatment plan. This activity
is not an assignable activity. It is not a peer review. It is not a medical
record review or chart audit. It is the physician who must conduct this
review and take the necessary steps to identify the areas in need of
improvement and to recommend those changes to the medical
executive committee for implementation. It is a clinical review by those
trained to do so. Its purpose is to remove the disparities that exist
among those decision makers who are responsible for coordinating
patient care.
Discussion
1. Discuss the importance of thorough patient screenings and
assessments.
2. Describe what virtues and values are compromised when an
accurate and thorough patient screening is not conducted upon a
patient’s arrival in the emergency room. 3. How are a patient’s rights affected when little attention is paid to
the patient’s complaint(s)? 4. Discuss why you believe health care professionals become
complacent and do not listen well when a patient describes his or
her ailment(s). Consider the hospital setting (e.g., emergency
department) and the doctor’s office.
Right to Participate in Care Decisions
Patients have a right to participate in all aspects of their care and should be
encouraged to do so. They have a right to know their treatment options and
to accept or refuse care.
Right to Informed Consent
Patients have a right to receive all the information necessary to make an
informed decision before consenting to a proposed procedure or treatment.
This information should include the possible risks and benefits of the
procedure or treatment. The right to receive information from the physician
includes information about the illness, the suggested course of treatment,
the prospects of recovery in terms that can be understood, risks of
treatment, benefits of treatment, alternative care options, and proof of
consent.
Right to Ask Questions
NEWSPAPER CLIPPINGS: What Josie King’s Story Should Teach Us
In 2001, 18-month-old Josie King climbed into a hot bath and suffered
burns that landed her in Johns Hopkins PICU. Two days before being
released from the hospital, Josie died from dehydration and medical
error.
She died despite the fact that her mother raised her concerns with
hospital staff about Josie being denied liquids and being administered
narcotics as she watched her daughter deteriorate.
Her mother Sorrel King has written a book entitled Josie’s Story: A Mother’s Inspiring Crusade to Make Medical Care Safe, which she hopes will inspire medical professionals to do better and inform parents
of their rights.
While reading about little Josie’s story, a familiar feeling came over me: frustration. Despite more information being available to the public
than ever, we are still encouraged to trust medical personnel with little
question. Josie’s story underscores a reality that we are too often encouraged to forget: doctors and nurses are just human and make
mistakes.
Maria Andreu, nj.com, September 21, 2009 4
NEWSPAPER CLIPPINGS: Don’t Let a Hospital Make You Sick
The problem is not that we have an epidemic of negligent doctors.
Rather, it’s that the health-care system has grown so complicated that there is a greater chance than ever of things falling through the cracks.
Another problem is that hospitals produce massive amounts of data,
including lab and X-ray reports, medication lists, doctors’ orders, and dietary restrictions. It is easier than ever for critical communications to
get lost, and hospitals often don’t have thorough backup systems.
Dr. Ranit Mishori, Parade, February 8, 2009
Patients have the right and should be encouraged to ask questions
regarding their care (“I saw blood in my IV tubing. Is this okay? Is it infiltrating?” and “My wound dressing seems wet. Is this OK? Should the dressing be changed?”).
Reducing medical errors requires that the patient actively participate in
his or her care. Patients should not hesitate to ask for the following:
• Clarification of caregiver’s instructions • Interpretation of caregiver’s illegible handwriting • Instructions for medication usage (e.g., frequency, dosing, drug-drug and
drug-food interactions, contraindications, side effects)
• Clarification of the physician’s diet orders (e.g., “Does my iced tea contain sugar-free substitutes?”)
• Explanation of treatment plan • A copy of the organization’s handwashing policy • A description of the hospital’s procedures to prevent wrong-site surgery
(e.g., appropriately marking a surgical site)
If a site cannot be directly marked, the patient can ask the surgeon to
draw an arrow pointing to the surgical site
• The opportunity to provide the organization with a copy of any advance directives that may have been executed (e.g., living will)
• The right to appoint a surrogate decision maker should the patient become incapacitated
• A second opinion
Right to Privacy and Confidentiality
NEWSPAPER CLIPPINGS: Patient Privacy in Spotlight after
Hospital Records Spotted Online
A patient privacy breach at a prominent California hospital serves as a
reminder that records aren’t as secure as patients may hope. The breach at Stanford Hospital in Palo Alto, Calif., exposed the
names and diagnoses of 20,000 patients who visited the hospital’s emergency department between March 1, 2009, and Aug. 31, 2009 are
affected.
The truth is medical breaches like this one aren’t rare. Data from more than 11 million people have been improperly exposed in the last
two years alone, according to the Times.
This current breach serves as a reminder that major hospitals are not
immune to these mistakes. Recently, Massachusetts General Hospital
had to pay a $1 million federal fine after a hospital employee left
patient medical records on a subway train, a third of which were
diagnosed with HIV/AIDS, the Boston Globe reported.
Ryan Jaslow, CBS News, September 9, 2011
NEWSPAPER CLIPPINGS: UCLA Workers Snooped in Spears
Medical Records
UCLA Medical Center is taking steps to fire at least 13 employees and
has suspended at least six others for snooping in the confidential
medical records of pop star Britney Spears during her recent
hospitalization in its psychiatric unit, a person familiar with the matter
said Friday.
In addition, six physicians face discipline for peeking at her
computerized records, the person said.
“Each member of our workforce, which includes our physicians, faculty, employees, volunteers and students, is responsible to ensure
that medical information is only accessed as required for treatment, for
facilitating payment of a claim or for supporting our health care
operations,” chief compliance and privacy officer Carole A. Klove wrote in an e-mail to all employees.
Snooping has landed hospital staffers in trouble around the country.
In October, Palisades Medical Center in New Jersey suspended more
than two dozen employees without pay for accessing George Clooney’s medical records after he was injured in a motorcycle accident.
Also last year, Tri-City Medical Center in Oceanside fired nine
people, including nurses, secretaries and technicians, for attempting to
take pictures of a patient and circulate images of an X-ray.
Charles Ornstein, Los Angeles Times, March 15, 2008
Patients have a right to expect that information regarding their care and
treatment will be kept confidential. Confidentiality requires that the
caregiver safeguard a patient’s confidences within the constraints of law. Caregivers must be careful not to discuss any aspect of a patient’s case with others not involved in the case. Written permission must be obtained
before a patient’s medical record can be made available to anyone not associated with the patient’s care.
The limitations of space and financial restraints make it difficult to
continuously preserve a patient’s right to privacy in many hospital settings (e.g., emergency departments). Nevertheless, health care organizations
have a responsibility to provide for a reasonable amount of privacy for
patients. The issues of confidentiality and privacy have both ethical and
legal implications. Caregivers must safeguard each patient’s right to privacy and the right to have information pertaining to his or her care kept
confidential. Patients have a right to receive “Notice of Privacy Standards,” a requirement under the Health Insurance Portability and Accountability
Act.
Phlebotomist Discloses Patient Information at Public Tavern
The phlebotomist in Bagent v. Blessing Care Corp. 5 revealed the results of
a patient’s pregnancy test to the patient’s sister at a public tavern. Although the hospital attempted to have the case dismissed for the phlebotomist’s breach of confidentiality, invasion of privacy, and the negligent infliction of
emotional distress, the appeals court determined that there were triable
issues of fact precluding dismissal of the case. It was asserted that the
phlebotomist had been trained to maintain the confidentiality of patient
information and that she knew that she had violated the patient’s rights.
Disclosures Permitted
Disclosure of some patient information, such as diagnoses, anesthesia
history, surgical and other invasive procedures, drug allergies, medication
usage, laboratory test results, and imaging studies, is permitted in certain
situations. A health care provider is allowed to disclose patient
information:
• To other providers caring for the patient in order to provide safe health care treatment
• To third-party payers in order to obtain payment for services rendered • As required by a law enforcement agency • To avert a serious threat to public health or safety • To military authorities for their medical records • To workers’ compensation or similar programs for processing of claims • In response to a subpoena for a legal proceeding • To a coroner or medical examiner for purposes of identification
Limitations on Disclosures
Some of the individual rights a patient has regarding disclosure of access to
his or her medical information are as follows:
• Right to request restrictions or limitations regarding information used or disclosed about one’s treatment
• Right to an accounting of nonstandard disclosures: The patient has a right to request a list of the disclosures made of information released regarding
his or her care
• Right to amend: A patient who believes that medical information regarding his or her care is incorrect or incomplete has a right to request
that the information be corrected
• Right to inspect and copy medical information that may be used to make decisions about the patient’s care
• Right to file a complaint with the provider, or the secretary of the Department of Health and Human Services in Washington, DC, if the
patient believes his or her privacy rights have been violated
• Right to a paper copy of a notice pertaining to the patient
Right to Refuse Treatment
Patients have a right to refuse treatment and be told what effect such a
decision could have on their health. The responsibility of caregivers
requires balancing risks and benefits to the patient. This balancing can lead
to situations where health care professionals view their obligations to a
patient differently from the patient’s own assessment. The patient may refuse a certain procedure, for example, and forcing the patient to undergo
an unwanted procedure would represent a failure to respect the patient’s right of self-determination.
Right to Execute Advance Directives
Patients must be informed of their right to execute advance directives. The
advance directives must be honored within the limits of the law and the
organization’s mission, philosophy, and capabilities.
Right to Designate a Decision Maker
Patients have a right to appoint a health care decision maker to make health
care decisions when the patient becomes incapacitated or is unable to make
decisions on his or her own behalf.
Right to Know of Restrictions on Rights
Any restrictions on a patient’s visitors, mail, telephone, or other communications must be evaluated for their therapeutic effectiveness and
fully explained to and agreed on by the patient or patient representative.
Right to Have Special Needs Addressed
Patients have a right to an interpreter whenever possible. Patients who have
physical or mental disabilities or are hearing- or vision-impaired have a
right to special help, such as an interpreter.
Right to Emergency Care
Patients have a right to receive emergency care in a hospital’s emergency department. At the time of admission, each patient has the right to be
informed in writing of his or her rights and responsibilities, including any
explanations if needed.
Health care organizations must not discriminate by reason of race,
creed, color, gender, religion, or national origin. Those that do discriminate
violate constitutionally guaranteed rights. They also may be in violation of
federal, state, and local laws. Discrimination in some states can be
considered a misdemeanor and also may carry a civil penalty. Federal and
state funds may be withheld from any institution that practices
discrimination.
Most federal, state, and local programs specifically require, as a
condition for receiving funds under such programs, an affirmative
statement on the part of the organization that it will not discriminate. For
example, the Medicare and Medicaid programs specifically require
affirmative assurances by health care organizations that no discrimination
will be practiced.
PEOPLE STORIES: The Good and the Bad
My dad lived in a small country town in southwest Pennsylvania. While
visiting with him I noticed that he was having some difficulty
breathing.
He had been a heavy smoker most of his life. In addition, he was
exposed to the secondary smoke from a country bar that would seep
through our floorboards from two stories below. Because of the severity
of his breathing difficulty, I convinced him to go to the hospital
emergency department. It was Sunday, and it was his only option.
After undergoing a physical examination, a variety of blood tests,
and chest X-rays, the emergency department physician came out to
greet me and took the liberty to say, “Well, your dad is okay. There is nothing wrong with him. It is people like your dad that raise the costs
of health care. They run to the emergency department with every little
problem.” Needless to say, I was shocked but relieved that Dad was okay. I said nothing to the physician out of respect for my dad, but I
hope the physician is reading these words today.
Unfortunately, relief was short lived. Dad received a call the
following day. He was asked to follow-up with his family physician
because the radiologist noted a shadow on his chest X-ray. Dad called
me and asked what I thought. I attempted to reassure him but, knowing
his history of smoking, I keep silent as the sadness invaded my body.
Dad had lung cancer. He went for radiation treatments and returned
home commenting on how great the cookies were that they had served
him. Yes, there are a lot of great people who work in health care, but
there are a few that give it a bad name.
Administrator
PEOPLE STORIES: Take Time to Educate
So, I had to make an emergency room visit . . . a couple weeks ago
(which I’ve heard has recently become part of . . . Health Care). While I was there for heart problems, I was told that they believed I had a blood
clot; thus, they gave me a CAT scan. . . .
Next thing I know, a male nurse comes in with my discharge
papers, telling me nothing. Apparently they couldn’t find a blood clot, which is great, but a doctor never bothered to talk to me again. I also
noticed on my discharge papers that it stated I had hypopotassemia (I
already knew that this is a potassium deficiency), but I asked the nurse
about it and was told that it’s “no big deal.” No one bothered to tell me that I had it or explain what I should do about it. So I asked the nurse
about what to do. Should I eat a banana? He actually said, yeah, eat a
banana.
I saw my cardiologist a few days later because my condition was
worsening, and when I told him about my experience in the emergency
room, he was very upset that no one bothered to contact him about a
cardiology patient in the emergency room (I assume he was on call) and
that they made no mention of or explanation for the hypopotassemia.
I guess I’m okay . . . I am on potassium supplements now and have to have follow-up blood work this year to see whether it needs to be
increased or decreased. My heart rate has not changed much, but the
EKG and Holter monitor [ambulatory electrocardiology device] seem
to have come back okay.
Patient
Discussion
1. What would be your expectations of the nurse and physician if you
were the patient?
2. Do you believe this to be a typical encounter in an emergency
department? Explain your answer.
Right to Discharge
Patients have a right to be discharged and not be detained in a health care
setting merely because of an inability to pay for services rendered. An
unauthorized detention of this nature could subject the offending
organization to charges of false imprisonment. Although patients have a
right not to be held against their will, there are circumstances in which
reasonable detainment can be justified (e.g., a minor may be released only
to a parent or authorized guardian).
Right to Transfer
Patients have a right to be transferred to an appropriate facility if the
admitting facility is unable to meet a patient’s particular needs. For this reason, it is important for each organization to execute transfer agreements
with other health care organizations.
Patients also have a right to choose a receiving facility, whenever
possible. The Medicaid patient in Macleod v. Miller 6 was entitled to an
injunction preventing his involuntary transfer from the nursing home. The
patient had not been accorded a pretransfer hearing, as was required by
applicable regulations. In addition, it was determined that the trauma of
transfer might result in irreparable harm to the patient. The appeals court
remanded the case to the trial court with directions to enter an order
prohibiting the defendants from transferring the plaintiff pending
exhaustion of his administrative remedies.
Health care organizations should have a written transfer agreement in
effect with other organizations to help ensure the smooth transfer of
patients from one facility to another when such is determined appropriate
by the attending physician(s). Generally speaking, a transfer agreement is a
written document that sets forth the terms and conditions under which a
patient may be transferred to a facility that more appropriately provides the
kind of care required by the patient. It also establishes procedures to admit
patients of one facility to another when their condition warrants a transfer.
Transfer agreements should be written in compliance with and reflect
the provisions of the many federal and state laws, regulations, and
standards affecting health care organizations. The parties to a transfer
agreement should be particularly aware of applicable federal and state
regulations.
Right to Access Medical Records
The courts have taken the view that patients have a legally enforceable
interest in the information contained in their medical records and therefore
have a right to access their records. Some states have enacted legislation
permitting patients access to their records. Patients may generally have
access to review and/or obtain copies of their records, X-rays, and
laboratory and diagnostic tests. Access to information includes that
maintained or possessed by a health care organization and/or a health care
practitioner who has treated or is treating a patient. Organizations and
physicians can withhold records if it is determined that the information
could reasonably be expected to cause substantial and identifiable harm to
the patient (e.g., for patients in psychiatric hospitals, institutions for the
mentally disabled, or alcohol- and drug-treatment programs).
Hospital Peer-Review Materials Discoverable: Patient’s Right to Know
In a medical malpractice action in which the plaintiffs sought the
production of documents relating to the investigation of the decedent’s death and any medical incidents of negligence, neglect, or default of any
health care provider who rendered services to the decedent, the trial court
properly held that the Patient’s Right to Know Amendment to the state constitution was self-executing and allowed for the discovery during the
course of litigation. The patient should have been provided with
information and documents that emanate from the self-policing processes
of health care providers; however, the court’s retroactive application of the Amendment was found to be improper.
7
Right to Know of Third-Party Care Relationships
Patients have a right to know the hospital’s relationships with outside parties that may influence their care and treatment. These relationships may
be with educational institutions, insurers, and other caregivers.
Right to Know the Caregivers
Patients have a right to know the names, qualifications, and positions of the
caregivers who will be in charge of their care in the hospital. Patients have
a right to know the functions of any hospital staff involved in their care and
to refuse treatment, examination, or observation by any of them. These
rights include the following:
• Patients should know who is treating them by name, discipline, role, and responsibility in their care plan.
• Patients should know the names of all consulting physicians and hospital- designated caregivers.
• Caregivers should identify themselves to patients by name, discipline, specialty, and identification badge of the treatment team.
Right to Sensitive and Compassionate Care
Patients have a right to be free from harassment, including verbal and
physical abuse. They should receive considerate and respectful care from
competent caregivers who respect the patient’s personal belief systems.
PEOPLE STORY: Compassionate Care
During the past five years, I have filled out numerous standardized
forms that ask questions that have been repeatedly asked by a wide
variety of physician specialists and other caregivers. I’ve been told that my most recent specialist had great credentials. He came highly
recommended. I grew more hopeful as I drove to his office during the
early morning rush hour in a metropolitan city. I would finally meet
someone who cared and understood my disease processes. As I walked
into his office, I noted that my medical chart was lying on the desk in
front of him. The sight of it on his desk comforted me, thinking that he
had actually read my answers. His staff had said he wanted the chart
several weeks prior to my appointment because he needed time to
familiarize himself with my case. I soon realized several minutes into
the conversation that he had not reviewed my medical chart. The forms
that I had so painstakingly completed, hoping for an answer to my
illness, had not been read. He inquired as to what medications I was
taking. My husband accompanied me that day and noticed that the list
of medications was laid in front of him; he didn’t hesitate to point that out to the physician. The doctor asked questions within a predetermined
range—one was, “What is your pain on a scale of 1 to 10?” How do I answer that? I am off your scale. I cannot remember not being in pain
for the past five years. I sometimes wonder what it must have been like
to be pain-free. I don’t know that feeling anymore. Hello, is anyone out there?
Eventually, I was admitted to the hospital for the first time. My
nerve endings felt frayed, my stomach churned, my worries were
multiplying, and my thoughts turned to, “Is it time to get more bad news?” I was extremely ill. The waiting area in the admissions office was uncomfortable and uninviting. Privacy was minimal and soft music
was nonexistent. I wondered what was going to happen to me.
Things got worse when I was finally admitted to a room. I was in an
unfamiliar room with drab, nondescript walls, and I was dependent
upon people who barely had the time to dispense medications. The
physicians and other staff members were rushing about, engaged in
their everyday tasks. No one seemed to have time for me.
Confusion set in, and the fear of being in a strange place caused me
tremendous anxiety. Unfamiliar people looked at me, touched me, and
asked me the same questions over and over again. The questioning
seemed never-ending. I wondered, “Do these people ever talk to each other?” The surroundings were sterile and unfriendly, adding to my uneasy feelings.
Why can’t health care facilities be more compassionate and patient- friendly? Why must I worry about complaining and fear retribution?
Provisions should be made for a serene environment with calming
colors and carefully chosen people to gently ease answers from a
frightened patient. More attention is needed in making a patient’s room a calm and inviting place, which would help to soothe and carry the
patient through troubling times.
Discussion
1. In what way did the physician show a lack of concern for the
patient’s needs? 2. Describe how hospitals can provide a comforting environment for
patients.
Right to Respect
The right to respect is a common right enjoyed by patients, families, and
caregivers. Respect is more than a two-way street. It is not just about what
is right for you and me but requires respect of all persons.
Right to a Timely Response to Care Needs
Patients have a right to have their care needs responded to within a
reasonable time frame. Delay in responding to patient needs can put
patients’ lives at risk.
Right to Pain Management
I am locked in a prison of pain, where doctors hold the key. Why can’t they think beyond the box and develop a cure for me?
NINA SANTUCCI
Pain management is the process whereby caregivers work with the patient
to develop a pain control treatment plan. The process involves educating
the patient on the importance of pain management in the healing process.
With current treatments, pain can often be prevented or at least be
controlled. Patients have a right to have a pain assessment and management
of any pain identified. Patients have the right to:
• Have pain managed to the best of existing medical knowledge • Ask questions (e.g., “How much pain can I expect?” “How severe will
my pain be?” “How long will my pain last?” “Will my pain ever go away?”)
• Be believed when they describe their pain • Have their pain assessed using an appropriate pain scale (e.g., 0 [no pain]
to 10 [worst possible pain]) to measure and assess the degree of pain
Pain is the body’s way of alerting you that something is not quite right. A pain rating scale is a tool used to help patients describe their level of
pain. It helps the caregiver know how well treatment is working and
whether change in the treatment plan is necessary. The pain assessment
scale allows patients to communicate the severity of their pain, as well as
its locations and type (e.g., burning sensation, throbbing, dull, stabbing,
numbing, sharp, shooting). A diagram of the body allows the patient to
more easily identify the various locations of his or her pain. The severity of
pain can be described to the physician to assist in diagnosing and treating
the patient.
A patient has the right to the following with regard to pain
management:
• A treatment plan developed with the caregiver • An explanation of the risks, benefits, and alternatives to suggested
treatment(s)
• Alternative pain treatments available that should be discussed • A request for changes in treatment if pain persists • Refusal of the pain treatment(s) recommended • Receipt of pain medication in a timely manner
What’s Wrong with This Picture? The following is a letter that a frustrated patient with complex medical
issues wrote to her consulting physician. After reviewing the contents of
this letter, describe the ethical and patient rights issues that appear in the
correspondence.
PEOPLE STORIES: Letter to My Doctor
When I went to your office, it was with great hopes that someone was
finally going to piece together all of the bizarre symptoms I have been
experiencing over the past several months and get to the cause of my
pain. I was quite frankly shocked by how I was treated as a patient— especially one experiencing a health crisis.
A medical student, who wrote my history and current health
problems on the pages of a small “yellow sticky pad,” examined me. You were not in the room when he examined me, and then I saw you
for approximately 10 minutes.
You took the card of my New York doctor and said you were going
to call him, and then you said you would call me regarding what you
thought the next steps should be.
I called you on Friday because my local doctor said that you had
not called, and I was told you were on vacation. I asked that you call
me. You never did. I called you yesterday again, but you did not
answer, nor did you return my call.
On Monday, I received a letter—from a medical student, I assume. Although I empathize with the demands on your time, I have never
seen a handwritten letter, which I received, informing me of test results
I provided to you prior to my appointment with you. You never
mentioned the liver enzyme elevations or my February test done in
New York. Moreover, no mention was made regarding any plan to help
me alleviate immediate problems.
Doctor, I am not a complainer or a person with a low pain tolerance.
Since moving here, I’ve had fainting episodes, severe chest pain and pressure, leg and arm pain and stiffness, congestion on the left side
when the pain kicks in, and by 3 PM I have to go home and lie down
because I’m so weak and tired. I cannot continue to exist like this. It is not normal.
If you’re too busy and don’t want to take me as a patient, you will not offend me. Frankly, I need attention now to get these things resolved.
Testing my cholesterol in a month will not address the problem. I’ve been treated for that for three years.
Please call or write to me so I can get another doctor if I have to.
[The physician never responded.]
Patient
PATIENT RESPONSIBILITIES
NEWSPAPER CLIPPINGS: Patients’ Responsibilities Avoiding Putting Others at Risk
At one extreme, we see and hear news reports about a tuberculosis
patient who travels the world, potentially infecting someone else, or
about a person with AIDS who passes on his disease intentionally.
At the other extreme, we send our kids to school, knowing they are
running a mild fever or coughing and sneezing from an upper
respiratory problem. Not to be forgotten is the dangerous workplace, or
the highway bridge that is unsafe, or the playground built on a toxic
waste dump.
In the United States, we have an obligation not to harm others either
through intentional or unintentional means. It’s our responsibility to act in such a way that we keep others from being infected or injured. In
some cases, there are laws that speak to this responsibility, warranting
eventual arrest or a lawsuit. In others, it’s simply common sense or even the golden rule.
Trisha Torrey, About.com Guide, April 8, 2010
Patients have responsibilities as well as rights. As noted in the above
article, the responsibilities go beyond the walls of the hospital. Such
responsibilities also apply to government and accreditation agencies that
send their employees into hospitals for inspection purposes. The following
is an excerpt from Cornwall General Hospital of Connecticut’s “Rules for Patients,” which were posted in the hospital in 1897:
1. Patients on admission to the Hospital must have a bath, unless orders to
the contrary are given by the Attending Medical Attendant.
6. Patients must be quiet and exemplary in their behavior and conform
strictly to the rules and regulations of the Hospital, and carry out all
orders and prescriptions of the various officers of the establishment.
8. No male patient shall, under any pretense whatever, enter the
apartments or wards for the females, nor shall a female patient enter the
apartments or wards for males, without express orders from the
Medical Attendant or Lady Superintendent.
10. Every patient shall retire to bed at 9 PM from First May to First
November, and at 8 PM from November to May; and those who are able
shall rise at 6 AM in the summer and 7 AM in the winter.
11. Such patients as are able, in the opinion of the physicians and surgeons,
shall assist in nursing others, or in such services as the Lady
Superintendent may require.
13. Patients must not take away bottles, labels, or appliances when leaving
the Hospital.
14. No patients shall enter into the basement story, operating theater, or any
of the officers’ or attendants’ rooms, except by permission of an officer of the Hospital.
17. Any patient bringing spirituous liquors into the Hospital or the grounds,
or found intoxicated, will be discharged.
18. Whenever patients misbehave or violate any of the standing rules of the
Hospital, the Attending Physician may remove or discharge them, as
provided by Clauses 91 and 93 of Rules for Medical Staff.
Today, patient responsibilities are stated somewhat differently than they
were in 1897. A current list of patient responsibilities includes:
• Recognizing the effect of lifestyle on one’s health.
• Keeping appointments. (Patients have a responsibility to promptly notify caregivers whenever they are unable to keep a scheduled appointment.
Failure to notify caregivers of a cancellation means longer delays for
other patients who may already be finding it difficult to schedule
appointments with specialists.)
• Providing caregivers truthful and pertinent information. • Taking responsibility for living a healthy lifestyle through exercise, diet,
and maintaining positive social relationships.
• Providing caregivers with information relevant to medical complaints, symptoms, past illnesses, treatments, surgical procedures,
hospitalizations, and medications. Information provided must be
accurate, timely, and complete. (The court of appeal in Fall v. White 3
affirmed the superior court’s ruling that the patient had a duty to provide the physician with accurate and complete information and to follow the
physician’s instructions for further care or tests.) • Asking questions and seeking clarification, when in doubt, about the plan
of care.
• When in doubt, seeking a second opinion. • Describing the location, severity of pain, and treatment options for pain
management.
• Describing previous pain control methods that have worked or not worked.
• Alerting caregivers to any allergies to medications. • Maintaining a record of the effects of medications. • Following an organization’s rules and regulations. • Complying with the treatment plan. • Accepting responsibility for the consequences of refusing treatment or
not following instructions.
• Being considerate and respectful of the rights of others, including health care personnel, in the control of noise, smoking, and limitations on the
number of visitors.
• Being respectful of the property of others. • Speaking up and asking questions. (Patients have a responsibility to ask
questions and understand explanations. Such questions include: “What is this medication for?” “What diet am I on?” “Since you are going to change my dressing, did you wash your hands?”)
• Participating in marking the site of a surgical procedure. • Alerting staff as to preferences for care, including who the decision
maker will be in the event that they become incapacitated.
• Understanding caregiver instructions. • Reporting fraudulent activities that are raising the costs of health care.
NEWSPAPER CLIPPINGS: Why Would My Patient Not Tell Me
the Truth?
Several months ago I nearly collided with one of my patients at the
subway entrance. She was so busy lighting a cigarette that she didn’t even notice me. I, on the other hand, was shocked to see her mid-drag.
A mere two days earlier she had been sitting in my office telling me
how she hadn’t smoked in more than six months.
. . . in a survey of pregnant women, urine tests for tobacco byproducts
revealed that 34 percent of women who said they didn’t smoke actually did.
For her next visit I resolved to do things differently. And the next
time a doctor asks you for some sensitive information, maybe you can
help him or her out by asking: “What’s it to you, anyways?”
Daphne Miller, The Washington Post, March 15, 2011
I am part of all I have met.
ALFRED TENNYSON
CHAPTER REVIEW
1. Patients should be informed of their rights and responsibilities at the
time of admission. If a patient does not understand these rights and
responsibilities, they should be explained to the patient.
2. Patients have rights, but they also have responsibilities. These
responsibilities help health care providers treat patients in the most
appropriate way possible and help maintain order within the facility.
REVIEW QUESTIONS
1. What are the various rights of patients, as discussed in this chapter?
2. What are the various responsibilities of patients, as discussed in this
chapter?
3. Describe why a patient’s responsibilities are as important as his or her rights.
4. Discuss the importance of patient rights and responsibilities from
both an ethical and legal point of view.
NOTES
1. Your Rights as a Hospital Patient in New York State, State of New York, Department of Health.
2. Supreme Court of Florida, No. SC06-912 (March 6, 2008).
3. 449 N.E.2d 628 (Ind. Ct. App. 1983).
4. Maria Andreu, “What Josie King’s story should teach us,” nj.com, September 21, 2009; http://www.nj.com/parenting/maria_andreu/index.ssf/2009/09/what_josie_
kings_story_should.html.
5. 844 N.E.2d 649 (Ill. App. 2006).
6. 612 P.2d 1158 (Colo. Ct. App. 1980).
7. Florida Hosp. Waterman, Inc. v. Buster, 932 So.2d 344 (Fla. App. 2006).
chapter fifteen
Summary Case—Star Chamber
“There is nothing,” says Plato, “so delightful as the hearing or the speaking of truth”—for this reason there is no conversation so agreeable as that of the man of integrity, who hears without any intention to betray,
and speaks without any intention to deceive.
THOMAS SHERLOCK
LEARNING OBJECTIVES
The reader upon completion of this chapter will be able to:
• Understand that in each encounter with another person there is the spoken word that may not always clearly describe the intent of the
message.
• Understand how values are intertwined in the communications process and how they can be instrumental in changing the course of
one’s life path.
To laugh often and love much; to win the respect of intelligent persons and
the affection of children; to earn the approbation of honest citizens and
endure the betrayal of false friends; to appreciate beauty; to find the best
in others; to give of one’s self; to leave the world a bit better, whether by a healthy child, a garden patch or a redeemed social condition; to have
played and laughed with enthusiasm and sung with exultation; to know
even one life has breathed easier because you have lived—this is to have succeeded.
BESSIE ANDERSON STANLEY
The Pillars of Moral Strength in Appendix A include various virtues and
values that make up each individual’s moral character. What sets each individual apart from the crowd? In the final analysis, it is the degree and
worth a person assigns to each virtue and value and the price he or she is
willing to pay to be the person he or she wants to be. Believing requires
practicing what you believe. Is the dollar, for example, more important than
integrity? Are you willing to sacrifice the one(s) you love because of the
one(s) you fear? If we do not possess the courage to do what is right, all
other virtues begin to crumble and our lives become meaningless and
disarrayed. The virtues and values listed on the pillars are not just words.
They require action. Compassion is more than a virtue. It must be pursued.
Compassion is not simply giving lip service or some sort of ceremony. It
requires action, a trait in our lives revealing who we are. Ask yourself, “Do I know the meaning of each virtue and value in the list of pillars of moral
strength? Do I apply them to my life? Do I know their value? In what way
are they part of me?” Each person must evaluate for him- or herself who he or she is, what
values and moral strengths are important to him or her. When responding to
the discussion questions following the closet drama in this chapter, apply
the virtues and values presented in the Pillars of Moral Strength (Appendix
A).
The closet drama is presented in this chapter to give you a better
understanding of communications, human conflict, and the real world of
working relationships. This drama is intriguing in that it arises out of the
complex and diversified affairs of humanity.
My words fly up, my thoughts remain below: Words without thoughts
never to heaven go.
WILLIAM SHAKESPEARE
Communication is the exchange of thoughts, messages, or information
through speech, signals, writing, or behavior. It is the art and technique of
using words effectively to impart information or ideas. The process of
communication includes both verbal and nonverbal messages.
Communication requires a sender, a message, and an intended recipient, the
receiver.
Communications can be transmitted verbally through words, which are
the tools of thought. The more words you thoroughly understand, the more
effectively you can articulate your thoughts and ideas to other people. The
sender of information can also transmit a message through body language,
posture, gestures, facial expressions, and eye contact. Clothing styles,
hairstyles, and tone of voice are forms of nonverbal communication.
Nonverbal communication has been called the silent language and plays a
key role in the day-to-day communications process. During face-to-face
communication, body language and the tone of one’s voice play a significant role, and they may have greater impact on the listener than the
intended content of the spoken words.
Both managers and employees tend to perceive each new experience as
reinforcing preconceived notions and biases and, at the same time, screen
out those things that do not strengthen their ideas or individual conceptions
of the real world. There is a tendency to make value judgments from one’s own perspective and to evaluate all new knowledge according to its
positive or negative impact on preconceived beliefs.
The sender’s personal filters and the receiver’s personal filters may vary based on different religious beliefs, regional traditions, cultures,
gender, race, and more, which may alter the intended meaning of the
message. Barriers to effective communication include the noise
interferences: (1) environmental (e.g., disruption of communication by a
barking dog); (2) physiological impairment (e.g., deafness, blindness,
pain); (3) semantic (e.g., “coke” could refer to coal, cocaine, or a certain cola); (4) syntactical (e.g., mistakes in grammar); (5) organizational (e.g.,
corporate policies on grievance procedures that differ from the employee
handbooks); (6) cultural (e.g., stereotyping the followers of a particular
religion because of extremists); and (7) psychological (e.g., stress, fear,
anger, or sadness that may cause someone to lose focus in the moment and
thus distort effective communications).
The chart in Figure 15-1 will help you understand the communications
process that unfolds in the following case drama.
It is anticipated that legal and ethical issues will be applied here. Many
professionals, regardless of their field of training, will undoubtedly face
similar issues during their career. This drama ends with a variety of
thought-provoking questions.
Figure 15–1 The Process of Communication
CASE: CODE OF SILENCE
CHARACTERS
Mr. David Marcus: Administrative reviewer
Magistrate: Hearing officer
Counselor Hadrian: Counsel representing Mr. Marcus
Mr. Damon Antonio: Nurse reviewer
Counselor Luke: Counsel representing the defendants
Dr. Machiavelli: Physician reviewer
Ms. Ophelia Cicero: Athens Health Center guide
Ms. Margaret Galeria: Nurse trainee
Dr. Caesar: Patient’s physician Mr. Bruce Verus: Mr. Marcus’s manager Ms. Carol Titus: Mr. Verus’s manager
SETTINGS
Rome: Mr. Marcus’s hometown Health Review Council: An entity responsible for evaluating the
quality of care in health centers from Rome to Athens.
Courtroom of the Chief Magistrate: Site of the hearing in Athens
Athens Health Center: A local medical facility in Athens that Mr.
Marcus was assigned to review
Pelopidas Street Inn: Hotel where the reviewers lodged
Marcus worked for the Health Review Council, whose mission was to visit
health centers from Rome to Athens and review the quality of patient care.
He traveled much of the time, writing, consulting, educating, and reviewing
the quality of care rendered to the people. His travels took him to hundreds
of health centers in villages and cities. In order to have some semblance of
family life, he stayed at various inns during his travels. He sacrificed
family life to serve a call and a mission to help improve the quality of
patient care throughout the United States. Marcus encouraged each health
center to set higher standards and to practice state-of-the-art medicine—to fly with the eagles. He encouraged caregivers to dare to dream, to become
possibility optimists and not impossibility pessimists.
Marcus collected numerous best practices from the centers he visited,
sharing them with others throughout his travels. He spent thousands of
hours on the road, at work, and at his home in Rome organizing the
information that he had gathered.
He shared that information with the Health Review Council leadership
as well as the health centers he visited. He encouraged the brightest and
best to freely share best practices for improving the health of the people.
He challenged many not to merely collect and sell health care information
but to provide it freely to all health care centers, for he knew some had
been collecting the information, reformatting it, and selling to all takers
willing to pay for it.
As politics began to change in Rome and Athens with the appointment
of new and inexperienced members to the Health Review Council, Marcus
saw leadership make foolish and thoughtless decisions. This planted a seed
in his soul to consider resigning and pursuing his passion for writing.
Marcus describes the defining moments that caused him to reluctantly
leave his position for a higher calling, a most fortuitous decision for him.
These defining moments for Marcus followed a long and mysterious
cascade of events that were revealed during a hearing before the Chief
Magistrate in Athens.
EVENTS OF SUNDAY, OCTOBER 2
[Counselor Hadrian prepares to question Mr. Antonio regarding
his October 2 arrival at the Pelopidas Street Inn in Athens.]
Magistrate: Counselor Hadrian, you may proceed with your
questioning.
Counselor Hadrian: Magistrate, for the record, this complaint was
filed on behalf of Marcus, who was abruptly removed, without
provocation, from his review of the Athens Health Center on
Pelopidas Street in Athens.
Magistrate: Counselor Hadrian, you may proceed.
Counselor Hadrian: I would like to call Mr. Antonio to the stand.
Magistrate: So granted.
[Counselor Hadrian calls Mr. Antonio to the witness box.]
Counselor Hadrian: Could you please state your full name?
Mr. Antonio: Mr. Damon Antonio.
Counselor Hadrian: Who is your employer?
Mr. Antonio: The Hospital Review Council.
Counselor Hadrian: Where is the Council located?
Mr. Antonio: In Washington, DC.
Counselor Hadrian: Could you tell the Magistrate what your position
is with the Council?
Mr. Antonio: I am a nurse reviewer.
Counselor Hadrian: Could you describe what you do as a nurse
reviewer for the Council?
Mr. Antonio: I review health centers’ quality of care provided to the citizens of Rome and Athens.
Counselor Hadrian: Mr. Antonio, could you describe for the
Magistrate what can happen to a center if it fails to meet care
standards?
Mr. Antonio: It can lose its funding status from Medicare.
Counselor Hadrian: Do you review centers in a particular region of
the United States?
Mr. Antonio: No, I am not assigned to any particular region of the
country.
Counselor Hadrian: How long have you been reviewing health
centers with the Hospital Review Council?
Mr. Antonio: Approximately 7 years.
Counselor Hadrian: Are you aware of how many years Mr. Marcus
had worked for the Health Review Council?
Counselor Luke: Objection.
Magistrate: I will allow the question if he knows the answer.
[The Magistrate looks at Mr. Antonio.]
Magistrate: You may answer the question if you know the answer,
Mr. Antonio.
Mr. Antonio: Over 16 years.
Counselor Hadrian: Prior to October 2, had you ever worked with
Dr. Machiavelli?
Mr. Antonio: Yes, the previous week.
Counselor Hadrian: Do you know how long Dr. Machiavelli had
worked for the Health Review Council at that time?
Counselor Luke: Objection.
Magistrate: Again, I will allow the question if he knows the answer.
[The Magistrate looks at Mr. Antonio.]
Magistrate: You may answer the question if you know the answer,
Mr. Antonio.
Mr. Antonio: A year and a half.
Counselor Hadrian: Who was assigned to lead that team? Mr.
Antonio: I was.
Counselor Hadrian: Did there come a time when you were assigned
to review health care service in Athens?
Mr. Antonio: Yes.
Counselor Hadrian: Do you know who was assigned to lead that
team?
Mr. Antonio: Yes, it was Dr. Machiavelli.
Counselor Hadrian: Based on length of service, do you believe it
was logical to appoint Dr. Machiavelli as leader of the review team?
Mr. Antonio: Well, it didn’t make sense. I thought it was strange. Counselor Luke: Objection, Magistrate. He can’t speak to that decision.
Magistrate: Objection sustained. That will be stricken from the
record. Counselor Hadrian, you may call a witness who can address
that issue at a later time. You may proceed with your questioning.
Counselor Hadrian: Do you recall the dates of that review?
Mr. Antonio: No.
Counselor Hadrian: Would an itinerary from that trip refresh your
recollection?
Mr. Antonio: Yes.
Counselor Hadrian: Magistrate, I would like to approach Mr.
Antonio with what has been labeled Exhibit A, the October
assignment sheet for Mr. Marcus.
Magistrate: You may proceed.
[Counselor Hadrian hands Exhibit A to Mr. Antonio.]
Counselor Hadrian: Do you recognize this document?
Mr. Antonio: Yes.
Counselor Hadrian: What do you recognize Exhibit A to be?
Mr. Antonio: The October assignment sheet for Mr. Marcus.
Counselor Hadrian: Is Exhibit A a fair and accurate representation of
the health center to which you were assigned to work?
Mr. Antonio: Yes.
Counselor Hadrian: Does this refresh your recollection as to your
work assignment?
Mr. Antonio: Yes, it does.
Counselor Hadrian: What were the dates of your assignment in
Athens?
Mr. Antonio: October 3 through 7.
Counselor Hadrian: What health center were you assigned to
review?
Mr. Antonio: Athens Health Center on Pelopidas Street.
Counselor Hadrian: Does Mr. Marcus’s itinerary reflect which health reviewers were assigned to review the Athens Health Center on
Pelopidas Street?
Mr. Antonio: Yes.
Counselor Hadrian: Could you read the names and titles of those
health reviewers listed on the assignment sheet?
Mr. Antonio: Yes, Mr. David Marcus was the administrative
reviewer, Dr. Machiavelli was the physician reviewer, Mr. Damon
Antonio was the nurse reviewer, and Ms. Margaret Galeria was a
nurse trainee.
Counselor Hadrian: Were the individuals listed on Mr. Marcus’s assignment sheet present during the week that you reviewed patient
care at the Athens Health Center?
Mr. Antonio: Yes.
Counselor Hadrian: Can you tell the Magistrate where you stayed in
Athens?
Mr. Antonio: Yes, the Pelopidas Street Inn.
Counselor Hadrian: Is that on the same street as the Athens Health
Center?
Mr. Antonio: Yes, it is.
Counselor Hadrian: When did you arrive at the inn?
Mr. Antonio: On Sunday, October 2.
Counselor Hadrian: Do you recall what time of day you arrived?
Mr. Antonio: I don’t recall the time. I know it was in the afternoon. Counselor Hadrian: Was it two o’clock or three o’clock? Counselor Luke: I object, Mr. Antonio has already answered this
question. He doesn’t know what time he arrived. Magistrate: Objection sustained.
Counselor Hadrian: Upon your arrival at the inn, did you observe
Mr. Marcus in the lobby area?
Mr. Antonio: Yes, I did. I had just gotten off an elevator and he was
sitting at a table.
Counselor Hadrian: What was he doing at the table?
Mr. Antonio: He was having lunch.
Counselor Hadrian: Did you have a conversation with him?
Mr. Antonio: Yes, I walked past the registration desk to greet him.
Counselor Hadrian: Do you recall that conversation?
Mr. Antonio: Yes.
Counselor Hadrian: Could you describe your conversation with Mr.
Marcus?
Mr. Antonio: I said, “David, I haven’t seen you in a long time. How are you doing?” Counselor Hadrian: And what, if anything, was his response?
Mr. Antonio: He said he was doing well and asked how I was.
Counselor Hadrian: Was there any further conversation?
Mr. Antonio: Yes. I asked about how his wife was doing.
Counselor Hadrian: Why did you ask about his wife?
Mr. Antonio: She had some medical problems.
Counselor Hadrian: And what was his response?
Mr. Antonio: As I recall, he said she was doing fine.
Counselor Hadrian: Did there come a time during your conversation
with Mr. Marcus when you asked him if he knew or had ever reviewed
health centers with Dr. Machiavelli?
Mr. Antonio: Yes, I asked him if he knew or ever worked with Dr.
Machiavelli.
Counselor Hadrian: Had you ever worked with Mr. Marcus before?
Mr. Antonio: Yes.
Counselor Hadrian: Did you enjoy working with Mr. Marcus?
Counselor Luke: I object to the question, Your Honor. I see no
relevance of this question.
[The Magistrate hesitates for a moment.]
NEWSPAPER CLIPPINGS: Gossip May Put an Evil Eye on
People
“Gossip changes the way we view people, but it also changes the way we literally see a person,” said Lisa Barrett, . . . a psychology professor at Northeastern University, in an interview. “Gossip reaches all the way down into our visual system.”
Christian Torres, The Washington Post, June 6, 2011
Magistrate: Counselor Hadrian?
Counselor Hadrian: Your Honor, I will establish the relevance of that
question as I continue my questioning.
Magistrate: I will allow the question. Mr. Antonio, you may respond.
Mr. Antonio: Yes, I enjoyed working with him.
Counselor Hadrian: What, if anything else, did you say?
Mr. Antonio: I don’t recall. Counselor Hadrian: Let me refresh your recollection. Do you recall
saying that Dr. Machiavelli was a physician health reviewer?
Mr. Antonio: Yes, I did say that.
Counselor Hadrian: Do you recall saying he was a retired military
commander?
Mr. Antonio: Yes, I did say that.
Counselor Hadrian: Since you were rushing to check in, why was
this information so important?
Mr. Antonio: Well, I was trying to establish if David knew Dr.
Machiavelli.
Counselor Hadrian: What was Mr. Marcus’s response? Mr. Antonio: Excuse me, what is the question?
Counselor Hadrian: What was Mr. Marcus’s response to your question as to whether or not he knew Dr. Machiavelli?
Mr. Antonio: He said that he did not know him.
Counselor Hadrian: Did he say anything else?
Mr. Antonio: Yes, David asked me why I had asked that question.
Counselor Hadrian: Did you answer his question?
Mr. Antonio: No.
Counselor Hadrian: And why did you not answer his question?
Mr. Antonio: I told David that I had just worked with Dr. Machiavelli
the previous week and that I would like to know his impression of him
at the end of the Athens Health Center review.
Counselor Hadrian: What role did you play in your previous health
center review with Dr. Machiavelli?
Mr. Antonio: I was the lead nurse in charge of the overall review.
Counselor Hadrian: You stated that you had just worked with Dr.
Machiavelli, is that correct?
Mr. Antonio: Yes.
Counselor Hadrian: And you are referring to the week prior to the
Athens Health Center review?
Mr. Antonio: Yes.
Counselor Hadrian: Was there any other conversation that you recall
from this brief encounter with Mr. Marcus?
Mr. Antonio: No, not to my recollection.
Counselor Hadrian: So your conversation was somewhat short, is
that correct?
Mr. Antonio: Yes, it was.
Counselor Hadrian: So was it less than, or more than, 5 minutes in
length?
Counselor Luke: I object, Your Honor. That question has already
been answered.
Magistrate: I will allow the question. You may answer the question,
Mr. Antonio.
Mr. Antonio: Less than 5 minutes.
Counselor Hadrian: Was it less than 4 minutes?
Counselor Luke: I object, Your Honor. Mr. Antonio has already
answered that question.
Magistrate: Objection sustained.
Counselor Hadrian: So, Mr. Antonio. We have established that you
spoke to Mr. Marcus for less than 5 minutes. You asked how he and
his wife were, and then you asked Mr. Marcus if he would give you
his impression of Dr. Machiavelli at the end of the Athens Health
Center review. Is that correct?
Mr. Antonio: Yes.
Counselor Hadrian: Why was your conversation so short, especially
since you had not seen Mr. Marcus in such a long time?
Counselor Luke: I object, Your Honor; that question has already been
answered.
Magistrate: Objection overruled. I will allow the witness to answer.
Mr. Antonio: I was just checking into the hotel. I wanted to get my
things to my room.
Counselor Hadrian: So you were happy to see that Mr. Marcus was
on the review?
Mr. Antonio: Yes.
Counselor Hadrian: And why was that?
Mr. Antonio: I had worked with David before. He has always been
pleasant to work with, and I enjoyed his professional stature, wisdom,
and sense of humor.
Counselor Hadrian: Did you meet up with Mr. Marcus later that day
to discuss old times, anything?
Mr. Antonio: No, I did not.
Counselor Hadrian: So you had not seen Mr. Marcus in some time,
you always enjoyed reviewing with him, and you did not meet with
him later in the day. Yet, your third question was to ascertain his
impression of Dr. Machiavelli at the end of the review. Is that correct?
Mr. Antonio: Yes, I guess, about the third question.
Counselor Hadrian: Did you have any other questions at that time?
Mr. Antonio: No, I just told him I had to check in.
Counselor Hadrian: What was so important about asking that
question that you were willing to wait 5 days for an answer?
Counselor Luke: I object, Your Honor. That question has already
been answered.
Magistrate: I will allow the question. You may answer the question,
Mr. Antonio.
Mr. Antonio: Well, I felt he had sort of a military style of reviewing.
He seemed as though he thought he had some sort of right to be in
charge of the review, and I was in charge. I think he resented that.
Counselor Hadrian: And why do you believe he resented that?
Mr. Antonio: Partially because I was at a lower rank and in a different
branch of the military. Also, I was thinking that he was having
difficulty in adapting to a civilian role.
Counselor Hadrian: So on the week we are talking about here, he is
now in charge? Is that correct?
Mr. Antonio: Yes.
Counselor Hadrian: So were you concerned about Dr. Machiavelli
being in charge?
Mr. Antonio: Yes, sort of.
Counselor Hadrian: So Mr. Marcus was a friend?
Mr. Antonio: Yes.
Counselor Hadrian: A good friend.
Counselor Luke: Magistrate, I object. The question has been asked
and answered.
Magistrate: I will allow the question. Counselor Hadrian, you may
proceed.
Counselor Hadrian: So you considered Mr. Marcus a trusted
colleague with whom you enjoyed working.
Mr. Antonio: Yes, I did.
Counselor Hadrian: And, to your knowledge, he thought the same of
you?
Mr. Antonio: Yes.
Counselor Hadrian: Yet you foresaw there might be problems on this
review?
Counselor Luke: Magistrate, I object to the form of the question.
Magistrate: Are you sure you would not like to just object to the
question in any form? Your objection is overruled! Counselor
Hadrian, you may proceed with your questioning.
Counselor Hadrian: Mr. Antonio, you stated that you and Mr.
Marcus were good working colleagues, yet you failed to warn your
friend of a possible problem ahead during this review. Is that correct?
Counselor Luke: Magistrate, I object.
Magistrate: I will allow the question.
Mr. Antonio: Could you repeat the question?
Counselor Hadrian: In summary, did you leave your friend out to
dry?
Counselor Luke: Magistrate, I object.
Magistrate: Objection sustained. Counselor Hadrian, do you wish to
reword that question?
Counselor Hadrian: No. I have no further questions at this time but
reserve the right to recall Mr. Antonio to the witness box.
Magistrate: Granted. We will take a short recess.
EVENTS OF WEDNESDAY AFTERNOON, OCTOBER 5
[Counselor Hadrian questions Mr. Marcus regarding Day 3 of the
Athens Health Center review.]
Counselor Hadrian: Before we proceed, could you please verify if
the testimony previously provided by Mr. Antonio is, to your
recollection, fair and accurate?
Mr. Marcus: Yes, it was.
Counselor Hadrian: Thank you. Could you please describe for the
Magistrate what occurred on the afternoon of Wednesday, October 5?
Mr. Marcus: Yes, I can. I would like to refer to my notes.
Counselor Hadrian: Magistrate, I would like to place into evidence
the notes that Mr. Marcus is going to refer to as he describes what
occurred on the afternoon of Wednesday, October 5.
Magistrate: You may proceed.
Counselor Hadrian: Mr. Marcus, how long have you been working
for the Hospital Review Council?
Marcus: Approximately 10 years.
Counselor Hadrian: Could you please describe for the Magistrate
what occurred on the afternoon of Wednesday, October 5?
Mr. Marcus: Yes, I can. At approximately 12:50 PM Machiavelli
asked what I planned to review for the afternoon.
Counselor Hadrian: And what did you say?
Mr. Marcus: I said, since none of the reviewers had asked for a
complex medical case, I was planning to ask the health center’s staff for such a case to review.
Counselor Hadrian: What, if anything else, did you say to Dr.
Machiavelli at that time?
Mr. Marcus: I asked if that was okay with him.
Counselor Hadrian: And what did he say?
Mr. Marcus: He said, “That sounds like a good idea.” Counselor Hadrian: Then what happened?
Mr. Marcus: Ophelia Cicero, my Athens Health Center guide, opened
the door to the room where I had just finished eating lunch with my
colleagues. She entered the room and inquired if I had a particular
case in mind that I would like to review.
Counselor Hadrian: And what did you say?
Mr. Marcus: I said yes and suggested a complex medical case.
Counselor Hadrian: What is the responsibility of the health center
guide?
Mr. Marcus: That person is responsible for leading me to each patient
care area where I plan to review a case. Ophelia also had a scribe with
her who was assigned to take notes on all conversations.
Counselor Hadrian: So, Ms. Cicero located the type of case you
requested?
Mr. Marcus: Yes, Ophelia said that she had such a case, and she
escorted me to the patient care unit where the patient had been
admitted.
Counselor Hadrian: Did you review the patient’s record? Mr. Marcus: Yes, the charge nurse searched for the patient’s record that I planned to review and brought it to me.
Counselor Hadrian: Is that part of the patient care review process?
Mr. Marcus: Yes, it is.
Counselor Hadrian: Then what happened?
Mr. Marcus: I was introduced to the staff nurse assigned to care for
the patient.
Counselor Hadrian: Then what happened?
Mr. Marcus: The staff nurse reviewed the record with me.
Counselor Hadrian: What questions, if any, did you ask her?
Mr. Marcus: I asked her for some preliminary information about the
patient, which included the patient’s age and diagnosis. Counselor Hadrian: How did the nurse respond?
Mr. Marcus: She answered my questions, providing me with the
patient’s admitting information and medical problems. Counselor Hadrian: Did you ask any other questions?
Mr. Marcus: Yes. After reviewing the patient’s record I asked whether any of the patient’s lab results helped to identify the patient’s medical problems.
Counselor Hadrian: So that is part of the Hospital Review Council’s expectations of you?
Mr. Marcus: Yes, it is.
Counselor Hadrian: What was the nurse’s response? Mr. Marcus: She said that she could not answer the question. A nurse
manager in the room where I was reviewing the patient’s record asked if I would like to speak to Dr. Caesar, the patient’s physician. Counselor Hadrian: What was your response?
Mr. Marcus: I said yes, provided he was available and not busy with
other patients.
Counselor Hadrian: Then what happened?
Mr. Marcus: Dr. Caesar was summoned. Upon entering the room, he
stood inside the doorway, at which time I introduced myself. He
appeared somewhat disturbed that he had been summoned.
Counselor Hadrian: In your opinion, why do you believe Dr. Caesar
was disturbed?
Counselor Luke: Objection, Magistrate. I see no relevance to this
question. It is mere speculation as to why the physician was disturbed.
Magistrate: I will allow the question. Mr. Marcus, you may proceed
with your response.
Mr. Marcus: It is normal, in general, for physicians to be anxious
when questioned by a reviewer from the Hospital Review Council.
Reviewers are not always the highlight of a physician’s or any other caregiver’s day. To be questioned about a patient’s care can be intimidating.
Counselor Hadrian: Then what happened?
Mr. Marcus: Well, he introduced himself and he asked what
questions I had and what kind of physician I was.
Counselor Hadrian: What was your response?
Counselor Hadrian: I stated that I was not a physician and that I just
had a few questions for him.
Counselor Hadrian: What questions did you ask?
Mr. Marcus: I asked Dr. Caesar if any of the patient’s lab results identified any of the patient’s ailments. Counselor Hadrian: What was his response?
Mr. Marcus: He said that he was only there to treat the patient’s immediate needs and not all of the patient’s complex issues. Counselor Hadrian: Then what happened?
Mr. Marcus: I let the remaining questions pass and asked if it would
be okay if I visited with the patient.
Counselor Hadrian: What did he say?
Mr. Marcus: He said that would be fine and started to leave the room.
Counselor Hadrian: Then what happened?
Mr. Marcus: I asked Dr. Caesar if he would ask the patient if it would
be okay for me to interview him.
Counselor Hadrian: And how did Dr. Caesar respond?
Mr. Marcus: He said, “That’s not necessary.” Counselor Hadrian: Then what happened?
Mr. Marcus: He left the conference room and walked down the
hallway to the patient’s room. Counselor Hadrian: Did you follow Dr. Caesar down the hallway?
Mr. Marcus: Yes, I and the scribe did.
Counselor Hadrian: Did you follow Dr. Caesar into the patient’s room?
Mr. Marcus: No, I waited for him to return to the hallway.
Counselor Hadrian: Then what happened?
Mr. Marcus: Dr. Caesar returned and said, “I had to awaken the patient. He is willing to speak to you.” Counselor Hadrian: Then what happened?
Mr. Marcus: I entered the patient’s room and walked toward the patient’s bed. Dr. Caesar stood with his back to the wall facing the patient’s bed. The scribe had also followed me into the room and stood by Dr. Caesar, taking notes.
Counselor Hadrian: Then what happened?
Mr. Marcus: Dr. Caesar asked me if I wanted him to leave. I said he
was welcome to stay if he wished.
Counselor Hadrian: Did he remain in the room?
Mr. Marcus: Yes, and I began to introduce myself to the patient. As I
began to introduce myself, the patient interrupted, “I know who you
are.” I asked, “How do you know?” He said with a smile, “My wife is a nurse. She works here. She told me you might be coming.” Counselor Hadrian: Then what happened?
Mr. Marcus: I said that I had only a few questions that I would like to
ask him. He said okay. I asked about his care at Athens Health Center.
He stated that he was receiving excellent care. After some discussion
about his care, the patient repeated that he was getting very good care.
Counselor Hadrian: Then what happened?
Mr. Marcus: I thanked him for his time and for speaking to me. I
began to leave the patient’s room, but Dr. Caesar said he would like to say something.
Counselor Hadrian: And what did you reply?
Mr. Marcus: I said that would be fine.
Counselor Hadrian: What did Dr. Caesar say?
Mr. Marcus: He began to describe to the patient his disease process
and described how he could die of his disease. I was bewildered. I
looked at the patient, observed his emotions of sadness, and said,
“You will be okay.” Counselor Hadrian: Why were you bewildered?
Mr. Marcus: The patient had been under Dr. Caesar’s care in the hospital for 2 weeks. I could not think of why Dr. Caesar would say
that. The timing of that statement was inappropriate and added
nothing to the interview but more stress for the patient.
Counselor Hadrian: Were you telling the patient that he would be
okay clinically?
Mr. Marcus: No, I was not referring to his clinical condition but was
responding to his emotional status at the time, resulting from Dr.
Caesar’s description as to how his disease could progress. I thanked the patient again and left the room.
Counselor Hadrian: Then what happened?
Mr. Marcus: Dr. Caesar quickly followed me to the doorway,
somewhat agitated, and said, “Don’t you ever tell my patients they will be okay.” Counselor Hadrian: Then what happened?
Mr. Marcus: A nurse asked if we could move the conversation down
the hall, away from the patient’s doorway, at which time Dr. Caesar
asked me again, “What kind of physician are you?” Counselor Hadrian: So he had asked you this question twice: “What kind of physician are you?” Mr. Marcus: Yes, and I restated that I was not a physician. I
attempted to calm him down, extended my hand, and thanked him for
his time.
Counselor Hadrian: Did he shake your hand?
Mr. Marcus: Yes, he did.
Counselor Hadrian: Then what happened?
Mr. Marcus: He turned and walked away.
Counselor Hadrian: Were any nurses listening to you during the time
you were in the hallway with Dr. Caesar?
Mr. Marcus: Yes, the scribe was taking notes, and the nurse manager
was present. The nurse stated that this was unusual behavior by Dr.
Caesar.
Counselor Hadrian: Then what happened?
Mr. Marcus: At that point, Ophelia had arrived and led me back up
the hallway, with the scribe following closely behind. As we walked
down the hall Ophelia asked what had happened, and I described the
scene to her. Ophelia then asked the scribe, “Why didn’t you intervene? I knew from the minute Dr. Caesar entered the chart review
room he was going to be a problem. I should have stayed with you,
David. I would never have let him get away with that. But while you
were reviewing the chart, I was called to another unit where he had
had a problem with a staff nurse.” Counselor Hadrian: Did the scribe respond to Ms. Cicero?
Mr. Marcus: Yes, she said that she didn’t think she needed to get involved.
Counselor Hadrian: Did the scribe say anything else to you?
Mr. Marcus: Yes, she later asked me if I thought she should have
intervened.
Counselor Hadrian: And what did you say to her?
Mr. Marcus: I told her no and that if she intervened it might have
inflamed the situation. She had to work at Athens Health Center after I
left, and I didn’t think she needed a poor working relationship with Dr. Caesar.
Counselor Hadrian: Do you now regret, in retrospect, her not
intervening?
Counselor Luke: Magistrate, I strongly object. We are talking about
what happened, not what Mr. Marcus wishes had occurred.
Magistrate: Objection sustained. Counselor Hadrian, do you have any
further questions at this time?
Counselor Hadrian: Not at this time, but I will most likely recall Mr.
Marcus to the witness box.
Magistrate: I understand. We will take a short break at this time.
Counselor Luke and Counselor Hadrian, I would like to see you in my
chambers.
EVENTS OF THURSDAY MORNING, OCTOBER 6
The most striking contradiction of our civilization is the fundamental
reverence for truth, which we profess and the thorough-going disregard
for it, which we practice.
VILHJALMUR STEFANSSON
[Magistrate hearing continues with Counselor Hadrian questioning
Mr. Antonio.]
Counselor Hadrian: Did you know if Mr. Marcus had ever
previously reviewed the Athens Health Center?
Mr. Antonio: To my knowledge, he had not.
Counselor Hadrian: Did Mr. Marcus ever say to you that he knew
any employee on the staff of the Athens Health Center?
Mr. Antonio: No, he did not.
Counselor Hadrian: Each morning, did you and your colleagues
brief the Athens Health Center’s leadership on your previous day’s findings?
Mr. Antonio: Yes, we did.
Counselor Hadrian: What is the purpose of briefings?
Mr. Antonio: The reviewers describe to the health center’s leadership the previous day’s observations as opportunities for improving patient care.
Counselor Hadrian: Do you recall the substance of Mr. Marcus’s report on Wednesday of the review?
Mr. Antonio: I don’t recall. Counselor Hadrian: Do you recall if he was complimentary in his
observations on the previous day’s activities? Mr. Antonio: I am sure he was, yes. But I don’t recall the specifics. As with all the reviews that I worked on with David, he was sensitive
to recognizing the good things he observed. We all did that.
Counselor Hadrian: How much time is generally allotted to each
health reviewer to present at the morning briefings?
Mr. Antonio: Generally 10 minutes.
Counselor Hadrian: Is that time set in stone?
Mr. Antonio: No, it is not.
Counselor Hadrian: Did the reviewers stick to the time allotted?
Mr. Antonio: No.
Counselor Hadrian: Did you stick to your time limit?
Mr. Antonio: Not always.
Counselor Hadrian: Did Dr. Machiavelli stick to his time limit?
Mr. Antonio: Not always.
Counselor Hadrian: So there were days that you stuck to your
schedule and there were days that you did not. Is that correct?
Mr. Antonio: Yes, that is correct.
Counselor Hadrian: And why didn’t you always stick to your time allotment?
Mr. Antonio: It depended on the number of observations I had.
Counselor Hadrian: Were there any other factors as to why a
reviewer may have gone over his or her allotted time to present his or
her report?
Mr. Antonio: Yes, it depended on how many times Dr. Machiavelli
interrupted to add something in an attempt to clarify or relate a
personal experience to emphasize what a reviewer was saying.
Counselor Hadrian: In your experience, have you ever observed a
health reviewer say “I pass” and say nothing more? Mr. Antonio: No.
Counselor Hadrian: Most reviewers say something?
Mr. Antonio: Yes, most health reviewers have something to say.
Counselor Hadrian: Do you recall Mr. Marcus reporting on a
physician’s disruptive behavior on Wednesday? Mr. Antonio: Yes, that I do remember.
Counselor Hadrian: Could you summarize what Mr. Marcus
reported?
Mr. Antonio: He talked about Dr. Caesar, the patient’s physician. He described Dr. Caesar’s approach to him following the interview and
how he was unprofessional to him and the patient.
Counselor Hadrian: In what way was Dr. Caesar unprofessional to
Mr. Marcus?
Mr. Antonio: Following David’s interview with the patient, Dr. Caesar told him not to ever tell any of his patients that they would be
okay.
Counselor Hadrian: In order to save time here, have you read the
transcript of Mr. Marcus’s testimony? Mr. Antonio: Yes.
Counselor Hadrian: Is Mr. Marcus’s description of what occurred on Wednesday afternoon in the patient’s room a fair and accurate representation of what he reported on Thursday morning to the Athens
Health Center leadership?
Mr. Antonio: Yes, it is accurate to my recollection.
Counselor Hadrian: When this incident began to unfold, do you
recall who Mr. Marcus reported was in the patient’s room with him? Mr. Antonio: Yes, there was Mr. Marcus, Dr. Caesar, the patient, and
the scribe.
Counselor Hadrian: Why did Mr. Marcus report the incident with Dr.
Caesar on Thursday morning?
Mr. Antonio: He was concerned this might be a pattern with Dr.
Caesar, but he said perhaps he’d just had a bad day or been very busy. If there was a pattern of bad behavior in his record, it needed to be
addressed.
Counselor Hadrian: Did you see Ms. Cicero, during the Wednesday
morning briefing, lean toward Mr. Marcus and whisper something to
him?
Mr. Antonio: Yes.
Counselor Hadrian: Did you ever learn what Ms. Cicero said?
Mr. Antonio. Yes, at Thursday’s luncheon. David told the nurse trainee and myself.
Counselor Hadrian: And what did he say?
Mr. Antonio: He said she whispered, “Good job. Your presentation was fair and well balanced.” Counselor Hadrian: And what did you think of her comments?
Mr. Antonio: I just told David she was right.
Counselor Hadrian: Meaning?
Mr. Antonio: That David was very diplomatic in his approach to a
delicate matter. He really left it up to the Athens Health Center’s leadership to determine how to handle the matter. He could have
reported the incident to the Health Review Council but chose a more
diplomatic route.
Counselor Hadrian: If Mr. Marcus had reported the incident to a
council manager, what do you think the manager would have said to
him?
Mr. Antonio: “Good job, Mr. Marcus. I am pleased that you presented this incident at the leadership meeting. This way it cannot be swept
under a rug.” Counselor Hadrian: Interesting comment, Mr. Antonio. Do you think
certain leaders in an organization would do such a thing?
Counselor Luke: Objection, Counselor Hadrian is asking an opinion
about organizations in general.
Magistrate: Objection sustained. Counselor Hadrian, please stick to
the facts of this case before me.
[Counselor Hadrian acknowledges the magistrate’s admonition.]
Counselor Hadrian: Do you believe, in general, that one often gets
an answer to a question by the way he or she words or asks a
question?
Mr. Antonio: Yes, I do.
Counselor Hadrian: Do you believe that the tone in one’s voice and the way a question is presented will influence the listener?
Mr. Antonio: Yes.
Counselor Hadrian: So the listener could draw the conclusion he or
she wanted or thought was intended?
Mr. Antonio: Yes.
Counselor Hadrian: So if Dr. Machiavelli had reported Mr. Marcus’s encounter with Dr. Caesar to the Health Review Council, the response
he received from the council might have been different than if Mr.
Marcus reported this incident?
Mr. Antonio: Yes, of course.
Counselor Hadrian: If you had reported Mr. Marcus’s encounter with Dr. Caesar to the council, based on your previous reviews with
Dr. Machiavelli, do you think you might have presented the incident
differently than he would have?
[Mr. Antonio hesitates for a time that seems like forever, and the
Magistrate waits patiently for an answer.]
Mr. Antonio: Yes, I do. Everyone is different.
Counselor Hadrian: Do you recall if Mr. Marcus spent an inordinate
amount of time reporting on his encounter with Dr. Caesar?
Mr. Antonio: No, he had a long report but presented it within a
reasonable amount of time.
Counselor Hadrian: Do you think Dr. Machiavelli would agree with
you?
Mr. Antonio: No.
Counselor Hadrian: And why is that?
Mr. Antonio: It was just an observation. Well, he did comment later
that the morning briefings had to be shortened.
Counselor Hadrian: As the reviewers presented their reports that
morning, were there ever interruptions by Dr. Machiavelli?
Mr. Antonio: Yes, he generally had a few of his own personal stories
that he added to the conversation.
Counselor Hadrian: Had he interrupted your report and made further
comments?
Mr. Antonio: Yes, on several occasions that morning.
Counselor Hadrian: Did he interrupt Mr. Marcus on Thursday
morning?
Mr. Antonio: Not as I recall.
Counselor Hadrian: Do you recall Dr. Machiavelli being uneasy and
fidgeting in his chair as Mr. Marcus presented his report?
[Mr. Antonio again hesitates. The Magistrate appears uneasy and
ready for a break.]
Magistrate: Mr. Antonio, could you please answer the question?
Mr. Antonio: Yes, I do recall that Dr. Machiavelli was uneasy,
actually a bit rude in his facial expressions.
Counselor Hadrian: Where were you sitting at the time Mr. Marcus
presented his report?
Mr. Antonio: I was sitting at the head of the table with Ms. Galeria
and other members of the organization’s leadership. Counselor Hadrian: So you could actually see Dr. Machiavelli’s facial expressions, let’s say, in a face-to-face manner? Mr. Antonio: That is correct.
Counselor Hadrian: Are you aware if anyone else in the Athens
Health Center’s leadership observed Dr. Machiavelli’s mannerisms? Mr. Antonio: Yes. The table was oval in shape and I could easily see
that the leadership must have been wondering why Dr. Machiavelli
seemed so disengaged with Mr. Marcus.
Counselor Hadrian: So you were actually sitting where the
organization’s leadership could observe Dr. Machiavelli’s behavior? Counselor Luke: Objection, this question has already been answered.
Magistrate: Objection overruled. Mr. Antonio, you may proceed with
your answer.
Mr. Antonio: Yes, I was.
Counselor Hadrian: Did Ms. Galeria also note his behavior?
Mr. Antonio: Yes.
Counselor Hadrian: Are you aware as to whether or not Mr. Marcus
was distracted by his behavior?
Mr. Antonio: I believe so, but I noticed he tried not to look at Dr.
Machiavelli’s body language. Actually, I’m sure it was distracting to him.
Counselor Hadrian: Did Mr. Marcus mention to you whether or not
the Athens Health Center’s leadership had noted Dr. Machiavelli’s behavior?
Mr. Antonio: Yes, according to David, Ophelia said, “Dr. Machiavelli appeared to be somewhat disengaged with you. He didn’t do this with any of the other reviewers.” Counselor Hadrian: So Mr. Marcus pretty much felt the same way?
Mr. Antonio: Yes, he remarked that he had never met Dr. Machiavelli
and could not understand his behavior.
Counselor Hadrian: Do you agree that Dr. Machiavelli’s behavior was out of line in that setting?
Mr. Antonio: Yes, without question.
Counselor Hadrian: Magistrate, I have no further questions at this
time.
EVENTS OF THURSDAY LUNCHEON, OCTOBER 6
[After a short recess, Counselor Hadrian recalls Mr. Antonio to the
witness box.]
Counselor Hadrian: Returning to that afternoon luncheon on
Thursday, where did you have lunch?
Mr. Antonio: In the Athens Health Center’s library. Counselor Hadrian: Did there come a time at lunch that Mr. Marcus
again asked why you had asked him for his impression of Dr.
Machiavelli at the end of the survey?
Mr. Antonio: Yes.
Counselor Hadrian: Was Dr. Machiavelli in the room when this
conversation took place?
Mr. Antonio: No.
Counselor Hadrian: Do you know where he was?
Mr. Antonio: I am not sure. He had left the room. I think he went to
speak to the CEO.
Counselor Hadrian: Did you answer Mr. Marcus’s question? Mr. Antonio: I told David I did not want to get in the middle of this.
Counselor Hadrian: Mr. Antonio, reflecting back to Sunday in the
Pelopidas Street Inn, don’t you think you already placed yourself in the middle?
Counselor Luke: Objection.
Magistrate: I will allow the question. You can answer the question,
Mr. Antonio.
Mr. Antonio: Well, uh, well, I didn’t think this would happen. Counselor Hadrian: What did you expect to happen? Dr. Machiavelli
would give Marcus a hard time?
Mr. Antonio: Well, I didn’t expect it to go this far. Counselor Hadrian: Far? What do you mean?
Mr. Antonio: Well, Dr. Machiavelli had a bit of, uh, uh . . .
Counselor Hadrian: Uh, uh, what?
Mr. Antonio: I just didn’t think Dr. Machiavelli would be so hard on David.
Counselor Hadrian: I see. So, it sounds like he gave you some
problems during a previous review?
[Mr. Antonio hesitates as the Magistrate stares at him. Even the
magistrate guards seem mesmerized by the hearing. Counselor
Hadrian, getting impatient, asks the question again.]
Counselor Hadrian: Mr. Antonio, could you please answer the
question?
Mr. Antonio: Could you please repeat the question?
Counselor Hadrian: Did you have a previous encounter with Dr.
Machiavelli at a previous health center review?
Mr. Antonio: Well, yes, I did.
Counselor Hadrian: And you are referring to the health center
review that took place the week prior to the one that was being
conducted at the Athens Health Center?
Mr. Antonio: Yes, I am.
Counselor Hadrian: Were you happy or unhappy with Dr.
Machiavelli’s behavior at that review, that is, the review prior to the Athens review?
Mr. Antonio: I was not totally happy.
Counselor Hadrian: So, again, you chose to allow Marcus to walk
into the minefield?
Counselor Luke: I object to this line of questioning.
Magistrate: Objection . . .
[Before the Magistrate can say “sustained” or “overruled,” Counselor Hadrian breaks in . . . ]
Counselor Hadrian: I withdraw my question.
Magistrate: Withdrawal noted. You may proceed.
Counselor Hadrian: And now that Dr. Machiavelli was in charge of
the review at the Athens Health Center, you thought his style would
match his name and that he might have met his match in Mr. Marcus.
Is that right?
Counselor Luke: Objection, he is leading the witness.
Magistrate: Objection sustained.
Counselor Hadrian: What, if anything else, did Mr. Marcus say to
you about you being placed in the middle of something?
Mr. Antonio: He just kept asking me, in the middle of what? He was
trying to prod an answer out of me.
Counselor Hadrian: And you refused to give an answer. Is that
correct?
Mr. Antonio: Yes.
Counselor Hadrian: Did he say anything else that you recall?
Mr. Antonio: Uh, no, uh, I mean I don’t recall. Counselor Hadrian: Did he refresh your memory?
Mr. Antonio: What do you mean?
Counselor Hadrian: Going back to your conversation with Mr.
Marcus on the first day in the inn lobby, did he ask again at lunch on
Thursday why you wanted to know what he thought of Dr.
Machiavelli on the last day of the Athens review?
Mr. Antonio: Yes, he did.
Counselor Hadrian: And you replied you would tell him on Friday at
the end of the Athens review. Is that correct?
Mr. Antonio: Yes.
Counselor Hadrian: So, previously, on the record, Mr. Marcus said
he never met Dr. Machiavelli. Is that correct?
Mr. Antonio: Yes.
Counselor Hadrian: So you knew that there was something Mr.
Marcus should know, but you sort of let him walk into the middle of a
minefield and find out for himself. And you call yourself his friend. Is
that correct?
Counselor Luke: Magistrate, I have already objected to this question!
Magistrate: I will allow the question. I believe I see where Counselor
Hadrian is leading, and we need to hear it. You may answer the
question, Mr. Antonio.
Mr. Antonio: Well, I wouldn’t put it that way. Counselor Hadrian: How would you put it?
Counselor Luke: I object.
Magistrate: Objection overruled. You may answer the question.
Mr. Antonio: I just did not want to get involved. I did not expect Dr.
Machiavelli would be so rude to Marcus.
Counselor Hadrian: What else did Mr. Marcus say during that
luncheon?
Mr. Antonio: He said Dr. Machiavelli was not responsive to him
except that Dr. Machiavelli shifted around in his chair with
inappropriate body language during the morning sessions when he
presented his daily report to the Athens leadership. He said, “I don’t even know him. Why is he doing that?” Counselor Hadrian: Do you recall anything else that Mr. Marcus
might have said regarding Machiavelli’s body language? Mr. Antonio: No.
Counselor Hadrian: Let me refresh your memory. Do you recall Mr.
Marcus saying to you and Ms. Galeria that the Athens staff sensed that
Dr. Machiavelli appeared to be disengaged with him the morning he
made his reports and that Dr. Machiavelli did not do this with any of
the other health reviewers?
Mr. Antonio: Yes, I believe I answered that before. I recall that.
Counselor Hadrian: Do you recall if anyone else was present in the
room during this conversation?
Mr. Antonio: Yes, as you just said, Ms. Galeria, the nurse trainee.
Counselor Hadrian: Did she participate in this conversation?
Mr. Antonio: No.
Counselor Hadrian: Magistrate, I may wish to call Ms. Galeria to the
witness box at a later date.
Magistrate: Understood.
Counselor Hadrian: Before we proceed, do you recall if, earlier
during the Thursday luncheon, Mr. Marcus gave you some sort of
CD?
Mr. Antonio: Yes, he did.
Counselor Hadrian: In general, do you recall what was contained on
that disc?
Mr. Antonio: Yes, Mr. Marcus had collected thousands of pages of
best practices over the years that he shared with reviewers and the
health centers he reviewed.
Counselor Hadrian: Could you describe for the Magistrate why Mr.
Marcus collected and distributed those practices?
Mr. Antonio: Yes, I think so. It was sort of a mission with him to
share best practices so that health care organizations did not have to
waste valuable time “reinventing the wheel.” He believed that human resources should be used wisely, and if organizations were willing to
share with one another, everyone benefited.
Counselor Hadrian: Are you aware of anyone else in your career that
has embarked on such a project?
Mr. Antonio: No, I am not. David is the only reviewer that I am
aware of.
Counselor Hadrian: Since, as you well know, Mr. Marcus is no
longer with the Hospital Review Council, has it come to your attention
that the council is now sharing such or similar information freely, sort
of borrowing the idea from Mr. Marcus?
Mr. Antonio: Yes, I am aware that this has occurred.
Counselor Hadrian: About this disc, did Mr. Marcus provide you
with any specific instructions as to with whom it should or should not
be shared?
Mr. Antonio: Yes.
Counselor Hadrian: What was his request?
Mr. Antonio: He requested that we use these disc files for personal
reference. He asked that they not be shared with others at this time. He
was in the process of editing them and wanted to share a copy with us.
Counselor Hadrian: Did you agree to his request?
Mr. Antonio: Yes, I did.
Counselor Hadrian: Are you aware that Ms. Galeria received a copy
of the disc?
Mr. Antonio: Yes.
Counselor Hadrian: Did she agree to Mr. Marcus’s request? Mr. Antonio: Yes, she did. We both agreed.
Counselor Hadrian: Do you recall shortly after the Athens Health
Center review that a member of the Hospital Review Council used
certain files from that disc during a conference call with all of your
colleagues in Rome to improve the quality of the conference call?
Mr. Antonio: Yes, I recall that; however, I did not provide a copy to
anyone at the Council.
Counselor Hadrian: Was Mr. Marcus credited with providing that
information in any way?
Mr. Antonio: No, he was not.
Counselor Hadrian: Do you know who provided the disc to the
leadership at the Hospital Review Council?
Mr. Antonio: No, I am not aware of how the council obtained a copy
of the disc.
Counselor Hadrian: Did the information on this disc serve to
improve your approach in conducting health center reviews?
Mr. Antonio: Yes, definitely.
Counselor Hadrian: Mr. Antonio, do you recall anything else that
Mr. Marcus asked you at the Thursday lunch?
Mr. Antonio: No.
Counselor Hadrian: Let me refresh your memory. Did Mr. Marcus
ask you again, and I quote: “Mr. Antonio, you asked for my impression of Dr. Machiavelli on Sunday, before I ever met him, and
now you don’t want to answer as to why you asked that question?” Counselor Luke: I object, this question has been asked and answered
many times over.
Counselor Hadrian: I am setting the background for my next
question.
Magistrate: Objection overruled. Mr. Antonio, you may proceed.
Mr. Antonio: Yes, he did say that.
Counselor Hadrian: And how did you respond?
Mr. Antonio: I said I didn’t want to get in the middle of it. I suggested that he sit down with Dr. Machiavelli and talk to him.
Counselor Hadrian: And what did Mr. Marcus say?
Mr. Antonio: He said, the middle of what? He said he’d tried on several occasions to speak to Dr. Machiavelli but he was
nonresponsive.
Counselor Hadrian: Did Mr. Marcus relate to you his attempts at
conversation with Dr. Machiavelli in an elevator at the Pelopidas
Street Inn?
Mr. Antonio: Yes, he said that his last attempt to have a casual
conversation with Dr. Machiavelli was on the elevator on Tuesday
evening at the inn after that day’s review. Counselor Hadrian: And did Mr. Marcus describe how Dr.
Machiavelli responded?
Mr. Antonio: He said that Dr. Machiavelli failed to respond and that
he got off on a floor just below his, walked away, never said good
night, never acknowledged that he, David, was in the elevator. He said
that Dr. Machiavelli just got off the elevator and walked away, with
the elevator doors closing being him.
Counselor Hadrian: In other words, he ignored Mr. Marcus’s attempt at any conversation?
Counselor Luke: Objection, Your Honor—he is leading the witness. Magistrate: Objection sustained.
Counselor Hadrian: Does Dr. Machiavelli appear to have a hearing
problem that you are aware of?
Mr. Antonio: Oh no, quite the opposite.
Counselor Hadrian: Could you describe the size of that elevator?
Counselor Luke: I object, Your Honor. I see no relevance to this line
of questioning.
Magistrate: Let us see where this is going. Overruled. Mr. Antonio,
you may answer the question.
Mr. Antonio: It was small. Six people, and it would have been
crowded.
Counselor Hadrian: So, even if Dr. Machiavelli was hard of hearing,
he most likely heard Mr. Marcus’s comment. Mr. Antonio: Yes.
EVENTS OF THURSDAY, LATE AFTERNOON, OCTOBER
6
The withholding of truth is sometimes a worse deception than a direct
misstatement.
There is an idiom in truth which falsehood never can imitate.
LORD NAPIER
[Counselor Hadrian recalls Mr. Antonio to the witness box to testify
regarding events of late afternoon on Thursday, October 6. Counselor
Hadrian’s first questions of Mr. Antonio at this time have to do with Mr. Marcus having just finished the fourth day of his 5-day review in Athens
and returning to the conference room assigned by the Athens Health
Center as home base for the health reviewers. Both the morning
briefings with the Athens Health Center leadership and the afternoon
debriefings with the reviewers were being held there. But as Mr. Marcus
headed back to the conference room shortly before that evening’s debriefing, he observed his colleagues Mr. Antonio and Ms. Galeria
scurry past him, avoiding eye contact, as if they just wanted to get out of
the Athens Health Center. Mr. Marcus thought that was strange, and he
supposed that there must not be an afternoon debriefing after all.]
Counselor Hadrian: Mr. Antonio, following lunch on Thursday, did
you again see Mr. Marcus before leaving the Athens Health Center?
Mr. Antonio: Yes.
Counselor Hadrian: And when was that?
Mr. Antonio: I saw him at the end of the day.
Counselor Hadrian: And where were you when you saw him?
Mr. Antonio: I was leaving the review for the day and was headed
back to the inn.
Counselor Hadrian: And who was with you?
Mr. Antonio: Ms. Galeria.
Counselor Hadrian: Did you and Ms. Galeria leave separately from
Mr. Marcus?
Mr. Antonio: Yes.
Counselor Hadrian: With whom did you leave at the end of the day
to return to the Pelopidas Street Inn on Monday, Tuesday, and
Wednesday?
Mr. Antonio: We all left together.
Counselor Hadrian: Who are “we”? Mr. Antonio: The nurse trainee, Mr. Marcus, Dr. Machiavelli, and
myself.
Counselor Hadrian: So you and Ms. Galeria left on Thursday
without Marcus and Dr. Machiavelli?
Mr. Antonio: Yes.
Counselor Hadrian: And why was that?
Counselor Luke: Magistrate, I object. I fail to see any relevance to
this question.
Magistrate: Overruled. You may answer the question.
Mr. Antonio: Dr. Machiavelli said he talked to Bruce and they
planned a conference call with David.
Marcus: Who is Bruce?
Mr. Antonio: Bruce Verus. He is David’s manager at the Council office.
Counselor Hadrian: So you generally meet as a team at the end of
each day to debrief and review the team’s findings? Mr. Antonio: Yes.
Counselor Hadrian: On Thursday, October 6, you did not have such
a meeting?
Mr. Antonio: No.
Counselor Hadrian: So you walked past Mr. Marcus on Thursday
with Ms. Galeria, and you saw Mr. Marcus coming toward the two of
you. Is that correct?
Mr. Antonio: Yes.
Counselor Hadrian: So were you in the hallway when you spotted
him, or someplace else?
Mr. Antonio: We were in an office area when we passed him in a
small aisle between desks.
Counselor Hadrian: Did he ask where you were going?
Mr. Antonio: I don’t recall. Counselor Hadrian: So you never acknowledged that you saw him.
Is that correct?
Mr. Antonio: Well, what could I say?
Counselor Hadrian: I am asking the questions. You are to answer
them. Magistrate, could you please instruct the witness as to protocol.
Magistrate: Mr. Antonio, answer the questions. I don’t want a cat- and-mouse game before me.
Mr. Antonio: I did not acknowledge him.
Counselor Hadrian: How far apart were you when you walked by
him?
Mr. Antonio: A few feet.
Counselor Hadrian: Did you make eye contact with him?
Mr. Antonio: No, I did not.
Counselor Hadrian: So you knew that a confrontation was awaiting
Mr. Marcus when he met up with Dr. Machiavelli?
Counselor Luke: Objection.
Magistrate: Overruled.
Counselor Hadrian: So you knew Mr. Marcus was about to be
ambushed when he walked into the conference room.
Mr. Antonio: Uh— Counselor Luke: Objection, Your Honor.
Magistrate: Objection sustained. Counselor Hadrian, please tone
down your question a few notches.
Counselor Hadrian: Were you aware that Dr. Machiavelli was
waiting for Mr. Marcus to return from his day’s activities? Mr. Antonio: Yes, I was.
Counselor Hadrian: And what else did you know?
Mr. Antonio: That Bruce maneuvered to have David removed from
the review.
Counselor Hadrian: Maneuvered?
Mr. Antonio: Oh, uh, I mean planned.
Counselor Hadrian: So you knew that your “friend” was going to be facing an early removal from the review. Is that correct?
Mr. Antonio: Yes, I did.
Counselor Hadrian: You considered Mr. Marcus your friend earlier
in the week. Are you still friends?
Mr. Antonio: I assume so.
Counselor Hadrian: Do you think your assumption is accurate?
Counselor Luke: Objection, the question has been asked and
answered.
Magistrate: Objection sustained.
Counselor Hadrian: Mr. Antonio, I understand you were a military
officer. Is that correct?
Mr. Antonio: Yes, I am retired.
Counselor Hadrian: So who held the higher rank, you or Dr.
Machiavelli?
Mr. Antonio: Dr. Machiavelli.
Counselor Hadrian: Mr. Antonio, were you intimidated by Dr.
Machiavelli because of his rank?
[Mr. Antonio was in fact intimidated, but he does not wish to reveal
that to the Magistrate.]
Mr. Antonio: No.
Counselor Hadrian: Let me reword that question. Because of Dr.
Machiavelli’s military rank, do you believe you held back from responding to Marcus when he kept asking you why you wanted his
opinion of Dr. Machiavelli? Did you feel like you were in the middle,
like you were between a rock and a hard place?
Counselor Luke: Objection.
Magistrate: What is the basis for your objection?
Counselor Luke: Objection withdrawn.
Magistrate: Mr. Antonio, you may answer the question.
Mr. Antonio: Well, yes. He had a higher rank—substantially higher rank.
Counselor Hadrian: I have no more questions at this time.
EVENTS OF THURSDAY EVENING, OCTOBER 6
[Marcus is recalled to the witness box.]
Counselor Hadrian: When you arrived back at the conference room,
how did Dr. Machiavelli greet you?
Mr. Marcus: There was no greeting, really. He just said, “Follow me. We have to go to another room for a conference call with Bruce. We
can’t make a conference call from the phone in this room.” Counselor Hadrian: Then what happened?
Mr. Marcus: I asked, “What conference call?” Counselor Hadrian: How did Dr. Machiavelli respond to your
question?
Mr. Marcus: He disregarded the question.
Counselor Hadrian: Then what happened?
Mr. Marcus: We walked into a small conference room, probably 9
feet by 11 feet, that had a small, circular conference table with four
chairs around it and a telephone in the middle.
Counselor Hadrian: Then what happened?
Mr. Marcus: Dr. Machiavelli placed a phone call to Bruce, who was
sitting in his office waiting.
Counselor Hadrian: Who is Bruce?
Mr. Marcus: Bruce Verus. He is my supervisor at the Council office.
Counselor Hadrian: You may continue.
Mr. Marcus: Bruce stated that he was removing me the from the
Athens Health Center review until he conducted an investigation.
Counselor Hadrian: Did he ever explain to you what he was
investigating?
Mr. Marcus: No, he did not. I asked if it had something to do with me
reporting Dr. Caesar’s behavior. Counselor Hadrian: What was his response?
Mr. Marcus: He just reiterated that he had to conduct some sort of
investigation. I assumed it had to do with my reporting Dr. Caesar at
the Thursday morning briefing with the Athens leadership.
Counselor Hadrian: So he did not answer your question?
Mr. Marcus: No, he did not give an answer. Basically, he said he was
my manager, end of story. I think he needed time to make up
something from whole cloth.
Counselor Hadrian: What do you mean by “whole cloth”? Mr. Marcus: He had to fabricate an answer; he did not have a clear
answer ready. He had to come up with something.
Counselor Hadrian: Do you know if Mr. Verus was an officer in the
military?
Mr. Marcus: Yes, he was.
Counselor Hadrian: Did he have a higher rank than Dr. Machiavelli?
Mr. Marcus: No, he did not.
Counselor Hadrian: Did you ask any other questions as to why you
were being removed from this review?
Mr. Marcus: Yes, I asked Bruce why I would be removed from a
review at the end of the fourth day of a 5-day survey, especially in
light of the fact that the fifth day was truly only a half-day of
reviewing and one half-day having lunch and preparing the final
report.
Counselor Hadrian: And what did he say?
Mr. Marcus: He said he is the supervisor and that it was his decision.
Counselor Hadrian: Did Mr. Verus describe how he was going to go
about his investigation?
Mr. Marcus: He said that he wanted to talk to the CEO, but she had
gone on vacation after the review. He said that, after her return from
vacation, he would get back to me within 2 weeks.
Counselor Hadrian: Did Mr. Verus get back to you?
Mr. Marcus: No, he did not. As a matter of fact, I learned later from
Ophelia that the CEO of the Athens Health Center had resigned her
position as CEO. I assume that is one of the reasons she was said to be
on vacation.
Counselor Hadrian: Do you doubt that Mr. Verus actually ever spoke
to the CEO?
Mr. Marcus: Yes, I have my doubts. But then, I don’t know. There is no written record of any discussion.
Counselor Hadrian: Did he tell you why he wanted to talk to the
CEO?
Mr. Marcus: No, he did not.
Counselor Hadrian: How did you learn that the CEO resigned?
Mr. Marcus: Ophelia Cicero, my guide at the Athens Health Center,
related this information to me after I had returned home.
Counselor Hadrian: Did Ms. Cicero contact you, or did you contact
her?
Mr. Marcus: She e-mailed me on my corporate e-mail and asked that
I call her. She said that she preferred not to communicate through e-
mail.
Counselor Hadrian: Did she include a telephone number in the e-
mail?
Mr. Marcus: Yes, she provided me with her direct line at the Athens
Health Center, as well as her cell phone number.
Counselor Hadrian: Do you have any notes of that telephone
conversation?
Mr. Marcus: Yes.
[Counselor Hadrian speaks to the Magistrate.]
Counselor Hadrian: Magistrate, I would like to show these papers to
the witness.
Magistrate: Request granted.
Counselor Hadrian: Do you recognize these papers?
Mr. Marcus: Yes.
Counselor Hadrian: What do you recognize them to be?
Mr. Marcus: These are the notes I took during the phone conversation
I had with Ophelia.
Counselor Hadrian: Magistrate, I would like to have these notes
marked as Exhibit B and have Marcus read them into the record.
[The following notes are read by Mr. Marcus and entered into the
record.]
Notes by Ophelia
Marcus, first of all, I want to thank you. I want you to know it was a
pleasure to work with you. You have a wonderful way of putting
people at ease and of politely gleaning information from them. You
were able to determine from your questions the quality of care we
offer here at the Athens Health Center. When I think of the book If
Disney Ran Your Hospital and the fact that you went over and beyond
in customer service . . . I saw that in you. I have a report somewhere
here on my desk from staff feedback and how well you related to them
—you should see it. I am off to a meeting right now, but I will share it with you later.
Your presentation regarding Dr. Caesar was fair and well
balanced during the Thursday morning session.
The team leader was less than polite to you. He was disengaged
with you, but he did not act this way with the other health reviewers.
Other staff members commented on this behavior.
On Friday morning I was told you would not be back. Dr.
Machiavelli never mentioned a thing about you or why you were not
there. Health reviewers were coming and going all week, so I don’t think anyone thought anything about it. I was very disturbed about the
whole thing.
If anybody asks me, you will get a good report.
NEWSPAPER CLIPPINGS: A Mind Is a Terrible Thing to Change
A politician may be able to survive cavorting with prostitutes, sexting
with coeds and comingling with interns, but heaven forbid he should
change his mind—the transgression that trumps all compassion. Or thinking.
After all, thinking can lead to that most dangerous territory for a
politician—doubt—and, inevitably, the implication that dare not be expressed: “I could be wrong.”
Kathleen Parker, The Washington Post, June 12, 2011
EVENTS OF DECEMBER 27–29 EDUCATIONAL CONFERENCE
[Counselor Hadrian continues to question Mr. Marcus regarding
his early dismissal from participating in the review at the Athens
Health Center by Mr. Verus, who claimed he wanted to investigate
Mr. Marcus’s encounter with Dr. Caesar. This seems to be a typical shoot-the-messenger investigation.]
Counselor Hadrian: Did there come a time when you approached
Mr. Verus and asked him for the results of his investigation?
Mr. Marcus: Yes, I did at noon on the first day of the annual training
conference, December 27–29. Counselor Hadrian: Up until that time, did you have any feedback
from Mr. Verus as to the results of his investigation?
Mr. Marcus: No, I did not. That’s why I decided to contact him at the conference.
Counselor Hadrian: Did you ever provide information as to what
occurred at the Athens Health Center to Mr. Verus prior to the
conference?
Mr. Marcus: Yes, I did.
Counselor Hadrian: In what form did you relate that information?
Mr. Marcus: I relayed the information in the form of several
memoranda to Bruce on the date of my encounters with Dr. Caesar,
Health Care Council reviewers, and Athens Health Center staff.
Counselor Hadrian: Could you explain to the Magistrate why you
wrote memorand to Mr. Verus the day he removed you from the
Athens Health Center review?
Mr. Marcus: I wanted to get across the facts of my experience with
Dr. Caesar and not depend on recollection at a later date, which turned
out to be much later. I simply did not wish to be accused of making up
a story.
Counselor Hadrian: During the investigation, did you ever meet your
accusers in the same room, in the presence of Mr. Verus or any other
leadership member, to ask them questions?
Mr. Marcus: No.
Counselor Hadrian: How would you describe the investigation?
Mr. Marcus: It was somewhat amorphous.
Counselor Hadrian: So you would suggest that it was trumped up?
Counselor Luke: Objection, Counselor Hadrian is leading Mr.
Marcus.
Magistrate: Objection sustained.
Counselor Hadrian: So when you saw Mr. Verus at the December
educational conference, what was the essence of your conversation?
Mr. Marcus: I told Bruce that his mysterious investigation had gone
on for several months and that I would like to know what was going
on.
Counselor Hadrian: And what did he say?
Mr. Marcus: He said, “You’re right, I should have gotten back to you sooner. Well, let’s see—I’ve got a half-hour slot for you on the 29th at 3:00.” Counselor Hadrian: How did you respond?
Mr. Marcus: I asked for more time and an earlier meeting, but he said
he was too busy and didn’t have time for me. Counselor Hadrian: So, repeat for the record, please. On what day of
the conference was this that you spoke with Mr. Verus about wanting
to meet with him concerning the investigation?
Mr. Marcus: It was on December 27, at noon, on the first day of the
conference.
Counselor Hadrian: So you eventually did meet with Mr. Verus.
Mr. Marcus: Yes.
Counselor Hadrian: Where did he meet with you?
Mr. Marcus: He met me in a small conference room at the hotel.
Counselor Hadrian: Was he alone?
Mr. Marcus: No, his manager, Carol Titus, was also there.
Counselor Hadrian: Why was Ms. Titus there?
Mr. Marcus: I am not sure, other than to provide Bruce support. She
added nothing to the discussion.
Counselor Hadrian: What happened at this half-hour meeting?
Mr. Marcus: Bruce provided me with a 5-page document that he
wanted me to sign. It appeared to have been hastily written during the
conference.
Counselor Hadrian: So Mr. Verus gave you 30 minutes to sign a 5-
page document. Is that correct?
Mr. Marcus: Yes.
Counselor Hadrian (Handing the document to Marcus): Is this the
document he wanted you to read, digest, and sign in less than 30
minutes?
Mr. Marcus: Yes.
Counselor Hadrian: Magistrate, I would like to mark this document
into evidence as Exhibit C.
Magistrate: So ordered.
Counselor Hadrian: Mr. Marcus, could you read the contents of
Exhibit C?
Mr. Marcus: Yes.
[Marcus reads Exhibit C into the record.]
Counselor Hadrian: As you read from Exhibit C, you recommended
that the hospital purchase a car to help pay for a dental clinic. What is
that about?
Marcus: Some physicians, nurses, and myself were brainstorming
ideas on how to prevent the pediatric dental clinic at the Athens
Health Center from closing due to the lack of funds.
Counselor Hadrian: So these 5 pages sound as though someone was
pulling snippets of communications out of context and placing his or
her spin on the communications that you were having with staff at the
hospital. Is that correct?
Counselor Luke: Objection, he is leading the witness.
Magistrate: I will allow the question. Mr. Marcus, you may answer
the question.
Mr. Marcus: Yes, that is correct. He said that I had to sign the
document before returning to work. I said, “This was supposed to have been a review of your investigation, but instead, I am handed a
5-page document and told I have to sign it here and now.”
Counselor Hadrian: Then what happened?
Mr. Marcus: I said, “I need more time to review what you have written here.” He then asked how much time I needed, and I said 21 days to prepare a response.
Counselor Hadrian: Then what happened?
Mr. Marcus: I noticed that his supervisor, Ms. Titus, who had
claimed she was there just to observe, shook her head “no” at Bruce. He then said to me, “Can you get back to me by Friday?” Counselor Hadrian: Then what happened?
Mr. Marcus: I said it was already Wednesday afternoon and that I
needed at least the weekend. He looked over at Ms. Titus again, and
she gave him a reluctant nod okay.
Counselor Hadrian: The document also notes that you suggested
holding a car wash. For clarification purposes, could you explain in
more detail why you suggested a car wash?
Counselor Luke: Objection, this has nothing to do with this hearing.
Magistrate: Objection overruled. Since it was important enough to
place in the 5-page report, it is important enough to discuss. You may
continue, Mr. Marcus.
Mr. Marcus: We were talking about fundraising in one of the Athens
Health Center’s clinics, as I recall. They were concerned that they might have to close it due to lack of funds, and we got into a
discussion of how to save the clinic. I said that, in life, there is
something everybody can do in order to fund health care projects.
When I reviewed health centers, I would often say that all age groups
and people from all walks of life have something to offer. For
example, kids could organize car washes, nursing home patients could
knit sweaters for selling in gift shops, and there are so many other
things that people could do to raise funds. It was an example of what
can be done when you’re considering closing programs that benefit the community. The statement was taken out of context, and honestly,
Dr. Machiavelli and friends didn’t understand that. Counselor Hadrian: I have no more questions for Mr. Marcus at this
time. I would like to call Dr. Caesar to the witness stand.
Magistrate: We will take a 15-minute break. Counselors, I would like
to speak with you in my chambers.
[Following the break, the Magistrate and Counselors return to the
hearing.]
Magistrate: Counselor Hadrian, you may continue.
Counselor Hadrian: At some point, were you told that Mr. Marcus
was reviewing a case of yours?
Dr. Caesar: Yes, I was.
Counselor Hadrian: Do you recall who told you?
Caesar: One of the staff nurses.
Counselor Hadrian: Were you invited by the nurse to attend the
review?
Dr. Caesar. Yes, I was.
Counselor Hadrian: Did you go to the conference room?
Dr. Caesar: Yes, I did.
Counselor Hadrian: Did Mr. Marcus at any time introduce himself to
you as a physician?
Dr. Caesar: No, he did not.
Counselor Hadrian: Did there come a time when Mr. Marcus asked
about the care of one of your patients?
Dr. Caesar: Yes, he did.
Counselor Hadrian: Did you object to his questions?
Dr. Caesar: No, I did not.
Counselor Hadrian: Were you aware that such questions are part of
the process of reviewing the quality of health care at the Athens
Health Center?
Dr. Caesar: Yes, I was aware but not of the protocol as to how the
reviewers could go about the process in only 5 days.
Counselor Hadrian: So are you more understanding now of what Mr.
Marcus’s role was in this process? Dr. Caesar: Yes, I am.
Counselor Hadrian: Did there come a time when Mr. Marcus asked
to speak to the patient?
Dr. Caesar: Yes.
Counselor Hadrian: So Mr. Marcus talked to your patient?
Dr. Caesar: Yes, he did.
Dr. Caesar: What happened after he spoke to your patient?
Dr. Caesar: I asked if I could say something.
Counselor Hadrian: What did you say to the patient?
Dr. Caesar: I was blunt with the patient as to the serious nature of his
prognosis.
Counselor Hadrian: How did the patient react?
Dr. Caesar: He started to break down.
Counselor Hadrian: Then what happened?
Dr. Caesar: Mr. Marcus told the patient that he would be okay.
Counselor Hadrian: Then what happened?
Dr. Caesar: I quickly followed Mr. Marcus out of the room, stopped
him, and told him to never tell a patient of mine that he would be
okay.
Counselor Hadrian: Did there come a time when the nurse asked that
you and Mr. Marcus step away from the entrance to the patient’s room?
Dr. Caesar: Yes, she did not want to upset the patient.
Counselor Hadrian: Why were you disturbed with Mr. Marcus?
Dr. Caesar: Well, I was upset that Mr. Marcus had said to my patient
that he would be okay. But that was only because I thought he was
speaking clinically about my patient.
Counselor Hadrian: So you now understand that Mr. Marcus was not
speaking as to your clinical skills or competence?
Dr. Caesar: That is correct.
Counselor Hadrian: So his departing words were . . . ?
Dr. Caesar: He thanked me for my time.
Counselor Hadrian: Did he extend his hand and say thank you?
Dr. Caesar: Yes, he did.
Counselor Hadrian: Did the nurses ever explain to you that Mr.
Marcus was not a physician?
Dr. Caesar: Yes, they explained that to me the following day.
Honestly, I can’t believe that this was taken to such an extreme. I thought it was over. I had no clue this was a continuing saga. I don’t understand why no one ever spoke to me. After all, it was just the two
of us that spoke to one another.
Counselor Hadrian: Let’s back up a minute. Let me paraphrase here: you said that you were never aware that Mr. Marcus was being
investigated because of this incident?
Dr. Caesar: I never knew there was an investigation. No one ever
asked me any questions about our interactions, and I have since
apologized to Mr. Marcus for my failure to recognize that he was not a
physician and was merely getting a general picture of the patient’s satisfaction with his care.
Counselor Hadrian: Are you aware that Mr. Marcus resigned his
position as a result of this incident, because of the wall of silence
surrounding this mystery investigation?
Dr. Caesar: No, I was never aware that there was an investigation. I
thought our interaction was over the day I left that unit. No one ever
spoke to me.
Counselor Hadrian: Did Mr. Marcus ever contact you regarding the
incident?
Dr. Caesar: Yes, he did.
Counselor Hadrian: Did you ever receive an e-mail, Dr. Caesar?
Dr. Caesar: Yes, I did.
Counselor Hadrian: Were there several e-mails back and forth
between you and Marcus?
Dr. Caesar: Yes, there were several e-mails.
Counselor Hadrian (Handing copies of the e-mails to Dr. Caesar):
Are these the e-mails that were exchanged between you and Mr.
Marcus?
Dr. Caesar: Yes, they are.
Counselor Hadrian: Magistrate, I would like to mark these e-mails
into evidence as Exhibits D, E, and F.
Magistrate: So ordered. You may proceed.
Counselor Hadrian: The e-mails by date and time are as follows:
EXHIBIT D
December 19 (8:24 a.m.)
Dr. Caesar:
As you may or may not know, as a result of your treatment of me
during my survey at your hospital, I never again worked for the
Health Review Council. Isn’t it sad how you found it necessary to be so rude to me? I hope each time you look in the mirror that
you always remember that day. I was never anything but polite
toward you and compassionate toward your patient. I hope that
someday you will find the strength to apologize. And as I said, I
was not a doctor and was not judging your clinical skills. Why
you kept asking if I was a doctor was a mystery to me. Maybe
you had me mixed up with the Joint Commission team leader,
who was a physician. Even though I found you rude on that one
occasion, I do wish you much success.
Sincerely,
David Marcus
EXHIBIT E
December 19 (10:15 a.m.)
Dear Mr. Marcus,
Thank you for contacting me. We have so many interactions in
life, good and bad; although this case was obviously the latter, it
is a rare opportunity to try to clear the air and, perhaps, for me to
apologize. Based on what you wrote, that may not be possible,
but I would like to try. If you would be willing to send me a
phone number, I would like to talk to you about it. I will be
watching my e-mail all day, and I offer to telephone you at any
time you prefer.
Even though it has been a year, I remember you, that day, and
my patient’s case very well. My patient struggled with a potentially life-threatening condition that had baffled many of my
colleagues, and to add to it, he was the husband of a colleague of
mine. At that time, we were uncertain if he would improve (the
condition frequently leads to long-term disability and is
associated with high mortality). The comment that I remember
most clearly was to the effect of “Don’t worry, you will be okay.” I am paraphrasing, of course.
That’s a completely understandable and considerate thing to say to a sick person in the hospital. However, it would not be an
appropriate comment coming from a physician (which I was told
by a nurse on the floor that you were). That, along with your
confident demeanor (an attribute) and your probing me with
questions regarding different possible diagnoses (asked in a
manner similar to my old attending physicians), increased my
anxiety to the point that I assumed you were criticizing me as a
physician. That’s when I snapped at you not to tell my patients they would be okay. To be honest, I would snap at any medical
student or resident who made a remark like yours, and it would
be justified, but what I said to you was certainly not.
Regardless of all that, I’m sorry, and if you would be so kind as to send a contact number, I will call you promptly.
Take care, and like your comment to me, I do wish you the
best,
Dr. Caesar
EXHIBIT F
December 19 (11:28 a.m.)
Dear Dr. Caesar,
I truly was happy to see your quick response. It was important for
me to let you know that I was never for a moment judging your
clinical skills. I have always taken pride in working well with
physicians. When I left my hospital as Administrator in
________, both my physicians and nurses wore black armbands
wanting me to stay. I have read about your successful career and
just wanted you to know a little more about me and that I was not
a gotcha-type administrator reviewer. I have always been an out-
of-the-box-type guy seeing the tough world in which physicians
must practice.
I would be eager to speak with you on a happier note. My
home number is ____ - _____ - _____.
Again and again, I appreciate your nice comments.
Sincerely,
David Marcus
Counselor Hadrian: So, Dr. Caesar, did there come a time that you
called Mr. Marcus?
Dr. Caesar: Yes, the same day the e-mails were written.
Counselor Hadrian: Do you recall the substance of that conversation?
Dr. Caesar: Yes, I do.
Counselor Hadrian: Could you summarize it for the Magistrate?
Dr. Caesar: Yes, I can. On the same day that Mr. Marcus and I
corresponded through e-mails, I called Mr. Marcus and said, “You can have an interaction with someone for 10 minutes, and there are high
stakes to be paid in those 10 minutes. I must tell you that 36 hours after
you left, I never heard anything about our conversation regarding my
patient. I am so sorry you went through all of this. Actually, we need
people like you working in our medical societies. Our conversation just
shows what can happen in a high-stakes environment. There are
occasions, there are times, when I have interactions that are antithetical
to why I went into medicine. If I learned anything in medicine, it is that
life is short. David, if you ever need a letter or anything else to clear
this up, I will be happy to do anything I can.” That is close to what I told him, and like I said, I just can’t believe this has gone on for so long. No one ever talked to me. I can’t for the life of me believe that a reviewer was removed from a survey from doing his job. You know, I
teach ethics, and I find this behavior totally unethical.
Counselor Hadrian: During your telephone conversation, did you ever
ask Mr. Marcus if he wanted you to send a letter on his behalf?
Dr. Caesar: Yes, I did.
Counselor Hadrian: How did Mr. Marcus respond to your suggestion?
Dr. Caesar: He said that it wasn’t necessary, and he thanked me for the offer.
Counselor Hadrian: Thank you, Dr. Caesar. Thank you. Magistrate, I
would like to summarize at this point.
Magistrate: You may proceed.
Counselor Hadrian: In summary, there was no investigation that
included Mr. Marcus, or Ms. Cicero, or Dr. Caesar. The notes of the
scribe were never forthcoming and were apparently misplaced or
destroyed. The positive feedback about Mr. Marcus from the staff at the
Athens Health Center to Ms. Cicero can no longer be located. There is
no evidence of a written conversation between the CEO and Mr. Verus.
The memo that was once offered to Mr. Marcus by Mr. Verus and was
supposedly from the CEO was never provided. In fact, Ms. Titus
claims that it never existed. The investigation, in my opinion, was
completely fabricated, and a snowball started to roll downhill at the
Health Review Council. The new leadership apparently was brought
into an incident that they were not willing to understand. They relied
on staff managers who wished that Marcus would just disappear. They
had to cover themselves. They made an unfortunate decision cloaked in
a “code of silence.” The truth was made so convoluted by the old leadership that the new leadership had no clue what to do and could
only rely on what was being regurgitated to them. It is unfortunate that
the Health Review Council’s leadership never admitted to their wrongdoing. (Pause) Magistrate, this is a case of “don’t confuse me with facts.” I have no more questions. Magistrate: Counselor Luke, do you have any witnesses or documents
to bring forth?
Counselor Luke: No, I do not.
Magistrate: Counselor Hadrian, you may sum up your thoughts.
Counselor Hadrian: I will be brief. I suggest that what we have here
is a “Star Chamber” in the Council’s handling of this case. The Health Review Council’s practice of strict arbitrary rulings and secretive proceedings reminds me of the English Court Star Chamber of the
1600s. As you know, Magistrate, this is a pejorative term intended to
cast doubt on the legitimacy of the proceedings. I find in this case no
good-faith attempt by the Health Review Council to clear Marcus’s good name. It is a sad day when an organization fails to live up to its
own ethical standards.
Magistrate: Having listened to the testimony as to what occurred
during this review, I need no time for further consideration, for I have
heard enough. And I find this an appalling account. I strongly
reprimand the leadership of the Council for failing to ferret out the
truth. Based on what I have heard, I do not believe the full truth will
ever be heard, because they’ve dug themselves in so deeply that they do not know what the truth is. This session is dismissed.*
* The playwright who wrote this closet drama remains anonymous
and retains the rights of ownership of the information contained
herein.
To seek for the truth, for the sake of knowing the truth, is one of the
noblest objects a man can live for.
WILLIAM RALPH INGE
Please refer to the Pillars of Moral Strength in Appendix A when
answering the following discussion questions.
DISCUSSION
1. Describe the ethical and legal issues in this closet drama as they relate
to the various characters.
2. Describe the virtues and values in play.
3. Describe why you think there was a breakdown in communication
between Dr. Caesar and Marcus.
4. In light of the fact that 70% of diagnoses are made as the result of lab
tests, would you expect Marcus to inquire what the lab results had
revealed about the patient’s state of health? 5. Describe your overall impression of this case, and how you would have
handled it if you were Marcus.
6. After considering yourself in the position of each character in this
closet drama, describe which role you would have chosen to play.
Explain your choice of character.
7. How would you describe the culture of the Health Review Council?
8. Utilizing the communications process in Figure 15-1, how would you
describe the values of each character in this case?
NOTE
This chapter is adapted from George D. Pozgar, Patient Care Case Law
(Burlington, MA: Jones & Bartlett, 2012).
appendix a
Pillars of Moral Strength
I am part of all I have met.
ALFRED TENNYSON
What are the pillars that build one’s moral strength? What sets each person apart?
It is one’s virtues and values that build moral character. Look beyond the words and ask, “Do I know their meanings?” “Do I apply their concepts?” “Do I know their value?” “Are they part of me?”
Figure A–1 Pillars of Moral Strength
appendix b
Websites
Hope is the last thing that dies in man; and though it be exceedingly
deceitful, yet it is of this good use to us, that while we are traveling
through life, it conducts us in an easier and more pleasant way to our
journey’s end. FRANCOIS DE LA ROCHEFOUCAULD
LEARNING OBJECTIVES
• Describe the process for evaluating the quality of websites. • Provide a more friendly website tool that aides the reader in
conducting ethics and legal research.
This appendix is designed to assist the reader in conducting searches of
standards, rules, and regulations that apply to hospitals and other health
care organizations. Some commonly referenced legal-, ethics-, and health-
related websites are included here. Each listing includes a short description
of what can be found on the website, to save the reader time in the research
process. Every attempt has been made to choose websites that are
trustworthy. Remember, however, that websites periodically change their
addresses and that new websites are created regularly, so always perform a
search for your topic as well.
When evaluating the reliability of health care websites, look for the
symbol of the Health on the Net Foundation (HON) code of conduct for
health care at the bottom of Web pages. HON is the leading organization
promoting and guiding the deployment of useful and reliable online
medical and health information and its appropriate and efficient use.
Created in 1995, HON is a nonprofit, nongovernmental organization,
accredited by the Economic and Social Council of the United Nations. For
more information, visit the HON website (www.hon.ch). Also visit
Quackwatch (www.quackwatch.com), a guide to recognizing health care
fraud and quackery and making intelligent decisions. It considers
questionable products, services, advertisements, and theories that are found
on the Internet, and it also provides education, gives advice on consumer
protection, discusses research, and provides links to other websites and
websites covering relevant legal and political activities. The site also
discusses sources not recommended as sources of health advice.
ETHICS WEBSITES
Agency for Healthcare Policy and Research (AHRQ):
http://www.ahcpr.gov/clinic/cpgsix.htm
An agency within the U.S. Department of Health and Human Services,
AHRQ works to improve the quality, safety, efficiency, and effectiveness of
health care for all Americans. This page provides links to AHRQ’s Clinical Practice Guidelines, including links to information on the National
Guideline Clearinghouse.
American Association of Tissue Banks (AATB): www.aatb.org
The AATB is the only national tissue banking organization in the United
States, and its membership totals more than 100 accredited tissue banks and
1,000 individual members. The AATB website offers information on the
Certification of Tissue Bank Personnel as well as accreditation processes.
American Health Lawyers Association (AHLA):
www.healthlawyers.org
The AHLA website provides education and information on legal issues in
the health care field.
American Society of Law, Medicine and Ethics (ASLME):
www.aslme.org
ASLME members examine issues like genetic testing and research, medical
record privacy, end-of-life decisions, and the dynamics of informed
consent. The website contains information on upcoming conferences,
publications, and research, as well as many other resources for
professionals working in law, medicine, and ethics.
American Society of Transplantation (AST): www.a-s-t.org
AST is dedicated to advancing the field of transplantation through the
promotion of research, education, advocacy, and organ donation to improve
patient care. The website offers education and information related to
transplantation.
Association of Organ Procurement Organizations (AOPO):
www.aopo.org
As the national representative of 58 federally designated organ
procurement organizations (OPOs), serving more than 300 million
Americans, AOPO provides education, information sharing, research and
technical assistance, and collaboration among health care organizations and
federal agencies. The AOPO website contains many resources related to
organ procurement, such as information on advocacy, research, and
upcoming events.
Bioethics.net
This website on medical ethics contains links to articles, journals, news,
jobs, events, and other bioethics resources.
Center for Bioethics and Human Dignity: www.cbhd.org
The Center for Bioethics and Human Dignity website provides resources
on bioethics issues, including such topics as neuroethics, human dignity,
and cloning. Through the website, you can subscribe to weekly and
monthly electronic mailing lists to receive the latest information.
Center for Reproductive Rights: http://reproductiverights.org/
The Center for Reproductive Rights is involved in advancing reproductive
freedom. Visit this website for the most current information on issues
related to reproductive rights and the law.
Center for the Study of Ethics in the Professions:
http://ethics.iit.edu/
This website provides the texts of more than 850 codes of ethics for
professional societies, corporations, and government and academic
institutions. Earlier versions of codes of ethics of some organizations
represented are available to allow researchers to study the development of
codes. A literature review, an introduction to the codes, and a user’s guide are included.
Donate Life America: http://donatelife.net/about-us/
The Donate Life America website provides information on organ, eye, and
tissue donation.
Emerald: http://emerald7tfb.wordpress.com/2011/05/22/legal-
aspects-of-reproductive-rights/
This website provides articles and discussion on legal aspects of women’s reproductive rights.
National Association of Emergency Medical Technicians: EMT
Oath and Code of Ethics:
http://www.naemt.org/about_us/emtoath.aspx
EMT Oath
Be it pledged as an Emergency Medical Technician, I will honor the
physical and judicial laws of God and man. I will follow that regimen
which, according to my ability and judgment, I consider for the benefit of
patients and abstain from whatever is deleterious and mischievous, nor
shall I suggest any such counsel. Into whatever homes I enter, I will go
into them for the benefit of only the sick and injured, never revealing what
I see or hear in the lives of men unless required by law.
I shall also share my medical knowledge with those who may benefit from
what I have learned. I will serve unselfishly and continuously in order to
help make a better world for all mankind.
While I continue to keep this oath unviolated, may it be granted to me to
enjoy life, and the practice of the art, respected by all men, in all times.
Should I trespass or violate this oath, may the reverse be my lot.
So help me God.
WRITTEN BY: CHARLES B. GILLESPIE, M.D.
ADOPTED BY THE NATIONAL ASSOCIATION OF EMERGENCY MEDICAL TECHNICIANS,
1978
“End of Life Issues,” MedlinePlus: www.nlm.nih.gov/medlineplus/endoflifeissues.html
This page provides a comprehensive review of end-of-life issues.
EthicsWeb.ca: www.ethicsweb.ca/resources/bioethics/
EthicsWeb.ca provides links to ethics-related websites. The style and
function of the various EthicsWeb.ca websites vary, but each strives to
present a selected range of high-quality ethics-related resources on a
particular topic. Most of the EthicsWeb.ca sites have a Canadian “slant,” though they provide many links to top U.S. health care ethics websites
providing information that is of interest to international visitors.
Eye Bank Association of America (EBAA):
www.restoresight.org
EBAA online has information about eye bank donations, awards and
grants, and accreditation and certification.
“How to Choose a Home Care Provider: What Are My Rights as a Patient?”: http://www.nahc.org/Consumer/wamraap.html This is a link to a model patient bill of rights developed by the National
Association for Home Care (NAHC), based on the patient rights currently
enforced by law.
International Council of Nurses (ICN) Code of Ethics:
http://www.icn.ch/about-icn/code-of-ethics-for-nurses/
This is a link to the ICN Code of Ethics for Nurses, which has served as the
standard for nurses worldwide since it was first adopted in 1953. According
to the website, “The Code makes it clear that inherent in nursing is respect for human rights, including the right to life, to dignity and to be treated
with respect. The ICN Code of Ethics guides nurses in everyday choices
and it supports their refusal to participate in activities that conflict with
caring and healing.”
Kant and Kantian Ethics:
http://ethics.sandiego.edu/theories/Kant/index.asp
This page provides links to multimedia resources on Kantian moral
philosophy.
Kennedy Institute of Ethics:
http://kennedyinstitute.georgetown.edu
One of the world’s premier bioethics institutes, the Kennedy Institute of Ethics serves as a resource for scholars, policy makers, and the global
bioethics community. The website contains information on its academic
programs as well as other resources.
Living Wills (Advance Directives):
http://www.mindspring.com/~scottr/will.html
This page provides links to a large number of living will (advance
directive) websites.
Markkula Center for Applied Ethics:
www.scu.edu/ethics/practicing/focusareas/medical
The Markkula Center for Applied Ethics at Santa Clara University website
provides articles, cases, and links on medical ethics, biotechnology and
ethics, clinical ethics, end-of-life decision making, culturally competent
health care, and public health policy.
National Advisory Board on Social Welfare and Health Care
Ethics ETENE: www.etene.fi/en
The National Advisory Board on Social Welfare and Health Care Ethics
deals with ethical issues related to health care and the status and rights of
patients. Through the website, you may order or download ETENE
publications free of charge, as well as read their statements and opinions
and get up-to-date information on current issues.
National Center for Biotechnology Information (NCBI):
www.ncbi.nlm.nih.gov
The NCBI website provides access to biomedical and genomic information.
National Marrow Donor Program (NMDP): www.marrow.org
The NMDP is dedicated to helping all patients receive needed bone
marrow or umbilical cord blood transplantation. The website provides
information on NMDP’s Be the Match Foundation, as well as information for health care professionals and patients and families.
National Right to Life (NRLC): www.nrlc.org
The NRLC, a nonpartisan political group, provides comprehensive
information on its website about the pro-life movement on topics such as
abortion, infanticide, euthanasia, and assisted suicide.
Pro-Life Action League: www.prolifeaction.org
The Pro-Life Action League website is a source for information on pro-life
advocacy.
USTransplant.org
USTransplant.org gives comprehensive information on solid organ
transplantation—kidney, liver, pancreas, intestine, heart, and lung. Through the website, you can access the Scientific Registry of Transplant
Recipients, which covers the full range of transplantation activity, from
organ donation and waiting list information to transplant recipients and
survival statistics.
TransWeb.org
TransWeb.org provides information about donation and transplantation for
both the general public and transplant patients and families worldwide. The
website contains patient stories, an FAQ about transplantation and
donation, and other resources to make it easy for anyone to understand the
basics of organ donation and transplantation.
United Network for Organ Sharing (UNOS): www.unos.org
This is the website for UNOS, a nonprofit scientific and educational
organization that administers the nation’s Organ Procurement and Transplantation Network (OPTN). In addition to matching donors to
recipients and ensuring that organ allocation policies are followed, UNOS
collects and manages data about every transplantation event occurring in
the United States and serves as a resource to bring together medical
professionals, transplant recipients, and donor families to develop organ
transplantation policy.
GOVERNMENT AND GOVERNMENT-RELATED
WEBSITES
Centers for Disease Control and Prevention (CDC):
http://www.cdc.gov
CDC.gov provides reliable health information on data and statistics,
diseases and conditions, emergencies and disasters, environmental health,
healthy living, injury, violence and safety, life stages and populations,
travelers’ health, and workplace safety and health.
Centers for Medicare and Medicaid Services (CMS):
www.cms.gov
CMS.gov provides information on Medicaid, Medicare, Children’s Health Insurance Programs, regulations and guidance, and other relevant
information.
CMS Conditions for Coverage (CfCs) & Conditions of
Participants: www.cms.gov/CFCsAndCoPs/
This site provides information on the conditions of participation (CoPs) and
conditions for coverage (CfCs) that health care organizations must meet in
order to participate in the Medicare and Medicaid programs.
CMS Medicare State Operations Manual, Appendix:
http://www.cms.gov/manuals/downloads/som107
Appendicestoc.pdf
The Interpretive Guidelines and Survey Procedures for various providers or
suppliers are located in the Appendices to the Medicare State Operations
Manual (SOM). This is a link to the table of contents that allows you to
download the appropriate appendix—for example, specific to Hospitals (Appendix A), Psychiatric Hospitals (Appendix AA), EMTALA (Appendix
V), or Critical Access Hospitals (Appendix W).
CMS Survey and Certification (S&C), Policy and Memos to
States and
Regions:_www.cms.gov/SurveyCertificationGenlnfo/PMSR/list
.asp
S&C releases information related to survey and certification guidance for
various providers and suppliers to CMS regional offices and the state
survey agencies through communications called Survey and Certification
Letters. The memos are released on an ongoing basis. Once a memo is
released, it is posted on the CMS website organized by federal fiscal years.
See also www.cms.gov/SurveyCertificationGenInfo for general
information on CMS Survey and Certification.
ClinicalTrials.gov
ClinicalTrials.gov is a registry and results database of federally and
privately supported clinical trials conducted in the United States and
around the world. The database provides information about clinical trials,
which can be searched by disease, trial location, type of treatments, or
sponsoring institution. The search results will show what studies are being
conducted, whether a trial is recruiting, the purpose of the study, where and
when it will take place, whom to contact, and sources for more
information.
Congress: www.congress.org
A nonpartisan news and information website devoted to encouraging civic
participation. The site provides information about current public policy
issues and tips on effective advocacy, and offers a mechanism to write your
elected officials directly on topics related to health care ethics and
advocacy.
Congressional Directory:
www.congress.org/congressorg/directory/congdir.tt
This directory allows you to easily find contact information for state
representatives and also provides information on demographics,
committees, and offices.
The Data Bank, National Practitioner Healthcare Integrity and
Protection: www.npdb-hipdb.hrsa.gov
The Data Bank, consisting of the National Practitioner Data Bank (NPDB)
and the Healthcare Integrity and Protection Data Bank (HIPDB), is a
confidential information clearinghouse created by Congress to improve
health care quality, protect the public, and reduce health care fraud and
abuse.
Department of Health and Human Services: www.hhs.gov
This is the main site for the U.S. Department of Health and Human
Services, the principal agency for protecting the health of all Americans.
The site provides information for the general public, including information
on food and drug safety, diseases, research, and other issues related to
public health. It also includes links for researchers to apply for grants and
funding.
Department of Justice: www.justice.gov
This is the main website for the Department of Justice (DOJ), which
enforces the law and ensures public safety and impartial administration of
justice for all Americans. Justice.gov provides DOJ forms, publications,
news, grants, and an overview of the American Recovery and
Reinvestment Act of 2009.
Department of Labor: www.dol.gov
This is the main website of the Department of Labor, which fosters and
promotes the welfare of job seekers, wage earners, and retirees. The
department administers a variety of federal labor laws, including those that
guarantee workers’ rights to safe working conditions, a minimum hourly wage and overtime pay, freedom from employment discrimination,
unemployment insurance, and other income support.
Electronic Code of Federal Regulations (e-CFR):
http://ecfr.gpoaccess.gov/
This link brings you directly to the e-CFR, an electronic version of the
Code of Federal Regulations (CFR).
Federal Digital System (FDsys), U.S. Government Printing
Office: http://www.gpo.gov/fdsys/
FDsys provides free online access to official publications from all three
branches of the federal government.
FedLaw: http://www.thecre.com/fedlaw/default.htm
FedLaw provides information on federal statutes and regulations, the
federal judiciary, the legislative branch, arbitration and mediation, and
professional associations and organizations.
Food and Drug Administration (FDA): www.fda.gov
This is the official website for the FDA, which is responsible for protecting
and advancing public health. FDA.gov offers research and regulatory
information on food, drugs, medical devices, vaccines, veterinary drugs,
cosmetics, radiation-emitting products, and tobacco products. There is also
news, information on reporting problems, and reports of recalls and alerts.
Gov.com
Gov.com is a directory of government offices, not an official government
website. This commercial site provides links to every publicly accessible
official government information channel, about 94 million pages.
Healthfinder.gov
Healthfinder.gov provides current and reliable health information and tools,
including a health topic index, services and information, personal health
tools, and information on filing Freedom of Information Act (FOIA)
requests.
Health Information Privacy: www.hhs.gov/ocr/privacy
The Health Insurance Portability and Accountability Act (HIPAA) provides
various protections for personal health information. This website,
maintained by the Department of Health and Human Services, provides
information on HIPAA, including summaries of both the Privacy Rule and
the Security Rule, directions for filing complaints, explanations of statues
and rules, and enforcement actions and results.
Health Insurance Portability and Accountability Act,
Documentation and Forms:
http://hipaa.ucsf.edu/documentation/default.html
This site, maintained by the University of California, San Francisco, is a
convenient site to obtain downloadable forms for patients, staff, data
sharing, and more. Most forms may also be found on state websites, but
this page makes the same forms readily accessible.
Health Privacy Project: www.cdt.org/issue/health-privacy
Part of the Center for Democracy and Technology, the Health Privacy page
gives links to HIPAA, Health Information Technology for Economic and
Clinical Health, the American Recovery and Reinvestment Act, and other
privacy protections. Included in the resources are archives, research, and
analysis reports.
Health Resources and Services Administration: www.hrsa.gov
The Health Resources and Services Administration, an agency of the U.S.
Department of Health and Human Services, is the primary federal agency
dealing with health care issues. The website includes information about
grants, statistics, the National Health Services Corps, the Health
Professions Workforce, and more.
Hospital Compare: http://www.hospitalcompare.hhs.gov
Medicare publishes scores of patient satisfaction on this site and plans to
begin to adjust payment to hospitals based on these scores. This site can be
used to report quality-of-care concerns and complaints, search the Hospital
Care database, and download information on hospital-acquired conditions.
MedlinePlus: www.nlm.nih.gov
MedlinePlus provides information to help answer health questions. The
website includes reference citations from the National Library of Medicine,
the National Institutes of Health, and other government agencies and
health-related organizations. MedlinePlus allows you to search for and gain
easy access to medical journal articles, and it also has extensive
information about drugs, an illustrated medical encyclopedia, interactive
patient tutorials, and the latest health news.
National Cancer Institute: www.cancer.gov
The National Cancer Institute, part of the National Institutes of Health, is
the principal agency for cancer research and training. Cancer.gov includes
dictionaries of terms and drugs, information on funding opportunities, free
publications, cancer statistics, and news.
National Center for Health Statistics: www.cdc.gov/nchs
The National Center for Health Statistics compiles statistical information to
guide actions and policies to improve the health of U.S. citizens. The
website includes information on statistics systems, publications, and data
access tools about health statistics.
National Guideline Clearinghouse (NGC): www.guideline.gov
As part of the Agency for Healthcare Research and Quality, NCG is a
public resource for evidence-based clinical practice guidelines. The website
provides useful resources such as annotated bibliographies, information on
hospital-acquired conditions, and patient resources.
National Information Center on Health Services Research and
Health Care Technology (NICHSR): www.nlm.nih.gov/nichsr
The NICHSR website provides useful links to health information
databases, publications, clinical practice guidelines, and information on
health care technology.
National Institute of Medicine: www.iom.edu
IOM.edu has an extensive database of medicinal reports that provide
objective and straightforward advice to decision makers and the public. It
also has information on activities aimed at improving health.
National Institute on Aging (NIA): www.nih.gov/nia
NIA, part of the National Institutes of Health, is investigating the nature of
aging and ways to extend the healthy, active years of life. The website
gives information on health issues and research related to aging, as well as
information on programs relevant to aging and older people.
National Institutes of Health (NIH): www.nih.gov
The NIH provides leadership and financial support to health researchers in
every state and throughout the world. NIH.gov gives links to its 27
institutes and centers, the NIH Almanac, information on recoveries and
reinvestments, and updated news and legislation regarding health.
National Labor Relations Board (NLRB): www.nlrb.gov
The NLRB administers the National Labor Relations Act, the primary law
governing relations between unions and employers in the private sector.
The statute guarantees the right of employees to organize and to bargain
collectively with their employers and to engage in other protected
concerted activity with or without a union, or to refrain from all such
activity. The website provides information on its current activities as well
as on past cases and decisions in which it has participated.
National Library of Medicine (NLM): www.nlm.nih.gov
As the world’s largest medical library, the NLM is a valuable resource for anyone involved in medical research. Among its many offerings, the NLM
website provides resources on the human genome, biomedicine, and
environmental health; information on online exhibitions, training and
outreach, and health news and publications; and links to
PubMed/MEDLINE, ClinicalTrials.gov, MedlinePlus, and many other
useful databases.
National Network of Libraries of Medicine (NNLM):
www.nnlm.gov
The NNLM provides biomedical information and makes it accessible to the
public. This website provides member services as well as electronic journal
access, document delivery plans, and resource sharing.
Occupational Safety and Health Administration (OSHA):
www.osha.gov
This is the main website for OSHA, which ensures safe and healthful
working conditions for workers. The website provides information on
research, education, and training in the field of occupational safety and
health.
Office of History, National Institutes of Health:
www.history.nih.gov
The Office of History of the NIH is a valuable resource for historical
understanding of biomedical research within the NIH and the world. The
website provides information on current exhibits at the Stetten Museum of
Medical Research, educational programs, and training programs available
for researchers.
Oregon’s Death with Dignity Act: http://www.leg.state.or.us/ors/127.html
This is a direct link to the text of Oregon’s Death with Dignity Act.
PubMed.gov
PubMed comprises more than 19 million citations for biomedical literature
from MEDLINE, life science journals, and online books. Citations may
include links to full-text content from PubMed Central and publisher
websites.
Social Security Online, Compilation of the Social Security
Laws: http://www.ssa.gov/OP_Home/ssact/ssact-toc.htm
This page provides links to each Title of the Social Security Act, which
contains the laws that apply to Medicare, Medicaid, and other CMS
programs. Medicare is Title XVIII and Medicare is Title XIX.
Stetten Museum of Medical Research:
www.nlm.nih.gov/hmd/medtour/nih.html
Founded in 1868 as a part of the National Institutes of Health (NIH), the
museum features exhibits on biomedical research. The museum collects,
preserves, and interprets biomedical research instruments and memorabilia,
especially those related to the NIH.
United States Courts: www.uscourts.gov
USCourts.gov is the government website for all things related to the U.S.
courts, including links to the federal courts, judges, court reporters, and
more. The site provides information on federal courts, rules and policies,
judges and judgeships, statistics, forms and fees, court records, educational
resources, and news.
The World Factbook:
https://www.cia.gov/library/publications/the-world-factbook/
Produced by the Central Intelligence Agency, the World Factbook provides
information on the history, people, government, economy, geography,
communications, transportation, military, and transnational issues of 266
world entities.
LEGAL WEBSITES
AllLaw.com: www.alllaw.com/state_resources
This page on AllLaw.com provides links to legal information by state, with
categories such as attorneys, law schools, forms, and state bar information.
American Bar Association (ABA): www.abanet.org
Among the many resources available on the ABA website are resources for
lawyers, information on publications, and the latest news and information
on advocacy. The ABA provides law school accreditation, continuing legal
education, information about the law, programs to assist lawyers and judges
in their work, and initiatives to improve the legal system.
American Health Lawyers Association (AHLA):
www.healthlawyers.org
The AHLA website provides resources for lawyers who practice in law
firms, government, in-house settings, and academia, and who represent any
aspect of the health industry. Membership provides such benefits as
webinars, publications, and help for continuing law education.
American Society of Law, Medicine and Ethics (ASLME):
www.aslme.org
The ASLME publishes two nationally acclaimed peer-reviewed journals:
The Journal of Law, Medicine & Ethics, and The American Journal of Law
& Medicine. The website provides information on conferences and
webinars, as well as on research and grants.
BetterMedicine.com
Bettermedicine.com provides general information on thousands of health
conditions, diseases, and symptoms.
Black’s Law Dictionary: www.blackslawdictionary.com This is the website for Black’s Law Dictionary, the definitive legal resources for lawyers, law students, and laypeople alike. The 9th edition is
available in print (as both a deluxe and an abridged edition) and as an
iPhone application.
CourtReporters.com
CourtReporters.com provides legal professionals access to reliable court
reporters nationwide. It also serves as an Internet community for court
reporters and other individuals wishing to receive information on resources
such as career opportunities and education.
CourtroomSciences.com
The Courtroom Sciences website provides information on the company,
which provides litigation solutions to corporations and law firms with a
complete set of tools and services.
FindLaw.com
FindLaw.com provides legal information and Internet marketing solutions.
Google Scholar, Advanced Scholar Search:
http://scholar.google.com/advanced_scholar_search
Google Advanced Scholar Search web search engine allows free access to
a database that indexes the full text of legal literature across an array of
publishing formats and disciplines. The Google Scholar tool includes the
full text of legal opinions issued by state and federal courts. The opinions
are fully searchable by date through the search engine.
Guide to Law Online: www.loc.gov/law/guide
The Guide to Law Online, prepared by the Law Library of Congress Public
Services Division, includes links to useful and reliable sites for legal
information.
Health Law Resource: www.netreach.net/~wmanning
This page provides useful links for health care practitioners, professionals,
or anyone interested in learning more about health care law and the
regulatory and transactional aspects of health care law practice.
HGExperts.com
HGExperts.com is a resource for legal experts, providing an expert witness
directory, information on litigation support, publications for expert
witnesses, information on forensic science, and more.
HG.org
HG.org provides law, government, and related professional information to
those in the legal profession, businesses, and consumers. The site supplies
worldwide legal and law firm directories, access to expert witnesses, and
general information about the legal profession, law and practice, and legal
employment.
InjuryBoard.com
The InjuryBoard website provides access to its network of attorneys,
medical professionals, safety industry experts, and local activists
committed to helping families stay safe and avoid injury and helping those
who are injured get the assistance they need.
Jury Verdict Review & Analysis: www.jvra.com
This site provides links to state and national monthly publications. It is an
excellent resource for review and analysis of civil jury verdicts throughout
the United States since 1980.
Law.com
Law.com can assist in many aspects of legal research. It provides access to
VerdictSearch.com, a current verdict and settlement database;
ALMExperts.com, which helps to identify expert witnesses; and
LawCatalog.com, where you can purchase books, newsletters, and other
publications. Also provided is a searchable legal dictionary
(http://dictionary.law.com).
LawGuru.com
LawGuru.com is a law database available to both students and
professionals. Individuals may ask legal questions, search the archives for
past answers, and find a local attorney.
Lawyers.com
Lawyers.com includes a searchable database for identifying qualified legal
counsel. Additional resources on the site include legal forms, panel
discussions, and explanation and discussion of legal issues.
Legal Information Institute (LII): www.law.cornell.edu
With a mission to make law accessible to everyone, LII publishes online
materials and is developing new technologies that will make it easier for
anyone to understand the law.
LexisNexis.com
LexisNexis provides computer-assisted legal research services to
professionals in law firms, corporations, government, law enforcement, tax
accounting, academic institutions, and risk and compliance assessment.
National Medical Malpractice, Review and Analysis:
http://www.jvra.com/sample_edition/mmra.pdf
This link provides a sample of a Monthly National Review of State and
Federal Civil Jury Medical Malpractice Verdicts with Professional Analysis
and Commentary. The cases summarized in detail are obtained from an
ongoing monthly survey of the state and federal courts throughout the
United States.
Nolo.com
Nolo.com aims to help consumers and small businesses understand the
legal rules and procedures that affect their lives, so they can handle legal
matters themselves or seek expert help armed with the knowledge they
need. The site provides free law information as well as articles on various
law issues, including taxes, employment laws, and immigration.
Personnel Policy Service:
http://ppspublishers.com/articles/resources/7c15
payperclick&source5google_ads&kw5employees
This page provides links to employment law articles and information.
Resources for Attorneys: www.resourcesforattorneys.com
This site provides links to a variety of legal resources.
Supreme Court Decisions: www.law.cornell.edu/supct
Part of the website of the Legal Information Institute at Cornell University
Law School, this site provides links to the texts of all Supreme Court
decisions. The decisions can be searched by case name, topic, or justice
name.
United States Code: http://www.law.cornell.edu/uscode/
Also part of the Legal Information Institute website, this site provides the
most recent official version of the U.S. Code made available by the U.S.
House of Representatives.
VersusLaw.com
VersusLaw.com is a Web-based research site that offers law research on
both federal and state appellate case law opinions.
WashLaw.edu
WashLaw.edu provides links to law-related materials on the Internet,
maintained by staff members of the Washburn University School of Law
Library. The website covers national, international, and state legal topics.
Westlaw.com
This website offers legal products and services for a subscription fee.
BEST PRACTICES WEBSITES
Advisory Board Company (ABC):
www.advisoryboardcompany.com
The ABC works with hospital and health care managers to develop
strategies to provide the highest and most efficient level of service to
patients.
American Cancer Society (ACS): www.cancer.org
The ACS website provides information on cancer, staying healthy, finding
support and treatment, and current research.
Association of Cancer Online Resources (ACOR):
www.acor.org
ACOR maintains a large collection of cancer-related Internet mailing lists.
ACOR also develops and hosts Internet-based education programs that
allow the public to find and use reliable information relevant to their
illness.
CancerLinks.org
CancerLinks.org is a search engine for cancer-related websites and topics.
Careplans.com
Careplans.com provides resources for nursing assessment, planning,
implementation, and evaluation. The site includes articles, links, and
libraries to assist caregivers in the care planning process.
Centre for Evidence-Based Medicine (CEBM): www.cebm.net
Established in Oxford, CEBM provides resources for doctors, clinicians,
teachers, and others interested in learning about evidence-based medicine.
Among the many useful resources on the website are information on
upcoming courses and workshops, links to useful resources, and a
discussion group.
Clinical Pathways:
www.openclinical.org/clinicalpathways.html
The website explains clinical pathways and their benefits.
Clinical Practice Guidelines: www.ahcpr.gov/clinic/cpgsix.htm
This website is maintained by the Agency for Healthcare Research and
Quality and provides links to archives and the National Guideline
Clearinghouse.
Clinical Trials listing service, CenterWatch:
http://www.centerwatch.com/clinical-trials/
CenterWatch provides information on clinical trials, specific drugs, and
other essential health and educational resources. The Clinical Trials listing
service offers site promotion and identification services, grant
opportunities, and educational books and publications. It also offers tools
and resources for clinical trial sponsors to remain current and up to date.
Health & Wellness News, HeartMath:
www.heartmath.com/news/
This page provides links to stories on current health and wellness news
topics.
Institute for Safe Medication Practices (ISMP): www.ismp.org
The ISMP website provides information related to medication error
prevention and safe medication use.
MDConsult.com
MDConsult.com provides access to full-text articles from over 80 medical
journals and clinics, 50 leading medical references across a wide range of
specialties, clinically relevant drug information, and over 10,000 patient
handouts.
National Cancer Institute (NCI) Clinical Trials:
www.cancer.gov/clinicaltrials
NCI’s Clinical Trials website provides information on clinical trials and results, as well as educational materials about the trials.
National Council of State Boards of Nursing (NCSBN):
http://www.ncsbn.org
Aimed at both nurses and the general public, the NCSBN website provides
information on upcoming education, service, and research events.
National Organization for Rare Diseases (NORD):
www.rarediseases.org
The NORD website provides information about diseases, referrals to
patient organizations, research grants and fellowships, advocacy for the
rare disease community, and medication assistance programs.
HEALTH CARE RESOURCES
Access Excellence @ the National Health Museum (NHM):
www.accessexcellence.com
This site provides resources for health, biology, and life science teachers.
American Academy of Pain Management: www.painmed.org
This website provides information on the American Academy of Pain
Medicine, the primary organization for physicians practicing the specialty
of pain medicine in the United States.
American Hospital Association (AHA): www.aha.org
The AHA website provides information on health advocacy issues, health
research and trends, and health news.
American Medical Association (AMA): www.ama-assn.org
The AMA website provides information on physician resources, education
and careers, advocacy, and the AMA’s medical journals.
American Pain Foundation: www.painfoundation.org
The American Pain Foundation website provides information on pain,
patient support, and advocacy.
Andrew Weil, M.D.: www.askdrweil.com
Andrew Weil, M.D., provides information on alternative medicine,
discussing such topics as health care, aging, vitamins, health plans, and
more.
Directory of Open Access Journals: www.doaj.org
This site provides free, full-text, quality-controlled scientific and scholarly
journals, covering all subjects in many languages.
FamilyDoctor.org
Maintained by the American Academy of Family Practitioners, this site
provides health information for the general public.
Guide to Internet Resources for Cancer:
http://www.cancerindex.org/clinks1.htm
The Guide to Internet Resources for Cancer contains over 100 pages and
more than 4,000 links to Web pages with cancer-related information.
Healthy.net
Healthy.net provides information on natural solutions to health-related
problems.
InteliHealth.com
Intelihealth.com provides information for the general public on a variety of
diseases and conditions, drugs, dental health, healthy lifestyle, and other
health care topics.
LibrarySpot.com
Library Spot provides links to a large variety of useful research sites on the
Internet.
Life Extension Foundation: www.lef.org
The Life Extension Foundation website provides information on scientific
methods for addressing disease, aging, and death.
MayoClinic.com
The renowned Mayo Clinic provides information on its website about
diseases and conditions, drugs and supplements, treatment decisions, and
healthy living.
Medscape.com
Medscape from WebMD provides medical information and educational
tools for specialists, primary care physicians, and other health
professionals. The site includes professional medical news from Reuters,
Medscape Medical News, and journal publishers in addition to business,
financial, managed care, and medical practice information.
Virtual Hospital: www.uihealthcare.com/vh/
Maintained by the University of Iowa (UI), Virtual Hospital provides
general health information prepared and reviewed by health professionals.
Virtual Library Pharmacy: www.pharmacy.org
This page includes links to pharmacy-related Internet resources, such as
schools, databases, and associations.
HOSPITAL AND PHYSICIAN FINDERS
American Board of Medical Specialties (ABMS):
www.abms.org
ABMS, recognized as the gold standard in physician certification, provides
a database for board-certified physicians, searchable by location and
specialty.
DoctorFinder: www.ama-assn.org/aps/amahg.htm
The DoctorFinder database of the American Medical Association can help
you find the best doctor for your medical needs.
HealthGrades.com
HealthGrades.com provides ratings and profiles of hospitals, nursing
homes, and physicians to consumers, corporations, health plans, and
hospitals.
HospitalConnectSearch: www.hospitalconnect.com
HospitalConnectSearch provides hospital information, organized by areas
of interest.
HospitalLink.com
The HospitalLink.com directory provides links to more than 6,000
hospitals and 1,700 websites by city, state, hospital name, and/or zip code.
National Practitioner Data Bank: www.npdb-hipdb.hrsa.gov
The National Practitioner Data Bank is a clearinghouse for health care data
with information about registering, billing and fees, disputing reports,
reporting codes, Section 1921, and more.
U.S. News & World Report Best Hospitals:
www.usnews.com/usnews/health/best-hospitals/tophosp.htm
U.S. News & World Report has ranked over 5,000 hospitals in 16 adult
specialties and 10 pediatric specialties to help you find the one that’s best for you and your family.
INTERNATIONAL MEDICAL WEBSITES
Cancer Index: www.cancerindex.org/clinks5o.htm
The Cancer Index provides a directory of key international cancer-related
sites and pages. Links are sorted into categories (by disease type, medical
specialty, country, and so on), and, where possible, a brief description of
each site or organization is given. The site also presents basic information
about cancer-related topics and links to cancer-related information,
especially websites relating to the quality of information.
Union for International Cancer Control (UICC): www.uicc.org
The UICC website provides information on the global prevention and
control of cancer.
World Health Organization (WHO): www.who.int
The WHO website is an excellent source for information on global health
matters. The site includes information on health topics, data and statistics,
news, and WHO publications, among other useful resources.
World Medical Association (WMA): www.wma.net
The WMA is an international organization representing physicians. The
website provides a forum for its member associations, as well as
information on its activities and publications, news, and events.
REFERENCE WEBSITES
American Library Association (ALA): www.ala.org
The ALA website provides information on library news, advocacy,
education, and other related topics.
Encyclopaedia Britannica: www.britannica.com
Membership to this site provides access to the highly regarded
Encyclopaedia Britannica.
Merriam-Webster On-Line Dictionary: www.merriam-
webster.com
This website offers free access to the online dictionary. Additional
resources include the unabridged dictionary, video, and access to the
Encyclopaedia Brittanica.
Questia: http://www.questia.com
This online library of books provides access to over 77,000 full-text books;
4 million journal, magazine, and newspaper articles; and encyclopedia
entries, available via subscription.
Wikipedia: www.wikipedia.org
A free, collaborative, multilingual encyclopedia project supported by the
nonprofit Wikimedia Foundation. Its 18 million articles (over 3.6 million in
English) have been written collaboratively by volunteers around the world,
and almost all of its articles can be edited by anyone with access to the site.
It is considered a good starting place for research, although not always 100
percent reliable.
glossary
abandonment Unilateral severance by the physician of the professional
relationship between himself or herself and the patient without reasonable
notice at a time when the patient still needs continuing care.
abortion Premature termination of pregnancy at a time when the fetus is
incapable of sustaining life independently of the mother.
accreditation An evaluative process in which a health care facility
undergoes an examination of its policies, procedures, practices, and
performance by an external sector organization (“accrediting body”) to ensure that it is meeting predetermined criteria. It usually involves both on-
and off-site surveys.
admissibility (of evidence) Refers to the issue of whether a court, applying
the rules of evidence, is bound to receive or permit introduction of a
particular piece of evidence.
advance directives Written instructions expressing an individual’s health care wishes in the event that he or she becomes incapacitated and is unable
to make such decisions for himself or herself.
adverse drug reaction Unusual or unexpected response to a normal dose
of a medication; an injury caused by the use of a drug in the usual,
acceptable fashion.
affidavit A voluntary statement of facts, or a voluntary written declaration
of facts, that a person swears to be true before an official authorized to
administer an oath.
agent An individual who has been designated by a legal document to make
decisions on behalf of another individual; a substitute decision maker.
Americans with Disabilities Act (ADA) Federal act that bars employers
from discriminating against disabled persons in hiring, promotion, or other
provisions of employment.
appellant Party who appeals the decision of a lower court to a court of
higher jurisdiction.
appellee Party against whom an appeal to a higher court is taken.
artificial nutrition and hydration Providing food and liquids when a
patient is unable to eat or drink, such as intravenous feedings.
assault A deliberate threat, coupled with the apparent present ability to do
physical harm to another.
attestation Act of witnessing a document in writing.
autonomy Right of an individual to make his or her own independent
decisions.
battery Intentional touching of one person by another without the consent
of the person being touched.
beneficence Describes the principle of doing good, demonstrating
kindness, and helping others.
best evidence rule Legal doctrine requiring that primary evidence of a fact
(such as an original document) be introduced or that an acceptable
explanation be given before a copy can be introduced or testimony given
concerning the fact.
bioethics The philosophical study of the ethical controversies brought
about by advances in biology, research (e.g., human cloning), and
medicine.
borrowed servant doctrine Refers to a situation in which an employee is
temporarily placed under the control of someone other than his or her
primary employer. It may involve a situation in which an employee is
carrying out the specific instructions of a physician. The traditional
example is that of a nurse employed by a hospital who is “borrowed” and under the control of the attending surgeon during a procedure in the
operating room. The temporary employer of the borrowed servant can be
held responsible for the negligent acts of the borrowed servant under the
doctrine of respondeat superior. This rule is not easily applied, especially if
the acts of the employee are for the furtherance of the objectives of the
employer. The courts apply a narrow application if the employee is
fulfilling the requirement of his or her position.
cardiopulmonary resuscitation A lifesaving method used by caregivers to
restore heartbeat and breathing.
case citation Describes where a court’s opinion in a particular case can be located. It identifies the parties in the case, the text in which the case can be
found, the court writing the opinion, and the year in which the case was
decided. For example, the citation “Bouvia v. Superior Court (Glenchur), 225 Cal. Rptr. 297 (Ct. App. 1986)” is described as follows:
• “Bouvia v. Superior Court (Glenchur)” identifies the basic parties involved in the lawsuit.
• “225 Cal. Rptr. 297” identifies the case as being reported in volume 225 of the California Reporter at page 297.
• “Ct. App. 1986” identifies the case as being in the California Court of Appeals in 1986.
case law Aggregate of reported cases on a particular legal subject as
formed by the decisions of those cases.
charitable immunity Legal doctrine that developed out of the English
court system that held charitable institutions blameless for their negligent
acts.
civil law Body of law that describes the private rights and responsibilities
of individuals. The part of law that does not deal with crimes, it involves
actions filed by one individual against another (e.g., actions in tort and
contract).
clinical privileges On qualification, the diagnostic and therapeutic
procedures that an institution allows a physician to perform on a specified
patient population. Qualification includes a review of a physician’s credentials, such as medical school diploma, state licensure, and residency
training.
common law Body of principles that has evolved and continues to evolve
and expand from court decisions. Many of the legal principles and rules
applied by courts in the United States had their origins in English common
law.
complaint In a negligence action, the first pleading that is filed by the
plaintiff’s attorney. It is the first statement of a case by the plaintiff against the defendant and states a cause of action, notifying the defendant as to the
basis for the suit.
Congressional Record Document in which the proceedings of Congress
are published. It is the first record of debate officially reported, printed, and
published directly by the federal government. Publication of the record
began March 4, 1873.
consent See Informed consent.
consequentialism A moral theory that determines good or bad, right or
wrong, based on good outcomes or consequences.
contextualism An ethical doctrine that considers the rightness or
wrongness of an action, such as lying, to be based on the particular
circumstances of a given situation. The implication is that lying is
acceptable in one situation but not in another, even though the situations
may be similar. In other words, an action’s justifiability depends on the context within which it occurs.
criminal negligence Reckless disregard for the safety of others; the willful
indifference to an injury after an act.
decisional capacity Having the mental capacity to make one’s own decisions. Mental capacity refers to the ability to understand the risks, the
benefits, the alternatives, and the consequences of one’s actions. Implied in this interpretation is the assumption that the decision maker can reasonably
distinguish right from wrong and good from bad.
defamation Injury of a person’s reputation or character caused by the false statements of another made to a third person. Defamation includes both
libel and slander.
defendant In a criminal case, the person accused of committing a crime. In
a civil suit, the party against whom the suit is brought, demanding that he
or she pay the other party legal relief.
deontological ethics An ethical approach that focuses on duty, rather than
consequences, when determining the right conduct to be followed.
deposition A method of pretrial discovery that consists of statements of
fact taken by a witness under oath in a question-and-answer format, as it
would be in a court of law, with opportunity given to the adversary to be
present for cross-examination. Such statements may be admitted into
evidence if it is impossible for a witness to attend a trial in person.
determinism The view that nothing happens without a cause.
directed verdict When a trial judge decides either that the evidence and/or
law is clearly in favor of one party or that the plaintiff has failed to
establish a case and that it is pointless for the trial to proceed further, the
judge may direct the jury to return a verdict for the appropriate party. The
conclusion of the judge must be so clear and obvious that reasonable minds
could not arrive at a different conclusion.
discharge summary That part of a medical record that summarizes a
patient’s initial complaints, course of treatment, final diagnosis, and instructions for follow-up care.
discovery The ascertaining of that which was previously unknown through
a pretrial investigation. It includes testimony and documents that may be
under the exclusive control of the other party. Discovery facilitates out-of-
court settlements.
dogmatic Stubborn refusal to consider challenges to your own ethical point
of view.
do-not-resuscitate (DNR) order Directive of a physician to withhold
cardiopulmonary resuscitation in the event a patient experiences cardiac or
respiratory arrest.
durable power of attorney A legal instrument enabling an individual to
act on another’s behalf. In the health care setting, a durable power of attorney for health care is a legal instrument that designates and grants
authority to an agent to, for example, make health care decisions for
another.
ethical conduct Conducting oneself in a manner consistent with acceptable
principles of right and wrong. Such conduct may relate to one’s
community, country, profession, and so on.
ethical dilemma A situation that forces a decision to be made that involves
breaking some ethical norm or contradicting some ethical value. It involves
making a decision between two or more possible actions in which any one
of the actions can be justified as being the right decision, but, whatever
action is taken, there always remains some doubt as to whether the correct
course of action was chosen. The effect of an action may put others at risk,
harm others, or violate the rights of others.
ethicist A person, often with an advanced degree, who specializes in ethics
through the application of theory and ethical principles governing right and
wrong conduct. Ethicists often serve on hospital ethics committees and are
an excellent resource for aid in resolving ethical dilemmas.
ethics A set of principles of right and wrong conduct. A theory or system
of moral values regarding what is right and what is wrong, which guides
behavior in relationships among people in accordance with certain social
roles.
ethics committee A committee created to deal with ethical problems and
dilemmas in the delivery of patient care.
euthanasia A Greek word meaning “the good death.” It is an act conducted for the purpose of causing the merciful death of a person who is suffering
from an incurable condition, such as providing a patient with medications
to hasten his or her death.
evidence Proof of a fact, which is legally presented in a manner prescribed
by law, at trial.
expert witness Person who has special training, experience, skill, and/or
knowledge in a relevant area and who is allowed to offer an opinion as
testimony in court.
futility Having no useful result. Futility of treatment, as it relates to
medical care, occurs when the physician recognizes that the effect of
treatment will be of no benefit to the patient. Morally, the physician has a
duty to inform the patient when there is little likelihood of success.
Good Samaritan laws Laws designed to protect those who stop to render
aid in an emergency. These laws generally provide immunity for specified
persons from any civil suit arising out of care rendered at the scene of an
emergency, provided that the one rendering assistance has not done so in a
grossly negligent manner.
grand jury Jury called to determine whether there is sufficient evidence
that a crime has been committed to justify bringing a case to trial.
guardian Person appointed by a court to protect the interests of and make
decisions for a person who is incapable of making his or her own decisions.
health According to the World Health Organization, “A state of complete physical, mental, and social well-being and not merely the absence of
disease or infirmity.”
health care proxy Document that delegates the authority to make one’s own health care decisions to another adult, known as the health care agent,
when one has become incapacitated or is unable to make his or her own
decisions.
hospice Long-term care for terminally ill persons, provided in a setting
more economical than that of a hospital or nursing home. Hospice care
generally is sought after a decision has been made to discontinue
aggressive efforts to prolong life. A hospice program includes such
characteristics as support services by trained individuals, family
involvement, and control of pain and discomfort.
hydration Intravenous addition of fluids to the circulatory system when the
patient is not capable of swallowing.
immoral Behavior that is in opposition to accepted societal, religious,
cultural, and/or professional standards.
incapacity An individual’s lack of ability to make decisions for himself or herself.
incompetent Individual determined by a court to be incapable of making
rational decisions on his or her own behalf.
informed consent Legal concept providing that a patient has the right to
know the potential risks, benefits, and alternatives of a medical procedure
or treatment before consenting to the procedure or treatment. Informed
consent implies that a patient understands a particular procedure or
treatment, including the risks, benefits, and alternatives; is capable of
making a decision; and gives consent voluntarily.
injunction Court order requiring a person to perform, or prohibiting a
person from performing, a particular act.
in loco parentis Legal doctrine that permits the courts to assign a person to
stand in the place of parents and possess their legal rights, duties, and
responsibilities toward a child.
interrogatory List of questions sent from one party in a lawsuit to the
other party, to be answered under oath.
Joint Commission See The Joint Commission.
jurisdiction Right of a court to administer justice by hearing and resolving
controversies.
jurisprudence Philosophy or science of law on which a particular legal
system is built.
justice The obligation to be fair in the distribution of benefits and risks.
larceny Taking another person’s property without consent with the intent to permanently deprive the owner of its use and ownership.
liability As it relates to damages, an obligation one has incurred or might
incur through a negligent act.
libel False or malicious writing intended to defame or dishonor another
person and published so that someone other than the one defamed will
observe it.
life support Medical intervention(s) designed to prolong life (e.g.,
respirator, kidney dialysis machine, tube feedings).
living will A document in which an individual expresses in advance his or
her wishes regarding the application of life-sustaining treatment in the
event that he or she is incapable of doing so at some future time. A living
will describes in advance the kind of care one wants to receive or does not
wish to receive in the event that he or she is unable to make decisions for
himself or herself. A living will takes effect when a person is in a terminal
condition or permanent state of unconsciousness.
malfeasance Execution of an unlawful or improper act.
malpractice Professional misconduct, improper discharge of professional
duties, or failure to meet the standard of care of a profession that results in
harm to another. It is the negligence or carelessness of a professional
person, such as a nurse, pharmacist, physician, or accountant.
mandamus Action brought in a court of competent jurisdiction to compel a
lower court or administrative agency to perform, or not to perform, a
specific act.
Medicaid Medical assistance provided for by Title XIX of the Social
Security Act. Medicaid is a state-administered program for the indigent.
Medicare Medical assistance provided for by Title XVIII of the Social
Security Act. Medicare is a health insurance program administered by the
Social Security Administration for persons aged 65 years and older and for
disabled persons who are eligible for benefits. Medicare Part A benefits
provide coverage for inpatient hospital care, skilled nursing facility care,
home health care, and hospice care. Medicare Part B benefits provide
coverage for physician services, outpatient hospital services, diagnostic
tests, various therapies, durable medical equipment, medical supplies, and
prosthetic devices.
meta-ethics The study of ethical concepts.
misfeasance Improper performance of an act.
nasogastric tube, insertion of Involves placing a tube through the
patient’s nose, down the back of the throat into the esophagus, and then into the stomach. Its purpose is to suction out the contents of the stomach.
negligence Omission or commission of an act that a reasonably prudent
person would or would not perform under given circumstances. It is a form
of heedlessness or carelessness that constitutes a departure from the
standard of care generally imposed on members of society.
non compos mentis “Not of sound mind”; suffering from some form of mental defect.
nonfeasance Failure to act, when there is a duty to act, as a reasonably
prudent person would in similar circumstances.
normative ethics The study of what is right and wrong.
norms Accepted rules and ways of doing things. Without norms, society
would be chaotic and unpredictable.
nuncupative will Oral statement intended as a last will made in
anticipation of death.
objectivism The belief that morality is based on some universal, external,
and unchangeable fact. For example, murder is always wrong.
ombudsman Person who is designated to speak and act on behalf of a
patient/resident, especially in regard to his or her daily needs.
paternalism A doctrine that literally means “rule by the father.” In health care, it is the concept of physicians making decisions for their patients,
whereas the more acceptable approach is autonomy, whereby the physician
informs the patient as to the risks, benefits, and alternatives of care and
treatment, and then the patient makes the final choice as to what is best.
Patient Protection Affordable Care Act A federal act passed by Congress
and signed into law by President Obama in March 2010. Its design and
purpose is to provide better health security by putting into place
comprehensive health insurance reforms that hold insurance companies
accountable, lower health care costs, guarantee more choice, and enhance
the quality of care for all Americans.
plaintiff Party who brings a civil suit seeking damages or other legal relief.
polytheism Belief in and worship of many gods.
probate Judicial proceeding that determines the existence and validity of a
will.
probate court A court with jurisdiction over wills. Its powers range from
deciding the validity of a will to distributing property.
process A series of related actions to achieve a defined outcome. Ordering
and/or administering medications are processes.
prognosis Informed judgment regarding the likely course and probable
outcome of a disease.
rational Having the capacity to think logically.
real evidence Evidence furnished by tangible things (e.g., medical records
and equipment).
relativism The belief that morality is relative to each individual culture.
What is right in one culture may be wrong in another culture. In ethics, it is
a theory that conceptions of truth and moral values are not absolute but are
relative to the persons or groups holding them.
release Statement signed by one person relinquishing a right or claim
against another.
remand Referral of a case by an appeals court back to the original court
out of which it came, for the purpose of having some action taken there.
respirator A machine used to assist in keeping a patient breathing.
respondeat superior “Let the master answer”: an aphorism meaning that the employer is responsible for the legal consequences of the acts of the
servant or employee who is acting within the scope of his or her
employment.
restraint Can be either “physical” or “chemical” (medication). A physical restraint involves a device (e.g., safety belts, safety bars, geriatric chairs,
bed rails) that restricts or limits voluntary movement and which cannot be
removed by the patient.
slander False oral statement, made in the presence of a third person, that
injures the character or reputation of another.
standard of care Description of the conduct that is expected of an
individual in a given situation. It is a measure against which a defendant’s conduct is compared.
stare decisis “Let the decision stand”: the legal doctrine that prescribes adherence to those precedents set forth in cases that have been decided.
statute of limitations Legal limit on the time allowed for filing suit in civil
matters, usually measured from the time of the wrong or from the time
when a reasonable person would have discovered the wrong.
statutory law Law that is prescribed by legislative enactments.
stipulation An agreement or concession of agreed-upon facts made by the
parties in a judicial proceeding relating to the business before the court,
which must be in writing unless they are part of the court record. A
stipulation of facts is often made to avoid delay judicial proceedings.
subpoena ad testificandum Court order requiring one to appear in court to
give testimony.
subpoena duces tecum Court order that commands a person to come to
court and to produce whatever documents are named in the order.
subrogation Substitution of one person for another in reference to a lawful
claim or right.
summary judgment Generally, an immediate decision by a judge, without
jury deliberation.
summons Court order directed to the sheriff or other appropriate official to
notify the defendant in a civil suit that a suit has been filed and when and
where to appear.
surrogate decision maker An individual who has been designated to make
decisions on behalf of another person determined incapable of making his
or her own decisions.
terminal condition A medical condition that is incurable and because of
which death will occur.
testimony Oral statement of a witness given under oath at trial.
The Joint Commission (TJC) A not-for-profit independent organization
dedicated to improving the quality of health care in organized health care
settings. The major functions of The Joint Commission include developing
organizational standards, awarding accreditation decisions, and providing
education and consultation to health care organizations.
theodicy A vindication of God’s goodness and justice in the face of the existence of evil. We often wonder why God allows bad things to happen to
good people. The answer often given is that what God allows to happen in
the lives of good people is often mysterious to us. We often have difficulty
understanding this, and it often provokes anger in us.
tort Civil wrong committed by one individual against another. Torts may
be classified as either intentional or unintentional. When a tort is classified
as a criminal wrong (e.g., assault, battery, false imprisonment), the
wrongdoer can be held liable in a criminal and/or civil action.
tort-feasor Person who commits a tort.
trial court Court in which evidence is presented to a judge or jury for
decision.
unethical behavior Describes behavior contrary to admirable traits or a
code of conduct that has been endorsed by one’s society, community, or profession.
utilitarianism A moral theory that treats pleasure and happiness as the
only absolute moral good. Acts that bring about happiness and pleasure are
good, and acts that bring about pain and suffering are morally bad.
value Worth or usefulness. Intrinsic values are those goods that are
valuable in their own right. Instrumental values are those goods that help us
achieve another good.
value judgment A judgment that assigns value to an action.
verdict Formal declaration of a jury’s findings of fact, signed by the jury foreperson and presented to the court.
virtue A moral trait that refers to excellence and righteousness.
waiver Intentional giving up of a right, such as allowing another person to
testify to information that ordinarily would be protected as a privileged
communication.
will Legal declaration of the intentions a person wishes to have carried out
after death concerning property, children, or estate. A will designates a
person or persons to serve as the executor(s) responsible for carrying out
the instructions of the will.
witness Person who is called to give testimony in a court of law.
wrongful birth Applies to the cause of action of parents who claim that
negligent advice or treatment deprived them of the choice of aborting
conception or of terminating the pregnancy.
wrongful life Refers to a cause of action brought by or on behalf of a
defective child who claims that but for the defendant (e.g., a laboratory’s
negligent testing procedures or a physician’s negligent advice or treatment of the child’s parents) the child would not have been born.
Index
Figures are indicated with “f” following the page number.
A
Abandonment
Hippocratic Oath and, 363–365 overview, 362–363
Abortion, 72–84 Akron, City of v. Akron Center for Reproductive Health (1983), 76–77 Bellotti v. Baird (1979), 76
Colautti v. Franklin (1979), 75–76 conditional restrictions, 74–75, 76–77 conflicting beliefs and, 82–84 counseling services, refusal to fund, 77
Danforth v. Planned Parenthood (1976), 75
Doe v. Bolton (1973), 74–75 fetus protected by states, 75–76 first trimester, 74
Harris v. McRae (1980), 76
H.L. v. Matheson (1981), 76
incompetent persons’ consent, 82 informed consent, 79–80 Maher v. Roe (1977), 75
march to support abortion rights (2004), 78–79 Medicaid benefits, state denial of, 75, 76
morality of, 84
narrowing of abortion rights, 77
parental consent, 75, 76, 82
parental notification, 76, 82
partial birth abortion ban, 78
Planned Parenthood v. Casey (1992), 77–78 right to refuse participation in, 381
Roe v. Wade (1973), 73–74 Rust v. Sullivan (1991), 77
second trimester, 74
spousal consent, 81
state statutes, 80–84 Stenberg v. Carhart (2000), 78
third trimester, 74
24-hour waiting period, 80–81 undue burden rule, 77–78 U.S. Supreme Court decisions, 73–80 Webster v. Reproductive Health Services (1989), 77
woman’s right to privacy, 73–74 Women’s Medical Professional Corp. v. Voinovich (1998), 78
Abortion Act Revision of 1993 (Utah), 80–81 Abuse, 423–440
child abuse, 341, 424–427. See also Child abuse defined, 424
reporting patient abuse, 397
senior abuse, 428–436. See also Senior abuse Acceptance of contract, 218
Accreditation of hospitals, 267–270 ACHE (American College of Healthcare Executives), 279–280 Acquired immune deficiency syndrome. See AIDS
Administrative departments and agencies, 189–190 Administrative law, 184–185 Admission, patient rights, 445
Adnan Varol, M.D., P.C. v. Blue Cross Blue Shield of Mich. (1989), 271
Advance directives, 138–148 durable power of attorney, 143–144 enactment of, 69
guardianship, 147
health care proxy, 147–148 living will, 139–143 overview, 138–139 patient rights, 451
Patient Self-Determination Act, 69, 138, 248–249 right to die without living will, 142–143 substituted judgment, 144–146 surrogate decision making, 144–148
Adverse events, patient rights, 444–445 Advertising, truthfulness in, 271–272 Advocat, Inc. v. Sauer (2003), 289–290 Advocate for patients, 390
Affordable Care Act of 2011, 252, 257
Age considerations, 21–22. See also Minors; Senior abuse Agency for Healthcare Research and Quality (AHRQ), 248
AIDS, 84–92 blood transfusions and, 85–86 confidentiality, 86–92 discrimination, 91–92 errors in HIV testing, 90
health care workers and, 86
news media and, 89–92 physician’s HIV status, disclosure of, 87–88 right to treatment, 88–89 spread of, 85–86
Akron, City of v. Akron Center for Reproductive Health (1983), 76–77 Alternative procedures, 365–366 Ambiguous medication order, 329–330 American Academy of Dermatology, Ethics Committee, 88–89 American Academy of Physician Assistants, 339
American College of Healthcare Executives (ACHE), 279–280 American Dental Association Code of Ethics, 406
American Medical Association, 355–356, 366, 405–406 Council on Ethical and Judicial Affairs, 362–363
American Physical Therapy Association, 338
Anatomical gifts. See Organ donations
Anointing of sick for healing, 49
Anonymous, In re (1987), 82
Answer, 221
Appeals, 230
Applied ethics, 7
Argus v. Scheppegrell (1986), 365
Arraignment, 208
Arrest, 208
Artificial insemination, 92–93 Assault and battery, 202
Assisted suicide
criminalizing, 135
physician-assisted suicide, 68, 69, 70, 71, 133–135 Assumption of risk, 227
Atheism, 51
Authorization for consent, 409–413 competent patients, 409
guardianship, 410–411 incompetent patients, 413
minors and, 412–413 parental refusal for child’s transfusion, 411–412 spousal consent, 409–410 temporary guardianship, 410–411
Autonomy, 14–15, 42, 90, 362 Awkerman v. Tri-County Orthopedic Group (1985), 427
Axelrod, In re (1990), 435
B
Bagent v. Blessing Care Corp. (2006), 450
Baker v. Arbor Drugs, Inc. (1996), 335
Battery, 202
Beasley v. State Personnel Board (1981), 435
Beatty; State v. (1983), 336
Behringer, Estate of v. Medical Center at Princeton (1991), 86, 87
Bellotti v. Baird (1979), 76
Beneficence, 9–12 Billing fraud, 336
Bill of particulars, 221
Bill of rights
experimental subject’s, 98–99 patient’s, 444
Bill of Rights, Constitution, 184
Bioethics, 3
Blood transfusions
AIDS and, 85–86 Jehovah’s Witnesses and, 49, 415, 416–419 parental refusal for child’s transfusion, 411–412
Board of Nursing, 383
Board of Psychologist Examiners, 340
Bolton; Doe v. (1973), 74–75 Bordelon v. St. Francis Cabrini Hospital (1994), 89
Breach of duty, 198–199 Brown v. Belinfante (2001), 312
Bruggeman v. Schimke (1986), 109
Buck v. Bell (1927), 105
Buddhism, 47–48, 112 Burden of proof, 225
Burditt v. U.S. Department of Health and Human Services (1991), 245–246 Bureau of Professional Medical Conduct, 396
Butler v. Rolling Hill Hospital (1990), 111
C
Cafiero v. North Carolina Board of Nursing (1991), 331–332 California
Civil Code, 396
living donor registry, 71
Canesi ex rel. Canesi v. Wilson (1999), 107–108 Canterbury v. Spence (1972), 67
Capitalism, 264
Cardiopulmonary resuscitation, 65–66 Care decision participation, patient rights, 446
Caregivers
advice for caregivers, 347–348 patient’s right to know caregivers, 455 pledge, 399
Causation, 199–200 Center for the Study of Ethics in the Professions (Illinois Institute of Technology), 310
Centers for Disease Control and Prevention, 86, 371, 393
Centers for Medicare and Medicaid Services (CMS), 103, 257, 268
Certification of health care professionals, 344
Chief executive officers (CEOs)
appointing, 278
challenges and responsibilities, 278–279 code of ethics, 279–280 corporate duties and responsibilities, 278–280 trust and, 389–390
Child abuse
defined, 425–426 detecting abuse, 426–427 good-faith reporting, 427
immunity and good-faith reporting, 427
overview, 424–425 reporting abuse, 341, 426
Children. See Child abuse; Minors
Chiropractors, 310–311 Christianity, 48–49 Chronology of ethical dilemmas, 64–71 Cignetti v. Camel (1985), 329
Civil Rights Act of 1964, Title VI, 243
Clinical nurse specialists, 327
Clinical trials. See Research and clinical trials
Cloning, 67, 70, 114
Closing statements, 229
CMS. See Centers for Medicare and Medicaid Services
Cockerton v. Mercy Hospital Medical Center (1992), 343–344 Code carts, 342–343 Code of conduct, 5
Code of Hammurabi, 50–51 Code of Medical Ethics (American Medical Association), 355–356, 366, 405–406 Codes of ethics
American College of Healthcare Executives, 279–280 American Dental Association, 406
consent and, 405–406 defined, 5
for health care professionals, 310, 337
for organizations, 263–264 Coe; People v. (1986), 434
Colautti v. Franklin (1979), 75–76 Colorado Parental Notification Act, 82
Commercial ethics and noncompetition agreements, 219–220 Commitment, 31
Common law, 181–183 right of bodily self-determination, 419–420
Communications
organizational ethics and, 306
physician’s confidential communications, 366 Comparative negligence, 227
Compassion, 31–33 employee responsibilities, 390
patient rights, 455–456 principles of medical ethics, 356–359 situational ethics and, 54–56
Competent patients, authorization for consent, 409
Complaint, 220–221 Compliance officers, 391–392 Conference for plea bargaining, 208
Confidentiality
AIDS, 86–92 artificial insemination, 93
paternalism and, 10–12 patient’s rights, 448–451 physician’s confidential communications, 366 responsibilities, employee, 391–392
Confidentiality of HIV-Related Information Act (Pennsylvania), 88
Conflict resolution, health care ethics committees, 166
Conflicts of interest, 288–305 accreditation of hospitals and, 267–270 culture of safety, 299
environment safety, 291–295 financial incentive disclosure, 302
overview, 288–290 patient concerns and complaints, 299–301 professional ethics and decisions, 302
punitive damages award, 302
supplies and equipment, 295–298 trust, 303–305
Confucianism, 112
Congress approval rating, 253–254 Conroy, In re (1983), 13
Conscientiousness, 34
Consent, 403–422. See also Informed consent abortion, 75, 76, 81, 82
adequacy of, 407–408 artificial insemination, 93
authorization, 409–413. See also Authorization for consent decision-making capacity, assessment of, 406–407 defined, 404
emergency consent, 409
ethical codes and, 405–406
failure to inform, 407–408 implied consent, 413–414 incapacity, determination of, 406
oral consent, 408
organ donations, 95–96 overview, 404
proof of, 408–409 right to refuse treatment, 414–420 statutory consent, 420
written consent, 408–409 Consequential ethics, 7
Constitution, U.S.
abortion and, 72, 74–77, 81, 82 autonomy rights and, 14
due process guarantees, 412
end-of-life issues and, 123, 126–131, 134–135 equal protection under 14th Amendment, 188
eugenic sterilization and, 106
euthanasia, 126–129 executive powers and, 188
judicial system and, 187
privacy rights and, 203
as source of law, 184
tolerance principles in, 14
trial by jury rights and, 224
Consultation, health care ethics committees, 166–169 Contemporary ethical dilemmas, 63–119
abortion, 72–84. See also Abortion AIDS, 84–92. See also AIDS artificial insemination, 92–93 chronology of historical events, 64–71 ethical dilemma, defined, 64
genetics, 112–114 organ donations, 93–96 research and clinical trials, 96–104. See also Research and clinical trials stem cell research, 114
sterilization, 104–106 surrogacy, 111–112 wrongful birth, 107–108 wrongful conception, 110–111 wrongful life, 108–110
Contraception, 71
Contracts, 217–220 acceptance, 218
commercial ethics and noncompetition agreements, 219–220 consideration, 217
elements of, 217–218 employment contracts, 218
exclusive contracts, 218–220 offer and communication, 217
Contributory negligence, 228
Controlled substances, physician abuse of, 372
Cooperation, 35
Copithorne v. Framingham Union Hospital (1988), 395–396 Corcoran v. United Health Care (1992), 271
Corporate duties and responsibilities, 276–288 CEO appointment, 278–280 CEO challenges and responsibilities, 278–279 CEO code of ethics, 279–280 false statements, 283–284 job applicant screening, 283
Joint Commission compliance, 287
medical staff appointments, 281
medical staff supervision, 284
overview, 276–277 rules and regulations compliance, 286
scarce resources allocation, 284–286 timely treatment, 287–288
Corporate negligence, 274–276 Counseling services, refusal to fund abortion counseling, 77
Courage as virtue, 27–30 Court conduct, 222–223 Courtroom procedures. See Trial and courtroom procedures
Court system, 186–188 Cover-ups, 289–290 Credentials, physicians, 358
Credentials Committee and the Medical Executive Committee (MEC), 246–247 Criminalizing assisted suicide, 135
Criminal law, 206–217 arraignment, 208
arrest, 208
conference, 208
criminal procedure, 207–209 defense attorney, 209
fraud, 209–213 manslaughter, 213–214 murder, 214–215 overview, 206–207 prosecutor, 209
theft, 215–217 trial, 209
Criminal procedure, 207–209
Culture of safety, 299
Cunningham; State v. (1992), 431–432 Cursory exams, 200–201
D
Damages, 229–230 Danforth v. Planned Parenthood (1976), 75
Darling v. Charleston Community Memorial Hospital (1965), 274–276, 359–360 Death, defined, 129–131. See also End-of-life dilemmas Death with Dignity Act. See Oregon Death with Dignity Act (1994)
Decision making
assessment of capacity for consent, 406–407 designation of decision maker, 451
DNR orders for competent patients, 154
ethics and conflicts of interest, 302
health care ethics committees, 173–175 Declaration of Helsinki, 66, 97
Defamation of character, 203
Defense attorneys, 209
Defenses, 227–229 assumption of risk, 227
comparative negligence, 227
contributory negligence, 228
Good Samaritan laws, 228
ignorance of law and unintentional wrongs, 228
sovereign immunity, 229
statute of limitations, 228–229 DeGrella v. Elston (1993), 69
Democracy for wealthy, 255–256 Dental hygienists, 313–314 Dental Practice Act (Georgia), 312
Dentists, 312–313 Deontological ethics, 8
Department of ____. See other part of name
Descriptive ethics, 7
Detachment, 33
Development of law, 179–192 administrative departments and agencies, 189–190 administrative law, 184–185 Bill of Rights, 184
common law, 181–183 Constitution, U.S., 184
executive branch, 188
government organization, 185–189 judicial branch, 186–188 legislative branch, 185–186
overview, 180–181 separation of powers, 188–189 sources of law, 181–185 statutory law, 183–184
Dieticians, 314–317 Dignity and respect, 383
Dimora v. Cleveland Clinic Foundation (1996), 367
Discernment, 35
Discharge, patient rights, 453
Disclosures
financial incentive disclosures, 302
patient rights, 450–451 Discovery of evidence, 221
Discrimination
AIDS, 91–92 patient rights and, 416
Disruptive physicians, 281–282, 361–362 Distributive justice, 15–16, 22 Dixon v. Taylor (1993), 342
DNA, 113
Doe, In re (1987), 82
Doe v. See name of opposing party
Do-not-resuscitate (DNR) orders, 153–157 decision making by competent patients, 154
spousal rights, 155–156 Doron, In re Estate of (1987), 410–411 Double standards, 20
Drug abuse via prescription fraud, 372
Drugs. See Medications
Due Process Clause, Fourteenth Amendment, 412
Durable power of attorney, 69, 143–144 Duty to care, 196–198 Duty to hire competent staff, 198
Duty to monitor patient’s medications, 335–336 Duty to provide timely care, 197–198, 287–288, 457 Duty to warn in research and clinical trials, 99–100
E
Economic justice, 23
Education
health care ethics committee role, 165
value of, 44
Education Department Office of Professional Discipline, 313
EEOC (Equal Employment Opportunity Commission), 380, 382
Elderly. See Senior abuse
Elective abortion, 72
Elective sterilization, 105
Emergency care
justice and, 22–23 patient rights, 451–453
Emergency consent, 409
Emergency department staff, 317–319 Emergency medical technicians, 320
Emergency Medical Treatment and Active Labor Act of 1996, 245–246 Employee responsibilities, 390–398
advocate for patients, 390
compassion, 390
confidentiality, 391
employee privacy and confidentiality, 391–392 exercising judgment, 393–394 honoring patient wishes, 391
nurse’s relationship with patient, 395 physician’s inappropriate house call, 395–396 professional relationship maintenance, 394–396 professional standard adherence, 394
protecting patients from harm, 397
relationships with patient’s spouse avoidance, 396 reporting patient abuse, 397
reporting unethical behavior, 396–397 safe practices adherence, 393
sterile technique protocol compliance, 393
whistleblowing and reporting unethical conduct, 397–398 Employee rights, 379–401
caregiver’s pledge, 399 employment-at-will and fair treatment, 384–385 equal pay for equal work, 380
freedom from intimidation, 387
freedom from sexual harassment, 382
helpful advice, 398–399 overview, 380
privacy and confidentiality, 388–390 public policy exceptions, 386–387 question patient’s care, 381–382 refuse to participate in care, 380–381 responsibilities, 390–398. See also Employee responsibilities suggest changing physician, 382–383 treated with dignity and respect, 383
Employment-at-will, 384–385 Employment contracts, 218
End-of-life dilemmas, 121–161 advance directives, 138–148. See also Advance directives do-not-resuscitate orders, 153–157. See also Do-not-resuscitate (DNR) orders
euthanasia, 123–138. See also Euthanasia futility of treatment, 148
overview, 122–123 withdrawal of treatment, 148–153. See also Withdrawal of treatment
Environment safety, 291–295 EPA (Equal Pay Act of 1963), 380
Equal Employment Opportunity Commission (EEOC), 380, 382
Equal Pay Act of 1963 (EPA), 380
Estate of. See name of party
Ethical codes of conduct. See Codes of ethics
Ethical dilemmas. See Contemporary ethical dilemmas
Ethical relativism, 9
Ethical theories, 6–9 consequential ethics, 7
deontological ethics, 8
ethical relativism, 9
nonconsequential ethics, 8
normative ethics, 7
utilitarian ethics, 8
Ethicists and standard of care, 197
Ethics. See also Codes of ethics; Organizational ethics
conflicts of interest, 302
defined, 2–3 failure to meet standards, 246–248 principles of, 9–24. See also Principles of ethics in public service, 257–258 purpose of, 3
religious ethics, 45–50. See also Religious ethics secular ethics, 50–51 situational ethics, 52–54 virtue ethics and values, 24–44. See also Virtue ethics and values
Ethics in Government Act of 1978, 241
Ethics in Patient Referral Act of 1989, 248
Eugenic sterilization, 105–106 Euthanasia, 123–138
active or passive, 125
assisted suicide, 133
constitutional considerations, 126–129 criminalizing assisted suicide, 135
death, defined, 129–131 legislative response, 131–133 Oregon’s Death with Dignity Act (1994), 9, 69, 70, 135–137 overview, 123–125 Patient Self-Determination Act of 1990, 69, 138, 248–249 physician-assisted suicide, 68, 69, 70, 71, 133–135 voluntary or involuntary, 126
Evidence, 225–226 demonstrative evidence, 225–226 direct evidence, 225
documentary evidence, 226
Examination of witnesses, 226–227 Exclusive contracts, 218–220 Executive branch, 188
Experimentation. See Research and clinical trials
Expert witnesses, 226–227 Express consent, 404
Express corporate authority, 262
Eyoma v. Falco (1991), 332–333
F
Failure to follow instructions, 331–332 Failure to note order change, 331
Failure to obtain adequate history and physical, 370–371 Failure to provide informed consent, 362
Failure to question patient discharge, 332
Failure to read nurses’ notes, 367–369 Failure to refer for consultation, 369–370 Failure to remove endotracheal tube, 333
Failure to report physician negligence, 332
Failure to respond, 367
Fairness, 36
Fair treatment, 384–385 Faith. See Religious ethics
Faithfulness, 37
Falls, 293–294 False advertising, 272
False imprisonment, 202–203 False statements, 283–284 Falsification of records, 366–367 Falun Gong (Falun Dafa), 48
Family and Medical Leave Act of 1993 (FMLA), 286–287 Feeding tubes, 151–153 Fetus Brown, In re (1997), 415
Fidelity, 37
Financial crisis, 266–267 Financial incentive disclosure, 271, 302
Financial mismanagement, 249–250 First trimester abortion, 74
Fjerstad v. Knutson (1978), 318
Float staff, 328
Florida, abortion statutes in, 81
Florida Hospital Waterman, Inc. v. Buster (2008), 444
Foley v. Bishop Clarkson Memorial Hospital (1970), 370
Follett v. Davis (1994), 323–324 Food and Drug Administration (FDA) regulation, research and clinical trials, 102
Food inspection, 268
Forcible administration of medications, 435
Foreseeability and anticipation of harm, 199–200 Forgiveness, 27–30 Formulary system, 335
Fourteenth Amendment, 14, 70, 74, 82, 243, 412
Fourth Amendment, 86
Fraud
billing, 336
in criminal law, 209–213 home care, 336
prescription, 372
Freedom, 37
Futility of treatment, 148
G
Genetic Information Nondiscrimination Act of 2008 (GINA), 113
Genetic markers, 113
Genome research, 71, 113
George Washington University School of Public Health, 253
Georgia Dental Practice Act, 312
Gill v. Hartford Accident & Indemnity Co., 371
Gilmore v. Board of Psychologist Examiners (1986), 340–341 Goff v. Doctors General Hospital (1958), 332
Goldberg v. De Buono (2000), 396
Good-faith reporting of child abuse, 427
Good Samaritan laws, 228
Government, 237–260 Agency for Healthcare Research and Quality (AHRQ), 248
Civil Rights Act of 1964, 243
Emergency Medical Treatment and Active Labor Act of 1996, 245–246 Ethics in Patient Referral Act of 1989, 248
ethics in public service, 257–258 Fourteenth Amendment, 14, 70, 74, 82, 243, 412
Health Care Quality Improvement Act of 1986, 246
Health Insurance Portability and Accountability Act of 1996, 245
non-payment of wrong procedures, 257–258 Office of Government Ethics (OGE), 240–241 organization, 185–189 overview, 238–240 Patient Protection and Affordable Care Act of 2010, 250–252 Patient Self-Determination Act of 1990, 69, 138, 248–249 people as, 240–241
political malpractice, 252–256. See also Political malpractice Privacy Act of 1974, 244–245 public policy as principle of law, 242
Sarbanes-Oxley Act of 2002, 249–250 Sherman Antitrust Act of 1890, 243–244 spending and justice, 18–20
Greynolds v. Kurman (1993), 409–410 Guardianship
advance directives, 147
authorization for consent, 410–411 health care ethics committees, 168–169
Guardianship of L.S., In re (2004), 411
Gynecology and Obstetrics, 373
H
Hammurabi, Code of, 50–51 Happiness, 25
Harris v. McRae (1980), 76
Hartke v. McKelway (1983), 110
Harvard Ad Hoc Committee on Brain Death, 66
Health and Human Services Department (HHS), 243
Health Care and Education Reconciliation Act of 2010, 250
Health care costs, 16–20 Health care ethics committees, 163–177
consultation and conflict resolution, 166
consultation requests, 166–169 convening, 171–173 education role of, 165
expanding role of, 170–171 external ethical issues, 171
functions, 165–166 goals of, 165
guardianship role, 168–169 hospital choice, 171
internal ethical issues, 170–171 overview, 164
policy and procedure development, 165
reasoning and decision making, 173–175 structure of, 164
Health care professionals, 309–350 AIDS and, 86
caregivers, advice for, 347–348 certification of, 344
chiropractors, 310–311 dental hygienists, 313–314 dentists, 312–313
dieticians, 314–317 emergency department staff, 317–319 emergency medical technicians, 320
licensing, 345–347 medical assistants, 321–324 medical records, 324
medical technologists, 320–321 nurses, 324–333. See also Nurses overview, 310
pharmacists, 333–336. See also Pharmacists physical therapists, 336–339. See also Physical therapists physician assistants, 339–340 psychologists, 340–341. See also Psychologists radiology technologists, 343–344 respiratory therapists, 341–343 social workers, 344
Health care proxy, 147–148 Health Care Quality Improvement Act of 1986, 246, 284
Health care system
costs, 16–20 declining trust in, 39
professionals. See Health care professionals
reform, 16–19 Health Department, 366
Health insurance coverage, 16–19 age and justice, 21–22 injustice for the insured, 21
uninsured, 23
Health Insurance Portability and Accountability Act of 1996 (HIPAA), 70, 245, 450
Health Resources and Services Administration (HRSA), 325
Heddinger v. Ashford Memorial Community Hospital (1984), 288
Heineche v. Department of Commerce (1991), 395
Hemlock Society, 68
Heterologous artificial insemination, 92–93 Hickman v. Sexton Dental Clinic (1988), 314
Hinduism, 47
HIPAA. See Health Insurance Portability and Accountability Act of 1996
Hippocratic Oath, 97, 363–365, 366 HIV. See AIDS
H.L. v. Matheson (1981), 76
Holocaust, 65
Home care fraud, 213
Homologous artificial insemination, 92
Honesty, 37–40 Hooks v. McLaughlin (1994), 336
Hopefulness, 44
Hospital accreditation, 267–270 Hospital choice, 171
Hospital Licensing Act (Illinois), 275
Hospital’s duty to ensure competency, 358–360 disruptive physicians, 281–282, 361–362 masquerading as a physician, 359
overview, 358–359 physician supervision and monitoring, 359–360
Hoxie v. Ohio State Med. Bd. (2006), 283–284 HRSA (Health Resources and Services Administration), 325
Huffaker v. Bailey (1975), 361
Hughes, Matter of (1992), 405
Human genetics, 71, 112–114 Human immunodeficiency virus (HIV). See AIDS
Hyde Amendment, 76
I
Ignorance of law and unintentional wrongs, 228
Illinois
Department of Public Health, 275
Hospital Licensing Act, 275
Immunity and good-faith reporting of child abuse, 427
Implied consent, 404, 413–414 Implied corporate authority, 262
Improprieties with clients of psychologists, 340–341 Incapacity, consent and, 406
Income inequality, 255–256 Incompetent persons’
abortion consent, 82
authorization for consent, 413
honoring wishes of, 69
Independent contractors’ ethics, 273–274 Infection control issues, 371
Infliction of mental distress, 204
Informed consent
abortion, 79–80 failure of physician to provide, 362
patient rights, 404–405, 447 physician’s failure to provide, 362 reasonable man standard, 67
research and clinical trials, 98
Injury and actual damages, 199
Injustice for the insured, 21
In re. See name of party
Insinga v. LaBella (1989), 359
Institute of Medicine, 325
Institutional review boards (IRBs), 98, 102–103 Instrumental value, 25
Insurance, 253, 265–266 Integrity, 40–42 Intentional torts, 202–205
assault and battery, 202
defamation of character, 203
false imprisonment, 202–203 infliction of mental distress, 204
invasion of privacy, 203–204 International Code of Medical Ethics, 65
Intimidation
of abusive resident, 435
freedom from, 387
Intrinsic value, 25
Invasion of privacy, 203–204 IRBs (Institutional review boards), 98, 102–103 Islam, 50
J
Jascalevich, Matter of (1982), 367
Jehovah’s Witnesses, 49, 415, 416–419 Jihad, 45
Job applicant screening, 283
Joint Commission (JC)
compliance with, 287
hospital accreditation, 267–268, 275 Jones v. Westside-Urban Health Center (1991), 387
Joseph P. and Rose F. Kennedy Institute of Ethics, 66–67 Judaism, 46–47 Judge’s charge to jury, 229 Judgment, 393–394 Judicial branch, 186–188 Jury, 224
Jury deliberation, 229
Justice, 15–18
K
Kassama v. Magat (2002), 109
Kendzia; People v. (1984), 336
Kevorkian, Jack, 69, 70
Kindness, 42–43 Kirk v. Mercy Hospital Tri-County (1993), 381
Koeniguer v. Eckrich (1988), 332
L
Labor Department, U.S., 287
Ladenheim v. Union County Hospital District (1979), 361
Lambert v. Beverly Enterprises, Inc. (1990), 316
Larrimore v. Homeopathic Hospital Association (1962), 331
Law
contracts, 217–220. See also Contracts criminal law, 206–217. See also Criminal law development of, 179–192. See also Development of law intentional torts, 202–205. See also Intentional torts morality in, 6
negligence, 195–201. See also Negligence overview, 194–195 tort law, 195
trial and courtroom procedures, 220–231. See also Trial and courtroom procedures Leggett v. Kumar (1991), 362
Legislative branch, 185–186 License revocation, 345, 433
Licensing of health care professionals, 345–347 Life Safety Building Code, 293
Life-support equipment removal, 150
Living wills, 68, 139–143 Lovelace Medical Center v. Mendez (1991), 111
Lucchesi v. Stimmell (1986), 373
Luka v. Lowrie (1912), 414
M
Macleod v. Miller (1980), 454
Macroethics, 2
Maher v. Roe (1977), 75
Malnutrition, 315
Malpractice, 246, 288. See also Political malpractice
Manslaughter, 213–214 March to support abortion rights (2004), 78–79 Marks v. Mandel (1985), 318
Masquerading as physician, 359
Matter of. See name of party
MEC (Medical Executive Committee), 246–247 Medicaid
abortion benefits, state denial, 75, 76
Affordable Care Act rule, 257–258 discrimination and, 452
PSDA and, 248–249 Medical assistants, 321–324 Medical Executive Committee (MEC), 246–247 Medical integrity, 42
Medical paternalism, 10
Medical records, 324
nurses and, 333
patient’s access rights, 454–455 physician’s falsification of, 366–367
Medical staff
appointments, 281
supervision, 284
Medical technologists, 320–321 Medicare
Civil Rights Act and, 243
discrimination and, 452
hospital payments and, 254
PPACA and, 250
PSDA and, 248–249 Medications. See also Pharmacists
errors, 371–372 forcible administration of medications, 435
nurse negligence and, 329–331 Mehlman v. Powell (1977), 273–274 Melideo, In re (1976), 409
Melone v. State Education Department (1985), 312
Meta-ethics, 7
Microethics, 2
Military Tribunal for War Crimes, 65
Minors
abortion, parental notification, 75, 76, 82
child abuse, 341, 424–427 parental consent, 412–413 transfusions, refusal of, 411–412
Misdiagnosis, 372–373 Missouri Revised Statutes (1975), 329
Montgomery Health Care Facility v. Ballard (1990), 435–436 Moral compass, 56
Moral dilemmas, 6
Morality, 3–6 of abortion, 84
in law, 6
Moral judgments, 5–6 Moral philosophy, 2. See also Ethics
Moral strength, 26, 26f
Moral values. See Virtue ethics and values
Morena v. South Hills Health Systems (1983), 320
Moyo v. Ambach (1988), 372
Multidisciplinary patient care, 338–339 Murder, 214–215
Murphy v. Board of Medical Examiners (1997), 271
N
National Academy of Sciences, 248
National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research,
67
National Institutes of Health (NIH), 65, 100–102 National Labor Relations Act of 1935, 387
National Organ Procurement Act of 1984, 94
National Research Act of 1974 (NRA), 67
National Science Foundation, 310
Neanderthal burial sites, 64
Negative tolerance, 44
Neglect, 431–432 Negligence, 195–201
agency personnel, 328
breach of duty, 198–199 causation and proximate cause, 199–200 corporate negligence, 274–276 cursory exams, 200–201 duty to care, 196–198 duty to hire competent staff, 198
duty to provide timely care, 197–198 elements of, 196–200 ethicists and standard of care, 197
foreseeability and anticipation of harm, 199–200 injury and actual damages, 199
nurses, 329–333 overview, 195–196 standard of care expected, 196–197 statutory duty, 197
Negligent sterilization, 106
Nepa v. Commonwealth Department of Public Welfare (1988), 433
News media and confidentiality, 89–92 New York State Social Services Law, 426
Nicoletta v. Rochester Eye & Human Parts Bank (1987), 95
Nonconsequential ethics, 8
Nonmaleficence, 13–14 Non-payment of wrong procedures, 257–258 Normative ethics, 7
Norton v. Argonaut Insurance Co. (1962), 329
Notami Hospital of Florida, Inc. v. Bowen (2008), 444
Nuremberg Code, 97
Nurse anesthetists, 326–327 Nurse midwifes, 327
Nurse practitioners, 327
Nurses, 324–333 agency personnel, 328
ambiguous medication order, 329–330 assessments and diagnosis, 329
clinical nurse specialists, 327
failure to follow instructions, 331–332 failure to note order change, 331
failure to question patient discharge, 332
failure to remove endotracheal tube, 333
failure to report physician negligence, 332
float staff, 328
medical records and, 333
medicating wrong patient, 331
negligent acts, 329–333 nurse anesthetists, 326–327 nurse midwifes, 327
nurse practitioners, 327
nursing assistants, 328
overview, 324–326 patient’s changing condition, 332–333 registered nurses, 326
relationship with patient, 395
shortage of, 328–329 special nurse duty, 327
student nurses, 328
wrong dosage of medication, 330–331 Nursing assistants, 328
Nursing facilities in research and clinical trials, 103
Nursing Practice Act (Missouri), 382
Nursing Practice Act (North Carolina), 331, 383
Nutrition, 314–317
O
O’Brien v. Cunard Steam Ship Co. (1891), 414 Obstetrics and gynecology, 373
Offer and acceptance, 217–218 Office of Government Ethics (OGE), 241
Office of Government Ethics Reauthorization Act of 1988, 241
Office of Personnel Management, 241
Omnibus Budget Reconciliation Act of 1986, Title XI, 94
Opening statements, 225
Oral consent, 408
Oregon, State of v. Ashcroft (2001), 70
Oregon Death with Dignity Act (1994), 9, 69, 70, 135–137 Oregon Psychological Association, 340
Organ donations, 93–96
decision making, 94
failure to obtain consent, 95–96 living donor registry (California), 71
Uniform Anatomical Gift Act, 95
Organizational ethics, 261–308 accreditation of hospitals and conflicts of interest, 267–270 code of ethics for organizations, 263–264 conflicts of interest avoidance, 288–306. See also Conflicts of interest corporate duties and responsibilities, 276–288. See also Corporate duties and responsibilities corporate negligence, 274–276 effective communications, 306
express corporate authority, 262
financial incentives disclosed, 271
implied corporate authority, 262
independent contractor, 273–274 organizational conduct under scrutiny, 264–273 overview, 262–263, 264–267 respondeat superior doctrine, 273–274 truthfulness in advertising, 271–272 ultra vires acts, 263
Overdose of medication, 336
P
Pain management, 457–458 Parental consent
abortion, 75, 76, 82
authorization for minors, 412–413 refusal for child’s transfusion, 411–412
Parental notification of abortion, 76, 82
Partial birth abortion ban, 78
Patents, research and clinical trials, 104
Paternalism, 10–12, 66 Patient abuse. See Abuse
Patient falls, 293–294 Patient Protection and Affordable Care Act of 2010, 250–252, 253 Patient responsibilities, 459–462 Patient rights, 441–462
admission, 445
advance directives, 451
asking questions, 447–448 care decision participation, 446
designate decision maker, 451
discharge, 453
disclosures, 450–451 emergency care, 451–453 explanation of rights, 444
informed consent, 447
knowledge of caregivers, 455
knowledge of hospital’s adverse events, 444–445 knowledge of restrictions on rights, 451
know their rights, 444
medical records access, 454–455 overview, 442–444 pain management, 457–458 privacy and confidentiality, 448–451 quality care, 446
refusal of treatment, 451
respect, 457
responsibilities, 459–462 sensitive and compassionate care, 455–456 special needs, 451
third-party care relationships, 455
timely response to care needs, 457
transfer, 454
Patients
advocates for, 390
autonomy, 42
concerns and complaints, 299–301 physician relationship with, 373–374 questioning of care, 381–382 research and clinical trials, responsibilities, 100–102 responsibilities, 459–462 rights of. See Patient rights
wishes, 391
Patient’s Bill of Rights and Responsibilities, 444 Patient Self-Determination Act of 199 (PSDA), 69, 138, 248–249 Patient’s Right to Know Amendment, 455 Pennsylvania
Abortion Control Act, 81
Confidentiality of HIV-Related Information Act, 88
Perkins v. Lavin (1994), 417
Persistent vegetative state, withdrawal of treatment when patient not in, 149–150 Pharmacists, 333–336
billing fraud, 336
dispensing and administration of drugs, 334
drug substitution, 334–335 duty to monitor patient’s medications, 335–336 expanding role of, 335
overview, 333–334 prescription fraud, 372
refusal to honor questionable prescription, 336
warning patients on potential overdose, 336
Physical therapists, 336–339 Code of Ethics, 337
incorrect interpretation of physician’s orders, 337–338 overview, 336–337 resident neglect, 338
Physician assistants, 339–340 Physician-assisted suicide, 68, 69, 70, 71, 133–135 Physicians, 351–377
abandonment, 362–365. See also Abandonment abuse of controlled substances, 372
aggravation of preexisting condition, 365
alternative procedures, 365–366 confidential communications, 366
credentialing professionals, 358
failure to obtain adequate history and physical, 370–371 failure to provide informed consent, 362
failure to read nurses’ notes, 367–369 failure to refer for consultation, 369–370 failure to respond, 367
falsification of records, 366–367 HIV status, disclosure of, 87–88 honoring patient’s right to autonomy, 362 hospital’s duty to ensure competency, 358–362 inappropriate house call, 395–396 infection control issues, 371
medications, 371–372 misdiagnosis, 372–373 obstetrics and gynecology, 373
orders, incorrect interpretation of, 337–338 overview, 352–354 physician–patient relationship, 373–374 principles of medical ethics, 355–358. See also Principles of medical ethics supervision and monitoring, 359–360
Pillars of moral strength, 26, 26f
Planned Parenthood v. Owens (2002), 82
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), 77–78, 80, 81 Plea bargaining, 208
Pleadings, 220–221 Poelker; Doe v. (1975), 381
Political malpractice, 252–256 Congress approval rating, 253–254 democracy for wealthy, 255–256 overview, 252–253 veteran’s insurance benefits, 253
Politics and distrust, 39–40 Pontiff v. Pecot & Assoc. (2001), 337
Poor Sisters of St. Francis v. Catron (1982), 333
Positive tolerance, 44
Power of attorney, durable, 69, 143–144 Preexisting conditions, 365
Prescriptions. See Pharmacists
President’s Commission for the Study of Ethical Problems in Medicine, 68 President’s Council on Bioethics, 70 Principles of ethics, 9–24
age and justice, 21–22 autonomy, 14–15 beneficence, 9–12 economic justice, 23
emergency care and justice, 22–23 government spending and justice, 18–20 injustice for the insured, 21
justice, 15–18 nonmaleficence, 13–14
Principles of medical ethics, 355–359 Code of Medical Ethics, 356
compassion, 356–359 overview, 355
Principles of Medical Ethics (American Medical Association), 366
Privacy. See also Confidentiality
abortion, woman’s right to, 73–74 employee’s rights, 388–390, 391–392 invasion of, 203–204 patient’s rights, 448–451
Privacy Act of 1974, 244–245 Privacy Protection Safety Commission, 244
Professional relationship maintenance, 394–396 Professional standard adherence, 394
Prosecutors, 209
Protecting patients from harm, 397
Proximate cause, 199–200 Psychologists, 340–341 Public Health Department (Illinois), 275
Public Health Service Act of 1944, Title X, 77
Public policy
exceptions, 386–387 as principle of law, 242
Punitive damages award, 302
Q
Quality care, patient rights, 446
Quinlan, In the Matter of (1976), 68
R
Radiology
exclusive contracts with groups, 219
technologists, 343–344 Ramberg v. Morgan (1928), 373
Rationing of health care, 16
Reasonable man standard, 67
Records. See Medical records
Refusal of treatment, 451
Refusal to honor questionable prescription, 336
Refusal to participate in care, 380–381 Registered nurses, 326
Relationships
physician–patient relationships, 373–374 professional relationship maintenance, 394–396 third-party care relationships, 455
Religious ethics, 45–50 anointing of sick for healing, 49
Buddhism, 47–48 Christianity, 48–49 Falun Gong, 48
Hinduism, 47
Islam, 50
Jehovah’s Witnesses, 49, 415, 416–419 Judaism, 46–47 Taoism, 48
Zen, 48
Reports
child abuse, 426
unethical behavior, 396–397 unethical conduct, 397–398
Research and clinical trials, 96–104 duty to warn, 99–100 experimental subject’s bill of rights, 98–99 Food and Drug Administration (FDA) regulation, 102
informed consent, 98
institutional review boards (IRBs), 102–103 nursing facilities, 103
patents, effect of, 104
patient responsibilities, 100–102 Resident neglect by physical therapists, 338
Respect, 43, 383, 457
Respiratory therapists, 341–343 Respondeat superior doctrine, 273–274 Responsibilities. See Employee responsibilities; Patient responsibilities
Revocation of license, 345, 433
Richard v. Larry (1988), 396
Riffe v. Vereb Ambulance Service, Inc. (1994), 320
Rights. See Employee rights; Patient rights
Right to die without living will, 142–143 Right to refuse treatment, 249, 414–420 Riser v. American Medical Int’l, Inc. (1993), 406–407 Roe v. Wade (1973), 67, 73–74 Rules and regulations compliance, 286
Rust v. Sullivan (1991), 77
S
Safety
adherence to safe practices, 393
culture of, 299
environment, 291–295 Sarbanes-Oxley Act (2002), 249–250 Scarce resources allocation, 284–286 Schloendorff v. Society of New York Hospital (1914), 15, 415
Screening of job applicants, 283
Second trimester abortion, 74
Secular ethics, 50–51 Senate Bill 1395, 71
Senate Select Committee on Aging, 430–431 Senior abuse, 428–438
abusive search, 434
documentation, 430–431 forcible administration of medications, 435
intimidation of abusive resident, 435
license revocation and, 433
overview, 428
by physical therapists, 338
poem, 437–438 signs of abuse, 428–429 wanton neglect, 431–432
Sensitive and compassionate care, 455–456 Separation of powers, 188–189 Sexual assault, 294–295 Sexual harassment, 382, 395
Shaheen v. Knight (1957), 111
Shea v. Esensten (2000), 302
Sherman antitrust Act (1890), 243–244 Shortage of nurses, 328–329 Sides v. Duke Hospital (1985), 384–385 Situational ethics, 52–54 Smith; Doe v. (1988), 81
Smith, Estate of v. O’Hallora (1983), 431
Social workers, 344
Sources of law, 181–185 Sovereign immunity, 229
Special needs, patient rights, 451
Special nurse duty, 327
Spirituality, 46
Spontaneous abortion, 72
Spousal consent and rights
abortion, 81
authorization for consent, 409–410 do-not-resuscitate (DNR) orders, 155–156
Standard Building Codes (1988), 293
Standard of care expected, 196–197 State v. See name of opposing party
State Board for Professional Medical Conduct, Hearing Committee, 396
State statutes, 80–84 State University v. Young (1991), 342
Statute of limitations, 228–229 Statutory consent, 420
Statutory duty, 197
Statutory law, 183–184 Stem cell research, 114
Stenberg v. Carhart (2000), 78
Stenger v. Lehigh Valley Hospital Center (1992), 89
Stepp v. Review Board (1988), 320
Sterile technique protocol compliance, 393
Sterilization, 104–106 Stoick v. Caro Community Hospital (1983), 445
Student nurses, 328
Subpoenas, 224–225 Substituted judgment, 68, 144–146 Summons and complaint, 220–221 Supplies and equipment, conflicts of interest, 295–298 Supreme Court, U.S., abortion cases, 73–80 Surrogacy, 111–112 Surrogate decision making, 144–148 Suspension of license, 345
T
Taoism, 48
Tarrant County Hospital District v. Hughes (1987), 87
Taylor v. Kennestone Hosp. (2004), 284
Temperance as virtue, 31
Temporary guardianship, 410–411 Theft, 215–217 Therapeutic Abortion Act (Florida), 81
Therapeutic sterilization, 105
Third-party care relationships, patient rights, 455
Third trimester abortion, 74
Thomas v. Corso (1972), 317–318 Thomas v. Sisters of Charity of the Incarnate Word (2004), 293–294 Thompson v. Nason Hospital (1991), 274
Timely treatment, 197–198, 287–288, 457 Tolerance, 44
Tort law, 195
Transfers, patient rights, 454
Transfusions. See Blood transfusions
Trial and courtroom procedures, 220–231 answer, 221
appeals, 230
bill of particulars, 221
burden of proof, 225
closing statements, 229
court conduct, 222–223 criminal trials, 209
damages, 229–230 defenses, 227–229. See also Defenses discovery of evidence, 221
evidence, 225–226 examination of witnesses, 226–227 expert witnesses, 226–227 judge’s charge to jury, 229 jury, 224
jury deliberation, 229
opening statements, 225
pleadings, 220–221 preparation of witnesses, 221–222 subpoenas, 224–225 summons and complaint, 220–221
Trust
CEOs and, 389–390 conflicts of interest, 303–305 declining trust in health care system, 39
Trustworthiness, 37–40 Truthfulness in advertising, 271–272 Truth telling, 37–40 Tubal ligation, 104–105 Tuskegee Study of Syphilis, 64–65
U
Ultra vires acts, 263
Undue burden rule, abortion, 77–78
Uniform Anatomical Gift Act, 95
Uninsured, medical treatment for, 23
University of Cincinnati; Doe v. (1988), 87
Utah, abortion statutes in, 80–81 Utah Women’s Clinic, Inc. v. Leavitt, 81 Utilitarian ethics, 8
V
Values. See Virtue ethics and values
Vasectomy, 104
Veracity, 37
Veterans Administration bill of rights, 98–99 Veteran’s insurance benefits, 253 Virtue ethics and values, 24–44
commitment, 31
compassion, 31–33 conscientiousness, 34
cooperation, 35
courage as virtue, 27–30 discernment, 35
education and learning as value, 44
fairness, 36
fidelity, 37
freedom, 37
honesty, trustworthiness, and truth telling, 37–40 hopefulness, 44
integrity, 40–42 kindness, 42–43 medical integrity and patient autonomy, 42
overview, 24–26 pillars of moral strength, 26, 26f
politics and distrust, 39–40 respect, 43
temperance as virtue, 31
tolerance, 44
trust, 39
wisdom as virtue, 30–31
W
Wade v. Bethesda Hospital (1971), 106
Walls v. Shreck (2003), 13
Wanton neglect, 431–432 Warning
duty to warn in research and clinical trials, 99–100 potential overdose, 336
Webster v. Reproductive Health Services (1989), 77
Whistleblower Protection Act of 1989, 398
Whistleblowers, 397–398 Wisdom as virtue, 30–31 Withdrawal of treatment, 148–153
feeding tubes, 151–153 life-support equipment removal, 150
overview, 148–149 patient not in persistent vegetative state, 149–150
Witnesses
examination of, 226–227 expert witnesses, 226–227 preparation of, 221–222
Woman’s right to privacy, 73–74 Women’s Medical Professional Corp. v. Voinovich (1998), 78 World Medical Association, 66
Written consent, 408–409 Wrongful birth, 107–108 Wrongful conception, 110–111 Wrongful life, 108–110
Z
Zen, 48
Zimmerman; Doe v. (1975), 81
Zucker v. Axelrod (1988), 338
- Title
- Copyright
- Contents
- Foreword
- Preface
- Acknowledgments
- Chapter One Introduction to Ethics
- Introduction
- Ethics
- Morality
- Ethical Theories
- Principles of Ethics
- Virtue Ethics and Values
- Religious Ethics
- Secular Ethics
- Atheism
- Situational Ethics
- The Final Analysis
- The Moral Compass
- Summary Thought
- Chapter Review
- Test Your Understanding
- Chapter Two Contemporary Ethical Dilemmas
- Introduction
- Noteworthy Historical Events
- Abortion
- Acquired Immune Deficiency Syndrome
- Artificial Insemination
- Organ Donations
- Research, Experimentation, and Clinical Trials
- Sterilization
- Wrongful Birth, Life, and Conception
- Surrogacy
- Human Genetics
- Chapter Review
- Test Your Understanding
- Notes
- Chapter Three End-of-Life Dilemmas
- Introduction
- Euthanasia
- Advance Directives
- Futility of Treatment
- Withdrawal of Treatment
- Do-Not-Resuscitate Orders
- Chapter Review
- Test Your Understanding
- Notes
- Chapter Four Health Care Ethics Committee
- Introduction
- Committee Structure
- Goals of the Ethics Committee
- Committee Functions
- Requests for Consultations
- Expanding Role of the Ethics Committee
- Convening the Ethics Committee
- Reasoning and Decision Making
- Helpful Hints
- Chapter Review
- Test Your Understanding
- Notes
- Chapter Five Development of Law
- Introduction
- Sources of Law
- Government Organization
- Administrative Departments and Agencies
- Chapter Review
- Test Your Understanding
- Notes
- Chapter Six Introduction to Law
- Introduction
- Tort Law
- Negligence
- Intentional Torts
- Criminal Law
- Contracts
- Trial Procedures and the Courtroom
- Chapter Review
- Test Your Understanding
- Notes
- Chapter Seven Government, Ethics, and the Law
- Introduction
- United States Office of Government Ethics
- Public Policy as a Principle of Law
- 14th Amendment to the U.S. Constitution (1868)
- Civil Rights Act (1964)
- Sherman Antitrust Act (1890)
- Privacy Act (1974)
- Health Insurance Portability and Accountability Act (1996)
- Emergency Medical Treatment and Active Labor Act (1986)
- Health Care Quality Improvement Act (1986)
- Agency for Healthcare Research And Quality
- Ethics in Patient Referral Act (1989)
- Patient Self-Determination Act (1990)
- Sarbanes-Oxley Act (2002)
- Patient Protection and Affordable Care Act (2010)
- Political Malpractice
- Ethics in Public Service
- Chapter Review
- Test Your Understanding
- Notes
- Chapter Eight Organizational Ethics and the Law
- Introduction
- Code of Ethics for Organizations
- Organizational Conduct Under Scrutiny
- Doctrine of Respondeat Superior
- Corporate Negligence
- Corporate Duties and Responsibilities
- Avoid Conflicts of Interest
- Provide for Effective Communications
- Chapter Review
- Test Your Understanding
- Notes
- Chapter Nine Health Care Professionals’ Ethical and Legal Issues
- Introduction
- Chiropractor
- Dentist
- Dental Hygienist
- Dieticians
- Emergency Department Staff
- Emergency Medical Technician
- Medical Technologist
- Medical Assistant
- Medical Records
- Nurse
- Pharmacist
- Physical Therapist
- Physician Assistant
- Psychologist
- Respiratory Therapist
- Radiology Technologist
- Social Worker
- Certification of Health Care Professionals
- Licensing Health Care Professionals
- Helpful Advice for Caregivers
- Chapter Review
- Notes
- Chapter Ten Physicians’ Ethical and Legal Issues
- Introduction
- Principles of Medical Ethics
- Credentialing Professionals
- Hospital’s Duty to Ensure Competency
- Honoring a Patient’s Right to Autonomy
- Failure to Provide Informed Consent
- Abandonment
- Aggravation of a Preexisting Condition
- Alternative Procedures: Two Schools of Thought
- Confidential Communications
- Falsification of Records
- Failure to Respond: Emergency Department Call
- Failure to Read Nurses’ Notes
- Failure to Refer for Consultation
- Failure to Obtain Adequate History and Physical
- Infection Control Issues
- Medications
- Misdiagnosis
- Obstetrics and Gynecology
- Physician–Patient Relationship
- Chapter Review
- Notes
- Chapter Eleven Employee Rights and Responsibilities
- Introduction
- Employee Rights
- Employee Responsibilities
- Helpful Advice
- The Caregiver’s Pledge
- Chapter Review
- Notes
- Chapter Twelve Patient Consent
- Introduction
- Informed Consent
- Consent and Ethical Codes
- Assessing Decision-Making Capacity
- Adequacy of Consent
- Proof of Consent
- Who May Authorize Consent?
- Implied Consent
- Right to Refuse Treatment
- Statutory Consent
- Chapter Review
- Test Your Understanding
- Notes
- Chapter Thirteen Patient Abuse
- Introduction
- Child Abuse
- Senior Abuse
- Look Closer, See ME
- Chapter Review
- Notes
- Chapter Fourteen Patient Rights and Responsibilities
- Introduction
- Patient Rights
- Patient Responsibilities
- Chapter Review
- Notes
- Chapter Fifteen Summary Case—Star Chamber
- Characters
- Settings
- Events of Sunday, October 2
- Events of Wednesday Afternoon, October 5
- Events of Thursday Morning, October 6
- Events of Thursday Luncheon, October 6
- Events of Thursday, Late Afternoon, October 6
- Events of Thursday Evening, October 6
- Events of December 27–29 Educational Conference
- Discussion
- Note
- Appendix A Pillars of Moral Strength
- Appendix B Websites
- Ethics Websites
- Government and Government-Related Websites
- Legal Websites
- Best Practices Websites
- Health Care Resources
- Hospital and Physician Finders
- International Medical Websites
- Reference Websites
- Glossary
- Index
