English Legal aspect & Legislation in Healthcare- Assignment 2

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Legal and Ethical Aspects of Health Information Management, 5th edition

Dana W. McWay, JD, RHIA

McWay, Legal and Ethical Aspects of Health Information Management 5th edition, © 2020 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

Chapter 4

Principles of Liability

Introduction

Principles of liability

May encompass physical damage, damage to party’s rights, reputation, or property

Focus on health care relationships and related principles of liability

Health Care Relationships

Before a person can sue another, he or she must show that a relationship existed between them

Key relationships in health care

Physician and patient

Hospital and patient

Hospital and physician

These relationships increasingly serve as subjects of lawsuits

Physician and Patient Relationships (1 of 2)

Role of other health care providers is also recognized (nurses and therapists)

Contractual relationship

Patient requests treatment (Offer)

Physician agrees (Acceptance)

Physician–patient relationship can also occur through medical advice provided by a physician through social media, such as through a blog

Physician and Patient Relationships (2 of 2)

Relationship continues until

Treatment no longer needed

Physician withdraws from the contract; must give notice to allow patient to find alternative care

Patient dismissed physician

Mutual agreement to end the relationship

Relationship ends when patient is cured or dies

Also failure to comply with physician’s orders can result in termination

Hospital and Patient Relationship

Also a contractual relationship

Patient is voluntarily admitted to hospital

Patient signs forms agreeing to pay for treatment

Relationship ends when patient is discharged or leaves hospital against medical advice

General rule: Hospitals do not need to treat every person who arrives at their door

Emergency care—duty to treat

If hospital has a dedicated emergency room and accepts Medicare

EMTALA law requires assessment and stabilization of every person who seeks emergency care or is in active labor

Hospital and Physician Relationships

Not based on direct patient care

Contract between the hospital and physician

Physician may bring patients to hospital for treatment

Hospital will furnish and coordinate care along with the physician

Hospital board determines scope and limit of physician practice

Medical staff privileges

Based on doctor’s licensure, certification, and experience

Privileges may be limited or terminated if doctor violates standards for care, quality, or conduct

Theories of Liability

Lawsuits in health care field may allege

Breach of contract

Intentional tort

Committed with and intent to do wrong

Assault, battery, defamation, invasion of privacy

Nonintentional tort

Committed with lack of intent

Negligence

Nonintentional Torts (1 of 15)

Negligence: Someone failing to do something that a reasonably prudent person would do in a similar situation or doing something that a reasonably prudent person would not do in a similar situation

Malpractice: Professional misconduct

Medical malpractice

Involves a health care provider

Failing to follow the standard of care, resulting in patient harm

Nonintentional Torts (2 of 15)

Medical Malpractice

To succeed, plaintiff must prove

Duty of care is owed to the patient

A breach of duty

A causal connection between breach of duty and patient’s injury or harm

Damages: injury, loss, or harm

In medical malpractice case, the plaintiff is the patient or patient’s family

Nonintentional Torts (3 of 15)

Duty of Care

Duty to conform to a standard of conduct or behavior

Reasonably prudent person standard: Average intelligence and experience

Professionals are held to the reasonably prudent professional standard, including similar education, experience, licensure, and so on.

Nonintentional Torts (4 of 15)

Breach of Duty of Care

Plaintiff must prove that the defendant deviated from the standard of care

In medical malpractice cases, evidence may be:

Standards, laws, and regulations pertinent to profession

Written materials published by professional associations

Institution’s policies and procedures

Expert testimony from another professional who practices in the same area as defendant

Nonintentional Torts (5 of 15)

Causation

Plaintiff must prove that breach of standard of care caused harm

Injury would not have occurred without the defendant’s act or failure to act

Sometimes called causal connection

In some cases, harm is caused by intervening forces

Test to determine proximate cause is foreseeability

If medical professional had anticipated intervening force, then injury is considered foreseeable and the medical professional is liable

Nonintentional Torts (6 of 15)

Damages

If causal link is proven, entitled to damages

Nominal: minimal injury, very small amount

Actual or compensatory

Awarded to make the plaintiff whole

Expenses, income loss, past and future costs of care

Punitive (uncommon in medical malpractice cases)

Above and beyond actual damages

Punish the wrongdoer

Requires a finding that conduct was outrageous, malicious, or intentional

Nonintentional Torts (7 of 15)

Res Ipsa Loquitor

Theory of liability with limited applicability

The thing speaks for itself

Plaintiff must prove

Injury would not ordinarily occur without negligence

Medical professional had exclusive control and management over the instrument or cause of accident

Patient could not have caused the accident

Example: Foreign body left in abdomen after surgery

Nonintentional Torts (8 of 15)

Vicarious Liability

Respondeat superior

Organization or employer is responsible for negligent acts of employees

Employment relationship must exist

Who selected the employee?

Who pays the employee?

Who has the power to fire the employee?

Who has power to control the details of the employee’s work?

Physicians are often independent contractors

Hospital, therefore, cannot be held vicariously liable

Nonintentional Torts (9 of 15)

Corporate Negligence

Health care organizations owe a direct duty to patients

Hospital entrusted to provide accommodations to carry out its purpose

Differs from vicarious liability

Hospital’s breach of its duty to patients may result in liability

Duty to ensure that medical staff is skilled (Darling)

Duty to adhere to its bylaws and state statutes related to credentialing process (Johnson)

Nonintentional Torts (10 of 15)

Failure to Warn

Applies to failure to protect innocent third party from a dangerous patient

Tarasoff v. Regents of University of California

Duty to warn intended victim of danger

Arises if psychotherapist determines that patient presents a serious danger of violence to a third person

Duty may be met by warning victim or police

Nonintentional Torts (11 of 15)

Breach of Confidentiality

Unauthorized access, acquisition, use, or disclosure of protected health information

Security of privacy of information is compromised

NOT a breach when an unauthorized person would not reasonably be able to retain information

Federal laws address

HITECH Act of 2009

HIPAA

Nonintentional Torts (12 of 15)

Breach of Confidentiality (cont.)

If breach is discovered, notice must be given to patient within 60 days of discovery

Secretary of Health and Human Services (HHS) must also be notified on an annual basis

Requires immediate notification if breach involves 500 or more residents

Also requires health care provider to notify Secretary of Health and Human Services immediately

Must also notify prominent media outlets serving the state or region

Nonintentional Torts (13 of 15)

Breach of Confidentiality (cont.)

Secretary of HHS identified six general causes of incidents

Theft

Loss

Unauthorized access/disclosure

Improper disposal

Hacking/IT incident

Unknown/other

Nonintentional Torts (14 of 15)

Breach of Confidentiality (cont.)

Most common remedial actions taken by health care providers include

Revising policies and procedures

Improving physical security

Providing additional training for workforce

Adopting encryption technologies

Revising business associate contracts

Performing new risk assessments

Imposing sanctions on employees for violating policies and procedures

Providing free credit monitoring for impacted individuals

Nonintentional Torts (15 of 15)

Breach of Confidentiality (cont.)

HITECH Act civil liability provisions and violation of HIPAA provisions is a federal offense

Subject to punishment of fines, imprisonment, or both

Level of fine or imprisonment increases

False pretenses or with intent to steal, transfer, or use information for commercial advantage, personal gain, or malicious harm

Intentional Torts (1 of 7)

Assault and Battery

Assault: Individual is placed in reasonable anticipation of being touched in a way that is insulting, provoking, or will cause the individual physical harm

Battery: Physical contact involving injury or offense

Done without the individual’s consent

May also be punishable as a crime

Care that exceeds the patient’s consent is technically a battery

Surgery on wrong body part, for example

Intentional Torts (2 of 7)

Defamation

Wrongfully injuring another’s reputation

Libel: Defamatory statements expressed in print, writing, signs, or pictures

Slander: Defamatory statements expressed orally or by gesture

Defamatory statements must be made to a third person (published)

Truth is an absolute defense

Intentional Torts (3 of 7)

Invasion of Privacy

Sharing information about personal and/or private matters

Plaintiff must show:

Unwarranted appropriation or exploitation of personality

Publication of private affairs, which will cause embarrassment

Wrongful intrusion into private concerns

Publicity that paints the plaintiff in a false light

In health care: using pictures for commercial purpose or disclosure of private information without consent

Intentional Torts (4 of 7)

Medical Abandonment

Physician ends relationship without giving reasonable notice to patient

Plaintiff/patient must prove:

Existence of physician and patient relationship

That the abandonment caused injury

Examples

Intentionally leaving patient alone at critical time

Failing to be available because of other patients or vacation

Premature discharge from care before adequate follow-up is arranged

Intentional Torts (5 of 7)

Medical Abandonment (cont.)

Social Media has added a new theory of medical abandonment

Patient claims abandonment from their providers because they did not respond to blogs, e-mails, or other forms of social media requests for medical advice or care

An established provider–patient relationship and failure to maintain this relationship through social media communication, strengthens patient’s claims

Intentional Torts (6 of 7)

False imprisonment

Intentional detention or restraint

Against will and without legal justification

False arrest

Detention or restraint against one’s will and

Intent to or actually make an arrest

Intentional infliction of emotional distress

Extreme conduct so outrageous that it causes severe emotional distress

Defendant intended to cause distress

Merely inconsiderate or rude conduct not sufficient

Distress must require medical care

Intentional Torts (7 of 7)

Breach of Contract

In health care, these claims involve express contracts

Failure to perform particular act as specifically promised

Examples

Doctor agreed to treat for TB and then provided no care

Physician agreed to perform hysterectomy and then did not do so

Social Media (1 of 4)

Social media can be beneficial to providers and patients

It can be used as a mode of communication

Provide general health care information

Provide information on health care services offered by providers

Social media can open health care providers up to legal claims

Providers can accidentally establish a provider–patient relationship by providing a patient-specific response

Professional responsibility falls to the provider and failure to exercise that responsibility may lead to liability

Social Media (2 of 4)

States regulate licenses of health care professionals who they allow to practice in their state

Social media can cross state lines

Treating a patient in a state in which the provider is not licensed; provider is subject to a claim of unauthorized practice of the provider’s profession

Social Media (3 of 4)

Liability

Potential for malpractice claims

Claims of professional misconduct

Treating the patient without understanding their condition may harm the patient and result in malpractice claim

Concerns for privacy and security of protected health information

Responding to a patient through social media with patient-specific protected health information

Without patient authorization, may be a privacy breach

Unsecured response, may be a security breach

Social Media (4 of 4)

To mitigate the risks of social media:

Obtain patient authorization

Include disclaimers in communications and postings

Use privacy settings, secure servers, and encryption methods

Use only if the benefits outweigh the costs

Statutes of Limitations

Set deadline for when suit must be filed

If suit not filed within time frame, case is barred and dismissed

Keeps people from sitting on rights

Evidence more likely to be available

Time period varies between states and on type of suit (tort vs. contract)

May be extended if plaintiff is a minor, disabled, or injury not yet discovered

Charitable Immunity

Charitable institution shielded from liability to ensure that money is used for charity work

No longer applies to hospitals, now seen as any other business organization

Governmental Immunity

Plaintiff precluded from suing without notice to and consent of government

Certain restrictions and limitations

Good Samaritan Statutes

Used to encourage physicians, other rescuers, and even private citizens to provide emergency treatment

Protect from civil liability as a result of emergency care

Does not protect health care providers who routinely provide patients emergency care, that is, emergency room physicians

Contributory and Comparative Negligence

Limit defendant’s liability

Contributory negligence

Plaintiff’s conduct contributed to injury

If proven, plaintiff does not recover damages

Comparative negligence

Not as harsh

If plaintiff’s conduct contributed to damages, then damages reduced

Assumption of Risk

Method used to limit defendant’s liability

Plaintiff who voluntarily exposed self to danger and knew harm could occur cannot recover damages from another

Example: Breaking leg while skiing

Apologies

Effort to permit providers to be open and honest with patients without fear of suit

Apology made may be protected from use as evidence

English Legal aspect & Legislation in Healthcare- Assignment 2

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