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Upper Saddle River, New Jersey 07458

T H I R D E D I T I O N

Medical Law and Ethics

BONNIE F. FREMGEN, Ph.D.

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Library of Congress Cataloging-in-Publication Data

Fremgen, Bonnie F. Medical law and ethics / Bonnie F. Fremgen. —

3rd ed. p. cm.

Includes bibliographical references and index. ISBN-13: 978-0-13-512904-3 ISBN-10: 0-13-512904-4 1. Medical laws and legislation—United States.

2. Medical care—Law and legislation—United States. 3. Medical ethics. I. Title.

KF3821.F74 2008 344.7304'1—dc22

2007037829

Notice: The material in this textbook contains the most current information about the topic at the time of publication. This text is not meant to be used in lieu of qualified legal advice for situations that arise in either one’s professional practice or personal life. An attorney should always be consulted for legal advice. Since laws for healthcare professionals vary from state to state, it is always wise to consult specific laws within one’s state of practice.

Note Re Case Studies: The names used in the case studies throughout the text are fictitious.

Publisher: Julie Levin Alexander Publisher’s Assistant: Regina Bruno Executive Editor: Mark Cohen Associate Editor: Melissa Kerian Editorial Assistant: Nicole Ragonese Managing Production Editor: Patrick Walsh Production Liaison: Christina Zingone Production Editor: Jessica Balch, Pine Tree

Composition, Inc. Manufacturing Manager: Ilene Sanford Manufacturing Buyer: Pat Brown Design Director: Maria Guglielmo Cover Designer: Robert Aleman Director of Marketing: Karen Allman

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Pearson Education North Asia Ltd. Pearson Educación de Mexico, S.A. de C.V. Pearson Education Malaysia, Pte. Ltd. Pearson Education, Upper Saddle River, New

Jersey

10 9 8 7 6 5 4 3 2 1 ISBN-13: 978-0-13-512904-3 ISBN-10: 0-13-512904-4

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Credits and acknowledgments borrowed from other sources and reproduced, with permission, in this textbook appear on the appropriate pages within text.

Copyright © 2009, 2006, 2002 by Pearson Education, Inc., Upper Saddle River, New Jersey, 07458. Pearson Prentice Hall. All rights reserved. Printed in the United States of America. This publication is protected by Copyright and permission should be obtained from the publisher prior to any prohibited reproduction, storage in a retrieval system, or transmission in any form or by any means, electronic, mechanical, photocopying, recording, or likewise. For information regarding permission(s), write to: Rights and Permissions Department.

Pearson Prentice Hall™ is a trademark of Pearson Education, Inc. Pearson® is a registered trademark of Pearson plc Prentice Hall® is a registered trademark of Pearson Education, Inc.

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To my children, who have always been my inspiration for ethical behavior.

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Contents

Preface xi

Letter to the Student xiii

How to Interpret Case Citations xv

About the Author xvii

Reviewers xix

1 Introduction to Medical Law, Ethics, and Bioethics 1 Why Study Law, Ethics, and Bioethics? 3 Medical Law 6 Ethics 8 Models for Examining Ethical Dilemmas 15 What Ethics Is Not 17 Bioethics 18 The Role of Ethics Committees 19 Quality Assurance Programs 19 Medical Etiquette 20

PART I THE LEGAL ENVIRONMENT 25

2 The Legal System 25 The Legal System 27 Sources of Law 28 Classification of Laws 32 The Court Systems 40 The Trial Process 41

3 Importance of the Legal System for the Physician 49 Medical Practice Acts 51 Licensure of the Physician 52

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Licensure and Certification of Allied Health Professionals 53 Standard of Care 55 Confidentiality 56 Statute of Limitations 57 Good Samaritan Laws 58 Respondeat Superior 58 Risk Management 62

4 Medical Practice and Allied Health Professionals 67 Today’s Healthcare Environment 69 Types of Medical Practice 73 The Ethics of Fee Splitting 77 Medical Specialty Boards 77 Allied Health Professionals 80

PART II THE HEALTHCARE ENVIRONMENT 87

5 The Physician–Patient Relationship 87 Physician’s Rights 89 Physician’s Responsibilities 90 Professional Practice Responsibilities 91 Patients’ Rights 100 Rights of Minors 106 Patients’ Responsibilities 107 Role of the Healthcare Consumer 111

6 Professional Liability and Medical Malpractice 117 Professional Negligence and Medical Malpractice 120 The Tort of Negligence 121 Fraud 125 Office of Inspector General 126 Defense to Malpractice Suits 128 Professional Liability 130 Alternative Dispute Resolution 135 Liability of Other Health Professionals 136 Role of the Supervisor 139

vi Contents

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Working in High-Risk Areas 140 Malpractice Prevention 141

7 Public Duties of the Physician 149 Public Health Records and Vital Statistics 151 Controlled Substances Act and Regulations 162 Protection for the Employee and the Environment 164

8 Workplace Law and Ethics 171 Professionalism in the Workplace 173 Discrimination in the Workplace 173 Privacy and the Workplace 174 Cultural Considerations 174 Religions Considerations 176 Effective Hiring Practices 178 Legal and Illegal Interview Questions 179 Federal Regulations Affecting the Medical Professional 179 Equal Employment Opportunity and Employment Discrimination 181 Employee Health and Safety 186 Compensation and Benefits Regulations 189 Consumer Protection and Collection Practices 192 Antitrust Laws 195 Federal Labor Law 196

9 The Medical Record 201 Purpose of the Medical Record 203 Contents of the Medical Record 204 Confidentiality and the Medical Record 210 Ownership 211 Retention and Storage of Medical Records 212 Reporting and Disclosure Requirements 215 Use of the Medical Record in Court 215

10 Confidentiality in Medical Practice 221 Confidentiality 213 Health Insurance Portability and Accountability Act (HIPAA) of 1996 226 Ethical Concerns with Information Technology (Informatics) 237

Contents vii

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PART III MEDICAL ETHICS 243

11 Ethical and Bioethical Issues in Medicine 243 Early History 245 Ethical Standards and Behavior 246 Codes of Ethics 247 Codes of Ethics for Other Medical Professionals 248 Bioethical Issues 250 Ethical Issues and Personal Choice 254 The Ethics of Biomedical Research 255 Human Genome Project 258 Genetic Engineering 259 Healthcare Reform 262

12 Ethical Issues Relating to Life 269 Fetal Development 271 Assisted or Artificial Conception 272 Contraception 276 Sterilization 277 Abortion 280 Genetic Counseling and Testing 286 Wrongful-Life Suits 290

13 Death and Dying 297 The Dying Process 299 Legal Definition of Death 299 Stages of Dying 309 Quality-of-Life Issues 309 Use of Medications 310 Hospice Care 311 Palliative Care 311 Viatical Settlements 312 Advance Directives 313 Choices in Life and Death 314

viii Contents

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Appendix A. Codes of Ethics 321

Appendix B. Healthcare Regulatory Credentialing Agencies 329

Appendix C. Healthcare Websites 331

Appendix D. Case Citations 335

Glossary 339

Index 347

Contents ix

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Preface

The allied health professional has always been an important member of the med-ical team. This team awareness is even more critical in today’s healthcare environ- ment, since the physician no longer practices medicine alone.

Medical Law and Ethics is written in straightforward language that is aimed at the nonlawyer health professional who must be able to cope with multiple legal and ethical issues. This text is appropriate for those studying in a college or university who are work- ing toward careers in the allied health field in a variety of settings, such as medical offices, hospitals, clinics, and skilled-nursing facilities. A wide range of pertinent topics is discussed, such as the legal system, the physician–patient relationship, professional lia- bility and medical malpractice, public duties of the physician, the medical record, and ethical and bioethical issues. Additional material has been added relating to cultural and religious considerations as well as the role of the supervisor in medical ethics. There is an in-depth discussion of the regulations affecting the healthcare professional, includ- ing up-to-date information about the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The intent is to help healthcare professionals to better understand our ethical obligation to ourselves, our patients, and our employers.

Many legal cases are sprinkled throughout the text to demonstrate the history of the law as it pertains to subjects such as patient confidentiality, managed care, fed- eral regulations affecting the employee, death and dying, and abortion. In some examples, the cases may seem old, but since our legal system is based on case law, they are still pertinent today. A legal icon (scales of justice) appears in the left margin to indicate legal case citations.

A special feature called Med Tips provides quick information about law and ethics. These brief scenarios and hints help to maintain interest in this vital subject. Each chapter includes glossary terms highlighted in bold on first reference, extensive end-of-chapter exer- cises, and one actual practice case. The appendices include a thorough compilation of codes of ethics that form a basis for current practice, a listing of healthcare regulatory agen- cies and useful medical websites, case citations, and supplemental cases for discussion.

This text provides an overview of medical law and ethics. Practicing health care professionals should know the legal requirements in their own jurisdictions.

CHAPTER STRUCTURE

◗ Learning Objectives. These include an overview of the basic knowledge dis- cussed within the chapter and can be used as a chapter review.

◗ Key Terms. Important vocabulary terms are listed alphabetically at the beginning of each chapter and printed in bold the first time they are defined in the text.

◗ Introduction. Each chapter begins with an introductory statement that reflects the topic of the chapter.ISB

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◗ Review Challenge. A selection of matching, multiple-choice, and fill in the blank questions are included to test the student’s knowledge of the chapter material.

◗ Case Study. The case studies are based on real-life occurrences and offer practical application of information discussed within the chapter. These are included to stimu- late and draw upon the student’s critical-thinking skills and problem-solving ability.

◗ Bibliography. These useful resources provide further information on the topics included within the chapter.

SPECIAL FEATURES

◗ Med Tip. Med Tips are placed at strategic points within the narrative to provide helpful hints and useful information to stimulate the student’s interest in the topic.

◗ Legal Case Citations. Discipline-specific cases are used throughout the text to illustrate the topic under discussion. The cases reflect the many medical disciplines, including that of the physician, that come together in the care of the patient. While this book is not meant to be a law book, the cases cited in the book are meant to emphasize the importance of the law for the students.

◗ Points to Ponder. Thought-provoking questions give students an opportunity to evaluate how they might answer some of the tough, medically related ethical dilemmas in today’s society. These questions can also be used for critical debate among students during a class activity.

◗ Discussion Questions. These end-of-chapter questions encourage a review of the chapter contents.

◗ Put It into Practice. These thought-provoking activities appear at the end of each chapter. They provide a clinical correlation with the topics discussed in the chapter and stimulate the student’s own contemplation of legal and ethical issues that are apparent in everyday life.

◗ Web Hunt. This end-of-chapter Internet activity encourages the student to access the multitude of medical resources available through this medium.

◗ Appendices. Codes of Ethics are included in Appendix A; a list of U.S. regulatory agencies appears in Appendix B; useful medical websites are listed in Appendix C; the case citations used throughout the book are listed in Appendix D.

◗ Additional Examination Review Questions. These are included in the Instructor’s Resource Manual.

ACKNOWLEDGMENTS

This book would not have been possible without the assistance and guidance of many people. I am grateful to the editorial and production staffs at Prentice Hall for their skill and patience with this project. I thank Mark Cohen, acquisitions editor, for his leadership with this project; Nicole Ragonese and Melissa Kerian, whose courtesy and thoroughness are greatly appreciated; Pat Walsh, managing production editor, whose calm presence is always available; and Jessica Balch, project manager at Pine Tree Composition, Inc., and Christina Zingone, production liaison, for their great attention to detail and all their hard work.

xii Preface

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Letter to the Student

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It’s a natural tendency to read some of the case examples in this book and think thatthey must be fictional since no well-trained healthcare professional would ever be so negligent. However, the short cases at the beginning of each chapter are indeed real. And in most cases, they are drawn from the author’s experience. Throughout the book there are numerous examples of actual legal cases that usually resulted in suffer- ing for patients, as well as for physicians and other healthcare professionals. These cases are not meant to frighten but, rather, to alert all of us to the potential risks to patients when healthcare professionals are not diligent about the care they provide. Do not memorize the case citations, but rather try to understand the circumstances and why the case was included in this book.

I have a great respect for all the disciplines mentioned in this book. My intent is to prepare students to protect themselves as well as their employers from lawsuits.

For a successful start to your study of medical law and ethics, consider following the ABCs of classroom success: Actively participate, Benefit from the experience, and Commit to learning. It is necessary for you to attend class to truly benefit from your ethics education. So much happens in the classroom—especially the interaction between you and your classmates. The discussion portion of an ethics class is one of the most important components. You must be present to contribute. The text serves as an information source and as the first step in your education—the dynamics of class- room interaction between you, your instructor, and the other students is critical for suc- cess in learning.

Actively participate when you attend class. It is necessary to absorb what takes place during the class session. Listen carefully to what your instructor and fellow students say. If you don’t share your ideas, experiences, and questions, then the rest of the class is losing what you have to offer. The dialogue about ethics that you have with your instructor and fellow classmates can be one of the most meaningful learning experiences. Benefit from the experience and ideas of your peers (classmates). Listen to the opinions of others during class discussions. Pay particular attention to the opinions that differ from your own. As a member of the healthcare team, you will frequently hear opinions that differ from your own—both from your coworkers and your patients. You do not have to change your opinions or beliefs, but try to keep an open mind.

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Commit to learning by carefully reading and analyzing the textbook material. Look for new information and also for discussion points that both agree and dis- agree with your own perspective. Keep an open mind to the opinions of others. Take this course seriously so that it is not a waste of your time. In fact, your ethics class can be one of the most important classes that you take! Communicate what you have learned. Your perspective is important for others to hear. Use your time wisely in class, share your ideas, and listen to the thoughts of others.

The law is dynamic and often is revised as changes take place in society. For example, one of the newest laws affecting healthcare, the Healthcare Insurance Portability and Accountability Act of 1996 (HIPAA), has recently had an added impact regarding the necessity for healthcare organizations, including physicians’ offices, to provide notice to all patients concerning their privacy practices. This text- book is not meant to be a study of the law, but rather to introduce students to the impact that law and ethics have on their professional lives.

xiv Letter to the Student

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How to Interpret Case Citations

Selected legal cases are used in this textbook to illustrate various legal principles.At the end of each case summary is a citation such as, Moon Lake Convalescent Center v. Margolis, 433 N.E.2d 956 (Ill. App. Ct. 1989). This citation, similar to a street address, tells you where you can find this case among the many sets of reported cases (called reporters) in the library. Most case citations end with informa- tion in parentheses, such as (Ill. App. Ct. 1989), which tells you what court (the Illinois Appellate Court) decided the case and the year (1989) of the decision, but you do not need that information when you are simply trying to locate a particular case in the library. The small v. between the litigants’ names stands for “versus.” A case citation consists of

◗ The italicized case name—usually the name of the plaintiff and the defendant. In our example, Moon Lake Convalescent Center (defendant) and Margolis (plaintiff).

◗ The name of the reporter(s) where the case is published (Northeast Reporter, 2d series).

◗ The volume number(s) of the reporter(s) where the case is published (433). ◗ The page number of the volume where the case begins (956). ◗ The year the case was decided (1989). ◗ For federal Court of Appeals cases, a designation of the circuit; for federal District

Court cases, the state and judicial district where the court is located; for state cases, an indication of the state if it is not apparent from the name of the reporter (Illinois Appellate Court).

Therefore, our example case between Moon Lake Convalescent Center and Margolis is found in volume 433 of the Northeast Reporter, 2d series, on page 956.

Abbreviations for other reporters (books) are:

A (Atlantic Reporter) P (Pacific Reporter) U.S. (United States Reports) F. Supp. (Federal Supplement) F (Federal Reporter) NE (Northeast Reporter) NW (Northwest Reporter) NYS (New York Supplement) So (Southern Reporter) SW (Southwestern Reporter)

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Most reporters have been published in two or more series, such as 2d, meaning second series. The student should not be concerned with memorizing the names of the reporters. The abbreviations for them are found at the beginning of most of the legal research publications that we use. As you do research within your own state, you will become familiar with the abbreviations that are most commonly used. Legal research can be done through a law library or via the Internet from Lexis-Nexis, which is a subscription service used by law firms and libraries.

xvi How to Interpret Case Citations

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About the Author

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Bonnie F. Fremgen, Ph.D., is a former associate dean of the Allied Health Programat Robert Morris College. She has taught medical law and ethics courses as well as clinical and administrative topics. In addition, she has served as an advisor for stu- dents’ career planning. She has broad interests and experiences in the healthcare field, including hospitals, nursing homes, and physicians’ offices.

Dr. Fremgen holds a nursing degree as well as a master’s in healthcare adminis- tration. She received her Ph.D. from the College of Education at the University of Illinois. She has performed postdoctoral studies in medical law at Loyola University Law School in Chicago.

Dr. Fremgen has taught ethics at the University of Notre Dame, South Bend, Indiana; University of Detroit, Detroit, Michigan; and Saint Xavier University, Chicago, Illinois.

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Reviewers

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Frank Ambriz, PA-C, MPAS Assistant Professor/Director, PA Program University of Texas–Pan Am Edinburg, Texas

Theresa Allyn, BS BSTEC Instructor Edmonds Community College Lynnwood, Washington

Deborah Bedford, AAS, CMA Program Coordinator, Medical Assisting North Seattle Community College Seattle, Washington

Susan J. Burnham, RNC, CLNC, IBCLC Instructor, Allied Health Renton Technical College Renton, Washington

Kat Chappell, CMA, BS Instructor, Medical Assisting Highline Community College Des Moines, Washington

Mack Henderson, PhD, MEd, CPC, CCS-P Program Director, Health Information

Technology Durham Technical Community College Durham, North Carolina

Robert K. Johnson, JD Instructor of Law Ivy Tech Community College Greenwood, Indiana

Vivian C. Lilly, PhD, MBA, MS, BS, RN Dean of Health & Human Services North Harris College Houston, Texas

Sharon Tompkins Luczu, RN, BA, MA, MBA

Program Director, Health Services Management

Gateway Community College Phoenix, Arizona

Christine Malone, BS Instructor, Health Sciences Everett Community College Everett, Washington

Betsey Morthland, MS Instructor, Health Information

Management Black Hawk College Moline, Illinois

Lisa Nagle, CMA, BSEd Program Director, Medical Assisting Augusta Technical College Augusta, Georgia

Michael O’Sullivan, DPH Associate Professor/Program

Coordinator, Health Management and Policy

University of Massachusetts–Lowell Lowell, Massachusetts

THIRD EDITION REVIEWERS

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Helen W. Spain, BSEd, MSEd Program Coordinator, Medical Office

Administration Wake Technical Community College Raleigh, North Carolina

Susan Stockmaster, MHS Instructor Trident Technical College Charleston, South Carolina

Lenette Thompson Program Coordinator, Dual Enrollment Piedmont Technical College Greenwood, South Carolina

Amy L. Wilson, BS, RT(R), RDMS, RVT Instructor, Radiologic and Imaging

Sciences University of Southern Indiana Evansville, Indiana

xx Reviewers

PREVIOUS EDITION REVIEWERS

Anne M. Arto District Coordinator of Continuing

Education Pasco-Hernando Community College Brooksville, Florida

Deborah J. Bedford, CMA, AAS Program Coordinator, Medical Assisting North Seattle Community College Seattle, Washington

Norma Bird, MEd, BS, CMA Director, Medical Assisting Idaho State University College

of Technology Pocatello, Idaho

Rafael Castilla, MD Dean of Academics Hohokus School of Business

and Medical Sciences Ridgefield, New Jersey

Michael W. Cook, MA, RRT Professor, Respiratory Therapy Mountain Empire Community College Big Stone Gap, Virginia

Tonya Hallock Program Director, Medical Assisting Concorde Career Institute Garden Grove, California

Janice C. Hess, MA Instructor, Office Skills and Technology Metropolitan Community College Elkhorn, Nebraska

Jennifer Lame, BS, RHIT Instructor, Health Information Idaho State University Pocatello, Idaho

Valeria Truitt, BS, MAEd Program Director/Leader, Medical

Office Administration Craven Community College New Bern, North Carolina

Lori Warren, MA, RN, CPC, CCP, CLNC Co-Director, Medical Department Spencerian College Louisville, Kentucky

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