AMA 102 Legal AMA 102 Legal ConceptsConcepts

Sources of LawSources of Law

U.S. Constitution U.S. Constitution Legislative branch; CongressLegislative branch; Congress Judicial branch; U.S. Supreme CourtJudicial branch; U.S. Supreme Court Executive branch; PresidentExecutive branch; President

Statutory LawStatutory Law

Created by Congressional and state Created by Congressional and state legislative bodieslegislative bodies

Published in statutes known as codesPublished in statutes known as codes Broad scope subject only to Broad scope subject only to

constitutional limitationsconstitutional limitations Direct social effect through the Direct social effect through the

political processpolitical process

Administrative LawAdministrative Law

A type or extension of A type or extension of statutory/legislative lawstatutory/legislative law

Given power to enact regulations, Given power to enact regulations, have force of lawhave force of law Examples: Internal Revenue Service Examples: Internal Revenue Service

(IRS), Federal Trade Commission (FTC), (IRS), Federal Trade Commission (FTC), state medical boards, Medicare, Drug state medical boards, Medicare, Drug Enforcement Agency (DEA)Enforcement Agency (DEA)

Common LawCommon Law

Created by judicial branch through Created by judicial branch through decisions in cases decided by courtsdecisions in cases decided by courts

Diffuse; rules found in fact, patterns, Diffuse; rules found in fact, patterns, and decisions of prior casesand decisions of prior cases

Narrow in scope; limited to actual Narrow in scope; limited to actual casescases

Indirect social effect; judges Indirect social effect; judges somewhat insulated from political somewhat insulated from political pressurepressure

Civil LawCivil Law

Court actions between private Court actions between private parties, corporations, government parties, corporations, government bodies, or other organizationsbodies, or other organizations

Compensation sought usually Compensation sought usually monetarymonetary

Recovery of private rightsRecovery of private rights Plaintiff: Party bringing actionPlaintiff: Party bringing action Defendant: Person accusedDefendant: Person accused

Criminal LawCriminal Law

Court actions brought against Court actions brought against individual(s) or groups of people individual(s) or groups of people accused of committing a crimeaccused of committing a crime

Punishment, usually imprisonment Punishment, usually imprisonment and/or fine and/or fine

Recovery of rights of societyRecovery of rights of society

Crime DefinedCrime Defined

FelonyFelony A serious crime such as murder, assault, A serious crime such as murder, assault,

rape rape The punishment is usually severeThe punishment is usually severe

MisdemeanorMisdemeanor Less serious than a felonyLess serious than a felony Disorderly conduct, thefts of small Disorderly conduct, thefts of small

amountsamounts

Controlled Substances ActControlled Substances Act

DEA governed, administrative lawDEA governed, administrative law Regulates addicting medications Regulates addicting medications Greatest potential for abuse, dependenceGreatest potential for abuse, dependence Five schedules from most addicting to Five schedules from most addicting to

leastleast Rules to administer, dispense, or prescribeRules to administer, dispense, or prescribe Registration every 3 yearsRegistration every 3 years Record keepingRecord keeping InventoryInventory SecuritySecurity

SubpoenasSubpoenas

An order to appear in court under penalty for An order to appear in court under penalty for failure to do sofailure to do so

Subpoena Subpoena duces tecumduces tecum Court order requiring a witness to appear and bring Court order requiring a witness to appear and bring

certain records or tangible items to a trial or depositioncertain records or tangible items to a trial or deposition Expert WitnessExpert Witness Qualified to testify to professional standard of care; Qualified to testify to professional standard of care;

reputable, honest, impartialreputable, honest, impartial Essential when subject is beyond understanding of Essential when subject is beyond understanding of

laypersonslaypersons Testifies what they see, hear, know to be a factTestifies what they see, hear, know to be a fact Entitled to a feeEntitled to a fee

Medical Practice ActMedical Practice Act

State statute that defines practice of State statute that defines practice of medicine medicine

Describes methods of licensure Describes methods of licensure Sets guidelines for suspension or Sets guidelines for suspension or

revocation of licenserevocation of license

Professional LiabilityProfessional Liability

Criminal liability or malfeasanceCriminal liability or malfeasance Commission of unlawful actCommission of unlawful act

Civil liability or misfeasanceCivil liability or misfeasance Improper performance resulting in injury Improper performance resulting in injury

to anotherto another NonfeasanceNonfeasance

Failure to perform an act when there is a Failure to perform an act when there is a duty to do soduty to do so

Standard of CareStandard of Care

Requires physicians to use the Requires physicians to use the ordinary, reasonable skill, ordinary, reasonable skill, experience, and knowledge experience, and knowledge commonly used by other reputable commonly used by other reputable physicians when caring for clientsphysicians when caring for clients

HIPAAHIPAA

Passed by Congress in 1996Passed by Congress in 1996

1.1. Requires standardized, electronic Requires standardized, electronic client dataclient data

2.2. Created unique health identifiers for Created unique health identifiers for clients and practitionersclients and practitioners

3.3. Created security standards to Created security standards to protect confidentiality of client dataprotect confidentiality of client data

ConfidentialityConfidentiality

Any communication between client Any communication between client and physician must be kept privateand physician must be kept private

Share with other professionals on a Share with other professionals on a “need to know for client’s care” basis“need to know for client’s care” basis

Privilege belongs to the client Privilege belongs to the client Special consideration for clients with Special consideration for clients with

HIV/AIDSHIV/AIDS

ContractContract Agreement between two or more competent persons upon Agreement between two or more competent persons upon

consideration or payment to do or not to do a task that is legalconsideration or payment to do or not to do a task that is legal ExpressedExpressed ImpliedImplied AbandonmentAbandonment

Physicians are liable if they abandon clientPhysicians are liable if they abandon client Prevention: Formally withdraw from a casePrevention: Formally withdraw from a case

Breach of ContractBreach of Contract One party fails to satisfy the contractOne party fails to satisfy the contract Is cause for litigationIs cause for litigation

TortsTorts

Private or civil wrongs Private or civil wrongs Wrongful acts committed against Wrongful acts committed against

persons that cause harm to the persons that cause harm to the personspersons

Damage to client, proximately Damage to client, proximately caused by conduct of physician that caused by conduct of physician that falls below the standard of carefalls below the standard of care

Professional NegligenceProfessional Negligence

Failure to perform professional duties Failure to perform professional duties according to accepted standard of according to accepted standard of carecare

Performing act reasonable, prudent Performing act reasonable, prudent physician would not perform OR physician would not perform OR failure to perform act that failure to perform act that reasonable, prudent physician would reasonable, prudent physician would performperform

Same as malpracticeSame as malpractice

Four Ds of NegligenceFour Ds of Negligence

DutyDuty DerelictDerelict Direct CauseDirect Cause Damages Damages

Res Ipsa LoquiturRes Ipsa Loquitur A Latin phrase meaning, “The thing speaks for itself”A Latin phrase meaning, “The thing speaks for itself” A doctrine of negligence lawA doctrine of negligence law

Respondeat SuperiorRespondeat Superior

Legal doctrineLegal doctrine Literally means, “Let the master Literally means, “Let the master

answer”answer” Employer is responsible for the Employer is responsible for the

actions of his/her employees actions of his/her employees

Risk ManagementRisk Management

Prevention within the health care Prevention within the health care settingsetting

Prevention with clientsPrevention with clients

Communicable/Notifiable DiseasesCommunicable/Notifiable Diseases

Concern for public welfareConcern for public welfare Laws vary among statesLaws vary among states Health departments publish listHealth departments publish list Health professionals must reportHealth professionals must report

Notifiable/Reportable InjuriesNotifiable/Reportable Injuries Concerns public welfareConcerns public welfare Gun or knife wounds are examplesGun or knife wounds are examples Child, Elder Abuse, Domestic ViolenceChild, Elder Abuse, Domestic Violence

Child AbuseChild Abuse

All states, District of Columbia All states, District of Columbia mandate reporting of child abusemandate reporting of child abuse

Reporting: Who, what, whenReporting: Who, what, when Civil liability of reporterCivil liability of reporter

Intimate Partner Violence (IPV)Intimate Partner Violence (IPV)

Violence between Violence between Spouse/former spouseSpouse/former spouse Current or former boyfriend/girlfriendCurrent or former boyfriend/girlfriend Current or former same sex or Current or former same sex or

heterosexual intimate partnersheterosexual intimate partners

Elder AbuseElder Abuse

Intentional or unintentional physical Intentional or unintentional physical or psychological harm to someone 60 or psychological harm to someone 60 years or older years or older

Commonly occurs in the home, Commonly occurs in the home, nursing home, or other institutionsnursing home, or other institutions

Remember…Remember…

Vulnerability of survivor to future Vulnerability of survivor to future harm, assaultharm, assault

Respect survivor’s right not to report Respect survivor’s right not to report if permissible by lawif permissible by law

Survivor and abuser need Survivor and abuser need professional careprofessional care

EvidenceEvidence

Carefully document in medical Carefully document in medical recordsrecords

Documentation must be clear, Documentation must be clear, concise, complete, and in orderconcise, complete, and in order

Chain of evidence cannot be brokenChain of evidence cannot be broken

Substance AbuseSubstance Abuse

Commonplace in society todayCommonplace in society today Health professionals are especially Health professionals are especially

vulnerable to substance abusevulnerable to substance abuse Follow HIPAA and confidentiality Follow HIPAA and confidentiality

guidelinesguidelines Keep prescription orders secureKeep prescription orders secure Have frank, open discussion with Have frank, open discussion with

clientsclients

Good Samaritan LawsGood Samaritan Laws

Purpose is to encourage health Purpose is to encourage health professionals to render first aid to professionals to render first aid to victims without liability for victims without liability for negligencenegligence

Exist in all 50 statesExist in all 50 states May be poorly definedMay be poorly defined Do not protect persons who perform Do not protect persons who perform

outside their scope of practiceoutside their scope of practice

ConsentConsent

The affirmation by a client to allow The affirmation by a client to allow touching, examination, and/or touching, examination, and/or treatment by medically authorized treatment by medically authorized personnel personnel

Types of ConsentTypes of Consent InformedInformed UninformedUninformed

Doctrine of Informed ConsentDoctrine of Informed Consent

Law requiring client to understand Law requiring client to understand nature of illness and be told:nature of illness and be told: What the procedure is and how it is What the procedure is and how it is

performedperformed Possible risks involved and expected Possible risks involved and expected

resultsresults Any alternative procedures/treatments Any alternative procedures/treatments

and risks and risks Results if no treatment is givenResults if no treatment is given

Problems in ConsentProblems in Consent

MinorsMinors Mature minorsMature minors Emancipated minorsEmancipated minors

Foster childrenFoster children Mentally incompetent clientsMentally incompetent clients Language barrier/interpreterLanguage barrier/interpreter

Exceptions to Informed ConsentExceptions to Informed Consent

Unique to each stateUnique to each state Need not discloseNeed not disclose

risks commonly knownrisks commonly known if knowledge might be detrimental to if knowledge might be detrimental to

clientsclients if client asks to remain ignorantif client asks to remain ignorant

Implementing ConsentImplementing Consent

Consent forms must be:Consent forms must be: UnderstandableUnderstandable Protect client’s rightsProtect client’s rights Be broad but specificBe broad but specific Signed with expiration dateSigned with expiration date

Witness verifies that signature is that Witness verifies that signature is that of the client of the client

Purpose of Medical RecordsPurpose of Medical Records

Base for managing client’s careBase for managing client’s care Provide inter/intraoffice Provide inter/intraoffice

communicationcommunication Document health from birth to deathDocument health from birth to death Allows patterns to surfaceAllows patterns to surface Serve as legal basis for litigationServe as legal basis for litigation Provide clinical data for education Provide clinical data for education

and researchand research

POMR & SOAP/SOAPERPOMR & SOAP/SOAPER

PProblem roblem OOriented riented MMedical edical RRecordecord

SSubjectiveubjective OObjectivebjective AAssessmentssessment PPlanlan EEducationducation RResponseesponse

HIPAA--PHIHIPAA--PHI

Protected health information (PHI) in Protected health information (PHI) in electronic medical recordselectronic medical records

Notice of Privacy Practices (NPP)Notice of Privacy Practices (NPP) Restrict usage of PHIRestrict usage of PHI Request confidential communicationRequest confidential communication Inspect and obtain copy of PHIInspect and obtain copy of PHI Request amendment of PHIRequest amendment of PHI Receive an accounting of PHI disclosureReceive an accounting of PHI disclosure

Correcting Medical RecordsCorrecting Medical Records

Handwritten errors Handwritten errors Draw line through error w/red penDraw line through error w/red pen Write “corr,” sign initials, date, write in Write “corr,” sign initials, date, write in

correctioncorrection Never use whiteout, it is illegalNever use whiteout, it is illegal Never alter a medical record, just add Never alter a medical record, just add

corrections or additionscorrections or additions

Correcting Medical RecordsCorrecting Medical Records

Electronic errorsElectronic errors Use word processing tracking device to Use word processing tracking device to

draw line through errordraw line through error Place correction after information lined Place correction after information lined

outout Word “correction” or “corr” is indicatedWord “correction” or “corr” is indicated Place initials and date correction is Place initials and date correction is

mademade

Electronic Medical RecordsElectronic Medical Records

Computer safety and security requiredComputer safety and security required Robust firewalls, antivirus installedRobust firewalls, antivirus installed Password protected, changed regularlyPassword protected, changed regularly Computer limits access to invalid Computer limits access to invalid

attemptsattempts Computer screens out of viewComputer screens out of view Screensaver prevents unwanted Screensaver prevents unwanted

viewer’s accessviewer’s access

EmailEmail

Automated replies to acknowledge Automated replies to acknowledge receiptreceipt

Explain email privacy risks to clientsExplain email privacy risks to clients Avoid email that requires urgent replyAvoid email that requires urgent reply Email goes in clients recordsEmail goes in clients records Do not forward without permissionDo not forward without permission Establish regular time to read and Establish regular time to read and

respond to emailrespond to email

FaxFax

Use only when more secure Use only when more secure measures is not appropriatemeasures is not appropriate

Keep machines in restricted-access, Keep machines in restricted-access, secure areassecure areas

Verify fax recipient, number, Verify fax recipient, number, machine locationmachine location

Include statement for receiving fax in Include statement for receiving fax in error error

Medical RecordsMedical Records

Ownership of recordsOwnership of records Right to privacy of record releaseRight to privacy of record release Storage of recordsStorage of records Retention of recordsRetention of records