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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