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Case Study #1Healthcare Law
Facts:
A physician licensed in the State of Florida and who specializes
in general surgeryperforms a surgical procedure on a patient to
remove a non-essential bodily organfor the patient. However, the
surgeon inadvertently and unintentionally misses thenon-essential
bodily organ and instead removes other bodily tissue surrounding
theorgan. At the time the surgeon performs the surgical procedure,
the surgeon haslimited experience performing this particular type
of surgical procedure, and he hasbeen on emergency call coverage
for twenty-four (24) hours prior to performing theprocedure.
Additionally, he has performed numerous other procedures and
isextremely tired at the time he performs the procedure in
question. Althoughanother surgeon ultimately re-performs the
surgical procedure and correctlyremoves the non-essential organ
several days after the botched first procedure, the
patient does suffer some post-operative infection from the
procedures and somehealth issues and problems post-operatively. She
also misses several weeks of workin order to recover and loses
income/wages because of it. The patient also incursadditional
healthcare costs because of the additional procedure and extended
stayin the hospital. Ultimately, the hospital where the procedure
was performedinvestigates the issue through an ad hoc investigative
peer review committee.Additionally, the patient seeks legal counsel
for the matter. Please identify thevarious issues involved for the
physician, and the applicable laws, rules andregulations, as well
as legal principles which may apply.
Legal Issues:
The surgeon missed the intended organ and removed other bodily
tissue
surrounding it. The surgeon has limited experience performing
this particular type of surgical
procedure.
The surgeon was on emergency call coverage for twenty-four hours
prior toperforming the procedure.
The surgeon was fatigued after performing numerous other
procedures priorto the one in question.
The patient received another surgery several days after the
first procedure,the patient suffer some post-operative infection
from the procedures andsome health issues and problems
post-operatively.
The patient misses several weeks of work, needs to recover
lost
wages/income. The patient incurred additional healthcare costs
because of the additional
procedure and extended stay in the hospital.
The hospital permitted the surgery without properly vetting to
see if thatsurgeon was qualified to perform the procedure.
Applicable laws, rules and regulations:
Under Title XXXII Chapter 456 [456.072] subsection (z) of the
Florida Statutesand Constitution: Being unable to practice with
reasonable skill and safety to
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patients by reason of illness or use of alcohol, drugs,
narcotics, chemicals, orany other type of material or as a result
of any mental or physical condition.
Under Title XXXII Chapter 456 [456.072] subsection (bb) of the
FloridaStatutes and Constitution: Performing or attempting to
perform health careservices on the wrong patient, a wrong-site
procedure, a wrong procedure, oran unauthorized procedure or a
procedure that is medically unnecessary or
otherwise unrelated to the patients diagnosis or medical
condition. Under Title XXXII Chapter 458 [458.331] subsection (v)
of the Florida Statutes
and Constitution: Practicing or offering to practice beyond the
scopepermitted by law or accepting and performing professional
responsibilitieswhich the licensee knows or has reason to know that
he or she is notcompetent to perform.
Under Title XXXII Chapter 458 [458.331] subsection (w) of the
FloridaStatutes and Constitution: Delegating professional
responsibilities to a personwhen the licensee delegating such
responsibilities knows or has reason toknow that such person is not
qualified by training, experience, or licensure toperform them.
Respondeat superior (vicarious liability): Let the superior
respond for thenegligence of agents or employees, in this case the
hospital is responsible forthis surgeons actions and job duties. A
tort was committed, the person wasan agent or an employee of the
hospital, and the tort was committed withinthe scope of the agents
or employees duties.
Liability for Breach of Contract: A physician who uses a
different procedurefrom the one that was promised will also be
liable for breach of contract.
Tort liabilities: 1) Negligence, a person intends no harm but
fails to do what areasonably careful person would do under the
circumstances. There wasproof that duty, breach, injury, and
causation is breach 2) Assault andbattery, acts done without legal
authority or permission, the patient was notinformed of the
surgical procedure removing other bodily tissue surrounding
the organ of intent. Ad hoc investigative peer review committee:
A discreet retrospective
evaluation of a physicians performance or undesired outcome to
see ifaccepted standards of care were met and to suggest quality
improvements ifthey were not. Two major legal issues arises;
confidentiality and potentialliability. This surgeon is not
protected from confidentiality, being licensed inthe state of
Florida it is by law to make physicians peer review recordspublic,
Amendment 7 Patients Right to Know about Adverse MedicalIncidents
Title XXIX Chapter 395 [395.0193].
Work CitedShowalter, J. S. (2008). The Law of Healthcare
Administration. Chicago: Health
Administration Press.
