Chapter 7 Legal Considerations

Sources of Law Constitutional law Statutory law Common law Constitution and 27 amendments Statutory law Laws made by states Common law “Judge-made” law

Sources of Law Criminal law Malfeasance Felony Misdemeanor Illegal conduct by an official Felony Serious crimes and serious punishments Misdemeanor Lesser crimes and lesser punishments

Sources of Law Civil law Misfeasance Nonfeasance Lawful act improperly or unlawfully executed Nonfeasance Failure to perform an act, official duty, legal requirement In a civil case, a plaintiff brings charges against a defendant Common forms of civil law are administrative, contract, and tort law

Administrative Law IRS Medicare/Medicaid Title VII of the Civil Rights Act of 1964 Protects employees from discrimination Harassment Equal Pay Act (EPA) of 1963 Federal Age Discrimination in Employment Act of 1967

Administrative Law Americans with Disabilities Act (ADA) of 1990 Title I prohibits discrimination in employment Titles II–IV mandate access to public services by individuals with disabilities Family and Medical Leave Act (FMLA) of 1993

Administrative Law Health Insurance Portability and Accountability Act (HIPAA) of 1996 Requires national standards for electronic health care transactions Assists in making health insurance more affordable and accessible when people change or lose their jobs Identified in Titles I–VII

Administrative Law Occupational Safety and Health Act (OSHA) of 1967 Controlled Substances Act of 1970 Five schedules (I, II, III, IV, V) according to potential for abuse and dependence

Administrative Law Uniform Anatomical Gift Act of 1968 Regulation Z of the Consumer Protection Act of 1967 (Truth in Lending Act) Medical Practice Acts

Contract Law Expressed contracts Implied contracts Written or verbal Implied contracts Indicated by actions Majority of provider–patient contracts Contract to be valid and binding, parties who enter into it must be competent MAs considered agents of their employers

Contract Law Termination of contracts Patient discharges provider Provider formally withdraws from patient care Treatment no longer needed by patient (See Figure 7-1)

Tort Law Wrongful act other than a breach of contract Standard of Care and Scope of Practice Four Ds of negligence Duty of care Derelict: breach of duty of care Direct cause: legally recognizable injury occurs as a result of the breach of duty of care Damage: wrongful activity must have caused injury or harm that occurred

Tort Law Standard of Care and Scope of Practice Medical Assistant’s role in negligence Practice within scope of one’s instruction and education Each state is likely different Torts are intentional or negligent Intentional torts deliberate acts violating another’s rights Negligent torts not deliberate; result of omission or commission of an act Res ipsa loquitur and respondeat superior

Tort Law Common torts Battery: unprivileged touching of one person by another Defamation of character Libel Slander Invasion of privacy

Informed Consent Nature of any procedure and how it is performed Possible risks as well as expected outcomes of any procedure Any other methods of treatment and those risks

Informed Consent Risks if no treatment given Implied consent Consent and legal incompetence Emancipated minors Mature minors

Risk Management Practicing good risk management makes MA and provider less vulnerable to litigation Avoid incidents that may lead to litigation

Risk Management Professional liability coverage Cover costs of litigation that may occur Health care employees need their own professional liability coverage MAs can purchase from American Association of Medical Assistants (AAMA)

Civil Litigation Process Subpoenas Court order naming date, time, reason to appear Portion or entire medical record may be subpoenaed Health care provider (subpoena duces tecum) may be subpoenaed to testify For courts to have access to some records, a court order required in many states HIPAA law requires clinics to identify what information they will release regarding patients

Civil Litigation Process Discovery Interrogatory Deposition Expert witness Pretrial conference Alternative dispute resolution (ADR) Mediation Arbitration

Civil Litigation Process Trial Held before a judge Held before judge and a jury If plaintiff’s case successful, judge or jury may award specific amount of money or damages If defendant’s case successful, case is dismissed (See Figure 7-5)

Statutes of Limitations Begin at time negligent act was committed When act discovered When care of patient and provider–patient relationship ended Time limit for individuals to initiate legal action

Public Duties Reportable diseases/injuries “Nationally Notifiable Infectious Diseases” listed on CDC’s Web site (http://www.cdc.gov) Electronic or telephone reporting Local or state health departments provide lists of diseases and injuries

Public Duties Abuse Good Samaritan laws Child abuse Elder abuse Intimate partner violence (IPV) Good Samaritan laws Encourage health care professionals to provide medical care within scope of training without fear of being sued for negligence

Advance Directives Physician Orders for Life-Sustaining Treatment (POLST) Living wills, advance directives, health care proxy Samples available at U.S. Legal Forms Web site (http://USlegalforms.com) Durable power of attorney for health care

Advanced Directives See http://www.compassionandchoices.org/ Patient Self-Determination Act (PSDA) of 1991 Advanced directives provided to patients’ providers, family members, any agent identified