Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. Chapter 5 Legal Implications of Practice

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. 2 Legal Issues Affecting Respiratory Care  Systems of Law  Public law  two major divisions: criminal law & administrative law Criminal law deals with acts against welfare & safety of public Administrative law consists of regulations set by government agencies

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. 3 Legal Issues Affecting Respiratory Care (cont.)  Systems of Law (cont.)  Civil law  protects citizens from others who might seek to take unfair advantage Civil courts decide if plaintiff has been wronged & degree of reparation required

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. 4 Which system of law consists of the regulations set by government agencies? A.civil law B.criminal law C.administrative law D.ethical law

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. 5 Tort Law  Civil wrong committed against individual or property for which court provides remedy  Intentional tort involves willful act violating another’s interest  Negligent tort is failure to perform one’s duties competently

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. Tort Law (cont.)  “Causation”  Revolves around whether acts of negligence were caused, in fact, & legal cause of damages  “Proximate Causation” or “Legal Causation”  Turns on foreseen ability  Determines fairness to impose damages on defendant; tends to be retrospective analysis 6

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. Tort Law (cont.)  Damages: another factor in negligence lawsuits; 3 types:  Economic: awarded for economic loss  Non-economic damages: pain, suffering, disability, disfigurement & loss of enjoyment of life  Punitive damages Awarded to punish wrongful conduct & deter future unlawful conduct 7

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. 8 Tort Law (cont.)

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. 9 Tort Law (cont.)  3 classifications of malpractice:  Criminal malpractice (e.g., assault & battery)  Civil malpractice (e.g., negligence)  Ethical malpractice (e.g., violations of professional ethics possibly resulting in censure)

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. 10 Tort Law (cont.)  2 general defenses against intentional torts: 1. No intent to do harm 2. Patient gave consent to action, knowing risks involved

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. 11 Avoiding Lawsuits  Be aware of & conform to all legal aspects of licensure & standards of care  Institutional risk management processes should be an ongoing component of hospital operation & professional development  Every therapist malpractice insurance  Active risk management practices & appropriate guest relations policies – 2 most effective tools in preventing malpractice litigation

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. 12 What can a respiratory therapist do to minimize the risk of being involved in a law suit? A.have a malpractice insurance policy B.respect the autonomy of a patient even if in doing so others may be harmed C.avoid the hospital’s risk management department D.Be aware of, and conform to all legal aspects of licensure and the standards of care

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. 13 HIPAA  Health Insurance Portability and Accountability Act of 1996 (HIPAA)  Congressional act (1996) to establish standards for privacy of individually identifiable health information  Basic goal of act was to strike balance between:  Protecting individuals’ health information, &  Not impeding exchange of information needed to provide quality health care

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. 14 What is the basic goal of HIPPA? A.balance between protecting individuals’ health information and providing quality health care. B.to help reduce cost of health care C.to ensure that all the help care providers accreditations are up to date. D.to ensure that patient’s never see their own medical chart information

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. Medical Supervision  RTs required by “scope of practice” to work under competent medical supervision  RT’s employer, either physician or hospital, is liable for RT’s actions  In some states, supervising physician may still be liable even if therapist is employed by hospital  Legal theory of “failure to supervise”  Respondeat superior (“let the master answer”) 15

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. Professional Licensure Issues  Every RT should know, in detail:  Respiratory Care Practice Act (Licensure Statute)  Therapist driven protocols: Therapists permitted to exercise independent judgment Decision-making will be more frequently called into question in court  Understand Causes of Discipline, including: Substance, abuse, domestic violence, sexual abuse, gross incompetence 16

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. Interaction of Ethics & The Law  Corporate compliance officer (CCO)  Oversees hospital’s business practices & makes sure conformity to law  Available to discuss legal or ethical issues arising in course of care  The Patient Protection And Affordable Care Act (PPACA)  Passed by congress in 2010  Improves whistleblower protections for hospital workers 17

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. Interaction of Ethics & The Law (cont.)  National Labor Relations Act (NLRA)  Provides protection to hospital workers, even if they do not belong to a union  Protects worker when he or she engages in an act that would benefit of all employees Example: RT asks supervisor to increase shift differential for all RT’s who work that shift 18

Copyright © 2013, 2009, 2003, 1999, 1995, 1990, 1982, 1977, 1973, 1969 by Mosby, an imprint of Elsevier Inc. Interaction of Ethics & The Law (cont.)  False Claims Act  Forbids making false claims against government  Provides severe sanctions against violators, including monetary:  Possible repayment up to 3 times amount if false claim made against government health plan (i.e., Medicare, Medicaid)  Possible civil penalties 19