1. Ethical and Legal Implications of
Chapter 5
Ethical and Legal Implications of
Practice
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2. Learning Objectives Summarize the philosophical foundations of ethics.
Explain what constitutes an ethical dilemma and
how they arise in health care.
Describe how professional codes of ethics apply to ethical decision making.
Explain how traditional ethical principles are
useful in resolving ethical dilemmas.
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3. Learning Objectives (cont.)
Describe the information that should be gathered before making an ethical decision.
Explain how the systems of civil and criminal
law differ.
Describe what constitutes professional malpractice and negligence.
Explain how a respiratory therapist can
become liable for wrongful acts.
List the elements that constitute a practice act.
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4. Learning Objectives (cont.)
Explain how licensing affects legal responsibility and liability.
Describe how changes in health care delivery have shaped the ethical and legal aspects of practice.
Summarize the basic elements of the Health Insurance Portability and Accountability Act of (HIPAA).
Describe the role of advance directives and living wills in health care.
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5. Philosophical Foundations of Ethics
Ethics has its origins in philosophy - the love of wisdom & the pursuit of knowledge
Ethics is primarily concerned with the
question, “How should we act?”
Ethics represents commitment to “respect
humanity in persons.”
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6. profession claiming to be self-regulating
Code of Ethics
Code of ethics : Essential part of any
profession claiming to be self-regulating
AARC has Statement of Ethics & Professional Conduct
This code seeks to establish parameters of
behavior for members of profession.
(See Box 5-1)
Moral obligations impose ethical duties on
therapists
Tools of cross examination cited in legal proceedings
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7. Ethical Theories & Principles
Autonomy
Principle acknowledges patients’ personal right &
their right to decide their own course of treatment
Basis for “informed consent”
Under this principle, any use of deceit to get patient to reverse decision to refuse treatment is considered unethical
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8. Ethical Theories & Principles
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9. Ethical Theories & Principles (cont.)
Veracity
Principle binds health care provider & patient to be
truthful
Problems w/ veracity center around issues w/ benevolent deception (withholding truth from patient for his or her own good)
In most cases, telling truth is best policy
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10. Ethical Theories & Principles (cont.)
Nonmaleficence
Principle obligates health care providers to avoid harming patient & to actively prevent harm when possible
Problems occur when treatment has serious side effects or “double effect”
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11. Ethical Theories & Principles (cont.)
Beneficence
Raises “do-no-harm” requirement to higher level
Requires health care workers to contribute to
health & well-being of their patients
Dilemmas in this domain have led to development of “advanced directives”
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12. Ethical Theories & Principles (cont.)
Confidentiality
Requires health care workers to respect patient’s
right to privacy
Qualified rather than absolute ethical principle
In certain situations, health care workers are permitted to share patient’s medical history w/ others
Risks of inadvertent disclosure of patient’s protected health information (PHI) has increased exponentially w/ the stating of social networking sites
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13. Ethical Theories & Principles (cont.)
Justice
Involves fair distribution of care
Balance must be found between health care expenses & ability to pay
Controlling of health care services calls for “distributive
justice”
Compensatory justice calls for recovery of damages incurred from medical malpractice
Less than 2% of healthcare costs are related to medical
malpractice or negligence lawsuits
Costs represent little, if any, impact on cost of healthcare
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14. Ethical Theories & Principles (cont.)
Role Duty
Practitioners have duty to understand limits of role
& to practice w/ loyalty
Respiratory therapists must not perform duties outside defined role
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15. Ethical Viewpoints & Decision Making
Formalism
Ethical standards of right and wrong relies on
rules & principles
Rules function apart from consequences of a particular act
Act: justifiable if it upholds applied rules or principles
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16. Ethical Viewpoints & Decision Making (cont.)
Consequentialism
Act: judged to be right or wrong based on
consequences
Commonly uses principle of utility—aims to promote greatest general good
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17. Ethical Viewpoints & Decision Making (cont.)
 Mixed Approaches to moral reasoning
Tries to capitalize on strengths of formalism & consequentialism (the principle of utility)
Rule utilitarianism method: variation of consequentialism
Concerned w/ which “rule” would promote greatest good, instead of which “act?”
Disadvantage: variability between caregivers
Differences in values, educational levels
Risk of inconsistent ethical decision making
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18. Ethical Viewpoints & Decision Making (cont.)
Virtue Ethics
Founded not in rules or consequences but in
personal attributes of character or virtue
Allows established practices of profession to give guidance
Ask, “How should I carry out my life if I am to live
well?”
Calls for behavior based on what “good practitioners” would do in similar circumstances
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19. Ethical Viewpoints & Decision Making (cont.)
Intuitionism
Ethical viewpoint holds there are certain self-
evident truths, usually based on moral maxims
“Treat others fairly”
When decision making tool is unhelpful in certain situations, it will depend on intuitional abilities of any specific caregiver
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20. Comprehensive Decision-Making Models
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21. Comprehensive Decision-Making Models
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22. 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
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23. 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
The individual bringing the complaint is known as the plaintiff
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24. 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
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25. Determines fairness to impose damages on
Tort Law (cont.)
“Causation”
Revolves around whether acts of negligence were
the cause of damages (Causation in fact)
“Proximate Causation” or “Legal Causation”
Turns on predicted ability
Determines fairness to impose damages on
defendant; tends to be retrospective analysis
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26. Tort Law (cont.)
Damages: another factor in negligence claims; 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 behavior & prevent future unlawful conduct
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27. Tort Law (cont.)
Professional Negligence. Negligence, in its simplest terms, is the failure to perform one’s duties competently.
Elements of Negligence
The practitioner owes a duty to the patient
The practitioner breaches that duty
The breach of duty was the cause of damages
Damage or harm came to the patient
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28. Tort Law (cont.) 3 classifications of malpractice:
Criminal malpractice (e.g., assault immediate bodily harm, Battery represents unprivileged, non-consensual physical contactnwith another person.)
Civil malpractice (e.g., negligence)
Ethical malpractice (e.g., violations of professional
ethics possibly resulting in censure)
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29. Tort Law (cont.) 2 general defenses against intentional torts:
No intent to do harm
Patient gave consent to action, knowing risks involved
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30. 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 are the most effective tools in preventing malpractice litigation
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31. HIPAA
Health Insurance Portability and Accountability Act of 1996 (HIPAA)
Congressional act (1996) to establish standards for privacy of Individually Identifiable health information known as Privacy Rule.
Basic goal of act was to strike balance between:
Protecting individuals’ health information, &
Exchange information to provide quality health
care
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32. 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 situations, supervising physician may still be liable even if therapist is employed by hospital
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33. 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
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34. 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
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35. 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
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36. 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
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