1. Chapter 5 Ethical and Legal Implications of Practice

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.

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.

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 1996 (HIPAA).
Describe the role of advance directives and living wills in health care.

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.”

6. 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

7. Ethical Theories & Principles
Autonomy
Principle acknowledges patients’ personal liberty & 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

8. Ethical Theories & Principles

9. What does the principle of autonomy allow patients to do?
have an attending physician decide their course of treatment.
have the patient’s family decide their course of treatment.
to allow the patient to decide their own course of treatment.
Force the patient to have their family member sign a consent form for their treatment.
Answer: C

10. 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

11. 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”

12. 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”

13. 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/ advent of social networking sites

14. healthcare worker’s use of social networking sites.
Which poses the newest, most contemporary risk of violating the patient’s right to confidentiality?
staff meetings
healthcare worker’s use of social networking sites.
meeting with the patient’s family members.
medical conferences
Answer: B

15. Ethical Theories & Principles (cont.)
Justice
Involves fair distribution of care
Balance must be found between health care expenses & ability to pay
Rationing 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

16. Ethical Theories & Principles (cont.)
Role Duty
Practitioners have duty to understand limits of role & to practice w/ fidelity
Respiratory therapists must not perform duties outside defined role

17. Ethical Viewpoints & Decision Making
Formalism
Viewpoint relies on rules & principles
Rules function apart from consequences of a particular act
Act: justifiable if it upholds applied rules or principles

18. 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

19. Ethical Viewpoints & Decision Making (cont.)
Mixed Approaches to moral reasoning
Tries to capitalize on strengths of formalism & consequentialism (the principle of utility)
Rule utilitarianism approach: 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

20. 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

21. Which ethical viewpoint emphasizes the moral character of each individual?
Formalism
Virtue Ethics
Consequentialism
Role Duty
Answer: B

22. 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

23. Comprehensive Decision-Making Models

24. Comprehensive Decision-Making Models

25. 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

26. 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

27. Which system of law consists of the regulations set by government agencies?
civil law
criminal law
administrative law
ethical law
Answer: C

28. 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

29. 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

30. 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

31. Tort Law (cont.)

32. 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)

33. Tort Law (cont.) 2 general defenses against intentional torts:
1. No intent to do harm
2. Patient gave consent to action, knowing risks involved

34. 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

35. have a malpractice insurance policy
What can a respiratory therapist do to minimize the risk of being involved in a law suit?
have a malpractice insurance policy
respect the autonomy of a patient even if in doing so others may be harmed
avoid the hospital’s risk management department
Be aware of, and conform to all legal aspects of licensure and the standards of care
Answer: D

36. 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

37. What is the basic goal of HIPPA?
balance between protecting individuals’ health information and providing quality health care.
to help reduce cost of health care
to ensure that all the help care providers accreditations are up to date.
to ensure that patient’s never see their own medical chart information
Answer: A

38. 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”)

39. 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

40. 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

41. 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

42. 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