1. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Chapter 5 Legal Issues

2. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. What is “Law” and Who Makes It? Definition of law: a system of rules, usually enforced through a collection of institutions commonly recognized as having the authority to do so

3. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Sources of Law U.S. Congress >> makes federal law – Applicable to all per the Supremacy Clause of the Constitution State legislatures >> make state law – Applicable to those living or working within the state Local governments >> make resolutions or ordinances – Applicable to those within the specific jurisdiction

4. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Sources of Law U.S. Supreme Court makes law – Example: Roe v. Wade Common law – Also known as “case law” or the law of “precedent” – Term originated to handle situations not covered by statute

5. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Criminal versus Civil Law Criminal Law – Deals with one who has performed an act prohibited by law or failed to perform an act required by law – Standard of proof: Beyond a reasonable doubt Civil Law – A collection of rules that govern the conduct and affairs of people, their rights, that are not a crime – Standard of proof: Preponderance of evidence

6. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Criminal Law Misdemeanors – A crime punishable by less than one year in a jail, most commonly a county or regional jail, not a state prison – Sometimes the punishment may include a fine, or a fine may be imposed Felonies – Crimes committed by people who intend to do significant harm to another, either through depriving them of their property or injuring them personally

7. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Types of Crimes Murder – The “unlawful killing of another with malice aforethought” – There are degrees of murder based on the level of premeditation by the defendant or the status of the victim Manslaughter – The unlawful killing of a human being without malice – Voluntary versus involuntary manslaughter

8. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Types of Crimes Robbery – The unlawful taking of money or goods of another from his person or in immediate presence by force or intimidation Burglary – Similar to robbery, but the difference is that burglary does not involve the presence of the victim

9. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. The Law of Torts Comes from the Latin tortum which means “wrong” A tort can be Intentional or Unintentional

10. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. The Law of Torts Intentional torts – Libel and slander (defamation of character) – Trespass – Intentional infliction of emotional distress – Medical malpractice Unintentional – Accidental acts – Negligence

11. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Negligence The legal foundation for the concept of negligence: every one owes everyone else the duty to behave “reasonably” Four factors of negligence – There must be a duty of care owed by the defendant to the plaintiff – There must be a breach of that duty by the defendant – There must be harm (injury) suffered by the plaintiff – That harm must be a result of the defendant’s breach of duty (causation)

12. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Medical Malpractice Six factors of medical malpractice – There is a relationship between the physician and the patient – That relationship created a duty on the part of the physician toward the patient – The duty was of a nature to be a professional standard of care – The physician breached the duty to the patient – The patient had a resulting injury – The patient would not have sustained the injury but for the physician’s breach of duty (causation)

13. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Medical Malpractice Defenses to medical malpractice – Statute of limitations – Contributory negligence – Emergency

14. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. The Doctor-Patient Contract Elements of a valid contract – Offer – Consideration – Acceptance

15. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. The Doctor-Patient Contract Types of contracts – Express – Implied – Before a doctor can treat the patient, the patient must provide informed consent

16. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. The Doctor-Patient Contract Physician has a duty of care to the patient until the relationship is terminated – Mutual consent of the patient and the doctor – Patient dismissing the doctor – The changed circumstance that care is no longer needed – Physician withdrawal from the relationship by written notice and reasonable time to find a new physician

17. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Patient Rights Patient right to privacy – Patient has a right to expect his or her communications with their physician will be kept confidential Patient bill of rights Patient Self-Determination Act – Advance directives – Living wills – Powers of attorney

18. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Medical Records Physicians own the medical records they create The material in the medical record is part of a privileged communication between the physician and the patient HIPAA and medical records Mandatory release of medical records

19. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Government Regulation of the Medical Office Occupational Safety and Health Administration (OSHA) – Assures that employers have safe work environments for employees Clinical Laboratory Improvement Amendments (CLIA) of 1988 Food and Drug Administration (FDA) Drug Enforcement Agency (DEA)

20. Copyright ©2012 Delmar, Cengage Learning. All rights reserved. Laws Affecting the Medical Office Patient Protection and Affordability Act Health Insurance Portability and Accessibility Act (HIPAA) – Title I: Continuation of health insurance coverage when workers change or lose jobs – Title II: The Privacy Rule The Good Samaritan Act Americans with Disabilities Act (ADA) Uniform Anatomical Gift Act