H E A LT H C A R E A D M I N IST R AT I O N G E O R G E D. P O Z G A R, M B A, C H E

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1 S E C O N D E D I T I O N L E GA L A N D E T H I C A L E S S E N T I A L S o f H E A LT H C A R E A D M I N IST R AT I O N G E O R G E D. P O Z G A R, M B A, C H E A U T H O R, S P E A K E R, C O N S U L T A N T G P H E A L T H C A R E A N N A P O L I S, M A R Y L A N D L E G A L R E V I E W N I N A S A N T U C C I, J D

2 World Headquarters Jones & Bartlett Learning 5 Wall Street Burlington, MA info@jblearning.com Jones & Bartlett Learning books and products are available through most bookstores and online booksellers. To contact Jones & Bartlett Learning directly, call , fax , or visit our website, Substantial discounts on bulk quantities of Jones & Bartlett Learning publications are available to corporations, professional associations, and other qualified organizations. For details and specific discount information, contact the special sales department at Jones & Bartlett Learning via the above contact information or send an to specialsales@jblearning.com. Copyright 2014 by Jones & Bartlett Learning, LLC, an Ascend Learning Company All rights reserved. No part of the material protected by this copyright may be reproduced or utilized in any form, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the copyright owner. The content, statements, views, and opinions herein are the sole expression of the respective authors and not that of Jones & Bartlett Learning, LLC. Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not constitute or imply its endorsement or recommendation by Jones & Bartlett Learning, LLC and such reference shall not be used for advertising or product endorsement purposes. All trademarks displayed are the trademarks of the parties noted herein. Legal and Ethical Essentials of Health Care Administration, Second Edition is an independent publication and has not been authorized, sponsored, or otherwise approved by the owners of the trademarks or service marks referenced in this product. There may be images in this book that feature models; these models do not necessarily endorse, represent, or participate in the activities represented in the images. Any screenshots in this product are for educational and instructive purposes only. Any individuals and scenarios featured in the case studies throughout this product may be real or fictitious, but are used for instructional purposes only. This publication is designed to provide accurate and authoritative information in regard to the Subject Matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the service of a competent professional person should be sought. Production Credits Publisher: Michael Brown Managing Editor: Maro Gartside Editorial Assistant: Sean Fabery Editorial Assistant: Chloe Falivene Associate Production Editor: Rebekah Linga Senior Marketing Manager: Sophie Fleck Teague Manufacturing and Inventory Control Supervisor: Amy Bacus Composition: Aptara, Inc. Cover Design: Michael O Donnell Cover Image credit: Top: Jerric Ramos/ShutterStock, Inc.; Bottom: istockphoto/thinkstock Printing and Binding: Edwards Brothers Malloy Cover Printing: Edwards Brothers Malloy Library of Congress Cataloging-in-Publication Data Pozgar, George D. Legal and ethical essentials of health care administration / George D. Pozgar. 2nd ed. p. ; cm. Rev. ed. of: Legal essentials of health care administration / George D. Pozgar ; legal review, Nina M. Santucci. c2009. Related ed. of: Legal aspects of health care administration / George D. Pozgar ; legal review, Nina M. Santucci. 11th ed. c2012. Includes bibliographical references and index. ISBN-13: (pbk.) ISBN-10: (pbk.) I. Pozgar, George D. Legal essentials of health care administration. II. Pozgar, George D. Legal aspects of health care administration. III. Title. [DNLM: 1. Delivery of Health Care legislation & jurisprudence United States. 2. Delivery of Health Care ethics United States. 3. Legislation, Medical United States. W 32.5 AA1] KF '1 dc Printed in the United States of America

3 Dedication Mary Ann Pozgar-Berkebile My Sister Precious moments when she took my hand, And said, Let s Dance. At that moment, I knew from her touch, How much she loved me.

4 Contents Epigraph... viii Preface...ix About the Book Layout...x Acknowledgments...xii Chapter 1 Government, Law, and Ethics...1 Learning Objectives...1 Government Organization...2 Sources of Law...7 Government Ethics...9 Chapter 2 Healthcare Ethics Learning Objectives...14 Ethics Overview...14 Morality...14 Ethical Theories...15 Principles of Ethics...16 Virtues and Values...19 Spirituality and Religion...26 Secular Ethics...28 Situational Ethics...29 Reasoning and Decision-Making...29 Summary Thoughts...30 Chapter 3 Reflections on the Past Learning Objectives...33 Early Hindu and Egyptian Hospitals...34 Greek and Roman Hospitals...34 Hospitals of the Early Christian Era...35 Islamic Hospitals...35 Early Military Hospitals...36 Medieval Hospitals...36 The Dark Age of Hospitals...37 Hospitals of the Renaissance...37 Hospitals of the 18th Century...38 Early Hospitals in the United States...38 Late 19th-Century Renaissance th-Century Progress...42 Health Care in the 21st Century...43 The Challenge Ahead...44 Chapter 4 Tort Law Learning Objectives...48 Negligence...48 Intentional Torts...57 Products Liability...63 Chapter 5 Criminal Aspects of Health Care Learning Objectives...67 Criminal Procedure...68 Healthcare Fraud...69 Patient Abuse...75 Criminal Negligence...75 Murder...78 Theft...79 Chapter 6 Contracts Learning Objectives...81 What Is a Contract?...82 iv

5 Contents v Types of Contracts...82 Elements of a Contract...82 Breach of Contract...83 Corporate Contracts...83 Partnerships...83 Agents...83 Independent Contractor...84 Legality of Object...84 Conditions...84 Performance...85 Nonperformance Defenses...85 Remedies...85 Employment Contracts...86 Exclusive Contracts...88 Noncompetitive Contract Clauses...89 Transfer Agreements...89 Insurance Contract...90 Chapter 7 Civil Procedure and Trial Practice Learning Objectives...91 Pleadings...92 Discovery...93 Motions...94 Pretrial Conference...95 Notice of Trial...95 Memorandum of Law...96 The Court...96 The Jury...96 Subpoenas...97 Burden of Proof...97 Res Ipsa Loquitur...97 Opening Statements...98 Examination of Witnesses...98 Evidence Defenses Against Plaintiff s Claims Closing Statements Judge s Charge Jury Deliberation Awarding Damages Appeals Execution of Judgments Chapter 8 Corporate Structure and Legal Issues Learning Objectives Authority of Healthcare Corporations Corporate Committee Structure Organizational Ethics Corporate Negligence Doctrine of Respondeat Superior Independent Contractor Duties of Healthcare Corporations CEO/Administrator Medical Staff Corporate Reorganization Chapter 9 Medical Staff Organization and Physician Liability Learning Objectives Medical Staff Ethics Medical Staff Organization Medical Staff Privileges Common Medical Errors Physician Patient Relationship Chapter 10 Nursing and the Law Learning Objectives Scope of Practice Nursing Diagnosis Nurse Licensure Classification of Nurse Staff Advance Practice Nurses Legal Risks of Nurses Chapter 11 Hospital Departments and Allied Health Professionals Learning Objectives Professional Ethics Chiropractor Emergency Department Laboratory Medical Assistant Nutritional Services Paramedic Pharmacy Physical Therapy Physician Assistant Podiatrist Respiratory Therapist Certification of Health Professionals Licensing Health Professionals Professional Misconduct Helpful Advice for Caregivers Chapter 12 Patient Rights and Responsibilities Learning Objectives Patient Rights Patient Responsibilities Chapter 13 Patient Consent Learning Objectives Informed Consent Information to Be Disclosed Assessing Decision-Making Capacity...211

6 vi Contents Adequacy of Consent Verbal Consent Written Consent Consent for Routine Procedures Consent for Specific Procedures Implied Consent Statutory Consent Judicial Consent Who May Consent Right to Refuse Treatment Defenses for Failure to Provide Consent Ethics and Informed Consent Chapter 14 Procreation and Ethical Dilemmas Learning Objectives Abortion Sterilization Artificial Insemination Surrogacy Wrongful Birth, Life, and Conception Chapter 15 End-of-Life Issues Learning Objectives Patient Autonomy and Case Law Legislative Response Preservation of Life with Limits Euthanasia Advance Directives Futility of Treatment Withholding and Withdrawal of Treatment Do-Not-Resuscitate Orders Ethics Committee Autopsy Organ Donation Research, Experimentation, and Clinical Trials Human Genetics Stem Cell Research Chapter 16 AIDS Learning Objectives Spread of AIDS Confidentiality Discrimination Negligence Reporting Requirements AIDS Emergency Act Occupational Safety and Health Act AIDS Education Chapter 17 Legal Reporting Requirements Learning Objectives Child Abuse Elder Abuse and Neglect Births and Deaths Communicable Diseases Adverse Drug Reactions Hospital-Acquired Infections Physician Competency Incident Reporting Chapter 18 Medical Records Learning Objectives Managing Information Contents of the Medical Record Ownership and Release of Records Documentation of Treatment Retention of Records Electronic Records Medical Record Battleground Legal Importance of Records Illegible Handwriting Timely Completion of Records Confidential and Privileged Communications HIPAA Charting Some Helpful Advice Chapter 19 National Health Insurance and Managed Care Learning Objectives National Health Insurance Managed Care PPACA and State Law Chapter 20 Professional Liability Insurance Learning Objectives Insurance Policy Liability of the Professional Medical Liability Insurance Self-Insurance Trustee Coverage Mandated Medical Staff Insurance Coverage Investigation and Settlement of Claims Chapter 21 Labor Relations Learning Objectives U.S. Department of Labor National Labor Relations Act Norris-LaGuardia Act Labor-Management Reporting and Disclosure Act Fair Labor Standards Act Civil Rights Act Occupational Safety and Health Act Rehabilitation Act Family and Medical Leave Act State Labor Laws...302

7 Contents vii Labor Rights Management Rights Patient Rights During Labor Disputes Affirmative Action Plan Injunctions Administering a Collective Bargaining Agreement Discrimination in the Workplace Chapter 22 Employment at Will and Discharge Learning Objectives Employment at Will Public Policy Issues Retaliatory Discharge Fairness: The Ultimate Test Termination Constructive Discharge Effective Hiring Practices Clear Communications Chapter 23 Employee Rights and Responsibilities Learning Objectives Employee Rights Employee Responsibilities Helpful Advice Caregiver s Pledge Chapter 24 Tort Reform Learning Objectives Arbitration and Mediation Structured Awards Pretrial Screening Panels Collateral Source Rule Contingency Fee Limitations Countersuits and Frivolous Claims Joint and Several Liability Malpractice Caps No-Fault System Regulation of Insurance Practices Physician Participation in Tort Reform Chapter 25 Culture of Safety Learning Objectives Developing a Culture of Safety Improve Communications Evaluating Safe Patient Care CQI Approach to Performance Improvement Implementation of Best Practices Risk Management Failure Mode Effects Analysis Sentinel Events Chapter 26 World Wide Search Learning Objectives Searching the Web Legal Websites Ethics Websites Government Websites Best Practices Hospital and Physician Finders International Medical Websites Chapter 27 Journey to Excellence Learning Objectives Ideas for Getting Started Adopt a Hospital Funding Your Dreams Baldrige Performance Excellence Program Glossary Case Index Subject Index

8 Epigraph In civilized life, law floats in a sea of ethics. Earl Warren, Chief Justice of the United States ( ) I consider ethics, as well as religion, as supplements to law in the government of man. Thomas Jefferson, President of the United States ( ) In law a man is guilty when he violates the rights of others. In ethics he is guilty if he only thinks of doing so. Immanuel Kant, Philosopher ( ) It is curious curious that physical courage should be so common in the world, and moral courage so rare. Mark Twain, American Author and Humorist ( ) viii

9 Preface He has achieved success who has lived well, laughed often and loved much; who has gained the respect of intelligent men and the love of little children; who has filled his niche and accomplished his task; who has left the world better than he found it, whether by an improved poppy, a perfect poem, or a rescued soul; who has never lacked appreciation of earth s beauty or failed to express it; who has always looked for the best in others and given them the best he had; whose life was an inspiration; whose memory a benediction. Bessie Stanley Legal and Ethical Essentials of Health Care Administration, Second Edition has become more than an abridged version of Legal Aspects of Health Care Administration, Eleventh Edition. The content has been updated and fully expanded to bring excitement into the learning process. This Second Edition delivers to the reader a comprehensive updated review of both health law and ethics. The substantive material in the Second Edition has been carefully selected based on the common legal and ethical issues the practitioner will face during his or her career. Although this book is mandatory reading for many students enrolled in health management and patient care courses, it is particularly valuable as a supplemental reading in the curricula of many healthcare programs. The Second Edition is also an invaluable desk reference for those in managerial positions and professionals providing direct patient care. The author s unique experience in health care includes consulting and surveying more than 1,000 hospitals and ambulatory sites from Alaska to Puerto Rico, as well as his experience as administrator, educator, consultant, and speaker. Every attempt has been made to arm the student with the knowledge gained through his extensive healthcare experiences. As a result of his background, one of the unique features of this book is that in each chapter the focus on the various issues includes more than merely definitions or descriptions of words. There is an infusion of life into the material by using cases that have been litigated or discussed in the press, as well as real-world events through reality checks experienced by healthcare professionals. In that way, the law and ethics spring to life and inspire dynamic discussion and excitement in the learning process, thus creating an atmosphere of interest and participation, which is conducive to learning. The study of Legal and Ethical Essentials of Health Care Administration, Second Edition affords health professionals with the opportunity to apply the concepts learned to what they will face on a daily basis in a practical way. It details the actions healthcare providers can take to help prevent the wide variety of harmful events that occur in patient care settings. Although there will always be a next time for human error, the reader who synthetizes the contents in this book and understands its lessons will better understand how failures can turn to success and the pain of past mistakes can turn to hope. ix

10 About the Book Layout Legal and Ethical Essentials of Health Care Administration, Second Edition lays a strong foundation in both health law and ethics. Chapter 1 begins with an introduction to government organization, sources of law, and government ethics and Chapter 2 progresses to a discussion of ethical theories, principles, virtues and values, and related topics. Chapter 3 provides an overview of the historical development of hospitals as influenced by medical progress, allowing the reader to look at their successes and failures through the centuries, and then drawing conclusions about what can be done to avoid repeating the failures of the past. In Chapter 4, the reader is introduced to negligent and intentional torts, progressing to criminal acts in Chapter 5, and contract law in Chapter 6 as they relate to health care. The reader is then introduced to civil procedure and trial practice in Chapter 7. The journey continues with a discussion of legal issues involving corporations in Chapter 8, medical staff organization and physician liability in Chapter 9, nursing and the law in Chapter 10, and a discussion of various hospital departments and allied health professionals in Chapter 11. The first 11 chapters provide a solid basis for a more complete understanding of the following remaining chapters: Chapter 12 provides an overview of patient rights and responsibilities; Chapter 13 patient consent; Chapter 14 procreation and ethical issues; Chapter 15 end-oflife issues; Chapter 16 AIDS; Chapter 17 legal reporting requirements; Chapter 18 medical records; Chapter 19 national health insurance and managed care; Chapter 20 professional liability insurance; Chapter 21 labor relations; Chapter 22 employment at will and discharge; Chapter 23 employee rights and responsibilities; Chapter 24 tort reform; Chapter 25 culture of safety; Chapter 26 world wide search; Chapter 27 the journey to excellence; and a glossary of common legal and ethics vocabulary. The practical application of ethics in the healthcare setting is accomplished by interspersing the thoughts of great minds through Quotes, applicable Newspaper Clippings, provider and organizational experiences through Reality Checks designated by a symbol, and patient experiences through legal rulings and summaries through Case Law. When reviewing the various cases in this book, the reader should consider both the ethical and legal implications of a dilemma and how they intertwine with one another. It is important to recognize that the decisions in the cases described are generally governed both by applicable state and federal statutes and common-law principles. When reviewing a case, the reader must keep in mind that the case law and statutes of one state are not binding in another state. There is no one magic legal or ethics book that can possibly compress the plethora of issues that have bombarded the healthcare industry into one book. This book is merely a beginning of the study of legal and ethical issues and is an adventure that all caregivers should take. Although there is always much more that could be discussed on any one topic, the good student will understand that this book provides a solid foundation for practical everyday use as well as further study. Each life is like a novel. Filled with moments of happiness, sadness, crisis, defeat, and triumph. When the last page has been written, will you be happy or saddened by what you read? Author Unknown x

11 About the Book Layout xi The reader is presented in the Second Edition with realworld life experiences that bring the reader through a journey of learning that provides an effective transitional stage from the classroom to the reality of the everyday work environment. When people consider matters of law and ethics they are usually considering matters of freedom in regard to personal choices, one s obligations to other sentient beings, or judgments about human character and the right to choose. The author s objective is to equip the reader with the background knowledge necessary to understand that legal and ethical behavior begins with understanding that we have alternatives and choices in our behavior. To make good decisions, we must first understand that they will be only as good as our knowledge of what is right and what is wrong. This book is not an indictment of any profession or organization. There is a deluge of ethical issues in every aspect of human existence. Although cultural differences, politics, and religion influence who we are, it is all of life s experiences that affect who we will become. If we are compassionate it is most likely compassionate people have influenced us. Author's Note: This book is not a definitive treatise but is a portrait of the ever-evolving story of health care through the study of law and ethics. It is educational in nature and should not be considered a substitute for legal advice on any particular issue. Moreover, each chapter presents an overview, rather than an exhaustive treatment, of the various topics discussed. The author, legal reviewers, and/or publisher cannot be responsible for any errors or omissions, including: additions to, interpretations of, and/or changes in the regulations presented in this book.

12 Acknowledgments The author especially acknowledges the staff at Jones & Bartlett Learning whose guidance and assistance was so important in making this Second Edition a reality. Special thanks to Mike Brown, Publisher at Jones & Bartlett Learning, who has once again been truly an amazing leader and mentor over the years. I would like to thank Chloe Falivene, Editorial Assistant, who worked diligently and tirelessly with me on this Second Edition. I would also like to thank the other Jones & Bartlett staff, including Rebekah Linga, Associate Production Editor; Sean Fabery, Editorial Assistant; and Sophie Teague, Senior Marketing Manager; who have also worked with me on this Second Edition. Thanks for allowing me to leave behind this legacy of writing. I am grateful to the very special people in the more than 1,000 hospitals and ambulatory sites from Alaska to Puerto Rico with whom I have consulted, surveyed, and provided education over many years. Their shared experiences have served to remind me of the importance to make this book more valuable in the classroom and as a reference for practicing healthcare professionals. To my students in healthcare law and ethics classes at the New School for Social Research, Molloy College, Long Island University C.W. Post Campus, Saint Francis College, and Saint Joseph s College; my intern from Brown University; my resident in hospital administration from The George Washington University; and those I have instructed through the years at various seminars, I will always be indebted for your inspiration. Many thanks are also extended to all those special people at the National Library of Medicine and the Library of Congress for their guidance over the years in locating research materials. xii