Medical Legal Review Elizabeth Petsche, JD
The Phrase It Depends Doesn t Apply Today Elizabeth Petsche, J.D. petschee@msu.edu An Overview Law General Concepts Liability Key Statutes An Overview Law General Concepts Liability Key Statutes Ethics 4 Core Principles Advance Care Directives 1
General Rule of Consent: All primary health care providers have a legal and ethical duty to provide their patients with sufficient information about examination and intervention to allow them to make a knowing, intelligent and unequivocal decision regarding treatment The Disclosures The Nature of the Procedure The Risks of the Procedure The Alternatives of the Procedure The Expected Benefits The Potential Consequences to Non- Performance General Rule When Treating Minors: Minors are presumed to be incompetent to make their own decisions in all arenas, including health care, due to cognitive limitations and immaturity 2
Nuances with Respect to Minors: Emergency Situations Consent is Implied Emancipated Minors No longer dependent: Marriage, Military, Independent Specific Health Care Decisions Partial Emancipation: STD, Contraception, Prenatal Care, HIV and Substance Abuse Transfusions for Jehovah's Witnesses Nuances with Respect to Minors: Emergency Situations Consent is Implied Emancipated Minors No longer dependent: Marriage, Military, Independent Specific Health Care Decisions Partial Emancipation: STD, Contraception, Prenatal Care, HIV and Substance Abuse Transfusions for Jehovah's Witnesses Nuances with Respect to Minors: Emergency Situations Consent is Implied Emancipated Minors No longer dependent: Marriage, Military, Independent Specific Health Care Decisions Partial Emancipation: STD, Contraception, Prenatal Care, HIV and Substance Abuse Transfusions for Jehovah's Witnesses 3
Abortion : No National Standard Cannot be a simple yes or no answer Look for something like encourage Abortion : No National Standard Cannot be a simple yes or no answer Look for something like encourage Undue Burden: Spousal/Partner Consent A 55-year old woman comes to her primary care physician to look at an enlarged lymph node under her right arm. During the examination you detect an area of thickening on her breast and send her for additional testing, ultimately leading to the diagnosis of Stage III breast cancer. You discuss the disease with her, what she can expect, the risks and benefits of treatment, and the potential consequences of not agreeing to treatment. After she considers all of the information, she states verbally and in writing that she never wants to have surgery to remove the tumor. As the disease spread, the woman became extremely ill and after she lost the ability to communicate her designated health care proxy demanded that you perform the surgery. What is the best next step? a. Perform the surgery because she has lost decision making capacity b. Perform the surgery because it is in the best interest of the patient c. Do not perform the surgery because the woman did not provide consent d. Do not perform the surgery because the proxy did not use the substituted judgment standard when making the decision 4
Informed Refusal: A patient must be fully informed of the effects and possible outcomes of refusing therapy including all of the harm that could occur Law: Liability Medical Malpractice Law: Liability Medical Malpractice The 4 D s Duty Derelict (Breach) Direct Cause (Cause) Damage 5
Law: Liability Medical Malpractice The 4 D s Duty Derelict (Breach) Direct Cause (Cause) Damage Within the Statute of Limitations No National Standard Duty: An obligation that requires a physician to conform to a particular standard of care Derelict: A breach of the appropriate standard of care Direct Cause: The primary cause without which the injury would not have occurred Damage: A physical, mental, or emotional injury or some form of loss Duty: An obligation that requires a physician to conform to a particular standard of care Derelict: A breach of the appropriate standard of care Direct Cause: The primary cause without which the injury would not have occurred Damage: A physical, mental, or emotional injury or some form of loss 6
Duty: An obligation that requires a physician to conform to a particular standard of care Derelict: A breach of the appropriate standard of care Direct Cause: The primary cause without which the injury would not have occurred Damage: A physical, mental, or emotional injury or some form of loss Duty: An obligation that requires a physician to conform to a particular standard of care Derelict: A breach of the appropriate standard of care Direct Cause: The primary cause without which the injury would not have occurred Damage: A physical, mental, or emotional injury or some form of loss Duty: An obligation that requires a physician to conform to a particular standard of care Derelict: A breach of the appropriate standard of care Direct Cause: The primary cause without which the injury would not have occurred Damage: A physical, mental, or emotional injury or some form of loss 7
An 18-year-old pregnant female, suffering from abdominal pain and cramping, placed a phone call to her mother s primary care physician in order to seek advice about what to do in regard to her pain. The female has never been a patient of the primary care physician, but did not know who else to call, because her regular provider was out of town until the following day. The primary care physician said that, based upon the description provided by the woman, the abdominal pain and cramping were normal at this stage of her pregnancy, and that she would be safe waiting until the following day to contact her regular provider. Several hours later, the woman presents to the emergency room having suffered a severe placental abruption. As a result of the delayed treatment, the fetus did not receive enough oxygen and was born with brain damage. The resulting lawsuit filed by the woman against the primary care physician will most likely be a. Successful because there was a physician-patient relationship created b. Successful because the woman is the daughter of an existing patient c. Unsuccessful because the physician was not the woman s regular provider d. Unsuccessful because the woman was never physically examined by the physician Law: Liability Res Ipsa Loquitur The thing speaks for itself Law: Liability Res Ipsa Loquitur The thing speaks for itself Respondeat Superior Let the master answer 8
Case over if Granted (Unless Appealed) Motion for Summary Judgment Filed by Defendant(s) Motion to Dismiss Filed by Defendant(s) Case over if Granted (Unless Appealed) Flow Chart of a Medical Malpractice Lawsuit: Breach of Standard of Care Complaint filed by Plaintiff(s) Summons Delivered to Defendant(s) Answer filed by Defendant(s) Collection of Evidence (Discovery) Pre-Trial Motions Trial Verdict Key: Optional Appeal Filed by Either Party Law: Statutes HIPAA The privacy rule requires health care providers to obtain patient authorization to use or disclose individually identifiable health information, with certain broad exceptions. Law: Statutes Exceptions Include: Treatment Payment and Operations Required Disclosures 9
Law: Statutes Required Disclosures: Serious Contagious Disease Child Abuse (must contact CPS) Serious and Immediate Threat of Harm to Identifiable Persons Law: HIPAA Family Member or Friend Other Persons Patient is present and has the capacity to make health care decisions Provider may disclose relevant information if the provider does one of the following: (1) obtains the patient s agreement (2) gives the patient an opportunity to object and the patient does not object (3) decides from the circumstances, based on professional judgment, that the patient does not object Disclosure may be made in person, over the phone, or in writing. Provider may disclose relevant information if the provider does one of the following: (1) obtains the patient s agreement (2) gives the patient the opportunity to object and the patient does not object (3) decides from the circumstances, based on professional judgment, that the patient does not object Disclosure may be made in person, over the phone or in writing. Patient is not present or is incapacitated Provider may disclose relevant information if, based on professional judgment, the disclosure is in the patient s best interest. Disclosure may be made in person, over the phone, or in writing. Provider may use professional judgment and experience to decide if it is in the patient s best interest to allow someone to pick up filled prescriptions, medical supplies, X-rays, or other similar forms of health information for the patient. Provider may disclose relevant information if the provider is reasonably sure that the patient has involved the person in the patient s care and in his or her professional judgment, the provider believes the disclosure to be in the patient s best interest. Disclosure may be made in person, over the phone, or in writing. Provider may use professional judgment and experience to decide if it is in the patient s best interest to allow someone to pick up filled prescriptions, medical supplies, X-rays, or other similar forms of health information for the patient. U.S. Department of Health and Human Services. Communicating with a Patient's Family, Friends, or Others Involved in the Patient's Care., Web. 15 Mar 2011. Law: Statutes HIPAA EMTALA Screen Stabilize 10
Ethics Basics 4 Core Principles Advance Care Directives Ethics Basics 4 Core Principles Autonomy Beneficence Nonmaleficence Justice A 22-year-old man is sent to see a vascular surgeon to examine a lump on his left leg. The surgeon decides that several tests need to be performed in order to determine the composition of the lump and the potential complications that may result from its removal. The man consents to an exploratory procedure. During the procedure, while the man is anesthetized, the surgeon determines the lump is merely a tissue mass. In order to limit the patient s exposure to the risks of a second procedure, he removes the lump. The removal was a success and there is minimal scarring. What is the most accurate evaluation of the physician s actions? a. Appropriate because they were taken while acting in the patient s best interests b. Appropriate because the patient consented to the procedure c. Appropriate because the lump was removed successfully d. Inappropriate unless he receives informed consent after the patient wakes e. Inappropriate because it was a violation of the patient s ethical right to autonomy 11
Ethics Basics Key Points: Autonomy Trumps You Have Rights Double Effect Doctrine Ethics Basics Double Effect Doctrine: It is wrong to intentionally harm someone (cause death) to produce a good result (relieve from suffering), but it is permissible to do something intended to produce a good result (release from suffering), even if the action leads to unintended but foreseen harm http://plato.stanford.edu/entries/double-effect/ Ethics Advance Care Directives Advance Care Directives Written instructions that relate to the kind of health care the patient wishes to have or not have when incapacitated 12
Ethics Advance Care Directives Advance Care Directives Written instructions recognized under state law that relate to the kind of health care the patient wishes to have or not have when incapacitated Patient Self-Determination Act Requires institutions to inform patients of their right to use advance care directives Ethics Advance Care Directives 2 Main Types Living Will Durable Power of Attorney for Health Care Ethics Advance Care Directives Living Will A written document used to inform interested parties (doctors, family members, etc.) what medical care a patient wants to receive if they are no longer able to make decisions due to illness or incapacity 13
Ethics Advance Care Directives Durable Power of Attorney for Health Care A document used by a patient to designate another individual to make medical treatment and personal care decisions when they become incapable of making health care decisions A 70-year-old man is admitted to the hospital unfriended and complaining of shortness of breath. He is alert, coherent, and responsive. Tests show that he has pneumonia and respiratory failure is imminent. His health care team believes the insertion of a respiratory tube will only maintain the man s life. The team reviews the man s medical records and notices that a valid living will is present and states that he wants no invasive medical procedures that would only prolong my death. Should the tube be inserted? a. No, it would go against the patient s advance care directive b. No, not until consent is received from a surrogate decision maker c. Yes, because the living will is unclear as to whether it applies d. Yes, if the man consents to the procedure e. Yes, an ethical duty exists to provide care For Later Resources you may find interesting http://www.hhs.gov/ocr/privacy/index.html http://oig.hhs.gov/compliance/physicianeducation/roadmap_web_version.pdf http://www.childwelfare.gov/systemwide/laws_polic ies/statutes/manda.cfm http://www.ama-assn.org/ama/pub/physicianresources/solutions-managing-your-practice/codingbilling-insurance/hipaahealth-insurance-portabilityaccountability-act/frequently-asked-questions.page 14
The end Questions? Thank you Elizabeth Petsche, J.D. petschee@msu.edu References 1. Lewis, Marcia A., Carol D. Tamparo, and Brenda M. Tatro. Medical law, ethics, & bioethics for the health professions. 7th ed. Philadelphia, PA: F.A. Davis Co., 2012. Print. 2. Pozgar, George D.. Legal and ethical issues for health professionals. 3rd ed. Boston: Jones and Bartlett Publishers, 2013. Print. 3. http://plato.stanford.edu/entries/doubleeffect/ 15