5 Flashcards
Concerned with laws designed to protect all members of society from unlawful acts by others; i.e., felonies and misdemeanors
* Action?
Criminal
A felony is a crime (i.e., murder, assault, and rape) punishable by death or imprisonment.
Misdemeanors are considered lesser offenses and usuallt carry a penalty of a fine or less than 1 year in jail.
* Action?
Criminal
Concerned with actions between two private parties, such as individiduals or organizations; constitute the bulk of the legal actions delath with in the medical office or other healthcare facilities
* Action?
Civil
Damages may be awarded in a court of law and result in monetary policies
* Action?
Civil
It a law where most common civil actions in healthcare are based
Tort law
It is a wrongful act other than breach of contract committed against someone’s person, property, reputation, or other legally protected right, for which the individual is entitled to damages awarded by the court.
* It is an act that is committed without just cause and may be intentional (willful) or unintentional (accidental)
Tort
An act or threat causing another to be in fear of immediate battery (harmful touching)
* Threatening someone / to stab a patient with a needle
* Defined as making someone fear that you will use force to harm them
* Involved causing someone to fear that bodily harm will come to them
* Only inflicting fear (threatening); no physical contact
Assault
An intentional harmful or offensive touching of, or use of force on, another person without consent or legal justification
* Intentional harm may range from permanent disfigurement to merely grabbing something out of another person’s hand without permission
* It is usually both a tort and criminal offense
* Actual physical contact must occur
* Intentionally holds a patient down or uses more force than necessary
* Purposely touching or applying force on other person or things related to the person without his consent with intention to harm the person
* With physical contact and with an act of intentionally adding force
Battery
A deceitful practice or false portrayal of facts either by words or by conduct, often done to obtain money or property.
* Ex. Billing for services that have not been provided
Fraud
The violation of one’s right to be left alone. It can involve a physical intrusion or the unauthorized publishing or release of private information, which can also be considered a breach of confidentiality
Invasion of privacy
The failure to keep privileged medical information private.
* Ex. Unauthorized release of patient information such as laboratory results
Breach of confidentiality
A type of negligence committed by a professional. The training and experience of the accused individual is taken into consideration when deving whether an act reulting in injury should be labeled negligence or malpractice. A claim of this implies that a greater standard of care was owed to the injured person than the “reasonable person” standard associated with negligence
Malpractice
The failure to exercise due care, the level of that person of ordinary intelligence and good sense would exercise under the given circumstances. In other words, it is doing something that a reasonable person would not do, or not doing something a that a reasonable person would do.
* If a medical procedure results in injury and there is no intent to injure
Negligence
What must be present to claim negligence?
- A legal duty or obligation owed by one person to another
- A breaking or breach of that duty or obligation
- Harm done as a direct result of the action
A Latin phrase meaning “the thing speaks for itself,” which applies to the rule of evidence in a case of negligence.
Ex. A homebound patient sitting on a kitchen barstool faints while having blood drawn and falls, hitting his head. A head injury develops that was obviously due to the fall. If a lawsuit results, the burden of proof is shifted to the phlebotomist, who must prove that he or she was not negligent
Res ipsa loquitur
A Latin phrase that means “let the master respond”
* Key points: Employee is working within the scope of employment and has had the proper training to perform the required duties
Respondeat superior
The normal level of skill and care that a healthcare practitioner would be expected to adhere in order to provide due care for patients. This duty is established by the standards of the profession and the expectations of society.
Standard of care
A law setting the length of time after an alleged injury in which the injured person is permitted to file a lawsuit.
Typically begins when one of the following circumstances occurs:
1. The day the alleged negligent act was committed
2. When the injury resulting from the alleged negligence was actually discovered or should have been discovered by a reasonably alert patient
3. The day the physicain-patient relationship ended or the day the last medical treatment in a series
4. In case of minors, often not until the minor reaches the age of majority
Statute of limitations
Liability imposed by law on one person for the act committed by another
Vicarious liability
It compensates the insured in the event of malpractice liability.
* It is important for healthcare personnel to examine the posibility of a civil suit being brought against to them and to consider carrying malpractice insurance.
* May be able to purchase this from their professional organizations
Malpractice Insurance
Avoiding lawsuits
Always remember to respect the rights of patients
Different types of patient consent:
- Informed Consent
- Expressed Consent
- Implied Consent
- HIV Consent
- Consent for Minors
- Refusal Consent
Guidelines to Avoid Lawsuits
- Acquire informed consent before collecting specimens
- Respect a patient’s right to confidentiality
- Strictly adhere to accepted procedures and practices
- Use proper safety containers and devices
- Listen and respond appropriately to the patient’s requests
- Accurately and legibly record all information concerning patients
- Document incidents of occurrences
- Participate in continuing education to maintain proficiency
- Perform at the prevailing standard of care
- Never perform procedures that you are not trained to do
- Required for treatment that involves surgery, experimental drugs, or high-risk procedures
- May be given verbally or written
- Written consent gives the best possible protection for both the treatment provider and the patient, must be signed by both, and must be witnessed by a third party
- Verbal consent for treatment should be followed by an entry in the patient’s chart covering what was discussed with the patient
- Consent should cover what procedures are going to be performed and should not be in a general form that allows the physician full authority to do whatver he or she wants to do.
Expressed consent
———- consent for treatment should be followed by an entry in the patient’s chart covering what was discussed with the patient
Verbal
———- consent gives the best possible protection for both the treatment provider and the patient, must be signed by both, and must be witnessed by a third party
Written
- The patient’s actions imply consent without a verbal or written expression of consent
- May be necessary in emergency procedures, such as CPR to save a person’s life
- Laws involving are enacted at the state level and may differ greatly from state to state
Implied consent
- Legislation governing informed consent for HIV tests have been enacted in most states
- Laws specify what type of information must be given to inform the client properly
- Generally speaking, the client must be advised on (a) the test and its purpose, (b) how the test might be used, and (c) the meaning of the test and its limitations
HIV consent
- As a general rule, minor cannot give consent for the administration of medical treatment
- Parental or guardian consent is required
- Healthcare personnel who violate this rule are liable for assault and battery
Consent for Minors
- An individual has a consitutional right to refure a medical procedure such as venipuncture
- The refusal may be based on religious or personal beliefs and preferences
- A patient who refuses medical treatment is normally required to verify the refusal in writing on a special form
Refusal of Consent
It is the process used to settle legal disputes. Involves four phases
Litigation Process
Litigation Process: Phase
* begins when an alleged patient incident occurs or the patient becomes are of a prior possible injury
Phase One
Litigation Process: Phase
* begins when the injured party or a family member consults an attorney
Phase Two
Litigation Process: Phase
* trial phase, the process designed to settle a dispute before a jury
Phase Three
