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Ethics > Chapter Seven > Flashcards

Chapter Seven Flashcards

1
Q

In the US, laws originate from three primary sources:

A

the Constitution, the judicial system, and the federal and state governments

  • These sources are interrelated and are not easily separated, so it is necessary to have an understanding of the origins of each.
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2
Q

What is the highest law in our country?

A

The U.S. Constitution

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3
Q

What does the US constitution outline?

A

the rights and responsibilities of the federal government, state governments, and individuals

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4
Q

What does any new law have to do?

A

comply with the Constitution.

  • If a law is found to be unconstitutional, it cannot be upheld
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5
Q

What is current issue that has been challenged is what? (give example)

A

the forced purchase of health insurance

  • In August of 2011, the 11th Circuit Court of Appeals in Atlanta, Georgia, ruled that the government is not allowed to force U.S. citizens to purchase healthcare insurance (Kane, 2011).
  • This mandate was part of the 2010 Affordable Care Act signed into law by President Obama.
  • The basis for this judgment is that forcing citizens to purchase insurance oversteps the bounds of the Constitution’s Commerce Clause.
  • The Commerce Clause allows the government to create certain programs that regulate economic activity.
  • Upon appeal, the Supreme Court ruled in favor of the law, which maintains its constitutional status.
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6
Q

Under the guidelines of the Constitution, our federal government has three branches:

A

executive (presidential), legislative (senate and representatives), and judicial (courts)

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7
Q

States also have their own what? which includes what?

A

States also have their own governmental systems, which include a judicial branch

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8
Q

Common law is set by who? What is the oucome? (give example)

A
  • set by the judicial branch
  • The outcome of court cases establishes common law.
  • For example, in the landmark case of Roe vs. Wade, the federal Supreme Court established the common law right to privacy regarding reproductive rights for women. At the state level, the Oregon Supreme Court upheld the common law right to privacy regarding a patient’s right to choose his or her method of death.
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9
Q

The federal government can create what? What does it give them the right to?

A

The federal government can create agencies and give them the right to implement certain laws.

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10
Q

what is administrative law

A

The federal government can create agencies and give them the right to implement certain laws. These laws are known as regulatory or administrative law

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11
Q

Some agencies that implement laws related to health care include what?

A
  • the Food and Drug Administration
  • the Office of Civil Rights (oversees violations to the Health Insurance Portability and Accountability Act [HIPAA])
  • the Department of Health and Human Services
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12
Q

A specific administrative law that pertains to healthcare providers is what?

A

Controlled Substances Act

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13
Q

What is the Controlled Substances Act a part of? What does it give authority to?

A

This law is part of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and gives authority to the Drug Enforcement Agency and the Department of Health and Human Services to categorize drugs into schedules that determine who is authorized to administer and obtain those drugs.

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14
Q

The federal and state governments also create their own laws. How does this work?

A

These laws start as bills, must be approved by both legislative branches (Senate and House of Representatives), and must eventually be signed by the president (federal laws) or governor (state laws)

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15
Q

The president and governors also have the right to issue what?

A

executive orders

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16
Q

All statutory laws and executive orders must comply with what?

A

Constitution

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17
Q

What is an example of a statutory law ?

A

the Good Samaritan laws

  • These laws are specific to states and generally provide immunity to ordinary citizens who assist victims in an emergency. Some states, such as Minnesota, use wording that suggests citizens have a duty to assist, while other states only provide immunity if they choose to assist
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18
Q

Besides the good samaritan laws what is another example of a statutory law?

A
  • would be those created by states that require healthcare professionals to report suspected cases of abuse.
  • These are generally known as mandatory reporting laws.
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19
Q

Statutory law can be divided into two main categories:

A

civil and criminal

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20
Q
  1. criminal action is considered what?
  2. civil action is considered what?
A
  1. a wrong against society
  2. a wrong between individuals
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21
Q

what can criminal and civil cases result in?

A
  • Criminal cases can result in confinement, probation, or community service.
  • Civil cases can result in fines, usually paid to the victim or victim’s family, or the order to perform a specific action, such as keeping pets under control.
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22
Q

If a case is tried as both a criminal and a civil case, what happens?

A

the criminal trial is generally held first, followed by the civil.

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23
Q

Criminal cases require what?

A

the trier of fact, usually a jury, to find the defendant guilty “beyond a reasonable doubt,” while civil cases require only a preponderance of evidence.

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24
Q

What is the case about the good samaritan home?

A
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25
Q

Some statutory laws provide what?

A

remedies for wrongs committed against society or individuals

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26
Q
  • What are torts and what can they be divided into?
  • Intentional torts that are most common in health care include what?
A
  • Wrongs against individuals are called torts.
  • Torts can be divided into two main categories: intentional and unintentional
  • Intentional torts that are most common in health care include assault and battery, false imprisonment, defamation of character, invasion of privacy, fraud, and embezzlement
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27
Q

Historically what does assault and battery mean?
What are they considered currently?

A
  • Historically, assault meant the threat of harm, and battery was the actual physical harm to a person
  • Currently, most states consider both the threat and the act to come under the single term of assault. This includes unwanted touching
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28
Q

While violent physical acts upon a person do occasionally happen in healthcare settings, most assault cases involve what?

A

unwanted touching or performing a procedure without consent

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29
Q

What do patients do before having any medical procedure?

A

Patients generally sign consent forms before having any medical procedure.

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30
Q

What is also considered legally binding but can be much more difficult to prove in court

A

Oral consent

31
Q

If a patient agrees to a procedure, he or she must be told what?
What happens if it does not happen?

A
  • if there will be any changes to that procedure prior to the change (e.g., additional tissue removed, change of surgeon).
  • Changing procedures or medical professionals without consent damages the healthcare provider- patient relationship and can result in lack of trust.
  • If the patient is not informed of these changes and the procedures are completed, the provider can be charged with assault.
32
Q

What is False imprisonment

A

holding a patient against his or her will is considered false imprisonment.

  • This includes the use of restraints for nonmedically approved reasons.
33
Q

Defamation of character occurs when?

A

person’s reputation is damaged by the spreading of untrue information.

  • While gossiping about coworkers or patients is unethical, if the information is true, it is not defamation of character.
34
Q

Defamation of character has two subcategories:

A

slander and libel

  • Slander is spoken, and libel is written
35
Q

What is the invasion of privacy?

A

The intrusion into the private life of another person without medical cause can be considered invasion of privacy

36
Q

What is invasion of privacy different to?

A

This is different than a violation of HIPAA’s Privacy Rule because invasion of privacy extends farther than protected health information.

37
Q

What can be considered invasion of privacy?

A

Any damaging information that is made public regarding any employee or patient in a healthcare setting

38
Q

What is considered fraud?

A

Deceitful practices that deprive someone of his or her rights

39
Q

Fraud can occur in many ways in health care

A

False promises, upcoding, and insurance fraud are only a few examples

40
Q

Upcoding involves what?

A

charging insurance companies for a procedure that is reimbursed at a higher rate than the procedure that was actually performed

41
Q

An example of upcoding would be what?

A
  • if a therapist meets with several patients in a group but bills the sessions individually, rather than as a group therapy session
  • Individual therapy sessions are generally reimbursed at a higher rate than group therapy sessions.
42
Q

In particular, you should never promise what?

A

Promise an outcome to a patient because, as we all know, no outcome is ever guaranteed.

  • For example, you have a patient, Mrs. Lee, who has been a patient at the clinic where you work for more than 20 years and has always been kind and likeable, even when she is ill. She has just been told that she has cancer, and you are sad about this. You go into the examination room with Mrs. Lee and she reaches out for a hug. As you hug her, you say, “Don’t worry, Mrs. Lee. We are going to beat this cancer.” If you make a statement like this or any statement that promises a particular outcome, you have risked a possible lawsuit. Promises not kept in health care are considered fraud and can be brought to legal action as an intentional tort, even if you mean well.
43
Q

Always be careful of your words and actions;

A

they can come back to haunt you if you have acted improperly.

44
Q

What is considered embezzelment

A

The conversion to your own use of property that you can rightly access but do not own

  • this involves an employee taking money from business accounts to which the employee has rightful access
45
Q

Embezzlement is not the same as stealing because why?

A

in cases of embezzlement, the employee has legal access to the funds, but chooses to take some for his or her personal use

46
Q

What is the Bowser v. Albert Einstein Medical Center

A
47
Q

Unintentional torts are what?

A

negligence

48
Q

Negligence can occur in?

A

any field where a duty is owed to someone

49
Q

There are four components necessary for an unintentional tort to bring a successful claim:

A

duty, breach of duty, causation, and damages

49
Q
  • When is duty established?
  • The standard of care for healthcare professionals is determined by what?
A
  • Duty is established when a healthcare professional agrees to treat a patient.
  • The standard of care for healthcare professionals is determined by what other members of the same profession would do in a similar situation.
50
Q

Breach of duty is what?

A

is the failure of a healthcare professional to act as any ordinary and prudent healthcare professional within the same community would act in similar circumstances.

  • If the outcome of a procedure is one that the patient did not anticipate or was not informed about, then this may constitute negligence.
51
Q

Breaches fall under three general categories

A
  • Misfeasance occurs when a mis- take is made (e.g., giving the patient the wrong medication)
  • Nonfeasance is a failure to act (e.g., forgetting to turn a patient, which results in bed sores)
  • Malfeasance is negligence with mal-intent (e.g., holding a noncooperative patient too tightly when drawing blood, which results in bruising)
51
Q

Causation requires what?

A

the injury to be closely related to the healthcare professional’s negligence.

  • The patient is required to prove that the healthcare professional’s breach was the direct cause of the injury that resulted.
  • Put simply, the patient must prove that there were no other circumstances that could have caused the same injury.
52
Q

Damages are what?

A

are the actual injuries caused by the defendant for which compensation is due.

53
Q

What is brought against not only the employee charged with the negligent act, but also the employer

A

Many unintentional torts

54
Q

Many unintentional torts are brought against not only the employee charged with the negligent act, but also the employer. This is due to what?

A

This is due to the doctrine of respondeat superior (“let the master answer”), which states that employers are responsible for employees’ actions.

  • This responsibility includes training of employees, oversight of medical care, and financial compensation to injured parties, as appropriate
55
Q

In most cases, the plaintiff carries what?

A

carries the burden of proof in claiming to be a victim of an unintentional tort.

56
Q

If the negligent act is so obvious that it appears there could be no other responsible party, the burden of proof shifts to the defendant, who must prove that he or she is not responsible for the injury. These cases are brought under what? give examples

A

the doctrine of res ipsa loquitur (“the thing speaks for itself”).

  • Some common examples include amputation of the wrong limb or sponges left in the body after surgery; it is obvious that the healthcare worker or workers were at fault, as no one else could have caused the injury.
57
Q

If a healthcare professional is blamed in a tort, there are certain defenses he or she can raise, including what?

A

denial, assumption of risk, comparative and contributory negligence, statute of limitations, and borrowed servant

57
Q

What is denial and assumption of risk?

A

■ Denial is the most commonly used defense in cases of negligence. The defen- dant does not claim that damages did not occur, but rather that there was another explanation or cause for the damages.
■ Assumption of risk is the understanding that certain procedures can result in commonly known injuries. When patients give permission for certain proce- dures or refuse the medical advice of healthcare professionals, they are usually asked to sign consent forms to show that they understand the risks involved.

57
Q

In contributory negligence the patient or others are determined to be what?

A

to be fully or in part responsible for the injury. In this case, they are not able to receive monetary compensation for damages. An example is if a patient falls when attempting to get out of bed independently after the patient was told not to get out of bed independently.

58
Q

Similar to contributory negligence, comparative negligence states what?

A
  • that the plaintiff’s actions helped cause the injury.
  • The difference is that the plaintiff can recover damages based on the amount of the defendant’s fault.
  • So, if $100,000 was determined to be the monetary damages and the physician was 60% at fault, the patient could receive $60,000.
59
Q
  • Statutes of limitations determines what?
  • In medical malpractice cases, the statute of limitations begins at?
  • What is the general years?
A
  • the number of years a plaintiff has to file a claim of negligence.
  • In medical malpractice cases, the statute of limitations begins at the time the injury is discovered.
  • States have their own statutes of limitations, but in general they are 3–7 years.
60
Q

borrowed servant rule is what?

A

generally used by employers that have temporary workers or medical professionals who fill in for other medical professionals on leave.

  • If a plaintiff sues a healthcare facility regarding the actions of an employee on temporary employment, the facility might utilize the borrowed servant rule and escape liability for injury caused by the temporary employee.
61
Q

Liability insurance provides what?

A

financial protection from claims that arise from patients who believe they have been a victim of medical malpractice while under the care of a healthcare professional

62
Q

Most healthcare providers need to buy what/

A

some form of professional liability insurance.
* States generally require that physicians have liability insurance or work for a medical group that shares a liability plan

63
Q

Physicians will generally carry liability insurance that includes what?

A

a rider that covers the employees under them.

  • Other healthcare professionals should check with their employer to see if they are covered by a general liability policy or if they are responsible for obtaining their own
64
Q

Some professional organizations, such as what, offer liability insurance at a group rate for members

A

the American Association of Medical Assistants and the American Speech-Language and Hearing Associ- ation,

65
Q

It is important to note that healthcare professionals need to protect their assets as well as what?

A

professional standing by obtaining some type of liability insurance

  • No matter how well a healthcare professional upholds the appropriate standard of care, mistakes can happen.
  • Also, healthcare professionals can be accused in a lawsuit even when they are not guilty of any wrongdoing.
66
Q

It is estimated that the average physician spends _ on every healthcare dollar to cover medical malpractice claims .

A

$ .10

67
Q

What happened in the hall vs hillbun?

A
68
Q

scope of practice

A

In your upcoming healthcare career, you will be charged with possessing specific skills and knowledge to properly do your job. The boundaries of what you can and cannot do and the regulations (as determined by your profession, your state, and the federal government) that dictate these boundaries are called your scope of practice

69
Q

PYTHON principle

A

PYTHON principle is an easy way to posture yourself for prevention. It was developed by one of the authors of this text, Carla Stanford, to remind college students in healthcare majors how to prevent risk of legal action. It stands for Protect Yourself; Think Honestly; Observe Naturally

70
Q

PYTHON principle: Protect Yourself; Think Honestly; Observe Naturally

A
  • Protecting yourself means you are aware of the various ways you could be held liable as a legal professional. For example, if you send a fax containing confidential information to anyone, you put yourself at risk of breaching confidentiality. To prevent this, be sure a consent form has been signed and dated by the patient.
  • Honesty is a building block in the foundation of ethics. Honest dealings with patients, coworkers, employers, and even the legal system will help prevent future complications. Imagine a physical therapy assistant overhearing a physical therapist promising a stroke victim that therapy will “have them up on their feet in no time.” This could be considered fraud. If the physical therapist is called to testify during the trial, she might be tempted by loyalty to the coworker to lie or omit the statement, but the physical therapy assistant has an ethical and legal obligation to cooperate with the legal system and tell the truth. If the assistant is not truthful, she puts herself at risk for loss of license, as well as her job. Honesty is always the best ethical and legal choice. The healthcare professional should never promise results. In caring for human beings, many factors come into play, making any outcome unpredictable.
  • Observations are critical for all healthcare professionals. Keeping track of observations and taking them all into consideration can help prevent legal action. For instance, if a nursing assistant observes that a patient is frequently coughing during meals, he or she can report this to the speech therapist on staff. An evaluation might determine that the patient has a choking risk and should have diet changes recommended. Being proactive can prevent legal action against the healthcare facility. It is always better to make an effort to prevent any wrongdoing than to try to defend it in the court of law

Ethics (9 decks)

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