Chapter Three: Legal and Ethical Issues Flashcards
acceptance
agreeing verbally or in writing to the terms of a contract, which is one of the requirements of an enforceable contract
advance directives
a living will; a document, written in advance, that states the patient’s wishes regarding end-of-life care
Affordable Care Act
passed by Congress in 2010, signed into law by President Obama, the most sweeping piece of health care legislation in decades. Originally titled the Patient Protection and Affordable Care Act (PPACA; later shortened to ACA), and commonly known as Obamacare
agent
one that acts or has the power or authority to act for another
Americans with Disabilities Act Amendments Act (ADAAA)
a 2009 amendment of the original Americans with Disabilities Act (ADA). The ADAAA emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally not require extensive analysis. The ADAAA made important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC’s, ADA regulations
arbitration
a private, judicial determination of a dispute and an alternative to court action (litigation), and generally just as final and binding
autonomy
independence or freedom of an individual’s will; the right to choose
benefience
the doing of good for another; the act of caring
beyond a reasonable doubt
being sure of a criminal defendant’s guilt to a moral certainty
capacity
having the mental competency to make health care decisions, or execute a will at the time the will was signed and witnessed. The decision maker must understand the nature of the decision and be aware of the potential risks
common law
the traditional unwritten law of England, based on custom and usage, which began to develop over a thousand years before the founding of the Unites States. Today, almost all common law has been enacted into statutes with modern variations by all the states except Louisiana, which is still influenced by the Napoleonic Code. In some states, the principles of common law are so basic they are applied without reference to statute
compensatory damages
damages recovered in payment for actual injury or economic loss, which does not include punitive damages (as added damages due to malicious or grossly negligent action)
conflict of interest
physician self-referral is the practical of a physician referring a patient to a medical facility in which they have a financial interest, be it ownership, investment, or a structured compensation arrangement. Critics of the practice allege an inherent conflict of interest, given the physician’s position to benefit from the referral.
consent
permission given for something
consideration
a vital element in the law of contracts, consideration is a benefit that must be bargained for between the parties, and is the essential reason for a party entering into a contract. Consideration must be of value and is exchanged for the performance or promise of performance by the other party
defendant
the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution
deposition
a deposition involves a live person being questioned under oath by an attorney who is party to the proceeding and takes place prior to the case going before the judge (and jury)
distributive justice
the principle by which we as a society (or the health care community) decide to allocate resources that are in scarce supply
durable power of attorney
also known as health care power of attorney, it is an instruction from the patient to all who might need to know that the patient has empowered a representative to make health care decisions and the discontinuation of life support
Elder abuse
elder abuse is any abuse and neglect of persons age 60 and older by a caregiver or another person in a relationships involving an expectation of trust; physical abuse is the use of physical force that may results in bodily injury, physical pain, and impairments; forms of abuse can include physical abuse, sexual abuse, psychological or emotional abuse, neglect, abandonment, and financial abuse or exploitation
emancipated minor
a person who is not legally an adult (18 years of age) and may not require parental permission for medical or surgical care
ethics
rules of conduct with respect to a particular class of actions, based on ideas about what is morally good and bad
exploitation
also referred to as financial abuse, it is the unauthorized or improper use of the resources of an elder for monetary or personal benefit, profit, or gain. Examples include forgery; misuse or theft of money of possessions; use of coercion or deception to surrender finances or property; or improper use of guardianship or power of attorney
express consent
when the patient directly communicates their consent to the physician. This is usually done in writing by signing papers and can also be supported through oral or verbal communication with the physician
extrinsic
originating from outside one’s self; motivation coming from factors outside of an individual
federal law
legislation enacted by Congress and signed by the president
felonies
crime sufficiently serious to be punishable by death or a term in state or federal prison
Genetic Information Nondiscrimination Act (GINA)
act that prohibits discrimination in group health plan coverage based on genetic information
Good Samaritan Act
protects individuals who decide to provide help and serve those who are injured
guardian
a person who has been appointed by a judge to take care of a minor child or incompetent adult personally and/or to manage that person’s affairs
gross negligence
carelessness to the point of reckless disregard for the safety or lives of others, and so great it appears to be a conscious violation of other people’s right to safety; more than simple negligence or mistake; less than intentionally evil
Health Insurance Portability and Accountability Act (HIPAA)
an act of Congress, passed in 1996, that affords certain protections to persons covered by health care plans, including continuity of coverage when changing jobs, standards or electronic health care transactions, and privacy safeguards for individually identifiable patient information
HIPAA Privacy Rule
(Title I) provides federal protections for personal health information held by covered entities and gives patients an array of rights with respect to that information
HIPAA Security Rule
(Title II) establishes national standards to protect individuals’ electronic personal health information that is created, received, used, or maintained by a covered entity
implied consent
the legal requirement for obtaining consent before providing medical care has always been tempered by the privilege to render emergency medical care without the patient’s consent. This privilege is based on the theory of implied consent. The law assumes that an unconscious patient would consent to emergency care if they were conscious and able to consent. The health care providers may rely upon implied consent only in the absence of consent. Implies consent can never overrule the explicit rejection of medical care (The Law, Science & Public Health Law Site)
incompetence
like insanity, is a legal status, not a medical condition
informed consent
agreement to do something or to allow something to happen only after all the relevant factors are known
intrinsic
belonging to one’s self inherently; motivation coming from within an individual
jurisdictions
the authority given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of legal cases
legistlating
the act of exercising power and function of making laws that have the force of authority by virtue of their origin by a state legislature or U.S. Congress
liability
anything to which a person is liable, responsible, legally bound; debts or accounts payable (A/P) owed by the business
libel
the written form of defamation
living wills
advance directive; a document, written in advance, that states the patient’s wishes regarding end-of-life care
locum tenens
a Latin phrase that means “to hold the place of, to substitute for.” In the health care context, a locum tenens is a physician who substitutes temporarily for another
mature minor
rules vary by state and are quite detailed as to categorical services with age limits, mental health services, STD services, and medical treatment. The Mature Minor Rule enables the provider to ask questions of the young person in order to determine whether or not the minor has the maturity to provide their own consent for treatment
meditation
a type of dispute resolution where the parties to a lawsuit meet with a neutral third party (the mediator) in an effort to settle the case. The mediator’s job is to listen to the evidence, help the litigants come to understand each other’s viewpoint regarding the controversy, and then facilitate the negotiation of a voluntary resolution to the case. Mediation is not binding on the parties
medical malpractice
an act or continuing conduct of a physician or hospital that does not meet the standard of professional competence and results in provable damages to the patient
misdemeanors
a lesser crime than a felony, punishable by a fine and/or county jail time for up to one year
morals
pertaining to distinction of “right” and “wrong”
neglect
the failure or refusal of a caregiver or other responsible person to provide for an elder’s basic physical, emotional, or social needs, or failure to protect the elder from harm
negligence
guilty of neglect; lacking in due care or concern; act of carelessness
non-maleficence
the obligation of a physician not to harm the patient
offer
a specific proposal to enter into an agreement with another; an offer is an essential component of an enforceable contract
organizational ethics
the standards by which an organization will hold itself accountable to proper conduct; represent the values by which the organization conducts its business. Organizations frequently include a values statement as part of their mission and vision statements
Patient Self-Determination Act (PSDA)
requires any health care provider accepting Medicare or Medicaid to inform the patient (1) of their right to accept or refuse treatment, (2) of their rights regarding advance directives under state law, and (3) of any hospital or provider policies regarding withholding or withdrawing life-sustaining equipment. Further, the act requires the provider to ask the patient about any advance directives
plaintiff
the party that initiates a lawsuit by filing a complaint with the clerk of the court against the defendant(s) demanding damages, performance, and/or court determination of rights
power of attorney
a legal document authorizing a person to act as another’s attorney, legal representative, or agent
preponderance of the evidence
the greater weight of the evidence required in a civil (noncriminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side of the other. This preponderance is based on the more convincing evidence and its probably truth or accuracy, and not on the amount of evidence
privileged communications
communication between parties to a confidential relation (as between provider and patient) such that the recipient cannot be legally compelled to disclose it as a witness
professional ethics
a framework of evaluating conduct applicable to members of a given profession
prosecution
in criminal law, the government attorney charging and trying the case against a person accused of a crime, or a common term for the government’s side in a criminal case
punitive damages
damages awarded in a lawsuit as a punishment and example to others for malicious, evil, or fraudulent acts
res ipsa loquitur
a rule of evidence important in many malpractice suits, not a rule of substantive law. A classic example of res ipsa loquitur is when a sponge is left in the abdomen after abdominal surgery, or the amputation of the wrong extremity
risk management
the identification of all exposure to financial loss of a business and includes the selection of techniques to manage those exposures; The Joint Commission defines risk management in health care as “clinical and administrative activities undertaken to identify, evaluate, and reduce the risk of injury to patients, staff, and visitors and the risk of loss to the organization itself.”
respondeat superior
let the master answer
slander
spoken defamation
standard of care
the watchfulness, attention, caution, and prudence that a reasonable person in the circumstances would exercise
standard of proof
the burden that the plaintiff or prosecution must meet in presenting their case; the measure by which evidence is judged to show a “preponderance of evidence” in a civil action and “beyond a reasonable doubt” in a criminal case
state law
legislation enacted by the state legislature and signed by the governor
statute
a federal or state written law enacted by the Congress or state legislature respectively
statute of limitations law
a statute prescribing a period of limitations for bringing certain kinds of legal actions
statutory law
legally enacted; deriving authority from law
subpoena duces tecum
court process initiated by a party in litigation, compelling production of specific documents and other items, and material in relevance to facts at issue in pending, judicial proceedings
supremacy clause
Article VI, Section 2 of the U.S. Constitution, which allows a Supreme Court ruling to be a binding on state courts if involving a constitutional issue. The clause reads: “This Constitution, and the Laws of the United States which shall be made in pursuance therof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding
torts
the term comes from the Latin tortum, which means “wrong,” and some examples of torts include automobile accidents, product liability, slander and libel, and, of course, medical malpractice
Uniform Anatomical Gift Act (UAGA)
a template for public policy developed to ensure that versions of legislation governing organ donations are substantially the same from state to state. The UAGA governs organ donations for (1) organ transplantation and (2) the transfer of anatomical gifts of one’s deceased body for use in the study of medicine
values
beliefs that are important to a person or organization, which influence attitudes or behavior
vicariously liable
attachment of responsibility to a person from harm or damages caused by another person in either a negligence lawsuit or criminal prosecution
wrongful death
the death of a human being as the result of a wrongful act of another person. Examples include negligence (such as a misdiagnosis), assault and/or battery, vehicular manslaughter, manslaughter, or murder
