Chapter Three: Legal and Ethical Issues

Question 1

acceptance

Answer 1

agreeing verbally or in writing to the terms of a contract, which is one of the requirements of an enforceable contract

Question 2

advance directives

Answer 2

a living will; a document, written in advance, that states the patient’s wishes regarding end-of-life care

Question 3

Affordable Care Act

Answer 3

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

Question 4

agent

Answer 4

one that acts or has the power or authority to act for another

Question 5

Americans with Disabilities Act Amendments Act (ADAAA)

Answer 5

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

Question 6

arbitration

Answer 6

a private, judicial determination of a dispute and an alternative to court action (litigation), and generally just as final and binding

Question 7

autonomy

Answer 7

independence or freedom of an individual’s will; the right to choose

Question 8

benefience

Answer 8

the doing of good for another; the act of caring

Question 9

beyond a reasonable doubt

Answer 9

being sure of a criminal defendant’s guilt to a moral certainty

Question 10

capacity

Answer 10

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

Question 11

common law

Answer 11

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

Question 12

compensatory damages

Answer 12

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)

Question 13

conflict of interest

Answer 13

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.

Question 14

consent

Answer 14

permission given for something

Question 15

consideration

Answer 15

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

Question 16

defendant

Answer 16

the party sued in a civil lawsuit or the party charged with a crime in a criminal prosecution

Question 17

deposition

Answer 17

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)

Question 18

distributive justice

Answer 18

the principle by which we as a society (or the health care community) decide to allocate resources that are in scarce supply

Question 19

durable power of attorney

Answer 19

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

Question 20

Elder abuse

Answer 20

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

Question 21

emancipated minor

Answer 21

a person who is not legally an adult (18 years of age) and may not require parental permission for medical or surgical care

Question 22

ethics

Answer 22

rules of conduct with respect to a particular class of actions, based on ideas about what is morally good and bad

Question 23

exploitation

Answer 23

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

Question 24

express consent

Answer 24

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

Question 25

extrinsic

Answer 25

originating from outside one’s self; motivation coming from factors outside of an individual

Question 26

federal law

Answer 26

legislation enacted by Congress and signed by the president

Question 27

felonies

Answer 27

crime sufficiently serious to be punishable by death or a term in state or federal prison

Question 28

Genetic Information Nondiscrimination Act (GINA)

Answer 28

act that prohibits discrimination in group health plan coverage based on genetic information

Question 29

Good Samaritan Act

Answer 29

protects individuals who decide to provide help and serve those who are injured

Question 30

guardian

Answer 30

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

Question 31

gross negligence

Answer 31

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

Question 32

Health Insurance Portability and Accountability Act (HIPAA)

Answer 32

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

Question 33

HIPAA Privacy Rule

Answer 33

(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

Question 34

HIPAA Security Rule

Answer 34

(Title II) establishes national standards to protect individuals’ electronic personal health information that is created, received, used, or maintained by a covered entity

Question 35

implied consent

Answer 35

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)

Question 36

incompetence

Answer 36

like insanity, is a legal status, not a medical condition

Question 37

informed consent

Answer 37

agreement to do something or to allow something to happen only after all the relevant factors are known

Question 38

intrinsic

Answer 38

belonging to one’s self inherently; motivation coming from within an individual

Question 39

jurisdictions

Answer 39

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

Question 40

legistlating

Answer 40

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

Question 41

liability

Answer 41

anything to which a person is liable, responsible, legally bound; debts or accounts payable (A/P) owed by the business

Question 42

libel

Answer 42

the written form of defamation

Question 43

living wills

Answer 43

advance directive; a document, written in advance, that states the patient’s wishes regarding end-of-life care

Question 44

locum tenens

Answer 44

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

Question 45

mature minor

Answer 45

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

Question 46

meditation

Answer 46

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

Question 47

medical malpractice

Answer 47

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

Question 48

misdemeanors

Answer 48

a lesser crime than a felony, punishable by a fine and/or county jail time for up to one year

Question 49

morals

Answer 49

pertaining to distinction of “right” and “wrong”

Question 50

neglect

Answer 50

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

Question 51

negligence

Answer 51

guilty of neglect; lacking in due care or concern; act of carelessness

Question 52

non-maleficence

Answer 52

the obligation of a physician not to harm the patient

Question 53

offer

Answer 53

a specific proposal to enter into an agreement with another; an offer is an essential component of an enforceable contract

Question 54

organizational ethics

Answer 54

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

Question 55

Patient Self-Determination Act (PSDA)

Answer 55

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

Question 56

plaintiff

Answer 56

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

Question 57

power of attorney

Answer 57

a legal document authorizing a person to act as another’s attorney, legal representative, or agent

Question 58

preponderance of the evidence

Answer 58

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

Question 59

privileged communications

Answer 59

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

Question 60

professional ethics

Answer 60

a framework of evaluating conduct applicable to members of a given profession

Question 61

prosecution

Answer 61

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

Question 62

punitive damages

Answer 62

damages awarded in a lawsuit as a punishment and example to others for malicious, evil, or fraudulent acts

Question 63

res ipsa loquitur

Answer 63

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

Question 64

risk management

Answer 64

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.”

Question 65

respondeat superior

Answer 65

let the master answer

Question 66

slander

Answer 66

spoken defamation

Question 67

standard of care

Answer 67

the watchfulness, attention, caution, and prudence that a reasonable person in the circumstances would exercise

Question 68

standard of proof

Answer 68

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

Question 69

state law

Answer 69

legislation enacted by the state legislature and signed by the governor

Question 70

statute

Answer 70

a federal or state written law enacted by the Congress or state legislature respectively

Question 71

statute of limitations law

Answer 71

a statute prescribing a period of limitations for bringing certain kinds of legal actions

Question 72

statutory law

Answer 72

legally enacted; deriving authority from law

Question 73

subpoena duces tecum

Answer 73

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

Question 74

supremacy clause

Answer 74

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

Question 75

torts

Answer 75

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

Question 76

Uniform Anatomical Gift Act (UAGA)

Answer 76

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

Question 77

values

Answer 77

beliefs that are important to a person or organization, which influence attitudes or behavior

Question 78

vicariously liable

Answer 78

attachment of responsibility to a person from harm or damages caused by another person in either a negligence lawsuit or criminal prosecution

Question 79

wrongful death

Answer 79

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