LAW AND MEDICAL OFFICES Flashcards
(118 cards)
1
Q
Law is
A
The set of rules that govern our behavior.
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Criminal law prohibits and punishes certain conduct for the benefit of
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society
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A crime is an offense against
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a locale, a state, or the United States. To commit a crime is to offend society.
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Civil law
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concerns the private rights and duties of individuals who live within a society.
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A right is an
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individual power, privilege, or immunity.
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A duty is
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an individual obligation.
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The U.S. government has three branches
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legislative, executive, and judicial. Each branch can affect laws.
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Statutes are
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legislation passed by legislative bodies on the federal and state levels.
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A duty is an
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individual obligation
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when a patient asks for medical treatment and a doctor agrees to provide treatment, this creates the
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patient’s right to be treated and the doctor’s duty to treat the patient.
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he doctor has a duty not only to treat the patient, but also to
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exercise the skill that other doctors with similar medical training would exercise.
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Q
A
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Ordinances are
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legislation adopted by local legislative bodies.
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arbitration
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In arbitration, the parties present evidence to an impartial person who makes a binding decision on the parties. Hiring an arbitrator can be compared to hiring a private judge.
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Common law can be called
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court-produced law, case law, or judge-made law.
Courts, when deciding specific disputes, try to establish rules that could be applied to future cases involving the same issue.
A court’s interpretation of the meaning of a statute or administrative regulation becomes a rule that can be applied in future cases involving the same statute or regulation.
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Q
Some healthcare professionals may be licensed, which means
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the government regulates who can practice the profession and what they’re permitted to do.
Healthcare providers, such as physicians, nurses, physician’s assistants, technicians, and therapists, must meet certain requirements established by statutes and administrative regulations that qualify them for their particular occupations.
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Licensing protects
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the public by ensuring that such medical personnel have met certain minimum requirements.
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Licenses can also be revoked. Grounds for revocation include
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unprofessional conduct, fraud, substance abuse, criminal conduct, and mental incapacity.
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medical assistants and medical billers and coders, may not require licenses but may need
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certifications or registrations, which may be required by individual states or preferred by an employer.
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Certification refers to
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a professional organization or institution representing that a certified person has passed a test, completed a course of study, or demonstrated knowledge or skill in some other way.
For example, the American Association of Professional Coders (AAPC) offers certification exams that attest to a medical coder’s level of education and expertise in abstracting and coding medical data from the medical record.
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NHA
A
National Healthcareer Association
22
Q
negligence
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One area of common law, now modified by statute in some states, is negligence.
Healthcare professionals have a duty to exercise reasonable care toward others. When they fail to meet the standard of care, they’ve been negligent and are liable for the damages they’ve caused.
The standard of care that’s required, however, may depend on a person’s training. A receptionist at a medical office wouldn’t be held to the same standard of care as a physician. The distinction between a layperson and a professional is important in establishing the appropriate standard of care
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Q
Medical malpractice
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is a type of negligence case. When medical personnel act in a way that harms others or fail to act in a way that helps others, they can be liable for the harm caused. If they fail to meet the standard of care that should be reasonably expected and this can be proven, damages could be awarded to an individual.
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Q
Due care
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includes the responsibility of the physician to hire qualified personnel and supervise the personnel accordingly.
Not following customary procedures and precautions could be considered a failure to meet the standard of care required under the circumstances.
Offices may use procedure manuals to define who can perform tasks and how they’re to be performed.
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vicarious liability
When one person is held responsible for the actions of another.
Physicians are vicariously liable for the negligence of their employees when the employees are acting within the scope of their employment and knowledge.
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respondeat superior
in Latin means “Let the master answer”
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Litigation
the process for resolving disputes through the court system.
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Alternative dispute resolution (ADR)
is a process for resolving disputes outside of the court system that may be used before or after litigation has begun.
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pre litigation
Disputes that begin before litigation occurs, when something has happened and a patient is unhappy
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When is an incident report filed?
If a medical professional has reason to believe that something has happened, or if a patient is complaining that something has happened, insurance companies, which insure the doctor against malpractice claims, may require doctors to file an incident report to document the event, but without admitting fault.
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attorney contingency fee arrangement
the attorney’s payment is a percentage of the recovery. If there’s no recovery, there’s no fee.
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What happens before litigation begins ?
If the attorney takes the case, they ordinarily agree to a contingency fee arrangement. This means the attorney’s payment is a percentage of the recovery. If there’s no recovery, there’s no fee.
At this point, the insurance company may become involved, and the parties may try to negotiate a settlement. If they can’t agree, it will be necessary to litigate- to begin a legal process involving court- the case.
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plaintiff
the person who is suing
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defendant
the people being sued
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summons
the court’s formal notice that one is being sued
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Discovery
is a way of collecting written or oral testimony, documents, and other evidence to use at trial.
The civil rules of procedure give litigants (parties to a lawsuit) power to compel each other and nonparties to answer questions and provide documents relevant to the lawsuit. During the case’s discovery phase, attorneys for both sides collect evidence.
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litigants
parties to a lawsuit
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important discovery tool deposition
which is the taking of oral testimony under oath before trial.
If attorneys for a plaintiff would like to depose a defendant, they will schedule a date and time for the deposition. Attorneys for all parties and a court reporter-a person who records testimony for use in litigation- will show up. The court reporter has the person being deposed take an oath to tell the truth. Then the attorneys take turns asking questions about what happened.
The court reporter creates a record, such as an audio or video recording of the questions and answers. For a fee, the reporter can create a written transcript of the questions and answers for the attorneys.
Depositions are often taken of witnesses to cases, not just parties in the cases. A deposition transcript can be used later at trial to impeach a witness
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impeach a witness
which means to challenge the credibility of a witness. For example, a deposition transcript can be used to suggest that a witness’s memory is flawed or that the witness is lying.
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Can a case be settleted before or after litigation ?
Throughout the earlier phases, both before and after litigation begins, the parties may choose to settle the case.
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trial
If the case isn’t settled it must be tried. A trial finds-or determines- the facts and applies the law to the facts.
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jury trial
the jury is the fact-finder, and the judge explains the law to the jury and supervises the presentation of evidence. A jury hears the evidence of a case and decides whether there’s enough evidence to make a judgment.
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bench trial
there’s no jury- the judge serves as the fact-finder, weighs the evidence, and decides how the law applies to it.
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burden of proof
what the plaintiffs are obligated to prove- in a civil case such as medical malpractice is a preponderance of evidence.
This means the plaintiff must prove it’s more likely than not that the defendant committed malpractice and that the plaintiff was damaged as a result.
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burden of proof in a criminal case
The prosecutor must prove guilt beyond a reasonable doubt to convict someone of a crime. The standard of beyond a reasonable doubt is much higher than a preponderance of evidence.
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Appeal
The losing party may choose to appeal. During an appeal, the question is whether an error or law was made at the trial court level. Generally, the facts found by the jury at trial can’t be attacked unless they’re so unreasonable that they’re without basis in the presented evidence.
If an error of law was made at the trial court level, the losing party can appeal to a higher court. Trial judgements may be reversed where there were errors, such as if the court misapplied the law or admitted evidence that isn’t admissible.
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Mediation
occurs when a neutral third person helps the parties in a dispute reach a settlement agreement. Mediators aren’t judges-they don’t hear evidence or make decisions about who is right.
There are two main styles of mediation, facilitative and evaluative.
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facilitative mediation
the mediator guides the remediation process, but doesn’t express opinions on the merits of each party’s position.
Instead, the mediator assists the parties in reaching a mutually agreeable resolution by asking questions that bring out each party’s point of view, including the underlying interest of each party.
The mediator may assist the parties in finding and analyzing options for resolution, but doesn’t make recommendations or predict the outcome if the matter were to go to trial.
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evaluative mediation
the mediator gives opinions about the merits of the case, pointing out weakness in the position of the parties, and may predict what a judge or jury likely would do.
Evaluative mediators may have special expertise in the area of law in question. An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues. Mediation of malpractice claims is often evaluative mediation.
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Federal Register
The Centers for Medicare and Medicaid (CMS) oversees several healthcare programs, including health information technology.
The CMS will often issue Proposed Rules on certain topics in the Federal Register, which is available to view online. CMS will explain their rationale-the Federal Register is often almost a thousand pages long and is updated daily with all the government.
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Law has two divisions:
criminal and civil
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In criminal law, the action is prosecuted by ____. The focus in criminal law is on the ______ and the purpose is punishment
the state
wrongdoer
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In civil law, a ____who is the victim of wrongdoing, prosecutes the claim. The focus is on the ____, and the purpose is to compensate the victim for the damage suffered.
private individual
victim
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felony
any crime that’s punishable by imprisonment of one year or more. This includes crimes for which the punishment is the death penalty.
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Misdemeanor
any crime that’s punishable by imprisonment for less than one year.
Many crimes, such as upcoding to increase medical reimbursement, are also punishable by fines.
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Common crimes can be grouped into categories:
Crimes against a person (example: Murder and Assault)
Crimes against property (example: theft)
Crimes against habitation (example: burglary)
Sexual Crimes (example: rape)
Crimes against morality and decency (example: prostitution)
Crimes against government operations (example: perjury)
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Actus reus
Latin for “guilty act”
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tort
the victim is seeking money to compensate for damages caused.
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Battery
the harmful touching of another without consent. Battery is an intentional tort and can occur when a doctor performs procedures that require touching a patient in a manner that the patient hasn’t consented to.
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Negligence
s a failure to exercise the degree of care that a reasonable person would exercise under the same circumstances.
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Defensive medicine consists of ?
medical responses that are motivated by a desire to avoid potential liability claims more than by the patient’s needs.
the danger of malpractice suits has motivated many doctors to attempt to protect themselves. Defensive medicine can mean overly cautious doctors use an excessive number of medical tests that wouldn’t ordinarily be used. Doctors use these tests to protect against potential claims of malpractice.
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A reasonable person
is a prudent individual whose behavior would be considered appropriate under the circumstances. The elements of a negligence claim are that a duty is breached, which proximately causes damage.
If you drive on the highway, for example, you have a duty to keep a proper lookout. If you fail to notice a vehicle stopped in front of you, you’ve breached that duty. If you crash into the vehicle, the damages were proximately caused by your breach of duty. You would be liable for damages caused by your negligence.
The concept of negligence applies to all people. We have a general duty to exercise reasonable care not to harm others or their property.
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Professional negligence is known as
malpractice
The difference between ordinary negligence and malpractice is the standard of care required of the injuring party. Doctors and other healthcare professionals are held to a higher standard of care because of their specialized training and knowledge.
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Professional standard of care
applies from the time the doctor-patient relationship begins until it ends. Healthcare professionals must exercise the degree of skill that other professionals with similar training would exercise under similar circumstances.
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Duty of care
is described as having a patient-provider relationship. This can be between nurses and patients, therapists, or physicians, but the main idea is that there was an established relationship between the care provider and the person receiving care.
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Dereliction of duty
may occur when the provider did not behave in a manner that a reasonable person would, given the care they were obligated to perform- either by acting or failing to act.
If the provider did all they could to save a patient’s life and were still unsuccessful, they provided all the care they were obligated to perform and are not likely to have a successful malpractice suit.
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Direct cause
must be established between the healthcare provider’s actions and the nature of the patient’s injury.
For example, if the healthcare provider documented the patient’s medication and prescribed a drug that adversely interacted with those medications, that could indicate medical malpractice.
However, if the patient claims that they have a cervical disc herniation due to improper support during lumbar surgery after a car accident, this is less likely to have a direct cause since the cervical disc herniation may have been a pre-existing condition or caused by other factors such as a muscle strain, sneezing, or coughing by the patient.
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Damages
what a person may suffer as a result from the negligence, such as physical limitations, emotional trauma, medical bills, and lost wages.
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Standard of Care
The standard of care is defined according to what an ordinarily prudent physician would have done under the same or similar circumstances.
Identifying the standard of care is critical. Whether a defendant physician breached his duty of care to a patient can’t be determined without specific information about what the defendant should have done differently in a particular case.
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JCAHO
Joint Commission on Accreditation of HealthCare Organizations
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AAPC
American Association of Professional Coders
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American Health Information Management Association
AHIMA
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Burden of proof
is the duty to prove an element of a claim or defense in a lawsuit. The plaintiff usually has the burden of proving negligence. If the injury or damage wouldn’t ordinarily have occurred if reasonable care had been exercised, and if the defendant had exclusive control over the cause of the injury, however, the burden of proof shifts to the defendant. This shift is called res ipsa loquitur, which is Latin for “the thing speaks for itself”. This can be the case in medical malpractice.
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res ipsa loquitur
the thing speaks for itself
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The elements of a negligence action are
duty, breach, proximate causation, and damages.
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If a patient contributes to causing harm, it’s called
contributory negligence.
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wrongful birth
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wrongful life
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wrongful death
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Ethos meaning
custom, usage or character.
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philosophy
pursuit of wisdom
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philosophy
Das streben nach Weisheit.
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Ethics Versus Law
When a person breaks ethical codes, a segment of society, at least, disapproves. When a person breaks legal codes, however, penalties are enforced by law. In many cases, the same action violates both ethical and legal codes.
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Metaethics
is a branch of ethical theory that considers the origin and meaning of ethical principles.
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Virtue Theory
is a normative theory that seeks to identify virtues or characteristics we should cultivate. An example is Benjamin Franklin’s cultivation of virtue.
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Examples of virtues that could be cultivated in the medical field might include
being competent, careful and compassionate.
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Duty theory
seeks to identify duties we’re obligated to perform.
For example, medical practitioners who work in the emergency room have a duty to treat patients being seen for acute conditions, even if they don’t have money or insurance.
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Consequentialist theory indicates
that an action is morally right if the consequences of that action are more favorable than unfavorable.
Imagine, for example, that a pregnant woman is ill and will die unless the pregnancy is aborted. Is the fetus’ death morally acceptable because saving the mother’s life is a greater good? What if the fetus isn’t viable?
Many dilemmas in medicine are framed in terms of consequentialist theory because conflicting ethical concerns may create difficult choices for healthcare professionals.
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When was the Hippocratic Oath written?
fourth century B.C.E.
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Two organizations dedicated to providing coding and billing education, professional development, career advancement, and networking opportunities for medical coders are?
the American Health Information Management Medical Association (AHIMA) and the American Association of Professional Coders (AAPC).
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AHIMA
American Health Information Management Medical Association
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AAPC
American Association of Professional Coders
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AAPC members shall:
Maintain and enhance dignity, status, integrity, competence, and standards of our profession.
Respect the privacy of others and honor confidentiality.
Strive to achieve the highest quality, effectiveness, and dignity in both the process and products of professional work.
Advance the profession through continued professional development and education by acquiring and maintaining professional competence.
Know and respect existing federal, state, and local laws, regulations, certifications, and licensing requirements applicable to professional work.
Use only legal and ethical principles that reflect the profession’s core values and report activity that is perceived to violate this Code of Ethics to the AAPC Ethics Committee.
Accurately represent the credential(s) earned and the status of AAPC membership.
Avoid actions and circumstances that may appear to compromise good business judgment or create a conflict between personal and professional interests.
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Etiquette
is the proper form of social interaction in a given culture or community.
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manners
make for a civil society and can minimize conflict or irritation. Ethical ideas may underline some rules of etiquette, but etiquette is more of an art of interaction. It also varies among cultures and over time.
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One approach to allocation of healthcare access is
Managed care
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Healthcare access
the availability of adequate health insurance.
When patients don’t have sufficient insurance or other resources to pay for expensive medical care, doctors have to either turn away these patients or provide care without receiving compensation.
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Affordable Care Act (ACA)
Who signed it into law? When
President Obama
March 2010
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ACA
Affordable Care Act
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Most of the significant changes to the Affordable Care Act (ACA) went into effect when?
January 1, 2014
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American Rescue Plan act
Signed into law by who and when ?
President Biden
2021
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What is the American Rescue Plan ?
COVID-19 bill. The bill set up a historical expansion of the ACA, Medicaid, and other health policies associated with the COVID-19 pandemic.
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Single-Payer System
healthcare costs are paid primarily by the government rather than by multiple private insurers. In January 2022, as reported by KQED, 47% of American Medical Association members were in support of a single-payer system.
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The American College of Physicians (ACP)
the second largest doctors’ organization in the United States, with 161,000 internal-medicine physicians and related specialists
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formulary
list of approved drugs- from which doctors must prescribe to have insurance cover the pharmaceuticals.
This requires doctors to tailor their prescriptions to match the various formularies of insurance companies rather than simply deciding what drug, if any, would best help their patients.
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Insurance Appeal
Patients who believe that their insurers have wrongfully denied healthcare services, treatments, or procedures or have delayed the referral process may have the right to appeal those insurance company actions- or inactions.
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Nuremberg Code
The Nuremberg Code was drafted after World War II because of Nazi experiments on prisoners in concentration camps.
The Nuremberg Code forbids performing medical experiments on humans without their consent.
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US Medical Experiments
Tuskegee Study- syphilis
1950s Soldiers LCD/acid
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lyserrgic acid diethylaimide
LCD/acid
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Exception for Informed Consent (EFIC)
the Food and Drug Administration (FDA) permitted emergency research without patient consent under certain conditions.
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EFIC
Exception for Informed Consent
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EFIC Requirements
There’s a life-threatening medical condition for which current treatments are proven unsatisfactory
Prior consent isn’t feasible
Direct benefit to subjects is anticipated
The research’s risks are minimal given the patient’s life-threatening circumstances.
The research couldn’t be conducted within the therapeutic window- or when the treatment must be given- without EFIC.
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Patient autonomy
requires that patients give informed consent before the start of any medical treatment
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Medical paternalism
takes patient autonomy away from patients and gives it to medical personnel or the government for society’s benefit.
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Exceptions to informed consent
involve emergencies when a patient- or someone on the patient’s behalf- is unable to consent.
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In Bonner vs. Moran, a court ruled that
a mature minor could consent to donating skin to his cousin for a skin graft.
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