Legal Responsibilities

READ THE INFORMATION THAT FOLLOWS AND ANSWER THE QUESTIONS AT THE END OF THE PAGE

Legal responsibilities are those that are authorized or based on law. Civil laws focuses on legal relationships between people and the protection of a person's rights. Criminal law focuses on wrongs against a person, property, or society. Health care is mainly affected by civil law, especially those aspects involving contracts and torts (wrongful acts that do not involve contracts). The collective set of regulations and ethical considerations may be referred to as scope of practice because it defines the scope, or extent and limits, of the job one does.

Consent

Consent, or permission from the patient is required for any treatment or action done on the patient. Consent must be obtained from every conscious, mentally competent adult before providing care or transportation. Expressed consent is permission given by adults of legal age and mentally competent to make a rational decision in regard to their medical well-being. Patients must be advised of the risks associated with the care they will receive. Implied consent is given when a patient is unconscious and would likely consent to treatment if conscious and rational.

In order for a patient to refuse care, they must be mentally competent and oriented. They must be fully informed and understand the risks associated with refusing treatment and/or transportation. The patients must also sign a release from liability form designed to release the providers of care from liability arising from the patient's informed refusal. If in doubt, the provider of care should do everything possible to persuade the patient to consent to treatment by:

  • Spending time speaking to the patient.
  • Informing the patient of the consequences of not seeking treatment.
  • Consulting medical direction. Make a phone call to someone(doctor, family member, etc.) who might be willing to talk to the patient and help persuade them to consent to treatment.
  • Contacting family members to help convince the patient to seek treatment.
  • Calling law enforcement personnel . Police might be able to order or "arrest" the patient who refuses care.
  • Try to determine why the patient is refusing care and try to develop a strategy to help get the patient to accept the idea of accepting treatment.

There is a duty to act unless there is a threat to safety. You must provide care and this duty continues until care is completed. Once care has been initiated and the patient is left without assuring the patient that they have been turned over to someone else's care, abandonment exists.

Good Samaritan laws have been developed to provide immunity to individuals trying to help people in emergencies. These laws generally grant immunity to individuals from liability if the rescuer acts in good faith to provide care to the level of his/her training, to the best of their ability. These laws do not prevent someone from initiating a lawsuit against you, nor do they guarantee you immunity from gross negligence or other violations of the law. 

Torts

The following are some common forms of torts, or civil wrongs (as opposed to crimes) that can lead to legal action:

Malpractice: also called "professional negligence" is the failure to use the degree of skill and learning commonly expected within the profession, resulting in injury, loss, or damage to the person receiving care. Examples: physician failing to give a tetanus injection to a patient who has a puncture wound, a dental assistant administering local anesthetic to a patient or extracting a tooth when not licensed as a dentist, or a nurse prescribing medication without a license to do so.

Negligence: failure to give care that is normally expected of a person in a particular position, resulting in injury to another person. Examples: falls from a hospital bed due to failure to put siderails up, infections caused by the use of nonsterile instruments, or failure to report defective equipment.

Assault and battery: threat or attempt to injure (assault) and the unlawful touching of another person without consent (battery). Patients must give consent for any care they receive. Some procedures require written consent (surgery, treatment to minors, certain tests, experimental procedures, etc.) while others allow for verbal consent but, this must be informed consent (permission granted voluntarily by a person of sound mind after the procedure and all risks involved have been explained).

Invasion of privacy: unnecessarily exposing an individual or revealing personal information about an individual without that person's consent.

False imprisonment: restraining an individual or restricting an individual's freedom.

Abuse: any care that results in physical harm, pain, or mental anguish.

Defamation: false statements that cause a person to be ridiculed or damage the person's reputation. Spoken information that leads to defamation is called slander. Written information leading to defamation is called libel.

Privileged Communications

All information a patient gives to health care personnel is considered privileged communication. It must be kept confidential and cannot be disclosed to anyone without written consent. Health care records are also privileged communications. Records belong to the provider but, the patient has the right to receive copies of all information in the records. Errors in records can not be erased in any way. They must be crossed out with a single line and the correct information inserted. Records that are destroyed after the legal amount of time for keeping them has expired, they must be burned or shredded.

Ethics

While legal responsibilities are determined by law, ethics are a set of principles relating to what is morally right or wrong. Saving lives and promoting wellness are basic ethics that have top priorities. Modern health care advances have made determining what is right and wrong a difficult task. Some dilemmas include: abortion, euthanasia or terminally ill patients, when should life support be terminated, refusal to perform expensive procedures on someone who cannot afford it, and many others.

Patients' Rights

 The American Hospital Association has affirmed a "Patient's Bill of Rights" that is used by most health care facilities. The basic components are:

  • considerate and respectful care;
  • obtain complete, current information concerning diagnosis, treatment, and prognosis;
  • receive information necessary to give informed consent prior to the start of any procedure or treatment;
  • refuse treatment to the extent permitted under law;
  • privacy concerning a medical-care program;
  • confidential treatment of all communications and records;
  • reasonable response to a request for service;
  • obtain information regarding any relationship of the hospital to other health care and educational institutions;
  • be advised of and have the right to refuse to participate in any research project;
  • expect reasonable continuity of care;
  • examine bills and receive an explanation of all charges;
  • be informed of any hospital rules or regulations.

 

Residents in long-term care facilities are guaranteed rights under the Omnibus Budget Reconciliation Act (OBRA) of 1987. These rights must be told residents or their guardians and a copy must be posted in each facility. It is often referred to as a "Resident's Bill of Rights". The basic rights include:

  • Free choice regarding physician, treatment, care, and participation in research;
  • Freedom from abuse and chemical or physical restraints;
  • Privacy and confidentiality of personal and clinical records;
  • Accommodation of needs and choice regarding activities, schedules, and health care;
  • Voice grievances without fear of retaliation or discrimination;
  • Organize and participate in family/resident groups and in social, religious, and community activities;
  • Information on medical benefits, medical records, survey results, deficiencies of the facility, and advocacy groups;
  • Manage personal funds and use personal possessions;
  • Unlimited access to immediate family or relatives and to share a room with his or her spouse, if both are residents;
  • Remain in the facility and not be transferred or discharged except for medical reasons; the welfare of the resident or others; failure to pay; or if the facility either cannot meet the resident's needs or ceases to operate.

Legal Directives

Legal, or advance directives are legal documents that allow individuals to state what medical treatment they want or do not want in the event they become incapacitated and are unable to express their wishes regarding medical care.

Living wills are documents that allow individuals to state what measures should or should not be taken to prolong life when their conditions are terminal. This usually means a do not resuscitate (DNR) order.

A Durable Power of Attorney (POA) for health care is a document that permits an individual (principal) to appoint another person (agent) to make any decisions regarding health care if the principal should become unable to make decisions.

A federal law, called the Patient Self-Determination Act (PDSA), went into effect in 1991 and requires that all health care facilities receiving any type of federal aid provide patients with information regarding and assistance in preparing advance directives.

Professional Standards

By performing certain standards at all times, you can protect yourself, your employer, and the patient. Some basic professional standards are:

  • Perform only those procedures for which you have been trained and are legally permitted to do.
  • Use approved, correct methods while performing any procedure.
  • Obtain proper authorization before performing any procedure.
  • Identify the patient and obtain the patient's consent before performing any procedure.
  • Observe all safety precautions.
  • Keep all information confidential.
  • Think before you speak and carefully consider everything you say.
  • Treat all patients equally regardless of race, religion, social or economic status, sex, or nationality.
  • Accept no tips or bribes for the care you provide.
  • If any error occurs or you make a mistake, report it immediately to your supervisor.
  • Behave professionally in dress, language, manners, and actions.

Review Questions:

1. One of the problems with using computer systems in health care is the issue of confidentiality. What are some ways that confidentiality may be violated in facilities that maintain computerized information about patients?

2. What are some arguments for and against euthanasia or a patient with terminal cancer?

3. Suppose you are having chest pains and you go to the emergency room at one of the local hospitals. You are diagnosed by Dr. Smith with indigestion and sent home with some antacids. One of your family members decides to take you to another emergency room for a second opinion. At the second emergency room, Dr. Jones decides to take and ECG just to make sure it's not indigestion and discovers that you are having a heart attack. You are rushed into surgery and make a full recovery. Do you have any grounds to sue Dr. Smith? Explain your answer.

Do you have a legal case against Dr. Smith?    (YES OR NO)

No. The actions of Dr. Smith did not harm the patient.

 4. You are working at a nursing home and Mr. Johnson keeps ringing for a nurse every 15 minutes. He rings just as you are going to lunch and you say "He can wait until I get back. I am sick and tired of that crazy guy bothering me for stupid things all the time. If he wets his pants, it serves him right. He can just suffer for all the suffering he causes me." His wife overhears your statement and tells Mr. Johnson. You return from lunch to find that he has urinated in his bed and clothing and is very upset. What charge(s) can he file against you legally and why?

5. Suppose you work at a hospital and are caring for Mrs. Simpson. Her husband is so grateful that he hands you $100 when she is discharged from the hospital and tells you that he is so grateful for your help in taking care of his wife. Give at least three problems that might arise from taking his thank you gift or tip.

BACK