Ethics and Healthcare

ProfessionalsTexas Ambulatory Surgery Center Society

2014 Annual Conference

Richard Bays JD, MBA, RN, CPHQ

© R Bays 2014

What is Ethics?

Is it just doing the “right” thing?

What is the “right” thing?

Ethics Defined

plural noun

1. a system of moral principles:

2. the rules of conduct recognized in respect to a particular class of human

actions or a particular group, culture, etc.:

3. moral principles, as of an individual:

4. branch of philosophy dealing with values relating to human conduct, with

respect to the rightness and wrongness of certain actions.

Who Defines Ethics?

• State Licensing Boards

• Professional Associations

• Ethics Boards

• International Associations

• Academic Centers

Ethical Standards ≠ Legal Standards

• In many instances laws are statements of considered ethical positions.

• Generally, obeying the law is an element of ethical behavior.

State of Texas Authorities

Texas Department of State Health Services

Incidents of abuse, neglect, exploitation, or illegal, unethical or unprofessional conduct shall be reported to the department.

Unethical conduct--Unethical conduct (as defined in HSC, §161.131(11)) is conduct prohibited by the ethical standards adopted by state or national professional organizations for their respective professions or by rules established by the state licensing agency for the respective profession.

Unprofessional conduct--Unprofessional conduct (as defined in HSC, §161.131(12)) is conduct prohibited under rules adopted by the state licensing agency for the respective profession.

§133.47 Title 25 Texas Administrative Code - Chapter 133 Hospital Licensing Rules.

Texas Board of Nursing

Nursing Practice Act

• Sec. 301.452. Grounds for Disciplinary Action.

• A person is subject to denial of a license or to disciplinary action under this

subchapter for:

“unprofessional or dishonorable conduct that, in the board’s opinion, is

likely to deceive, defraud, or injure a patient or the public;”

Texas Medical Practice Act

The Texas Occupations Code includes the enabling statutes and practice acts

for physicians, physician assistants, acupuncturists, and surgical assistants.

Texas Medical Practice Act

Sec. 164.052. PROHIBITED PRACTICES BY PHYSICIAN OR LICENSE APPLICANT.

(a) A physician or an applicant for a license to practice medicine commits a prohibited practice if that person:

(1) submits to the board a false or misleading statement, document, or certificate in an application for a license;

(2) presents to the board a license, certificate, or diploma that was illegally or fraudulently obtained;

(3) commits fraud or deception in taking or passing an examination;

Texas Medical Practice Act

(4) uses alcohol or drugs in an intemperate manner that, in the board ’s opinion,

could endanger a patient ’s life;

(5) commits unprofessional or dishonorable conduct that is likely to deceive or

defraud the public, as provided by Section 164.053, or injure the public;

(9) alters, with fraudulent intent, a medical license, certificate, or diploma, or a

transcript of a medical license, certificate, or diploma;

Texas Medical Practice Act

(10) uses a medical license, certificate, or diploma, or a transcript of a medical

license, certificate, or diploma that has been:

(A) fraudulently purchased or issued;

(B) counterfeited; or

(C) materially altered;

Texas Medical Practice Act

Sec. 164.053. UNPROFESSIONAL OR DISHONORABLE CONDUCT.

(a) For purposes of Section 164.052(a)(5), unprofessional or dishonorable

conduct likely to deceive or defraud the public includes conduct in which a

physician:

(1) commits an act that violates any state or federal law if the act is connected

with the physician ’s practice of medicine;

(4) writes false or fictitious prescriptions

Professional Associations

American Medical Association

Code of Medical Ethics

“As a member of this profession, a physician must recognize

responsibility to patients first and foremost, as well as to society, to

other health professionals, and to self.”

American Medical Association

Principles of medical ethics

• “A physician shall be dedicated to providing competent medical care, with

compassion and respect for human dignity and rights.

• A physician shall uphold the standards of professionalism, be honest in all

professional interactions, and strive to report physicians deficient in character

or competence, or engaging in fraud or deception, to appropriate entities.

• A physician shall respect the law and also recognize a responsibility to seek

changes in those requirements which are contrary to the best interests of the

patient.”

American Medical Association

Principles of medical ethics

• “A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.

• A physician shall continue to study, apply, and advance scientific knowledge, maintain a commitment to medical education, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated.

• A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.”

American Medical Association

Principles of medical ethics

• “A physician shall recognize a responsibility to participate in activities contributing

to the improvement of the community and the betterment of public health.

• A physician shall, while caring for a patient, regard responsibility to the patient as

paramount.

• A physician shall support access to medical care for all people.”

Adopted June 1957; revised June 1980; revised June 2001.

AORN’s Standards of Ethics and Conduct

1. Members’ professional conduct shall remain consistent with the vision, mission, and core values of AORN.

2. Members shall conduct themselves in a manner that does not bring discredit upon AORN or its members.

3. Members shall refrain from abusing their relationship with AORN in an improper economic, professional, or other manner.

4. Members shall treat their peers with the utmost dignity and respect, both personally and professionally.

AORN’s Standards of Ethics and Conduct

5. Members must feel comfortable to express their concerns, particularly with respect

to ethical concerns. Officers have a responsibility to create an open and supportive

environment where member concerns and questions are responded to without

retaliation.

6. Members shall not misuse information communicated or disseminated through any

AORN program or media of any type, whether in person, electronic, or otherwise.

7. Members shall comply with all laws, regulations, and AORN policies regarding

privacy and copyright, as well as other tangible and intangible property.

Joint Commission

Rights and Responsibilities of the Individual

Standard RI.01.03.03

The hospital honors the patient’s right to give or withhold informed consent to produce or

use recordings, films, or other images of the patient for purposes other than his or her

care.

When a patient is unable to give informed consent prior to the production of recordings,

films, or other images, the production may occur provided that doing so is permitted by

the hospital’s written policy, which is established through an ethical mechanism

(for example, an ethics committee) that includes community input.

Legal Implications

Medical Law and Ethics

Ethics is a standard of behavior.

Moral values serve as the basis for ethical conduct.

Family, culture, and society help form an individual’s

moral values.

A law is a rule of conductor action.

Governments enact laws to maintain order and public safety.

Criminal and civil laws pertain to health-care practitioners.

Just a Mistake?

noun

1. an error in action, calculation, opinion, or judgment caused by poor

reasoning, carelessness, insufficient knowledge, etc.

2. a misunderstanding or misconception.

Reasonable Care?

• Negligence - A failure to behave with the level of care that someone of

ordinary prudence would have exercised under the same circumstance.

• Gross Negligence - Gross negligence is a conscious and voluntary disregard

of the need to use reasonable care, which is likely to cause foreseeable grave

injury or harm to persons, property, or both. It is conduct that is extreme

when compared with ordinary Negligence, which is a mere failure to exercise

reasonable care.

What’s The Difference?

• This distinction is important, if gross negligence is found by the trier of fact

(judge or jury), it can result in the award of punitive damages on top of

general and special damages.

Scienter

[Latin, Knowingly.] Guilty knowledge that is sufficient to charge a person with

the consequences of his or her acts.

The term scienter refers to a state of mind often required to hold a person

legally accountable for her acts. The term often is used interchangeably with

Mens Rea, which describes criminal intent, but scienter has a broader

application because it also describes knowledge required to assign liability in

many civil cases.

Scienter

Scienter denotes a level of intent and is relevant to the pleadings in a case. Plaintiffs and prosecutors

alike must include in their pleadings allegations that the defendant acted with some knowledge of

wrongdoing or guilt. If a legislative body passes a law that has punitive sanctions or harsh civil

sanctions, it normally includes a provision stating that a person must act willfully, knowingly,

intentionally, or recklessly, or it provides similar scienter requirement. Legislative bodies do not,

however, always refer to scienter in statutes.

In some cases or claims, a plaintiff need not prove that the defendant acted with any scienter. These

cases or claims are based on Strict Liability statutes, which impose criminal and civil liability without

regard to the mental state of the defendant.

Distinguishing Between Ethics and Law

(1) Some actions that are illegal may not be unethical.

(2) Some actions that are unethical may not be illegal.

(3) Laws can be unethical or immoral.

(4) Different kinds of mechanisms are used to express, teach, and

enforce laws and ethics.

Can What I Don’t Know Hurt Me?

False Claims Act (FCA)

The False Claims Act is broadly written and designed to both seek out and punish the

perpetration of fraud against the U.S. Government. This Act dates back to the 1800s

when President Lincoln and Congress enacted the statute to address defense

procurement fraud that occurred in connection with defense contractors submitting

fraudulent bills to the Union Army.

Although the Act targets many types of fraudulent claims, health care and

procurement fraud cases constitute the vast majority of all actions.

31 U.S.C. § 3729

The False Claims Act imposes liability on any

person who:

“(1)(A) knowingly presents or causes to be presented a false or fraudulent claim for payment or

approval;

(1)(B) knowingly makes, uses or causes to be made or used, a false record or statement material to a

false or fraudulent claim;

(1)(C) conspires to commit a violation of the FCA . . . or

(1)(G) knowingly makes, uses, or causes to be made or used, a false record or statement material to

an obligation to pay or transmit money or property to the Government, or knowingly conceals or

knowingly and improperly avoids or decreases an obligation to pay or transmit money or property

to the Government.” 31 U.S.C. § 3729(a).

False Claims Act

The False Claims Act liability takes the form of monetary penalties and the

statute authorizes a civil penalty between $5,000 and $10,000 per claim ($5,500

to $11,000 adjusted for inflation, as provided in the statute), plus three times

the amount of damages which the Government sustains because of the false

claim. 31 U.S.C. § 3729(a).

False Claims Act

For purposes of the statute, the terms “knowing” and “knowingly” mean that a person:

(1) has actual knowledge,

(2) acts in deliberate ignorance of the truth or falsity of the information

or

(3) acts in reckless disregard of the truth or falsity of the information. 31 U.S.C. § 3729(b).

There is no requirement that the person submitting the claim have actual knowledge that the claim is false.

MEDICARE AND MEDICAID

FRAUD AND ABUSE LAW

“Federal Anti-kickback Statute”

The Federal Anti-kickback Statute provides criminal penalties for individuals or entities that knowingly and willfully offer, pay, solicit, or receive remuneration to induce or reward the referral of business reimbursable under any Federal health care program.

42 U.S.C. § 1320a-7b

Federal Anti-kickback Statute

Under the Anti-kickback Statute, it is illegal to knowingly or willfully:

offer, pay, solicit, or receive remuneration;

directly or indirectly;

in cash or in kind;

in exchange for;

• referring an individual; or

• furnishing or arranging for a good or service; and

• for which payment may be made under Medicare or Medicaid.

Federal Anti-kickback Statute

The Anti-Kickback Statute is broadly drafted and establishes penalties for individuals and entities on both sides of the prohibited transaction.

Conviction for a single violation under the Anti-Kickback Statute may result in:

• A fine of up to $25,000

AND

• Imprisonment for up to five (5) years. 42 U.S.C. § 1320a-7b(b).

In addition, conviction results in mandatory exclusion from participation in federal health care programs. 42 U.S.C. § 1320a-7(a).

MAN SUES SURGERY CENTER AFTER WAKING UP

FROM COLONOSCOPY WEARING PINK PANTIES

According to the lawsuit, in October of 2012, Andrew Walls up from a routine

colonoscopy to find himself wearing a pair of pink women’s panties. He believed

this to be a “prank.”

While the surgery center declined to comment, Walls’ attorney said his client

suffered “severe emotional stress and mental anguish” after going into the

procedure without underwear and coming out sporting the undies.

http://crimefeed.com/2014/10/man-sues-after-waking-up-in-womens-

underwear/?utm_source=facebook.com&utm_medium=social&utm_campaign=InvestigationDiscovery

Civil Monetary Penalties

The Civil Monetary Penalties law (CMP) prohibits a hospital from making a

payment, directly or indirectly, to induce a physician to reduce or limit services

to Medicare and Medicaid beneficiaries under the physician’s direct care.

42 U.S.C. § 1320a-7a

Civil Monetary Penalties

The Civil Monetary Penalties Law authorizes the imposition of substantial civil money penalties against an entity that engages in activities including, but not limited to:

(1) knowingly presenting or causing to be presented, a claim for services not provided as claimed or which is otherwise false or fraudulent in any way;

(2) knowingly giving or causing to be given false or misleading information reasonably expected to influence the decision to discharge a patient;

(3) offering or giving remuneration to any beneficiary of a federal health care program likely to influence the receipt of reimbursable items or services;

Civil Monetary Penalties

The Civil Monetary Penalties Law authorizes the imposition of substantial civil money penalties against an entity that engages in activities including, but not limited to:

(4) arranging for reimbursable services with an entity which is excluded from participation from a federal health care program;

(5) knowingly or willfully soliciting or receiving remuneration for a referral of a federal health care program beneficiary; or

(6) using a payment intended for a federal health care program beneficiary for another use. 42 U.S.C. § 1320a-7a.

Civil Monetary Penalties

The OIG is authorized to seek different amounts of CMPs and assessments based on the type of violation at issue. 42 CFR § 1003.103.

In a case of false or fraudulent claims, the OIG may seek a penalty of up to $10,000 for each item or service improperly claimed, and an assessment of up to three times the amount improperly claimed. 42 U.S.C. § 1320a-7a(a).

In a kickback case, the OIG may seek a penalty of up to $50,000 for each improper act and damages of up to three times the amount of remuneration at issue (regardless of whether some of the remuneration was for a lawful purpose). 42 U.S.C. § 1320a-7a(a).

Ethical Decision-Making

Ethical Decision-Making

• What is the most appropriate course of action in a particular situation?

• To whom or what do you owe an obligation or a duty?

• Any Legal Obligations Present?

• Any Institutional Obligations?

• Professional norms and obligations?

• Ethics committees?

Patient-Physician Relations

• Consent

• Expressed – gives verbal permission

• Implied – actions imply permission

• Informed

• Patient receives all information necessary to make a decision regarding treatment

• Liability

• Legal responsibility for actions

• Understand scope of practice

• Understand standard of care and duty of care

• Health-care personnel are all held to the “reasonable person standard”

Real Life Jury Charge

Question No. 1.

Did Dr. X fail to disclose to Patient X such risks and hazards inherent in (Treatment In Issue)

that could have influenced a reasonable person in making a decision to give or withhold consent

to such treatment?

Answer “Yes” or “No”

Question No. 2

If you have answered the above question “Yes”, then answer the following question. Would a

reasonable person have refused such treatment if those risks and hazards had been disclosed?

Answer “Yes” or “No”.

Conclusion

• Professional ethics are standards of conduct that apply to people who

occupy a professional occupation or role.

• A person who enters a profession acquires ethical obligations because society

trusts them to provide valuable goods and services that cannot be provided

unless their conduct conforms to certain standards.

• Professionals who fail to live up to their ethical obligations betray this trust.

Conclusion

By adhering to ethical standards and codes of ethics, medical professionals can:

• Avoid harming others,

• Respect the rights of others and

• Reduce personal liability

Doctor caught in social media storm defends

laying off employee with cancer

(CNN) -- A Pennsylvania oral surgeon who laid off a cancer-stricken employee

had good intentions -- aiming to help the woman get unemployment benefits

and focus on her treatment -- but now he is getting threats and verbal attacks

on social media, according to the doctor's lawyer.

http://www.cnn.com/2014/09/13/us/cancer-layoff-doctor-pennsylvania/

Disclaimer

The contents of this presentation are intended to convey general information only and

not to provide legal advice or opinions. The contents of this presentation, and the

posting and viewing of the information, should not be construed as, and should not be

relied upon for, legal advice in any particular circumstance or fact situation. The

information presented may not reflect the most current legal developments. Further, it

may contain possible technical inaccuracies or typographical errors. No action should be

taken in reliance on the information contained. An attorney should be contacted for

advice on specific legal issues. An attorney-client relationship may only be established

through direct attorney-to-client communication that is confirmed by the execution of an

engagement agreement.

Contact Information

Richard Bays JD, MBA, RN, CPHQ

RBaysConsulting@gmail.com

Houston – 832.316.2701