Legal and Ethical Considerations

Here’s what we will talk Here’s what we will talk about:about:

Civil LawCivil Law False Imprisonment negligence Contracts

consent ABUSEABUSE Confidentiality

malpractice defamationdefamation Agents/Principals

the health care record Invasion of Privacy Torts

Assault & Battery Slander/Libel ETHICS Legal Disability

Legal vs. EthicalLegal vs. Ethical (what’s the (what’s the difference)difference)

• Legal Legal - - Based on the LAWBased on the LAW & enforced & enforced by local, state or federal government. by local, state or federal government.

• EthicalEthical - Based on - Based on personal beliefspersonal beliefs of of “right” or “good” “right” or “good” morals or behaviormorals or behavior..

• Health care works must follow both Health care works must follow both sets of “rules”.sets of “rules”.

IT’S THE LAW!!IT’S THE LAW!!(criminal law or civil law)(criminal law or civil law)• Criminal LawCriminal Law - CRIMES against a - CRIMES against a

person, property or society. Examples: person, property or society. Examples: Murder, Theft, Murder, Theft, (for health care: misuse (for health care: misuse of narcotics, practicing without a of narcotics, practicing without a license)license)

• Civil LawCivil Law - Involve relationships - Involve relationships between people. Disagreements. Often between people. Disagreements. Often about a person’s rights. Judge Judy about a person’s rights. Judge Judy handles civil cases for people that don’t handles civil cases for people that don’t want to go to “real court”. want to go to “real court”. (for health (for health care: violating patient rights- TORTS)care: violating patient rights- TORTS)

FOCUS ON FOCUS ON CIVIL LAWCIVIL LAW:: Contracts and Contracts and TortsTorts

• Most health care legal cases involve Civil Law Most health care legal cases involve Civil Law and deal with contracts and tortsand deal with contracts and torts

• ContractsContracts - agreements between 2 or more - agreements between 2 or more “parties” (people, businesses, groups)“parties” (people, businesses, groups)

• TortsTorts - WRONGFUL ACTS that do not involve - WRONGFUL ACTS that do not involve contractscontracts

It Rhymes!Wrongful acts

Without contractsTORTS

CONTRACTS - CONTRACTS - (fill in the blanks)(fill in the blanks)

AN ____________ between __________________.AN ____________ between __________________. • 3 parts to a contract: Offer, Acceptance and 3 parts to a contract: Offer, Acceptance and

ConsiderationConsideration. Each party has something to . Each party has something to contribute/trade. If both parties agree the contribute/trade. If both parties agree the contract is made.contract is made.

• Legal Disability- You must be LEGALLY ABLE to You must be LEGALLY ABLE to enter into a contract. If not, you are Legally enter into a contract. If not, you are Legally DisabledDisabled

• **Must not be medicated or under the influence of Must not be medicated or under the influence of

drugs/alcoholdrugs/alcohol **Must be of “sound mind” and competent Must be of “sound mind” and competent

**Must be 18 or overMust be 18 or over The contract is

BREACHED

if either party does not

do their part

.

Parts of a ContractParts of a Contract

• OfferOffer - what you have to trade - what you have to trade

• ConsiderationConsideration - What the other person - What the other person will give you for it will give you for it

• AcceptanceAcceptance - Both parties agree and - Both parties agree and sign the contract.sign the contract.

• Examples in health care & in general…Examples in health care & in general…LET’S LET’S TALK ABOUT CONTRACTS TALK ABOUT CONTRACTS

Contracts and Consent Contracts and Consent can be can be ImpliedImplied or or ExpressedExpressed

• Implied Contracts Implied Contracts and Implied and Implied Consent- Consent- Agreements made Agreements made without verbally without verbally expressing the expressing the terms.terms.

• Can you think of Can you think of examples? examples?

• Expressed Contracts Expressed Contracts and Expressed and Expressed Consent- Consent- Agreements made Agreements made and clearly stated and clearly stated verbally or in writing. verbally or in writing.

• Can you think of Can you think of examples? examples?

Employee / Employer Employee / Employer RelationshipRelationship

?? Could this be considered a ?? Could this be considered a contract??contract??

• Is it an agreement with each party having Is it an agreement with each party having something to trade? Is there an Offer, something to trade? Is there an Offer, Consideration, Acceptance?Consideration, Acceptance?

• Employee / Worker = Employee / Worker = AGENTAGENT

• Employer / Company / Boss = Employer / Company / Boss = PRINCIPALPRINCIPAL

• Both have responsibilities to each other: Both have responsibilities to each other: Principal is responsible for actions of the Agent. Principal is responsible for actions of the Agent. Agent is responsible for protecting the interests of Agent is responsible for protecting the interests of the Principal.the Principal.

Torts:Torts: (fill in the blanks)(fill in the blanks)A tort is a “W_____ A___ not involving C______”.A tort is a “W_____ A___ not involving C______”.

• In health care, a tort occurs when a In health care, a tort occurs when a person/patient is person/patient is harmed or injuredharmed or injured because the worker does not deliver because the worker does not deliver the proper the proper standard of carestandard of care. .

• Torts are called Torts are called “Civil Wrongs” not Crimes.. “Civil Wrongs” not Crimes..

7 tortsare the most common

in health care

Torts - Torts - Violations Violations causing Harm or causing Harm or injuryinjury

• Many torts Many torts involve involve patient patient rightsrights violations and violations and often involve often involve elderly patients elderly patients in Nursing in Nursing Homes or LTC Homes or LTC facilities.facilities.

7 Common Torts:7 Common Torts:

• Assault & Battery (Assault & Battery (These often go togetherThese often go together) - ) -

• AbuseAbuse

• DefamationDefamation

• False ImprisonmentFalse Imprisonment

• Invasion of PrivacyInvasion of Privacy

• NegligenceNegligence

• MalpracticeMalpractice

Assault and Battery Assault and Battery These are 2 These are 2 different things that get categorized together because different things that get categorized together because they often happen at the same time.they often happen at the same time.

• Assault - Assault - Threatening or Threatening or attempting to hurt a attempting to hurt a person.person.

• Battery - Physically Battery - Physically touching a person touching a person to hurt them or to hurt them or touching without touching without their permission. their permission.

Malpractice Malpractice Negligence Negligence

• Mal = Bad (Bad Practice)Mal = Bad (Bad Practice)

• Failure of a Failure of a PROFESSIONAL PROFESSIONAL to use to use the degree of the degree of skill/knowledge associated skill/knowledge associated with that profession.with that profession.

• Doing something you are Doing something you are not licensed to do not licensed to do OROR

• Doing something you are Doing something you are licensed to do but doing it licensed to do but doing it wrong / badly.wrong / badly.

• MUST CAUSE HARM!!MUST CAUSE HARM!!

• Failure to give the Failure to give the normal standard of care normal standard of care that is expected.that is expected.

• Usually an Usually an unintentional mistake. unintentional mistake. Often falls or burns.Often falls or burns.

• Examples: Falls that Examples: Falls that happen because water happen because water was on the floor, burns was on the floor, burns because a heating pad because a heating pad was left on too long.was left on too long.

• MUST CAUSE HARM!!MUST CAUSE HARM!!

Abuse -Abuse - care that results in harm, pain, or mental care that results in harm, pain, or mental anguishanguish

• Abuse can be:Abuse can be:

• PhysicalPhysical

• VerbalVerbal

• PsychologicalPsychological

• SexualSexual

• Financial Financial

What does abuse look What does abuse look like?like?

Invasion of Privacy Invasion of Privacy Related to their Body, Things/Belongings and Related to their Body, Things/Belongings and Information Information • Unnecessary Unnecessary

exposure of bodyexposure of body

• Opening drawers or Opening drawers or going through going through someone’s someone’s belongings without belongings without permissionpermission

• Talking about a Talking about a patient in a public patient in a public location where location where others could hearothers could hear

• Failure to close Failure to close curtains or doors curtains or doors

Invasion of Privacy Invasion of Privacy Related to their Body, Things/Belongings and Related to their Body, Things/Belongings and Information Information

• Seeking private/unnecessary information about a Seeking private/unnecessary information about a person (reading someone’s mail or medical record)person (reading someone’s mail or medical record)

• Sharing information that is confidentialSharing information that is confidential

• Leaving chart or computer screen openLeaving chart or computer screen open

False ImprisonmentFalse Imprisonment• Restraining or Restraining or

restricting the restricting the freedom of an freedom of an individual without individual without proper justificationproper justification

• Keeping someone Keeping someone in a location in a location against their will.against their will.

• Patients have a Patients have a right to leave the right to leave the hospital - sign out hospital - sign out AMA AMA Against Medical Advice Against Medical Advice

Defamation - Defamation - making making FALSE FALSE statements statements that damage reputation or ridicule a person (harmful that damage reputation or ridicule a person (harmful gossip)gossip)

Statements may be Statements may be written or verbalwritten or verbal

• Spoken = SlanderSpoken = Slander

• Saying something Saying something about someone about someone that is not true and that is not true and is harmful/hurtful is harmful/hurtful to themto them

• Spreading gossip Spreading gossip that is not truethat is not true

• Written = LibelWritten = Libel

• Incorrect Incorrect information in information in newspaper, newspaper, magazine or on-linemagazine or on-line

• Lies on facebook or Lies on facebook or in a textin a text

• Wrong information Wrong information on a report (police)on a report (police)

•TELLING LIES - GIVING WRONG TELLING LIES - GIVING WRONG INFORMATIONINFORMATION THAT IS HARMFUL TO A PERSON’S THAT IS HARMFUL TO A PERSON’S REPUTATION OR BELITTLES THEMREPUTATION OR BELITTLES THEM

REMEMBER: Many torts involve REMEMBER: Many torts involve patient rightspatient rights violations and often involve elderly patients in violations and often involve elderly patients in Nursing Homes or LTC facilities.Nursing Homes or LTC facilities.

This will help you remember the This will help you remember the 7 Torts7 Torts

• Use this simple phrase: Use this simple phrase: “Hey you two, Find Ma!”“Hey you two, Find Ma!”

• You Two (Assault and Battery)You Two (Assault and Battery)

• F. I. N. D. M. A. F. I. N. D. M. A.

Hey you two, find ma!Hey you two, find ma!

• Hey you 2 (Hey you 2 (Assault and BatteryAssault and Battery))

• F (F (False ImprisonmentFalse Imprisonment))

• I (I (Invasion of PrivacyInvasion of Privacy))

• N (N (NegligenceNegligence))

• D (D (DefamationDefamation - - could be libel orcould be libel or slanderslander))

• M (M (MalpracticeMalpractice))

• A (A (AbuseAbuse))

Privileged Communications:

• All information given to health care workers by a patient

• This info must be kept confidential (it’s the law)

• Only share this info with health care workers with a “Need to Know”.

• For info to be shared with ANYONE there must be a written consent. (This includes husband/wife/etc…)

A special right granted to a person or group. Information legally exempt from disclosure.

• EXAMPLES

• The Health Care Record

• Stored data in electronic medical record

• Information the patient tells you

Privileged Communications:

Some Information must be told

• Births and Deaths

• Violent injuries - abuse, homicide, suicide

• Communicable diseases

• Sexually transmitted diseases

• Things that need to be known to protect the public

Federal Law Protects Information

• HIPAA - Health Insurance Portability and Accountability Act of 1996

• The Privacy Rule from USDHHS in 2003

• Health Care workers MUST abide by these regulations

The Health Care Record (Patient Chart)• Privileged

Information

• Owned by the health care provider

• Patient has a right to see or get a copy of the record

• It is a LEGAL record and can be used in court

• Rules for Charting

• No erasures, No white out

• Properly maintained and stored in locked location for years

• Shredded or destroyed at the end of the holding period

Patient Rights

Confidentiality Privacy

Right to Refuse Treatment Respect

Right to Choose Freedom from Restraints

Patient Rights / Resident Rights

Right to make end of life choices Freedom on choice of doctor

Informed Consent

Protecting the Rights of Patients

• Patient’s bill of Rights

• Created by the AHA (American Hospital Association)

• Resident’s Bill of Rights

• Created by Federal Government

• OBRA - Omnibus Budget Reconciliation Act of 1987

Here’s what we talked about:Here’s what we talked about:

Civil LawCivil Law False Imprisonment negligence Contracts

consent ABUSEABUSE Confidentiality

malpractice defamationdefamation Agents/Principals

the health care record Invasion of Privacy Torts

Assault & Battery Slander/Libel ETHICS Legal Disability