Medical Legal Review · Ethics –Advance Care Directives •2 Main Types –Living Will –Durable...

Medical Legal Review Elizabeth Petsche, JD

7/22/2015

1

The Phrase “It Depends”

Doesn’t Apply Today

Elizabeth Petsche, J.D.

[email protected]

An Overview

• Law

– General Concepts

– Liability

– Key Statutes

An Overview

• Law

– General Concepts

– Liability

– Key Statutes

• Ethics

– 4 Core Principles

– Advance Care Directives

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Law: Consent

General Rule of Consent:

• All primary health care providers have a legal

and ethical duty to provide their patients

with sufficient information about

examination and intervention to allow them

to make a knowing, intelligent and

unequivocal decision regarding treatment

Law: Consent

The Disclosures

• The Nature of the Procedure

• The Risks of the Procedure

• The Alternatives of the Procedure

• The Expected Benefits

• The Potential Consequences to Non-

Performance

Law: Consent

General Rule When Treating Minors:

• Minors are presumed to be incompetent to

make their own decisions in all arenas,

including health care, due to cognitive

limitations and immaturity

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Law: Consent

Nuances with Respect to Minors:

• Emergency Situations

– Consent is Implied

• Emancipated Minors

– No longer dependent: Marriage, Military, Independent

• Specific Health Care Decisions

– Partial Emancipation: STD, Contraception, Prenatal Care,

HIV and Substance Abuse

– Transfusions for Jehovah's Witnesses

Law: Consent










Law: Consent










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Law: Consent

Abortion :

• No National Standard

• Cannot be a simple “yes” or “no” answer

• Look for something like “encourage”

Law: Consent

Abortion :

• No National Standard

• Cannot be a simple “yes” or “no” answer

• Look for something like “encourage”

• Undue Burden: Spousal/Partner Consent

A 55-year old woman comes to her primary care physician to look at an

enlarged lymph node under her right arm. During the examination you

detect an area of thickening on her breast and send her for additional

testing, ultimately leading to the diagnosis of Stage III breast cancer. You

discuss the disease with her, what she can expect, the risks and benefits of

treatment, and the potential consequences of not agreeing to treatment.

After she considers all of the information, she states verbally and in writing

that she never wants to have surgery to remove the tumor. As the disease

spread, the woman became extremely ill and after she lost the ability to

communicate her designated health care proxy demanded that you perform

the surgery. What is the best next step?

a. Perform the surgery because she has lost decision making capacity

b. Perform the surgery because it is in the best interest of the patient

c. Do not perform the surgery because the woman did not provide consent

d. Do not perform the surgery because the proxy did not use the substituted

judgment standard when making the decision

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Law: Consent

Informed Refusal:

A patient must be fully informed of the effects

and possible outcomes of refusing therapy

including all of the harm that could occur

Law: Liability

• Medical Malpractice

Law: Liability

• Medical Malpractice – The 4 D’s

– Duty

– Derelict (Breach)

– Direct Cause (Cause)

– Damage

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Law: Liability

• Medical Malpractice – The 4 D’s

– Duty

– Derelict (Breach)

– Direct Cause (Cause)

– Damage

• Within the Statute of Limitations

– No National Standard

Duty:An obligation that requires a

physician to conform to a

particular standard of care

Derelict:A breach of the

appropriate standard of

care

Direct Cause:The primary cause

without which the injury

would not have occurred

Damage:A physical, mental, or

emotional injury or some form

of loss






care






of loss

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care






of loss






care






of loss






care






of loss

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An 18-year-old pregnant female, suffering from abdominal pain and cramping,

placed a phone call to her mother’s primary care physician in order to seek

advice about what to do in regard to her pain. The female has never been a

patient of the primary care physician, but did not know who else to call, because

her regular provider was out of town until the following day. The primary care

physician said that, based upon the description provided by the woman, the

abdominal pain and cramping were normal at this stage of her pregnancy, and

that she would be safe waiting until the following day to contact her regular

provider. Several hours later, the woman presents to the emergency room

having suffered a severe placental abruption. As a result of the delayed

treatment, the fetus did not receive enough oxygen and was born with brain

damage. The resulting lawsuit filed by the woman against the primary care

physician will most likely be

a. Successful because there was a physician-patient relationship created

b. Successful because the woman is the daughter of an existing patient

c. Unsuccessful because the physician was not the woman’s regular provider

d. Unsuccessful because the woman was never physically examined by the physician

Law: Liability

• Res Ipsa Loquitur

– “The thing speaks for itself”

Law: Liability

• Res Ipsa Loquitur

– “The thing speaks for itself”

• Respondeat Superior

– “Let the master answer”

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Initiating Event

Complaint filed by Plaintiff(s)

Summons Delivered to Defendant(s)

Answer filed by Defendant(s)

Collection of Evidence (Discovery)

Pre-Trial Motions

Trial

Verdict

Motion to Dismiss Filed by

Defendant(s)

Case over if Granted (Unless

Appealed)

Motion for Summary

Judgment Filed by Defendant(s)

Case over if Granted (Unless

Appealed)

Flow Chart of a Medical Malpractice Lawsuit:

Key: Optional

Appeal Filed by Either Party

Law: Statutes

• HIPAA

– The privacy rule requires health care providers

to obtain patient authorization to use or disclose

individually identifiable health information, with

certain broad exceptions.

Law: Statutes

• Exceptions Include:

– Treatment

– Payment and Operations

– Required Disclosures

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Law: Statutes

• Required Disclosures:

– Serious Contagious Disease

– Child Abuse (must contact CPS)

– Serious and Immediate Threat of Harm to

Identifiable Persons

Law: HIPAA Family Member or Friend Other Persons

Patient is present and has the capacity to make health care decisions

Provider may disclose relevant information if the provider does one of the following: (1) obtains the patient’s agreement (2) gives the patient an opportunity to object and the patient does not object (3) decides from the circumstances, based on professional judgment, that the patient does not object

Disclosure may be made in person, over the phone, or in writing.

Provider may disclose relevant information if the provider does one of the following: (1) obtains the patient’s agreement (2) gives the patient the opportunity to object and the patient does not object (3) decides from the circumstances, based on professional judgment, that the patient does not object

Disclosure may be made in person, over the phone or in writing.

Patient is not present or is incapacitated

Provider may disclose relevant information if, based on professional judgment, the disclosure is in the patient’s best interest. Disclosure may be made in person, over the phone, or in writing. Provider may use professional judgment and experience to decide if it is in the patient’s best interest to allow someone to pick up filled prescriptions, medical supplies, X-rays, or other similar forms of health information for the patient.

Provider may disclose relevant information if the provider is reasonably sure that the patient has involved the person in the patient’s care and in his or her professional judgment, the provider believes the disclosure to be in the patient’s best interest. Disclosure may be made in person, over the phone, or in writing. Provider may use professional judgment and experience to decide if it is in the patient’s best interest to allow someone to pick up filled prescriptions, medical supplies, X-rays, or other similar forms of health information for the patient.

U.S. Department of Health and Human Services. Communicating with a Patient's Family, Friends, or Others Involved in the Patient's Care. , Web. 15 Mar 2011.

Law: Statutes

• HIPAA

• EMTALA

– Screen

– Stabilize

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Ethics – Basics

• 4 Core Principles

• Advance Care Directives

Ethics – Basics

• 4 Core Principles

– Autonomy

– Beneficence

– Nonmaleficence

– Justice

A 22-year-old man is sent to see a vascular surgeon to examine a lump on

his left leg. The surgeon decides that several tests need to be performed in

order to determine the composition of the lump and the potential

complications that may result from its removal. The man consents to an

exploratory procedure. During the procedure, while the man is anesthetized,

the surgeon determines the lump is merely a tissue mass. In order to limit

the patient’s exposure to the risks of a second procedure, he removes the

lump. The removal was a success and there is minimal scarring. What is

the most accurate evaluation of the physician’s actions?

a. Appropriate because they were taken while acting in the patient’s best interests

b. Appropriate because the patient consented to the procedure

c. Appropriate because the lump was removed successfully

d. Inappropriate unless he receives informed consent after the patient wakes

e. Inappropriate because it was a violation of the patient’s ethical right to autonomy

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Ethics – Basics

• Key Points:

– Autonomy Trumps

– You Have Rights

– Double Effect Doctrine

Ethics – Basics

• Double Effect Doctrine: It is wrong to

intentionally harm someone (cause death) to

produce a good result (relieve from suffering),

but it is permissible to do something intended to

produce a good result (release from suffering),

even if the action leads to unintended but

foreseen harm

http://plato.stanford.edu/entries/double-effect/

Ethics – Advance Care Directives


– Written instructions that relate to the kind of

health care the patient wishes to have or not

have when incapacitated

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– Written instructions recognized under state law

that relate to the kind of health care the patient

wishes to have or not have when incapacitated

• Patient Self-Determination Act

– Requires institutions to inform patients of their

right to use advance care directives


• 2 Main Types

– Living Will

– Durable Power of Attorney for Health Care


• Living Will

– A written document used to inform interested

parties (doctors, family members, etc.) what

medical care a patient wants to receive if they

are no longer able to make decisions due to

illness or incapacity

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• Durable Power of Attorney for Health Care

– A document used by a patient to designate

another individual to make medical treatment

and personal care decisions when they become

incapable of making health care decisions

A 70-year-old man is admitted to the hospital unfriended and complaining

of shortness of breath. He is alert, coherent, and responsive. Tests show

that he has pneumonia and respiratory failure is imminent. His health care

team believes the insertion of a respiratory tube will only maintain the

man’s life. The team reviews the man’s medical records and notices that a

valid living will is present and states that he wants no “invasive” medical

procedures that would “only prolong my death.” Should the tube be

inserted?

a. No, it would go against the patient’s advance care directive

b. No, not until consent is received from a surrogate decision maker

c. Yes, because the living will is unclear as to whether it applies

d. Yes, if the man consents to the procedure

e. Yes, an ethical duty exists to provide care

For Later • Resources you may find interesting

– http://www.hhs.gov/ocr/privacy/index.html

– http://oig.hhs.gov/compliance/physician-

education/roadmap_web_version.pdf

– http://www.childwelfare.gov/systemwide/laws_polic

ies/statutes/manda.cfm

– http://www.ama-assn.org/ama/pub/physician-

resources/solutions-managing-your-practice/coding-

billing-insurance/hipaahealth-insurance-portability-

accountability-act/frequently-asked-questions.page

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The end…

• Questions?

Thank you…

Elizabeth Petsche, J.D.

[email protected]

References

1. Lewis, Marcia A., Carol D. Tamparo, and

Brenda M. Tatro. Medical law, ethics, &

bioethics for the health professions. 7th ed.

Philadelphia, PA: F.A. Davis Co., 2012. Print.

2. Pozgar, George D.. Legal and ethical issues

for health professionals. 3rd ed. Boston:

Jones and Bartlett Publishers, 2013. Print.

3. http://plato.stanford.edu/entries/double-

effect/

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