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Judson, K., & Harrison, C. (20 16). Law and ethics for the health professions. (7th ed. ). New York: McGraw- Hill.

Law&Et • ICS FOR HEALTH PROFESSIONS

KAREN JUDSON CARLENE HARRISON

Key Terms

120

Professional Liability and Medical Malpractice

LEARNING OUTCOMES After studying this chapter, you should be able to:

LO 5. 1 Identify three areas of general liability for which a

physician / employer is responsible.

LO 5.2 Describe the reasonable person standard, standard of

care, and duty of care.

LO 5.3 Briefly outline the responsibilities of health care

practitioners concerning privacy, confidentiality, and

privileged communication.

LO 5.4 Explain the four elements necessary to prove

negligence (the four Ds).

LO 5.5 Outline the phases of a lawsuit.

LO 5.6 Name two advantages to alternative dispute

resolution .

FROM THE PERSPECTIVE OF.

TINA, A MEDICAL RECORDS SUPERVISOR in a small-town medical clinic, always spends a lot of time with new employees review- ing the importance of confidentiality. One of her real-life lessons is about the new employee, Samantha, who accidentally and innocently violated confidentiality, causing the clinic where she worked to be sued.

Samantha saw one of her high school friends in the hallway of the clinic. The friend told Samantha that she was pregnant. A week later, Samantha saw her friend's mother in the local grocery store and con- QTatulated her on becoming a grandmother. What Samantha did not know was that her friend was not planning to continue the pregnancy

· and had told no one that she was pregnant. The clinic was sued for \i olating confidentiality. Tina's strong advice to all employees has since become: "What you learn in this clinic stays in this clinic."

From Tina's perspective, even remarks that seem innocent and harmless, if spoken outside the health care workplace, can violate pri- ,·acy and create liability for employers and employees.

From the perspective of new employees, Samantha's experience is a ~esson well-learned.

From the perspective of Samantha, who did not think twice before she spoke, what she thought were innocent remarks created a distress- ing and damaging situation. Samantha's career in health care was over :.. efore it had begun.

iability _-ill competent adults are liable, or legally responsible, for their own :1: , both on the job and in their private lives. As homeowners and • erators of automobiles, we carry liability insurance in case someone - injured in our homes or we are involved in a car accident. In the work-

: lace, employers carry liability insurance to cover situations in which :::::nployees, or anyone else on the premises, may be injured or harmed.

As employers, physicians have general liability for:

The Practice's Building and Grounds. Adequate upkeep will help ensure that employees and patients are not injured on the premises. Employers must provide protection against theft, fire, and burglary in the building and must take all precautions to ensure that patients' records are protected. Theft, fire, and liability insurance to cover the workplace is a must for the physician/employer.

Automobiles. If employees must use their own or the physician's automobile in the performance of their daily work (for example, to drop off or pick up mail or supplies), the employer must be adequately insured for liability in the event of an accident.

Employee Safety. Employers must provide a reasonably comfortable and safe work environment for employees. State (and, in some instances, federal) regulations apply, but they vary from state to state. Employers should check with the state agency governing safety in the workplace, with workers' compensation

LO 5.1

Identify three areas of general liabi lity for which a physician/ employer is responsible .

liable Legal ly responsible or obligated .

COURT CASE Nurse Sues Employer After Fall at Work

A registered nurse working as a supervisor in a dialysis

clinic slipped in a puddle of water on the floor at work

and injured her neck and lower back. She had surgical

fusions of the cervical and lumbar spine, and she contin-

ued to have serious symptoms, including debilitating pain

and urinary incontinence, for which she received numer-

ous medications. The neurosurgeon who treated the

injured nurse said that he did not think she would be able

to return to gainful employment as a registered nurse,

even in a sedentary position. The nurse had been earning

$1 00,000 per year, and her employer had not offered

her any other position. The trial court found the defen-

dant to be "I 00 percent disabled," which entitled her to

commensurate Worker's Compensation payments. Since

Workers Compensation benefits are paid for, in one way

or another, for a state's employers, the injured nurse's

employer appealed this decision. The appeals court

upheld the trial court's decision.

MOUSSEAU v. DAVIT A, INC., No. W20 I 0-02612-SC-WCM-WC (Tenn. Aug. 22, 20 I I).

LO 5.2 Describe the reasonable person standard, standard of care, and duty of care.

standard of care The level of performance expected of a health care practitioner in carrying out his or her professional duties.

duty of care The legal obligation of health care workers to patients and, sometimes, non patients.

reasonable person standard That standard of behavior that judges a person's actions in a situation according to what a reasonable person would or would not do under simil ar circumstances.

laws, and with state medical societies to determine safety rules, rights, and responsibilities. A general safety procedure book for medical office workers should include guidelines for the handling of hazardous laboratory wastes and materials.

Standard of Care and Duty of Care Standard of care refers to the level of performance expected of a health care practitioner in carrying out his or her professional duties. Duty of care is the obligation of health care workers to patients and, in some case, nonpatients. Physicians have a duty of care to patients with whom they have established a doctor-patient relationship, but they may also be held to a duty of care toward people who are not patients, such as the patient's family members, former patients, and even office personnel. Generally, if actions or omissions within the scope of a health care practitioner's job could cause harm to someone, that per- son is owed a duty of care.

For example, medical facility custodians are nonpatients to whom a duty of care is owed. Various drugs, equipment, and supplies are used and discarded daily in a medical facility. Procedures for the proper disposal of drugs and potentially hazardous materials should be detailed in a facility's safety manual, so that employees who handle these materials do not accidentally prick themselves with used nee- dles or otherwise injure themselves.

In some instances, depending on the situation and state law, physi- cians may have a duty under standard of care to warn nonpatients of danger, as in the case of a psychiatric patient who threatens harm to others or in the case of a patient with a communicable disease.

Two court cases, "Therapists Found Guilty of Failure to Warn" (p. 123) and "Sharing a Prescription Drug Proves Costly" (p. 124), show that courts vary widely in establishing a duty of care, according to the laws in the states where lawsuits are adjudicated. In "Sharing a Prescription Drug Proves Costly," wrongful death was also charged, which is dis- cussed in further detail as you progress through this chapter.

As mentioned in Chapter 4, we are responsible for our actions (or our failure to act) under the reasonable person standard. That is, we may be charged with negligence if someone is injured because we failed to

122 Part Two I Legalis sues for W orking Health Care Prad:ioners

perform an act that a reasonable person, in similar circumstances, would perform or if we committed an act that a reasonable person would not commit. Professionals-individuals who are specially trained to perform specific tasks-are held to a higher standard of care than nonprofession- als (laypersons). If a patient is injured because a health care professional failed to exercise the care and expertise that under the circumstances could reasonably be expected of a professional with similar experience and training, then that professional may be liable for negligence.

PHYSICIANS

A physician in general practice is expected to conform to the stan- dards of other general practitioners in his or her own or a comparable community. A specialist is held to a higher standard of care than that expected of a general practitioner. The standard of care for a specialist is generally the same as that for like specialists, wherever they prac- tice. Similarly, any health care practitioner-nurse, phlebotomist

Therapists Found Guilty of Failure to Warn

In October 1969, Prosenjit Poddar, a foreign student

'om Bengal, India, killed Tatiana Tarasoff. Two months

:>efo re, Poddar had confided his intention to kill Tarasoff

:o Dr. Lawrence Moore, a psychologist employed by the

Cowe ll Memorial Hospital at the University of California

zt Berkeley. Poddar told Moore he would kill Tarasoff

"' er she returned from spending the summer in Brazil.

Acting on this information, Moore notified the cam-

:: s police, who briefly detained Poddar, but determined

at Poddar was rational and released him. Upon Pod dar's

-elease, Moore's superior, Dr. Harvey Powelson, directed

::. at all of the letters and notes Moore had written while

: unseling Poddar be destroyed and no further action be

-- e n to detain Poddar in the future.

Soon thereafter, Poddar convinced Tarasoff's brother

- share an apartment with him near Tarasoff's residence.

-'he n she returned from Brazil, Poddar went to Tarsoff's

- me and killed her. Tarasoff had not been warned of the

: ssi ble danger Poddar posed.

Tarasoff's parents sued, arguing that the psychologist had

- :::uty to warn them of Poddar's danger to their daughter,

:.- that the campus police negligently released Poddar with-

--~ notifying them of their daughter's grave danger. They

- - argued that the police failed to confine Poddar, under

:-.:: Lanterman-Petris-Short Act, a California law designed to

: -ect mentally ill and mentally disabled persons from cer-

- abuses, and to guarantee and protect the public interest.

-:ne defendants argued that there was no duty of care

"Md T atiana T arasoff, and that, as employees of the state,

they had governmental immunity. The trial court granted

the defendants' motion to dismiss. On the plaintiffs' appeal,

the court affirmed dismissals against defendant police on

all claims, stating there was no duty to plaintiffs. Dismissals

against the defendant therapists were also upheld , holding

they were protected by governmental immunity. Plaintiffs

appealed to the Supreme Court of California.

The Supreme Court allowed the plaintiffs to amend their

appeal to state that the therapists failed to warn Tatiana

(rather than her parents, as in the original complaint).

The Supreme Court of California heard the case based

on the question "Did defendant therapists have a duty to

warn Tatiana Tarasoff?"

Yes, the court determined. It was found that the defen-

dant therapists should have determined that Poddar pre-

sented a serious danger to Tarasoff, and they failed to exercise

reasonable care to protect her from that danger (i.e., when a

therapist determines that a patient poses a danger to another

individual, he or she is obligated to use reasonable care to pro-

tect that individual). Therefore, defendant therapists breached

their duty of care to Tatiana Tarasoff and were negligent

by not warning her of the possible danger posed by Poddar.

Tarasoff v. Regents of University of California, 17 Cal. 3d 4 25, 13 I Cal. Rptr. 14, 551 P.2d 334 ( 1976).

Prosenjit Pod dar was later convicted of second-degree

murder, but the conviction was ap pealed and overturned,

based on the decision that the jury was inadequately

informed. No second trial was held, and Poddar was

released on the condition that he return to India.

Chapter 51 Professional Uabili an edical Malpractice 123

COURT CASE Sharing a Prescription Drug Proves Costly

A restaurant worker, Kasey, attended an employee holiday

party held at his workplace. Also present were a coworker

and her boyfriend, Followill. Kasey brought a narcotic drug to

the party, which his doctor had prescribed for his back pain.

He gave his coworker eight of the pain pills, who, in turn,

gave them to her boyfriend, Followill. Followil l died in his

sleep that evening, due to a combination of the prescription

drug and alcohol in his system. Plaintiff Gipson , Followill's

mother, sued defendant, Kasey, for wrongful death.

give their drugs to others. The defendant contended that

because Arizona law does not impose a duty on social

hosts who serve alcohol to adults, there should similarly

be no duty here.

The supreme court in this case ruled that such a duty

was owed, extending not from the relationship between

the two workers, but from state statutes that prohibited

distributing prescription drugs to persons not covered by

the prescription. The Arizona Supreme Court referred

the case back to the superior court for further proceed-

ings consistent with the opinion regarding duty of care.

The issue presented in court was whether persons who

were prescribed drugs owed a duty of care, making them

potentially liable for negligence, when they improperly Gipson v. Kasey, 214 Ariz. 141 , ISO P.3d 228 (Ariz. 2007).

dental assistant, physician assistant-is expected to conform to the standards of like practitioners in his or her own or a comparable community.

Courts have generally held that informal consultations among phy- sicians do not create a doctor-patient relationship and thus do not cre- ate a duty of care, as discussed in the classic case, "Consultation Did Not Establish a Duty of Care, on page 125."

GUIDELINES FOR PHYSICIANS AND OTHER HEALTH CARE PRACTITIONERS

The following guidelines can help all health care practitioners stay within the scope of their practices and operate within the law and the policy of any employing health care facility. All are addressed at length throughout the text.

• Practice within the scope of your training and capabilities.

• Use the professional title commensurate with your education and experience.

• Maintain confidentiality

• Prepare and maintain health records.

• Document accurately

• Use appropriate legal and ethical guidelines when releasing information.

• Follow an employer's established policies dealing with the health · care contract.

• Follow legal guidelines and maintain awareness of health care legislation and regulations.

• Maintain and dispose of regulated substances in compliance with government guidelines.

• Follow established risk management and safety procedures.

• Meet the requirements for professional credentialing.

• Help develop and maintain personnel, policy, and procedure manuals.

124 Part Two I Legal Issues for Working Health Care Pr2ctitioners

LANDMARK COURT CASE Consultation Did Not Establish a Duty of Care

The doctrine that informal physician consultations do The surgery was subsequently performed, and the patient

not create a doctor-patient relationship was established sued, claiming that the surgery had been unnecessary.

in 1973 in the California decision Ranier v. Grossman. Grossman was cited as a codefendant in the patient's Morton Grossman was a professor of gastroenterology lawsuit. An appeals court upheld summary judgment

w ho often lectured physicians at their hospitals, then in Grossman 's favor, holding that he had no duty to the

offered to review their cases with them. After one such patient because he had no direct contact with her and had

.lecture, a physician presented the X-rays and medical no control over her treating physicians.

history for a patient who suffered from ulcerative colitis. Ranier v. Grossman, 107 Cal. Rptr. 469, 31 Cal. App. 3d 539 ( 1973). Grossman advised surgery without examining the patient.

Check Your Progress

I. As employers, physicians have general liability for __________ _

W rite "T" or "F" in the blank to indicate whether you think the statement is true or false.

2. Standard of care refers to the level of performance expected of a health care practitioner in carrying out his or her professional duties.

3. Duty of care is the obligation of health care practitioners to patients but never applies to nonpatients.

4. An obstetrician who helps deliver a baby to a woman who happens to be riding with him in a taxicab would be held to the reasonable person standard.

5. Policies and procedures of the employing medical facility, as well as the law, should be considered when a health care practitioner performs his or her duties.

Laws clearly dictate what a member of a health care profession can and cannot do on the job. However, in addition to knowing the law, a health care practitioner should know what policies and procedures apply specifically to his or her place of employment. Policy and proce- dure manuals that clearly define a health care practitioner's responsi- bilities can serve as a valuable guide and as evidence that policies and procedures are in writing if legal suits should arise.

Privacy, Confidentiality, and Privileged Communication :--Jot only do physicians and other health care professionals owe a duty of care to patients, but it is also their ethical and legal duty to safe- 2Uard a patient's privacy and maintain confidentiality.

Privileged communication refers to information held confidential within a protected relationship. Attorney-client and physician-patient

LO 5.3 Briefly outline the responsibilities of health care practitioners concerning privacy, confidentiality, and privileged communication.

confidentiality The act of holding information in confidence, not to be released to unauthorized individuals.

privileged communication Information held confidential within a protected relationship.

Chapter 5 I Professional Liabil ity and Med ical Malpractice 125

are examples of relationships in which the law, under certain circum- stances, protects the holder of information from forced disclosure on the witness stand. Privileged communication statutes vary from state to state, but in most states, patients may sue a physician or any other health care practitioner for breach of confidence if the holder released protected information and damage to the patient resulted. In many states, breach of confidence is grounds for revocation of a physician's license.

Since health care procedures and facilities present numerous oppor- tunities for a breach of confidentiality (as was the case with Saman- tha in the chapter 's opening scenario), health care practitioners must make every effort to safeguard each patient's privacy. Privacy, con- fidentiality, and privileged communication are such important sub- jects for health care practitioners that they are discussed separately in Chapter 8.

The following suggestions for maintaining confidentiality of patient health care records can serve as a guide for all health care practitioners who may be asked to provide or release patient information:

• Do not disclose any information about a patient to a third party without signed consent. This extends to insurance companies, attorneys, and curious neighbors, and it includes acknowledging whether or not the person in question is a patient.

• Do not decide confidentiality on the basis of whether or not you approve of or agree with the views or morals of the patient.

• Do not reveal financial information about a patient, since this is also confidential. For instance, be discreet when revealing a patient's account balance so that others in the vicinity do not overhear.

• When talking on the telephone with a patient, do not use the patient's name if others in the room might overhear.

• Use caution in giving the results of medical tests to patients over the telephone to prevent others in the medical office from over- hearing. Furthermore, when leaving a message on a home answer- ing machine or at a patient's place of employment, simply ask the patient to return a call regarding a recent visit or appointment on a specific date. No mention should be made of the nature of the call. It is inadvisable to leave a message with a receptionist or coworker on an answering machine for the patient to call an oncologist, an obstetrician-gynecologist, and so forth. If test results are abnor- mal, usually the physician speaks directly to the patient, and an appointment is made to discuss the results.

• Do not leave medical charts or insurance reports where patients or office visitors can see them. See that confidentiality protocol is duly noted in the office procedures manual, and make sure new employees learn it.

• If a patient is unwilling to release privileged information, the information should not be released. Exceptions include legally required disclosures, such as those ordered by subpoena; those dictated by statute to protect public health or welfare; or those considered necessary to protect the welfare of a patient or a third party.

126 Part Two I Legal Issues for Working Health Care Pracdjoners

_)

COURT CASE Forensic Photos Displayed on the Internet

On October 3 I, 2006, Nicole Catsouras, 18, was

decapitated in an automobile accident. California High-

way Patrol officers arrived at the scene, cordoned off

the area where the accident occurred, and took control

of the decedent's remains. The CHP officers took mul-

tiple photographs of Nicole's decapitated corpse. The

photographs were downloaded or otherwise trans-

mitted to one or more CHP computers, but they also

reached 2,500 Internet Web sites in the United States

and the United Kingdom that were not involved in the

official investigation of the car crash. Nicole's fam -

ily members were subjected to malicious taunting by

persons making use of the graphic and horrific photo- graphs. For example, Nicole's father received e-mails

containing the photographs, including one titled "Woo

Hoo Daddy" that said "Hey, Daddy I'm still alive."

Some Web sites painted the decedent 's life in a false

light, including one that described her as "stu pid " and

a "swinger." As a proximate result of the acts of the

defendants, the plaintiffs suffered severe emotional and

mental distress.

Nicole's surviving family members filed suit against

the CHP. A California appeals court eventually heard the

case, deciding that famil y members have a common law

privacy right in the death images of a decedent, subject

to certain limitations. The court also held: "We conclude

that the CHP and its officers owed plaintiffs a duty of care

not to place decedent's death images on the Internet for

the purposes of vulgar spectacle." The court found three

factors important in the case (freedom of the press was

not at issue):

"foreseeability, moral blame, and the prevention of future harm. It was perfectly foreseeable that the public dis- semination, via the Internet, of photographs of the decapi- tated remains of a teenage girl would cause devastating trauma to the parents and siblings of that girl. Moreover, the alleged acts were morally deficient. We rely upon the CHP to protect and serve the public. It is antithetical to that expectation for the CHP to inflict harm upon us by mak- ing the ravaged remains of our loved ones the subjects of Internet sensationalism. It is important to prevent future harm to other families by encouraging the CHP to establish and enforce policies to preclude its officers from engaging in such acts ever again."

Accordingly, the court found that the Catsouras family

could bring an action for invasion of privacy against the

California Highway Patrol.

Catsouras v. Department of California Highway Patrol, 181 Cal. App. 4th 856- Cal: Court of Appeals, 4th Appellate Dist., 3rd Div. 20 I 0.

Confidentiality may be waived under the following circumstances:

• Sometimes when a third party requests a medical examination, such as for employment, and that party pays the physician's fee.

• Generally when a patient sues a physician for malpractice and patient records are subpoenaed.

• When a waiver has been signed by the patient allowing the release of information (see Figure 5-1).

The Tort of Negligence The unintentional tort of negligence is the basis for professional mal- practice claims and is the most common liability in medicine. When health care practitioners are sued for medical malpractice, the term o-enerally means any deviation from the accepted medical standard of are that causes injury to a patient.

Hospitals have also been found guilty of negligence. Under the the- ory of corporate liability, hospitals have been found to have an inde- - endent duty to patients, including a duty to grant privileges only :o competent doctors, to supervise the overall medical treatment of

atients, and to review the competence of staff physicians.

LO 5.4 Explain the four elements necessary to prove negligence (the four Ds) .

Chapter 5 I Professional Liabiliry and Medica l Malpractice 127

FIGURE 5-1 Consent to Release Information

malfeasance The performance of a totally wrongful and unlawful act.

misfeasance The performance of a lawful act in an illegal or improper manner.

I authorize: Name of person or institution ___ _

(Provider of information) Street address ________________________ .

City, state, Zip code _ ____________________________ _

To release medical information to:

Name of person or institution - ---------------------------- (RecipientolintormationJ

Street address ________________________________ _

City, state, Zip code _________ _

Attention ----- ---------------------------

Nature of information to be disclosed:

0 Clinical notes pertaining to evaluation and treatment ---------------------

0 Other, please specify ---------------- ----

Purpose of disclosure:

0 Continuing medical care ··- ···-·-·-·-·· ·-- ··-··-· 0 Second opinion

0 Other, please specify ----·----"- --·- -------

This authorization will automatically expire one year from the date of signature, unless specified otherwise ---- -- -- ····

Th is consent may be revoked at any time by sending written notice to the above-named provider of information. Any re lease of information made prior to the revocation of this complaint, authorization is not a breach of confidentiality. Disclosed information may be reviewed by contacting the provider of information.

Patient's name ________ _

Signature of patient or legal guardian Date ------- ---------

Complete address ·-···--·-·-· --------------------

Relationship, if not the patient Patient's date of birth ----------------

Specific consent for release of information protected by state or federal law

Iowa law (and in some cases federal law) provides spacial confidentiality protection to information relating to substance abuse, mental health, and HIV-related testing. In order for information to be released on th is subject matter, th is specific authorization and the above authorization must be signed:

I authorize release of information relating to: 0 Substance abuse (alcohol/drug abuse)

Signature of patient or legal guardian ________ Date

0 Mental health (includes psychological testing and mental health counseling)

Signature of patient or legal guardian _ -··--·- --·- - Date

0 HIV-related information (AIDS-related testing) Signature of patient or legal guardian Date ________ _

Date Information is sent ____________________ _

Sent by (name) - - - -- --- ·--

To the recipient of th is information: This information has been disclosed to you from records protected by federal confidentiality rules. The federa l rules prohibit you from making further disclosure without additional consent.

All medical professional liability claims are classified in one of three ways, based on the root word feasance, which means "the performance of an act."

Malfeasance. The performance of a totally wrongful and unlawful act. For example, in the absence of the employing physician, a medical assistant determines that a patient needs a prescription drug and dispenses the wrong drug from the physician's supply. Medical assistants are not licensed to practice medicine, and the wrong drug was dispensed, so the act was totally wrongful and unlawful and could be called r- malfeasance.

Misfeasance. The performance of a lawful act in an illegal or improper manner. Suppose a …