Discussion Post

– QUESTION 1

Please read Chapter 5 – Development of Law, and Chapter 6 – Introduction to Law, and discuss why physicians have been so reluctant to remove patient’s life support systems.

Support your discussion with terms and concepts from the assigned reading in a way that demonstrates your knowledge of those terms and concepts.

Provide at least one example found through research outside of the textbook related to physician’s treatment of patients on life support. Be sure to cite your sources, use intext citations, and provide links when possible.

Always respond to two or more of your classmates in a meaningful way in each discussion.

RESPOND TO THIS:

In the United States, studies have shown that most patients who expire in intensive care units do so during the withholding and withdrawal of life support systems. Withholding and withdrawal of life support is the process through which medical interventions are not given to patients or are removed, with the expectation that the patient will die from an underlying illness. This action is legally justified by the principles of informed consent and informed refusal, both backed up by the common law. However, statutory and case law regarding the limitations of life-sustaining treatment vary from state to state. This may be why physicians are reluctant to removing life support systems. There is also a lot of pressure put on the family members of the patient, as they are the ones who make the ultimate decision. 

RESPOND TO THIS:

The study of medicine and the people who take the Hippocratic oath, aka physicians, are trained to promise to care for ill people.  They vow to do all they can to heal the patient.  Patients who are terminally ill and facing death or are prematurely put in commas that they may never come out of makes this promise difficult.  Physicians and nurses are trained for healing only, so logically keeping a patient on life support gives that hope that there can be a way to save that life.  Physicians also know that the family should decide to remove someone from life support.  A loved one’s death can be very stressful and painful, and it is a fragile line of what is right and what could end up in a worse situation.  Such as the case of Stolle V The Baylor College of Medicine.  In this case, Stolle’s newborn baby was born with congenital disabilities, and as such, the parent signed a directive not to resuscitate if the child was to go under duress.  When this occurred, the physician ignored the directive and did what he could to keep the baby alive.  The baby survived and was placed on life support.  The family sued because of the directive that was ignored and the pain and suffering the child and family will now have to endure with this child’s life.  The family later lost the case due to the extent of the directive and the wording that excluded certain facts that would save the life of the child.  

Lawsuits like the above are not uncommon in these instances. Because of someone’s delicacies on life support, I feel this is why physicians only “advise” on the condition and methods to treat that patient but do not make the decisions to remove someone off of life support.  

Chapter 5
Development of Law

Chapters 5 and 6 go well together.

Learning Objectives
Understand the development and sources of law.
Describe how the government is organized through the three branches of government.
Explain the principle of separation of powers.
Describe what is meant by conflict of laws.
Describe the functions of the Department of Health and Human Resources and its various operating divisions.

Law
A system of principles and processes by which people in a society deal with their disputes and problems, seeking to solve or settle them without resorting to force.
General rules of conduct enforced by government.

Development of Law
Tradition
Culture
Customs
Beliefs

Why Laws Change
Political climate
Social change
Religious beliefs
Values change

Categories of Law
Public law: The laws that control relationships between individuals and the government.
Private law: The laws that control relationships between individuals.

Sources of Law
Common law
Statutory law
Administrative law

Common Law (1 of 2)
Derived from judicial decisions.
Origins in English common law.
Responds to issues beyond written law.
Often differs from state to state.
Common-law principles prevail unless a statute governs.
Judicial decision in one state does not set precedent for another.

Common Law (2 of 2)
Principles of common law:
Precedent
Res judicata
Stare decisis

Statutory Law
Written law that emanates from legislative bodies.
Courts often interpret how various statutes apply to each set of facts.
U.S. Constitution is highest in hierarchy of enacted law.
http://constitutionus.com/?t=Bill%20of%20Rights

Bill of Rights
Amendments to the U.S. Constitution added to protect the rights of citizens.
Freedom of religion
Right to keep and bear arms
Freedom of speech

First Amendment
The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition.
It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices.
It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely.
It also guarantees the right of citizens to assemble peaceably and to petition their government.

Administrative Law
Public law is issued by administrative agencies to direct enacted laws.
Administrative Procedures Act states the procedures under which federal agencies operate.
Rules and regulations are administered within intent of law.
Regulations are subject to judicial review.

Government Organization:
Legislative Branch
Enacts laws.
Amends or repeals existing legislation.
Creates new legislation.

Government Organization:
Judicial Branch
Resolves legal disputes.
Supreme Court
Nation’s highest court
Eight Associate Justices and one Chief Justice

As I have said in the past, when government bureaus and agencies go awry, which are adjuncts of the legislative or executive branches, the people flee to the third branch, their courts, for solace and justice.
—Justice J. Henderson, Supreme Ct. of South Dakota

Government Organization:
Executive Branch
Administers and enforces the law.
Executive power vested in the president.
Cabinet advises the president.

Separation of Powers
System of checks and balances.
No one branch of government dominant over the other two.
Each may affect and limit the activities, functions, and powers of the other branches of government.

Conflict of Laws
Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause.  
It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.
It prohibits states from interfering with the federal government’s exercise of its constitutional powers, and from assuming any functions that are exclusively entrusted to the federal government.
It does not, however, allow the federal government to review or veto state laws before they take effect.

U.S. Department of Health
and Human Services
Cabinet-level department.
Responsible for carrying out national health and human services policy.
Main source of regulations affecting the healthcare industry.

Department of Health and Human Services: Divisions and Agencies (1 of 2)
Administration on Aging
Centers for Medicare and Medicaid Services
Public Health Service
National Institutes of Health
Centers for Disease Control and Prevention
Food and Drug Administration

Department of Health and Human Services Divisions and Agencies (2 of 2)
Substance Abuse and Mental Health Services Administration
Health Resources and Services Administration
Agency for Healthcare Research and Quality
Agency for Toxic Substances and Disease Registry
Indian Health Service

Review Questions
Define the term law and describe the sources from which law is derived.
Describe and contrast the legal terms res judicata and stare decisis.
Describe the function of each branch of government.
What is the meaning of separation of powers?

What is the function of an administrative agency?
Describe the various operating divisions and agencies within the DHHS.

Review Questions

Chapter 6
Introduction to Law

Learning Objectives (1 of 2)
Understand the meaning and objectives of tort law.
Describe the elements of negligence.
Explain how the commission and omission of an act differ.
Describe the importance of foreseeability in a negligence case.
Describe intentional torts and how they might occur in the healthcare setting.

2

Learning Objectives (2 of 2)
Describe the various crimes and give examples of how they might occur in the healthcare setting.
Explain the various elements of a contract.
Describe the pretrial and trial process.

Tort Law
A tort is a wrong, other than a breach of contract, committed against a person or property for which a court provides a remedy, generally in the form of monetary damages.

Objectives of Tort Law
Preservation of peace between individuals
Fault-finding for wrongdoing
Deterrence to wrongful acts
Indemnify injured person(s)

Negligence
Commission or omission of an act that a reasonably prudent person would or would not do under given circumstances.

Commission of an Act
Administering wrong medication
Administering wrong dosage of a medication
Administering medication to the wrong patient
Performing a procedure without patient consent
Performing procedure on wrong patient
Surgically removing the wrong body part
Failing to assess and reassess a patient’s nutritional needs

Omission of an Act
Failure to administer medication(s)
Failure to order required diagnostic tests
Failure to follow up on abnormal test results
Failure to perform “time-out” prior to the start of surgery to ensure the correct procedure is being conducted on the correct patient at the correct site

Malpractice
Negligence of a professional person:
Surgeon who conducts surgery on the wrong body part.
Nurse who administers wrong medication, injuring patient.
Pharmacist who mislabels a medication and the patient is harmed.

Forms of Negligence
Malfeasance
Misfeasance
Nonfeasance

Malfeasance
Execution of an unlawful or improper act.
Performing a partial birth abortion when prohibited by law.
Performing a procedure without having the appropriate credentials.

Misfeasance
Improper performance of an act.
Wrong-sided surgery.
Leaving an instrument in the patient’s body.

Nonfeasance
Failure to act when there is a duty to act.
Failure to prescribe antibiotics when indicated.
Failure to respond to emergency call.

Four Elements of Negligence
Duty to care
Breach of duty
Injury
Causation

Duty to Care
Legal obligation of care imposed on one to safeguard rights of others.
Duty created by statute:
Defendant must have been within specified class of persons outlined in the statute.
Plaintiff must have been injured in a way statute was designed to prevent.
Plaintiff must show that injury would not have occurred if the statute had not been violated.

Standard of Care
Actual performance of an individual in a given situation will be measured against what a reasonably prudent person would or would not have done.

Duty to Hire Competent Staff
A nurse was hired sight unseen over the telephone. The applicant falsely stated in his application that he was a licensed LVN. In reality, he was not an LVN and he had committed 56 criminal offenses of theft. He eventually assaulted a resident.
Court ruled for plaintiff as nursing center failed in its duty to care by not validating the nurse’s license.

Breach of Duty
Must be a deviation from recognized standard of care.
Must be failure to adhere to an obligation.
When a physician fails to respond to on-call emergency room duties.
Failure to perform an adequate history and physical in the emergency department.
Example: Failure to properly diagnose a patient at risk for Ebola and discharging that patient back into the community.

Injury/Actual Damages
Actual damages must be established.
Without injury, damages cannot be awarded.

Causation/Proximate Cause (1 of 2)
Must be a reasonable, close, and causal connection between the defendant’s negligent conduct and resulting damages suffered.
Example: In the Hastings case, a person does not bleed to death in a hospital emergency department over a 2-hour period without some surgical intervention.

Causation/Proximate Cause (2 of 2)
Test for foreseeability is whether a person of ordinary prudence and intelligence should have anticipated danger to others caused by a negligent act.
In the Hastings case, it was highly probable that the patient would die if the bleeding was not stopped.
“The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances.”

Intentional Torts
Assault and battery
False imprisonment
Defamation of character
Invasion of privacy
Infliction of mental distress

Assault and Battery
Assault: Deliberate threat, coupled with apparent ability to do physical harm to another. Actual contact not necessary.
Battery: Intentional touching of another’s person in socially impermissible manner without person’s consent.

Assault
Person attempting to touch another unlawfully must possess apparent present ability to commit battery.
Person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it.

False Imprisonment
Unlawful restraint of individual’s personal liberty or unlawful restraining or confining an individual.

Defamation of Character
Involves communications to someone other than the person defamed that tends to hold that person’s reputation up to scorn and ridicule.
Slander (verbal defamation)
Libel (written defamation)

Invasion of Privacy
Right to
Be left alone
Be free from unwarranted publicity
Be free from exposure to public view
Be free from unwarranted intrusions into a one’s personal affairs
Personal privacy
Have records/kept confidential

Infliction of Mental Distress
Conduct that is so outrageous that it goes beyond bounds tolerated by decent society.

Criminal Law
A crime is any social harm defined and made punishable by law.
Purpose of criminal law:
Maintain public order and safety.
Protect the individual.
Use punishment as a deterrent to crime.
Rehabilitate the criminal for return to society.

Classification of Crimes
Misdemeanor: An offense punishable by less than 1 year in jail and/or a fine.
Example: Petty larceny
Felony: A much more serious crime that is generally punishable by imprisonment in a state or federal penitentiary for more than 1 year.
Examples: Rape, murder

Criminal Procedure
Arrest
Arraignment
Indictment
Conference
Prosecutor
Defense attorney
Criminal trial

Healthcare Fraud
Unlawful act, generally deception for personal financial gain.

Schemes to Defraud (1 of 3)
Billing for services not rendered.
Falsifying a patient’s diagnosis to justify tests, surgeries, or other procedures that are not medically necessary.
Misrepresenting procedures performed to obtain payment for services not covered.
Upcoding services (billing for a more costly service than the one actually performed).

Schemes to Defraud (2 of 3)
Upcoding medical supplies and equipment (billing for more expensive equipment than delivered to the patient).
Unbundling (billing each stage of a procedure as if it were a separate procedure).
Billing for unnecessary services not medically indicated.
Accepting kickbacks for patient referrals.

Schemes to Defraud (3 of 3)
Waiving patient copays or deductibles and overbilling the insurance carrier or benefit plan.
Billing a patient more than the copay amount for services that were prepaid or paid in full by the benefit plan under the terms of a managed care contract.
Overbilling the insurance carrier or benefit plan.

Billing for Unnecessary Procedures
Physician receives 45-year prison sentence for fraud.
The U.S. Supreme Court refused to hear Dr. Fata’s appeal of his conviction for running a scheme that involved billing the government for medically unnecessary cancer and blood treatments.

Home Care Fraud
On the rise
Not easy to detect

Pharmacist Billing Scam
A pharmacist dispensed the generic equivalent of a drug and billed for the higher-cost brand name.
Discuss the ethical and legal issues.

Self-Referrals
Dr. L ordered unnecessary highly expensive esoteric lab tests for his patients. Dr. L referred his patients to a private lab, in which he had 30% ownership.
Discuss the ethical and legal issues.

Ethical and Legal Issues
Ethical issues
Truthfulness
Professional codes of ethics
Legal issues
Fraud

Other Criminal Acts
Manslaughter
Murder
Theft
Medical identity theft

Contracts
A contract is a special kind of agreement, either written or oral, that involves legally binding obligations between two or more parties.

Elements of a Contract
Offer/Communication
Consideration
Acceptance

Kinds of Contracts
Employment contracts
Exclusive contracts
Commercial ethics and noncompetition agreements

Trial Procedure: Pleadings
Summons and complaint
Answer
Bill of particulars

Trial Procedure: Discovery
Process of investigating the facts of a case before trial.
Obtain evidence that might not be obtainable at the time of trial.
Isolate and narrow the issues for trial.
Gather knowledge of the existence of additional evidence that may be admissible at trial.
Obtain leads to enable the discovering party to gather further evidence.

Trial Procedure:
Preparation of Witnesses
The manner in which a witness handles questioning at a deposition or trial is often as important as the facts of the case.
Each witness should be well prepared before testifying.
Preparation should include a review of all pertinent records.

Trial Procedure: Participants
The court
Decides questions of law
The jury
Determines questions of fact

Trial Procedure: Subpoenas
Subpoena: A legal order requiring the appearance of a person and/or the presentation of documents to a court or administrative body.
Subpoena ad testificandum: Orders the appearance of a person at a trial or other investigative proceeding to give testimony.
Subpoena duces tecum: A written command to bring records, documents, or other evidence described in the subpoena to a trial or other investigative proceeding.

Trial Procedure: Opening Statements
Opening statements are provided by:
The plaintiff(s)
The defendant(s)

Trial Procedure: Burden of Proof
The plaintiff is required to show that the defendant violated a legal duty.
The case is dismissed if the evidence does not support the defendant’s allegations.

Trial Procedure: Kinds of Evidence
Direct evidence
Demonstrative evidence
Documentary evidence
Examination of witnesses
Expert witnesses

Defense of One’s Actions
Assumption of a risk
Comparative negligence
Contributory negligence
Good Samaritan laws

Defenses Against Recovery
Ignorance of fact and unintentional wrongs
Statute of limitations
Sovereign immunity

Trial Procedure
Closing statements
Judge’s charge to the jury
Jury deliberation
Damages
Appeals

Review Questions
Describe the objectives of tort law.
Discuss the distinctions among negligent torts, intentional torts, and strict liability.
Explain the difference between a commission and omission of a negligent act.
Explain the difference between negligence and malpractice.

What are the elements that must be proven in order to be successful in a negligence suit? Illustrate your answer with a case. (The facts of the case can be hypothetical.)
Describe the categories of intentional torts.
How does slander differ from libel? Give an example of each.
Describe the objectives of criminal law.
Review Questions

Describe the difference between a misdemeanor and a felony. Give an example of each.
Discuss why physicians have been so reluctant to remove a patient’s life-support systems.
Describe a scheme to defraud.
Explain the elements of a contract.
Describe why exclusive contracts are so controversial.

Review Questions

Describe the trial process, including pretrial motions and the functions of the judge, jury, and attorneys.
Describe the kinds of evidence that a plaintiff can present in order to establish a negligent act.
What defenses can a defendant present in order to refute a plaintiff’s evidence?
Review Questions

Describe how statutes of limitations favor defendants in a lawsuit.
Describe the various types of damages that can be awarded a plaintiff.
Explain why either the plaintiff or defendant may wish to appeal a jury’s verdict.
Review Questions