Ethical and Legal Issues in Health Care? Assignment Content 1. Describe the major functions of each branch of government. 2. Archaeologists have discovered hospitals dating bac

Reflections of the Past

History is relevant to understanding the Past, defining the Present, and influencing the Future.

History, despite its wrenching pain, cannot be unlived, but if faced with courage, need not be lived again. −Maya Angelou

Hindu & Early Egyptian Hospitals • 6th century BC: Buddha appointed a physician for every 10 villages

– built hospitals for the crippled & the poor; – Provided Fresh Fruits & Vegetables – Administered Medications – Provided Massages – Maintained Rules of Personal Cleanliness

Hindu Physicians • Took Daily Baths • Keep Hair & Nails Short • Wore White Clothes • Respected Confidence of Patients

Egyptian Physicians • Used Castor Oil & Opium • Used Wooden Mallet for Anesthesia • Surgery mostly limited to Fractures • Medical Care in the Home • Temples functioned as Hospitals

Early Greek & Roman Hospitals • Hospital derives from Latin word hospitalist, which relates to guests & their treatment • Early use of these institutions not merely as places of healing but as havens for the poor & weary

travelers • Medical Practice Rife with Mysticism

Greek Temple Medicine – I • Hospitals first appeared in Greece as Aesculapia

– named after Greek god of medicine • Patients Presented Gifts before Altar • Greek Temples – Refuge for Sick • Holistic Medicine – Body & Soul • Medications – Salt, Honey, Sacred Springs • Hot & Cold Baths • Sunshine, Sea Air, Pleasant Vistas • Libraries for Visitors

Temple at Epidaurus • 1st Clinical records

– Inscribed on columns of temple – Recorded

• Patients Names • Brief Histories • Treatment Outcomes

Hippocrates – The Physician • Noted for:

– Principles of Percussion & Auscultation

– Performed surgery – Wrote about fractures – Described Epilepsy, TB, Malaria, & Ulcers – Maintained detailed records

Early Christian Era • Hospitals Outgrowth of Religion • Care included – Magical & Religious Rites • Doctrines of Jesus – Love & Pity • Sick treated outside temples & churches

Islamic Hospitals • Luxurious hospital accommodations frequently provided School at Gundishapur • Medical care free • Gundishapur

– home to world’s oldest known teaching hospital Persian Physician Rhazes • Skilled in Surgery • Used Sheep Intestines for Suturing • Cleansed Wounds with Alcohol • 1st descriptions of smallpox & measles

Islamic Medicine – I • Inhalation Anesthesia • Precautions against Adulterated Drugs • Origination of New Drugs • Asylums for Mentally Ill • Brilliant beginnings in Medicine • Promise that glowed in early medicine not fulfilled • Wars, Politics, Superstitions, stunted growth

Early Military Hospitals – I • Limestone pillar – 2920 B.C.

– Pictures illustrating wounded • Moses laid down rules of Military Hygiene • Hippocrates – “war is the only proper school for a surgeon” • Under Romans, Surgery Advanced

– Experience through military surgery Medieval Hospitals – I • Religion – dominant influence in hospitals • England built Municipal Hospitals • Military Hospitals during Crusades • Lazar Houses Established

Hotel Dieu of Paris • Provided rooms for various stages of disease • Provided room for Convalescents • Provided room for Maternity Patients • Two persons often shared 1 bed • Draperies not washed, infection spread • Patients often worked on hospital’s farm

Dark Age of Hospitals • Hospitals Commonly crowded patients into one bed • Monks preserved the writings of Hippocrates • Al-Mansur Hospital, built in Cairo in 1276

– Equipped with separate wards for the more serious diseases – laid the groundwork for hospital progress to come in later centuries

Hospitals of the Renaissance – I • Building of hospitals continued • New Drugs • Anatomy – Recognized Study • New writings Printed • New writings Printed • Dissections Performed • Surgery was more scientific • Van Leeuwenhoek- Microscope

Hospitals of the Renaissance – III • 16th Century

– Hospitals associated with Catholic Church ordered by Henry VIII to be given over to secular uses or destroyed

– Sick Turned into Streets – Hospitals conditions intolerable – St. Bartholomew’s restored

Hospitals of the Renaissance – III • Long robed surgeons

– Trained in universities – Permitted to perform all surgeries – Royal College of Surgeons founded-1540

• Short robed surgeons (barber-surgeons) – Generally allowed only to leech & shave

Hospitals of the 18th Century • Royal College of Physicians Establishes Dispensary

– Medications Distributed at cost to Poor – Free Medical Care for Poor – Controversies & lawsuits

• Untimely End to Early Clinic Westminster Charitable Society • Established Similar Dispensary in 1715 • Established Westminster hospital in 1719

– Infirmary built – voluntary subscription – Staff provide services gratuitously

• Deterioration of hospitals continues

Early Hospitals in the U.S. – I • Manhattan Island

– 1st account of hospital for sick soldiers • Philadelphia

– 1st Almshouse Established – Philadelphia – The Pennsylvania Hospital – 1st chartered

• Williamsburg, VA – Site of 1st Psychiatric Hospital

Early Hospitals in the U.S. – II • Hotel-Dieu Paris, Dr. Jones wrote

– 3-5 patients placed in 1 bed – Convalescent patients placed with dying – Fracture cases placed with infectious cases – 1/5th of 22,000 patients died each year – Patient wounds washed with same sponge – Infection rate said to be as high as 100%

– Mortality after amputation as high as 60% Early Hospitals in the U.S. – III • Increase in Surgical Procedures • Inappropriate Wound Care Administered • Wards Filled with Discharging Wounds • Nurses of that period are said to have used snuff to make conditions tolerable

Late 19th Century Renaissance – I • Nurses used Snuff to make Conditions Tolerable • OR Coats Worn for Months without Washing • Same Bed Linens Served Several Patients • Mortality from Operations 90 to 100%

Late 19th Century Renaissance – II • Florence Nightingale improves care

– Considered 1st hospital administrator – Founded Nightingale School of Nursing – 1860

• Crawford Long uses ether as anesthetic to remove small tumor • American Medical Association founded – 1847 • Chloroform 1st used as an anesthetic – 1847

Mass General Hospital – 1846 • W.T.G. Morgan Develops Sulfuric Ether • Morgan arranges for 1st operation under Anesthesia, using ether vapors

– Surgery at Operating Theater – Mass General W.T.G. Morgan • Morgan performed surgery with on looking skeptical audience • Audience Astonished

– Patient did not Scream • “Gentlemen,” Dr. Warren proclaimed, “this is no humbug!” • Discipline of anesthesiology was born.

Semmelweis Of Vienna • Determined Deaths from Puerperal Fever of Maternity patients

– due to infections transmitted by students leaving dissecting room to take care of maternity patients without washing hands.

Civil War Days • As many as 25 to 50 beds in ward • Little provision for segregation of patients.

Roosevelt Hospital – 1871 • Built on lines of pavilion • small wards • set the style for new type of architecture

– became know as the American plan Dr. W.G. Wylie – 1877 • Favored Roosevelt Hospital pavilion • Wylie advocated temporary structure

– to be destroyed when it became infected. America's 1st Nursing Schools • Brigham and Women’s Hospital – 1872 • Bellevue – 1873 • Massachusetts General Hospital – 1873

Medicine 1880 – 1890 • Tubercle Bacillus Discovered • Pasteur vaccinated against anthrax • Koch Isolates Cholera Bacillus

• Diphtheria 1st treated with antitoxin • Tetanus Bacillus & Parasite of Malarial Fever Isolated • Rabies Inoculation Successful • Halstead & Rubber Gloves – 1890 • Bergmann & steam sterilization – 1886 • Roentgen discovers the X-ray – 1895

19th Century Inventions • Clinical Thermometer • Laryngoscope • Hermann Helmholtz Ophthalmoscope

Medicine 1880 – 1890 • Hospitals crowded, patients suffering

– Scarlet Fever – Diphtheria – Typhoid – Smallpox

• Most Disorders Untreated for – Metabolism – Glandular Disturbances – Nutritional Diseases

20th Century Progress • Development of New Services • Progress of Non-profit Insurance Plans • Increased Public Confidence in Hospitals

20th Century Inventions • Einthoven invents Electro-cardiograph • Wassermann Test for Pancreatic Function • Introduction of Radium for Treatment of Malignant Growths • Increased use of Examination of Tissue

Hospital Standardization – 1918 • American College of Surgeons – development of “Minimum Standards” for Hospitals • Established Requirements for Care of Patients • First Survey Conducted – 1918 • Became “Joint Commission on Accreditation of Hospitals” in 1952 • Today known as The Joint Commission

1929 Trying Period for Hospitals • Critical economic conditions • Lowered bed occupancy • Decreasing revenues from endowments

Latter Half of 20th Century • Increased hospital competition • Many advances in medical technology

– CT, MRI, & PET scanners • For-profit chains spring up • Competing delivery systems • Many new medications introduced

The 21st Century • 47 Million Uninsured Americans • Skyrocketing malpractice insurance premiums • High expectations of the public for miracles • Zero tolerance for mistakes

The 21st Century- 2

• Ethical Dilemmas (e.g., human cloning) • Era of information explosion • Physicians exiting the marketplace • Shortages of nurses, physical therapists • National Health Reform

– Insurance • Boutique Medicine

Just a Beginning Because history often repeats itself, society must learn from its many lessons; otherwise, it will be doomed for a return to the dark ages of medicine.

Research: National Library of Medicine • Library collection contains 6 million items • One of worlds finest medical history collections • Website: www.nlm.nih.gov

What we have come to expect, and Our future directions, Have been influenced by what has preceded us. −Author Unknown

Tort Law and Reform

Tort • A civil wrong, other than a breach of contract, committed against a person or property for

which a court provides a remedy in form of an action for damages. Objectives of Tort Law • Preservation of peace between individuals. • Find fault for wrongdoing. • Deterrence by discouraging the wrongdoer from committing future tortious acts • Compensation to indemnify injured person/s.

Categories of Tort Law • Negligence • Intentional • Strict liability regardless of fault

– e.g., products liability 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 the wrong medication • Administering the wrong dosage of a medication • Administering medication to the wrong patient • Performing a surgical procedure without patient consent • Performing a surgical procedure on the wrong patient • Performing the wrong surgical procedure

Omission of an Act • Failing to conduct a thorough history & physical examination • Failing to assess & reassess a patient's nutritional needs • Failing to administer medications • Failing to order diagnostic tests • Failing to follow up on abnormal test results

Malpractice • Negligence of a professional person

– surgeon who conducts a surgical procedure on wrong body part Criminal Negligence • Reckless disregard for safety of another. • Willful indifference to injury that could follow an act.

Forms of Negligence • Malfeasance

– Execution of an unlawful or improper act, i.e., performing a partial birth abortion when prohibited by law

• Misfeasance – Improper performance of an act, i.e., wrong sided surgery.

• Nonfeasance

– Failure to act when there is a duty to act, i.e., failing to prescribe medications that should have been under the circumstances

Degrees of Negligence • Slight

– Minor deviation of what is expected under the circumstances. • Ordinary Negligence

– Failure to do what a reasonably prudent person would or would not do. • Gross Negligence

– Intention or wanton “omission of care” that would be proper to provide or the “commission of an act” that would be improper to perform.

Elements of Negligence • Duty to Use Due Care

– Standard of care • Breach of Duty • Injury/Actual Damages • Proximate Cause/Causation

– Foreseeability I. Duty to Care • Obligation to conform to a recognized standard of care.

Standard of Care • Describes the conduct expected of an individual in a given situation. • Describes how a “reasonably prudent person” would or would not act under “similar

circumstances”. • Measuring stick for properly assessing actual conduct required of an individual.

Reasonably Prudent Person • A nonexistent – hypothetical person who is put forward as community ideal of what

would be considered reasonable behavior. Similar Circumstances • Circumstances at the time of the injury. • Circumstances of the alleged wrongdoer/s at the time of injury.

– Age – Physical condition – Education & training – Licenses held – Mental capacity, etc.

Determining Standard • Established by legislative enactment or administrative regulation. • Adopted by the court from a legislative enactment or administrative regulation. • Established by judicial decision. • Applied to the facts of the case by the trial judge or jury, if there is no such enactment,

regulation or decision. – courts often rely on testimony of an expert witness as to the standard of care

required. Community v. National Standard • Community Standard

– hometown standard (we want to do things our way).

• National Standard – most currently accepted standard of care on a national basis.

Case: Hiring Practices • Nurse hired sight unseen over telephone. • Applicant falsely stated in an employee application that he was licensed as an LPN. • His license was not verified by the employer. • He had committed 56 criminal offenses of theft. • He assaulted a resident a resident & broke his leg.

Case: Hiring Practices Duty • Standard expected:

– Employer had a “duty” to validate the nurse’s professional license. II. Breach of Duty • Deviation from the recognized standard of care. • Failure to adhere to an obligation. • Failure to conform to or the departure from a required duty of care owed to a person. • Occurs when

– a physician fails to respond to his/her on-call duties. – an employer fails to adequately conduct a pre-employment check (e.g., licensure,

background check). Case: Hiring Practices Breach of Duty • The employer failed to verify the applicant’s licensure. • A more thorough background check should have revealed this employee’s previous

criminal conduct.

III. Injury • Actual damages must be established. • If there are no injuries, no damages are due.

Case: Hiring Practices Injury • The resident suffered a broken leg. • Hospital vicariously liable for nurse’s conduct.

IV. Causation • Proximate cause

– breach of duty was the proximate cause of the injury • But-for Rule

– the defendant’s action, the injury would not have occurred – Case: Hiring Practices

Causation • Reasonable anticipation that harm or injury was likely to occur.

– The patient suffered a broken leg • Departing from recognized standard of care

– failure to verify licensure & conduct an adequate background check Hiring Practices – III • Injury resulted from the breach of duty. • Injury was foreseeable.

Failure to Hydrate Causation • Failure to administer proper hydration.

– Not unreasonable to conclude that one’s dehydration can be caused by failing to provide water.

Foreseeability • Reasonable anticipation that harm or injury is likely to result from an act or an omission

to act. Test for Foreseeability • The test for foreseeability is whether a person of ordinary prudence and intelligence

should have anticipated danger to others caused by his or her negligent act. Case: Hiring Practices Foreseeability • A person of ordinary prudence and intelligence should have anticipated the danger to the

resident caused by the employer’s negligent act. Hot Radiator Foreseeability • A patient’s left foot came in contact with a radiator and she suffered third-degree burns. • The defendant had knowledge of the plaintiff’s condition. • The defendant should have shielded the radiator or not placed the plaintiff next to it.

Sponge & Instrument Count • Dr. Smith owns the local Outpatient Surgery Center. • He instructs employees to count all instruments & surgical sponges following a surgical

procedure, prior to closing the surgical site. • Annie, an employee, failed to conduct the count following Bills surgery. • Two months later, Bill, suffering from extreme abdominal pain, was noted to have

several sponges and an instrument in his abdomen. • He had developed a massive infection. • Was the doctrine of Vicarious liability applicable in this case? • YES • Even though Annie had strict instructions to count the sponges & surgical instruments

prior to closing the surgical site, she failed to do so. • To determine otherwise would undermine the doctrine of vicarious liability, since

employers would almost always escape liability by presenting evidence that employees were given careful instructions.

Failure to Follow Instructions • Sarah has a minor surgical procedure under general anesthesia at ABC Surgery Center. • She was instructed not to drive home after release. Her daughter Leslie picks her up. • On the way home Leslie stops for a donuts. Meanwhile, her mother moves to the driver

seat. • Upon leaving the parking lot, Sarah hits Carol’s car. • Carol sustains a broken arm & sues ABC for releasing Sarah before she is completely

recovered from the anesthesia. • Was the hospital liable for Sarah’s injuries?

NO! • Sarah was negligent, not the hospital. She failed to adhere to both verbal & written

instructions not to drive following anesthesia. • It was Sarah’s duty not to drive and her breach of that duty that caused Carol’s injury.

Remember • The four elements of negligence must be presented in order for the plaintiff to recover

damages caused by negligence.

Intentional Torts • Assault and Battery • False Imprisonment • Defamation of Character • Fraud • Invasion of Privacy • Intentional Infliction of Mental Distress

Assault • Deliberate threat, coupled with apparent ability to do physical harm to another. Actual

contact not necessary. 1. Person attempting to touch another unlawfully must possess apparent present ability to

commit battery. 2. Person threatened must be aware of or have actual knowledge of an immediate threat of a

battery and must fear it. Battery • Intentional touching of another’s person in socially impermissible manner without

person’s consent. • Failure to obtain consent prior to surgery. • Administering blood against patient’s express wishes. • Physically restraining one who refuses to eat.

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

individual. • Restraining patient without cause. • Locking patient in secluded room for failing to attend therapy session.

Legal Justification for Restraint or Seclusion • Person represents a danger to self or others. • Criminal conduct. • Persons with highly contagious diseases, as provided by state or federal statutes.

Reducing Use of Restraints – I • Development of policies and procedures that conform to state & federal guidelines • Education & orientation of staff • Education for patients & families • Sound appraisal of need for restraints • Application of least restrictive restraints • Continuous monitoring of patients to determine continuing need for restraints

Defamation of Character • The offense of injuring a person’s character, fame, or reputation by false & malicious

statements. • False oral or written communications to someone other than person defamed that tends to

hold that person’s reputation up to scorn or ridicule in eyes of others. Defamation of Character • Libel – written form of defamation

– Signs – Letters – Photographs

– Cartoons • Slander – oral form of defamation

Proof of Defamation • A false & defamatory statement. • Communication of a statement to a person other than the plaintiff. • Fault on the part of the defendant. • Special monetary harm.

Proof of Harm Not Required to recover damages when: • Accusing a person of a crime. • Accusing a person of having a loathsome disease. • Using words are harmful to a person’s profession or business. • Calling a woman unchaste.

Libel – Performance Appraisals • Performance appraisals are not meant for general publication. • To recover damages, the appraisal must be published in defamatory manner that injures

one’s reputation. Cartoon – I • Jack draws a cartoon depicting Paul having a rendezvous with a new grad nurse in an

empty patient room. The incident in fact never occurred. • Can a defamatory statement can take the form of a cartoon? • Yes, a defamatory statement can take the form of a cartoon because it is capable of

adversely affecting a person’s reputation. Newspapers Articles • Newspaper editorial cartoon depicting 3 persons resembling gangsters in dilapidated

building, identified as particular facility that had been closed by state order, was an expression of pure opinion and was protected by 1st Amendment.

Accused of an Affair • Nurse Rachet suggests to Dr. Smith that he should leave his wife Sharon because she is

having an affair with Dr. Doe. Dr. Smith writes a letter to Mrs. Doe, repeating Rachet’s statement.

• Assuming Dr. Smith’s letter is defamatory, is it libel or slander? Accused of an Affair • It is libel, even though Dr. Doe is repeating a slanderous statement. • The reverse is not true – the spoken repetition of a written defamation is still considered

libel. • The rule is: once libel, always libel.

Slander • Person who brings suit must prove special damages. • When defamatory words refer to person in professional capacity, professional need not

show that words caused damage. Defenses to a Defamation Action • Truth – no liability for defamation if it can be shown that statement is true. • Privilege

– Absolute – Qualified

Absolute Privilege

• Statements made during judicial & legislative hearings • Confidential communications between spouses

Qualified Privilege • Statements made as result of a legal or moral duty to speak in interests of 3rd persons

– Statements must be without malice Public Figures • Vulnerable to public scrutiny • Suits generally dismissed in absence of

– malice – actual knowledge statements are false – recklessness as to truth

Proof of Fraud • Misrepresentation by the defendant. • Knowledge of falsity. • Intent to reduce reliance on misrepresentation. • Justifiable reliance by the plaintiff. • Damage to the plaintiff.

Health Care Fraud • Billing Tradename Drugs/Issuing Generic • Office Visits/Double Billing • Billing for Services not Rendered • Accepting referral fees

Invasion of Privacy • The 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

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

Mental Distress • Grief • Shame • Public humiliation • Despair • Shame • Human pride

Mental Distress • Mother shown premature infant in a jar.

Johnson v. Womens Hospital • Verbally abusive physician to patient and/or spouse.

Greer v. Medders Fraud

• Willful & intentional misrepresentation that could cause harm or loss to person or property. – e.g., purposeful concealment from patient of the presence of surgical sponges in

his/her abdomen following surgery. Products Liability • Liability of a manufacturer, seller, or supplier of chattels to a buyer, or other third party

for injuries sustained because of a defect in a product. Products Liability Legal Theories • Negligence • Breach of warranty

– Express – Implied

• Strict liability Negligence • Duty

– Product manufactured by the defendant • Breach

– Product defective when it left the manufacturer •