Ethical and Legal Issues in Health Care Essayy Hint Essayy: Intro/ Summary/ Conclusion -Hospital-based scenario -Alleged pattern of sexual harassment of hospital employees by a powerful

Government, Law, and Ethics

“Laws are the very bulwarks of Liberty; they define every man’s rights and defend the individual Liberties of all men.” J.G. Holland (1819-1881)

Judicial Branch • When government bureaus & agencies go awry, which are adjuncts of the legislative or

executive branches, the people flee to the third branch, their courts, for solace & justice. Federal Court System • District Courts • U.S. Circuit Court of Appeals • Supreme Court

U.S. District Court • Trial courts of the Federal System • 96 Courts • Jurisdiction over all categories of federal cases

– including civil & criminal matters U.S. Court of Appeals • Created to help reduce workload of U.S. Supreme Court

– 12 Regional Court – 1 Judicial Circuit in DC

• Reviews – District court decisions – Administrative agency decisions – U.S. Supreme Court

• Highest federal court • Only court created by federal constitution • Comprised of 8 Associate & 1 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 S. D.

Separation of Powers Model for Government • Under this model government is divided into branches • Each branch

– has separate & independent powers – areas of responsibility – each branch is also able to place limited restraints on the power exerted by the

other branches. Dept of Health & Human Services (DHHS) • Centers for Medicare & Medicaid Services (CMS)

Public Health Service includes: • National Institutes of Health • Centers for Disease Control and Prevention • Substance Abuse & Mental Health Services Administration • Health Resources & Services Administration • Agency for Healthcare Research and Quality • Agency for Toxic Substances & Disease Registry • Indian Health Service

Laws • Govern the relationships between private individuals and organizations; and between

both of these parties and government. Categories of Law • Public Law

– Deals with the relationships between government and individuals. • Private Law

– Deals with relationships among individuals. Sources of Law • Common Law

– derived from judicial decisions. • Statutory Law

– written laws • Administrative Law

– public law, rules & regulations issued by administrative agencies to direct the enacted laws of the federal and state governments.

Common Law in U.S. • Body of principles that has evolved and expanded from judicial decisions. • Origins in English Common Law.

Common Law Principles • Precedent:

– a judicial decision that may be used as a standard in subsequent similar cases. • Res Judicata:

– means the thing is decided—refers to that which has been previously acted on or decided by the courts.

• Stare Decisis: – common-law principle meaning let the decision stand. – based on similar cases and fact patterns.

Statutory Law • Written law emanating from a legislative body.

– Hierarchical Order – U.S. Constitution: highest in hierarchy of laws – State Constitution

Constitution: Article VI • This Constitution and Law of the United States . . . Shall be the supreme Law of the

Land; and the Judges in every State shall be bound thereby . . . .

Administrative Law • Extensive body of public law issued by administrative agencies to direct enacted laws of

federal & state governments. Administrative Procedures Act – I • Describes different procedures under which federal administrative agencies must operate. • Prescribes procedural responsibilities & authority of administrative agencies.

Administrative Procedures Act – II • Provides legal remedies for those wronged by agency actions. • Rules & regulations established by administrative agency must be administered within

scope of authority delegated Congress. Conflict of Laws • When state & federal laws conflict

– Resolution sought in appropriate federal court. GOVERNMENT ETHICS • Office of Government Ethics • U.S. House of Representative Committee on Ethics • U.S. Senate Select Committee on Ethics • Office of Congressional Ethics

Political Malpractice • Failure of to act when there is a duty to act.

The tragedy of society is not the noisiness of the so-called bad people, but the appalling silence of the so-called good people. −Martin Luther King, Jr. .

Contracts

Contract • A special agreement, written or oral, that involves legally binding obligations between

two or more parties. Purpose of a Contract • To specify, limit, & define agreements that are legally enforceable. • A contract forces the participants to be specific in their understandings & expectations of

each other. • Contracts serve to minimize misunderstanding & offer a means for parties of a contract to

resolve disputes that may arise. Types of Contracts – I • Express

– Oral – Written

• Implied • Voidable

Elements of a Contract – I • Offer • Consideration

– Adequacy Elements of a Contract – Acceptance • Meeting of the Minds • Definite & Complete • Duration • Complete and Conforming

Breach of Contract • Occurs when there is a violation of one or more of the terms of the contract. • Elements necessary to establish a breach

– a valid contract was executed. – plaintiff performed as specified in the contract. – defendant failed to perform as specified in the contract. – plaintiff suffered economic loss as a result of defendant's breach of contract.

Competent Parties • Corporations • Partnerships • Agents • Independent Contractors

Legality of Object • To be a valid contract, the contract must not violate any federal or state statute, law, rule

or regulation. Conditions • Act/s or event/s that must occur or be performed by one party before the 2nd party has any

responsibility to perform under the contract. Performance

• Substantial performance by one party to a contract will obligate the other parties to perform.

Nonperformance Defenses – I • Fraud • Mistakes

– Mistake of Fact – Mistake of Law

• Duress • Illegal Contract • Impossibility • Statute of Limitations

Remedies • Specified Performance • Monetary Damages • General & Consequential Damages • Duty to Mitigate Damages

Employment Contracts • Express Agreement • Implied Contracts

Text Cases: Employment Contracts • Nurse Breaches Contract:

– Repayment of Tuition Required • No Express Agreement: Right to Terminate • Restrictive Covenant Enforceable • Restrictive Covenant Not Enforceable

Employee Handbooks – I • Elements necessary to establish employee handbook as a contract:

– policy statement that clearly sets forth a promise the employee can construe to be an offer

– policy statement must be distributed to the employee, making him or her aware of the offer

– after learning about the offer & policy statement, the employee must “begin” or “continue” to work

Employee Handbooks – II • Hospital Violates Provisions of Employee Handbook • Handbook Not a Contract Due to Disclaimer • Termination of Contract Due to Insubordination

Medical Staff Bylaws a Contract • Applicants for appointment to a medical-dental staff submit a signed application attesting

he has read & agree to accept & abide by the bylaws. • The physician promises to abide by the medical staff bylaws in exchange for medical

staff privileges. • Exchange of promises, constitutes consideration to support any contract of this bilateral

nature. Exclusive Contracts

• An organization often enters into an exclusive contract with physicians or medical groups for the purpose of providing a specific service to the organization.

• Exclusive contracts generally occur within the organization's ancillary service departments (e.g., radiology, anesthesiology, and pathology).

Noncompetitive Contract Clauses • Often included in employment agreements.

– Agreement not to practice within agreed upon geographic area. – Legal counsel should be sought prior to executing such agreements.

Transfer Agreements – I • Identification of parties to agreement • Purpose of agreement • Policies & procedures for transfer • Organizational responsibilities for transfer • Exchanging/Sharing information

Transfer Agreement – II • Retention of autonomy • Procedure for settling disputes • Procedure for modification or termination • Sharing of Services • Publicity • Exclusive v. Non-exclusive agreement

Insurance Contracts • Form of risk management used primarily to hedge against risk of potential loss. • Insurer obligation to indemnify insured for losses caused by specified events. • Insured pays fixed premium

Nursing and the Law

Scope of Practice • Permissible boundaries of practice for health care professionals, defined in state statutes,

which define the actions, duties, & limits of nurses in their particular roles. • Role of nurse continues to expand due to

– shortage of primary care physicians – ever-increasing specialization – improved technology – public demand – expectations within the profession itself.

Nurses Pressing for More Autonomy In 11 states, they are pushing legislation that would permit nurses with a masters degree

or higher to order and interpret diagnostic tests, prescribe medications and administer treatments without physician oversight. Similar legislation is likely to be added soon in three other states. –N.C. Aizenman, The Washington Post, March 25, 2012 NURSING DIAGNOSIS • Various states recognize that nurses can render a nursing diagnosis.

– e.g., Section 335.01(8) of the Missouri Revised Statutes (1975) authorizes an RN to make an assessment of persons who are ill and to render a nursing diagnosis.

CLASSIFICATION NURSE STAFF • Various states recognize that nurses can render a nursing diagnosis.

– e.g., Section 335.01(8) of the Missouri Revised Statutes (1975) authorizes an RN to make an assessment of persons who are ill and to render a nursing diagnosis.

Nurse Licensure I • Requirements for Licensure

– Reciprocity • agreement between states whereby a nurse licensing board in one state

recognizes licensees of another state . – Endorsement

• boards determine if out-of-state nurses' qualifications are equivalent to their own state requirements at the time of initial licensure.

Nurse Licensure II – Waiver

• When applicants do not meet all the requirements for licensure but have equivalent qualifications, the specific prerequisites of education, experience, or examination may be waived.

– Examination • Some states will not recognize out-of state licensed nurses & make it

mandatory that all applicants pass a licensing examination. Suspension & Revocation • Violations may include

– procurement of a license by fraud – unprofessional, dishonorable, immoral, or illegal conduct – performance of specific actions prohibited by statute

– malpractice. Practicing without a License • Health care orgs are required to verify each nurse's license is current. • Mere fact that an unlicensed practitioner is hired will not generally in & of itself impose

additional liability unless a patient suffered harm as a result of an unlicensed nurse's negligence.

CLASSIFICATION OF NURSE STAFF

Nurse Managers – I • Chief nursing officer has responsibility for:

– maintaining standards of practice – maintaining current p & ps – recommending staffing levels – coordinating & integrating nursing services with other patient care services – selecting nursing staff – developing orientation and training programs.

Nurse Managers – II • Failure to supervise

– can lead to disciplinary action Registered Nurse • Graduation from accredited nursing program • Pass national licensing exam

– National Council Licensure Examination LPNs & LVN

– Graduation from accredited nursing program – Pass a licensing exam approved by the state – Routine nursing care

• vital signs, injections, assist patients, etc. • under direction of an RN or physician

Certified Nurse Assistant • Aide who has been certified & trained to assist patients with activities of daily living

under the direction & supervision of an RN or LPN. • Help with positioning, turning, lifting & performing a variety of tests * treatments. • Case: Failure to follow policy & safe practices

Float Nurse • Nurse who rotates from unit to unit based on staffing needs. • Can benefit understaffed unit but also may present a liability as well if they are assigned

to work in an area outside their scope of expertise. • If a patient is injured due to floater's negligence, standard of care required will be that

required of a nurse on the assigned patient care unit. Agency Staff • Risk for negligent conduct of agency staff. • Agency workers must have necessary skills & competencies to carry out duties &

responsibilities assigned.

• Case: Resuscitation of Choking Child Fails Special-Duty Nurse • A health care professional employed by a patient or patient's family to perform nursing

care for the patient. • If a master-servant relationship exists between the org & special-duty nurse, doctrine of

respondeat superior may be applied to impose liability on the org for nurse's negligent acts.

Traveling Nurse • Nurse who travels to work in temporary nursing positions in different cities and states.

– independent contractors or – elect to work with one or more recruitment agencies

• Opportunities that include higher wages. • Skills enhanced with exposure to intriguing assignments. • Student Nurse • Student nurses are entrusted with the responsibility of providing nursing care to patients. • Students are personally liable for their own negligent acts, & the facility is liable for their

acts on basis of respondent superior. • Student nurse are held to the standard of a competent professional nurse when performing

nursing duties

ADVANCED PRACTICE NURSES

The Role of Nurses Extends Beyond the Hospital Ward A nurse is a doctor’s best friend, according to Marvin M. Lipman, Consumers Union’s

chief medical adviser. This advice was given to him by a hospital ward’s head nurse when he was a third-year medical student making contact with patients for the first time, along with the suggestion that he’d do well not to forget it. –Consumers Union of United States Inc., The Washington Post, May 30, 2011

Nurse Practitioners • RNs who have completed education to engage in primary health care decision making. • Trained in delivery of primary health care & assessment of psychosocial & physical

health problems such as the performance of routine examinations & ordering of routine diagnostic tests.

• NP Negligence – Responsible for negligent acts – Can imputed to physician

The Role of Nurses Extends Beyond the Hospital Ward Nurse practitioners . . . Studies have found that their ability to diagnose illnesses, order

and interpret tests, and treat patients is equivalent to that of primary-care physicians. They also tend to spend more time with patients during routine office visits than physicians, and they are more likely to discuss preventative health measures. As of 2010, 140,000 NPs were working in the United States. –Consumers Union of United States Inc., The Washington Post, May 30, 2011

Clinical Nurse Specialist – I • Clinical nurse specialist is a professional RN with an advanced academic degree,

experience, and expertise in a clinical specialty (e.g., obstetrics, pediatrics, psychiatry). • CNS acts as a resource for the management of patients with complex needs and

conditions. • The CNS participates in staff development activities related to his or her clinical specialty

& makes recommendations to establish standards of care for those patients. Clinical Nurse Specialist – II • CNS functions as a change agent by influencing attitudes, modifying behavior, &

introducing new approaches to nursing practice. • CNS collaborates with other members of the health care team in developing and

implementing the therapeutic plan of care for patients.ard of care Certified Nurse Anesthetist • Education and Certification • Oversight of an anesthesiologist often required • Major risks include

– improper placement of an airway – failure to recognize significant changes in a patient's condition – improper use of anesthetics

Nurse Midwife • Provide

– delivery for patients at low risk for complications – often manage normal prenatal, intrapartum, & postpartum care.

LEGAL RISKS OF NURSES

Nursing Diagnosis – I • Defendant physicians ignored nurse's assessment of patient's diagnosis, which

contributed to delay in treatment & injury to the patient. Nurse testified that she told the physician that patient's signs & symptoms were not those associated with indigestion. Defendant physician objected to this testimony, indicating that such a statement constituted a medical diagnosis by a nurse. The trial court permitted the testimony to be entered into evidence.

What do you think happened on appeal? Nursing Diagnosis – II • Missouri Court of Appeals affirmed lower court's ruling, holding that evidence of

negligence presented by a hospital employee, for which an obstetrician was not responsible, was admissible to show events that occurred during patient's hospital stay. – See text case: Cignetti v. Camel

Medications Errors – I • Failure to administer drugs • Failure to document drug wastage • Administering drugs without a prescription • Failure to clarify orders

Medications Errors – II • Administering wrong dosage • Administering Drugs by the Wrong Route • Failure to discontinue a drug • Failure to note a change order

Negligent Injection • Nurse negligently injected the tetracycline into or adjacent to the sciatic nerve, causing

the patient to permanently lose the normal use of the right foot. Failure to Follow Physician’s Orders • Nurses caused permanent drop foot to the patient. • They failed to follow the doctor’s verbal orders to watch the patient closely & to place

him in one continuous passive motion machine at a time during physical therapy. Failure to Record Patient’s Care

Nurse admitted she failed to record site & mode of injection in ED records. According to testimony of two experts, failing to record this information is below standard of care for nursing. Although these omissions could not have affected administration of the injection, they tend to indicate that in this instance the nurse did not follow accepted procedure while performing her job.

Failure to identify Correct Patient • Surgical staples removed-wrong patient

Meena v. Wilburn – Chart was not checked – Wrist band was not checked – Wrist band was not checked against chart

Infections • Cross Contamination • Failure to Notify Physician • Failure to follow established procedures

– Infection control – Sterile technique

Negligent Care Causes Laceration – I • Plastic cup as arm guard?

– Morris alleged from personal observation that the laceration to her daughter's arm was caused by the jagged edges of a plastic cup that had been split & placed on her arm to guard an IV site. • Text case: Morris v. Children’s Hospital Medical Ctr. • Was this a breach of the standard of care for nurses?

Negligent Care Causes Laceration – II • A nurse, in her affidavit, who stated her qualifications as an expert, expressed her opinion

that the practice of placing a split plastic cup over an IV site as a guard constituted a breach of the standard of nursing care.

Failure to Follow Instructions • Failure of a nurse to follow the instructions of a supervising nurse to wait for her

assistance before performing a procedure can result in revocation of the nurse's license. • Heart monitor was connected incorrectly & resulted in an electrical shock to the infant.

• Dangers of electric cords are within the realm of common knowledge. • Record showed the nurse failed to exercise ordinary care in connecting the infant.

– Text Case: Cafiero v. North Carolina Board of Nursing Failure to Report: Physician’s Negligence • Note changes in patient’s condition • Report changes in patient’s condition

– Prompt notification required – Physician failure to respond – Need to report “all” patient symptoms

Failure to Question Discharge – I • Premature Discharge

– A nurse has a duty to question the discharge of a patient if he or she has reason to believe that such discharge could be injurious to the health of the patient. • See text case: Koeniguer v. Eckrich

Failure to Question Discharge – II Swollen Beyond Recognition • The hospital's negligence is based on acts of omission, by failing to have the patient

examined by a physician and by discharging her in pain. • The evidence presented a woman conscious of her last days on earth, swollen beyond

recognition, tubes exiting almost every orifice of her body, in severe pain, and who deteriorated to the point where she could not verbally communicate with loved ones. – See text case: NKC Hosps., Inc. v. Anthony

Failure to Note Changes in Patient’s Condition – I • Nurses have responsibility to observe the condition of patients under their care & report

any pertinent findings to the attending physician. • Failure to note changes in a patient's condition can lead to liability on the part of the

nurse & organization. Failure to Recognize Patient Stopped Breathing • Nurse assigned to monitor a postsurgical patient, left the patient, & failed to recognize the

patient stopped breathing. The nurse had been assigned to monitor the patient in the recovery room. She delegated that duty to another nurse & failed to verify the nurse accepted the responsibility. – See text case: Eyoma v. Falco

Failure to Report Deteriorating Condition • Patient suffered an amputation that the jury determined resulted from the failure of the

nursing staff to properly report the patient’s deteriorating condition. – Utter v. United Hospital Center, Inc.

• Written procedures provided that nurses were responsible for reporting changes in a patient’s condition.

Failure to Report Patient Symptoms • Accident victim sued hospital & attending physician for their negligence in failing to

discover & properly treat his injuries. The court held that there was sufficient evidence to sustain a jury verdict that the hospital’s nurse was negligent in – failing to inform the physician of all the patient’s symptoms – to conduct a proper examination & follow physician directions – Citizens Hospital Association v. Schoulin

Timely Reporting of Patient Symptoms • Court held there was sufficient evidence for the jury to find the nurse was negligent in

failing to timely notify the physician that delivery of plaintiff's child was imminent. This delay resulted in an unattended childbirth with consequent injuries.

Failure to Report Defective Equipment • Failure to report defective equipment can cause a nurse to be held liable for negligence if

the failure to report is the proximate cause of a patient's injuries. • The defect must be known & not hidden from sight.

Incorrect Order Transcription – I • Periodic contradictions between what physicians claim they ordered & what nurses allege

they ordered. • Orders should be read back for verification purposes. • Questionable orders must be verified with prescribing physician.

Incorrect Order Transcription – II • Physicians must authenticate their verbal order(s) by signing the written order in the

medical record. • Nurses who disagree with a physician's order should not carry out an obviously erroneous

order. • Report to the supervisor concerns with a particular order.

Misidentification of Infants • Switching infants can lead to liability for damages. Damages in the amount of $110,000

were awarded for the inadvertent switching of two babies born at the same time in De Leon – Lopez v. Corporacion Insular de Seguros. – Follow patient identification process. – Always verify infant’s identification badge with mother’s.

Failure to Follow Policy Estate of Hendrickson v. Genesis Health Venture, Inc. • Head wedged between mattress & adjacent bed rail • Failure to follow hospital policy • Jury found death caused by negligence

Failure to Take Vital Signs Brandon v. HMA, Inc. v. Bradshaw • Failure to

– properly monitor patient – report vital information to patient

• Allowed condition to deteriorate – to critical stage – before implementing urgent care – Implementing life support

• Surgery • Foreign Objects left in Patients

– Sponge & Instrument Miscounts • Whose responsibility? Discuss. • Nurses & Surgeons Responsible?

Negligent Amputation of Infant’s Finger – I A nurse employed by the defendant amputated nearly one third of a one-month-old

infant’s index finger while cutting an IV tube. $87,000 for past pain & suffering & $50,000 for future damages. The defendant moved to set aside the verdict & sought a new tr