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LAW AND MEDICINE TOPICS AND OBJECTIVES
Objectives at bottom of Posts list
click here for latest posts not linked below
CASES
POSTS
NEW: 9/2/14 Qui Tam suit filed against Planned Parenthood under the False Claims Act, alleging fraudulent billing. More on this at the bottom of THIS POST.
HANDOUTS (basic one-page Handouts in scroll form after 'Objectives' in this post
Sources of Law
Damages
Standards of Proof
Res Ipsa Loquitur
'The Thing Speaks for Itself". When an incident itself may constitute proof of negligence (cutting off the wrong leg, for example) it may not be necessary in trial to provide an expert witness or to prove a specific act of negligence.
STATUTE OF LIMITATIONS
Even if one has a good case for suing someone if that case is not begun within a specific time prescribed by law (the Statute of Limitations) the right to sue may be lost forever.
Standards of Care
Shilkret v. Annapolis Emergency Hospital Assn. (required case reading)
This case discusses standards of care to be used in different localities.
Legal Dangers Other Than Malpractice
GOOD SAMARITAN LAW
The 'Good Samaritan Law' usually protects a caregiver from suits for ordinary negligence when care is rendered for free, in an emergency, and away from regular medical facilities.
INFORMED CONSENT
MINORS & INFORMED CONSENT
BANG V. CHARLES T. MILLER ... (required case reading)
Bang Follow-Up Note
Canterbury - Comment
Cantebury - Revisited
GOOD SAMARITAN LAW
The 'Good Samaritan Law' usually protects a caregiver from suits for ordinary negligence when care is rendered for free, in an emergency, and away from regular medical facilities.
INFORMED CONSENT
A competent adult must give his consent to treatment. A caregiver risks liability if he proceeds without that consent, subject to certain exceptions. To be valid the patient must understand the nature of the procedure he is approving, that it, it must be an 'informed consent'.
MINORS & INFORMED CONSENT
A competent adult can give a valid consent for a medical treatment but the issue is much more complicated with minors who, as a matter of law, are not legally competent. This post discusses issues related to minors and consent to treat.
BANG V. CHARLES T. MILLER ... (required case reading)
This is a good, well-explained, informed consent case in which the patient consented to a procedure without fully understanding it and was unhappy with the consequences of the procedure. The court said the consent was not valid if he did not understand what he was consenting to have done and that to be valid the consent must be 'informed'. Liability was based on 'battery' an 'unauthorized touching' which is a tort.
Bang Follow-Up Note
CANTERBURY V. SPENCE (required case reading) THERAPEUTIC PRIVILEGE.
This is a famous informed consent case that is often cited in professional literature and court. Instead of basing liability on battery as was done in Bang the court bases liability on failure to practice at the required standard of care. In its opinion the court observed that the statute of limitations had passed for a suit based on battery but had not yet lapsed for a suit based on standards of care. The failure of standards of care in this case was based on the doctor's wrongful decision to withhold basic information about the risks of a procedure out of concern that the patient might be frightened into not approving treatment. Withholding information in that way and for that purpose is sometimes called 'therapeutic privilege' and the court said, generally, that therapeutic privilege cannot excuse giving a patient all the essential information he needs to make a decision about his care.
Canterbury - Comment
Cantebury - Revisited
COBBS V. GRANT (required case reading) Therapeutic Privilege
Although it is sometimes said that Canterbury destroyed therapeutic privilege, this California informed consent case suggests that a physician may use therapeutic privilege and withhold otherwise essential information from a patient if the patient's mental state is such that disclosure will render him incompetent to give a valid consent. NOTE: Canterbury argues for the same exception.
Cobbs - Comment
Apologies to Patients = Doctors Face Legal Exposure
Vicarious Liability In Medicine
Captain of the Ship - Vicarious Liability
Privacy, Confidentiality & Privilege in Medicine
Berthiaume v. Pratt - Comment
Berthiaume v. Pratt (Required case reading)
ALTERNATIVE MEDICINE AND ASSUMPTION OF RISK
When agreeing to a patient's demand that alternative medicine be used instead of or in addition to allopathic medicine it is best to follow the recommendation of malpractice insurers and courts and have the patient sign an 'assumption of risk' agreement rather than an informed consent. The issues are discussed in this post.
SCHNEIDER V. REVICI, MD (Required reading -- Assumption of Risk and CAM)
Mental Health Law
Administrative Law
Hicks v. Arkansas State Medical Board (Case and comment required reading)
Texas Orthopedic v. Board of Podiatry (Case)
CONTRACTS AND PHYSICIANS
To be enforceable, a contract must be between competent parties, for a legal purpose, without violating public policy, and for consideration (exchange of value).
OLSON v. MOLZEN (Required case reading in Contract)
Criminal Law & The Physician
The Slippery Slope in Medicine
This interesting case involves the complications arising when a doctor treats a patient with alternative medicine and is subsequently sued because of a bad outcome. It also touches on assumption of risk (covenant not to sue, or exculpatory) agreements not to sue.
Mental Health Law
Administrative Law
Hicks v. Arkansas State Medical Board (Case and comment required reading)
Texas Orthopedic v. Board of Podiatry (Case)
CONTRACTS AND PHYSICIANS
To be enforceable, a contract must be between competent parties, for a legal purpose, without violating public policy, and for consideration (exchange of value).
OLSON v. MOLZEN (Required case reading in Contract)
This interesting cases involves a physician who required all of his patients to sign a contract (exculpatory agreement or assumption of risk) before he would agree to treat them. When sued he argued that the exculpatory agreement signed by the patient protected him. The court held that while exculpatory agreements were generally enforceable public policy rendered them unenforceable in an ordinary physician/patient setting. NOTE: These agreements may still be enforceable when the patient is consenting to experimental therapy or demanding some sort of CAM or alternative medical treatment. See: Alternative Medicine post above and the Schneider case.
Criminal Law & The Physician
The Slippery Slope in Medicine
OBJECTIVES
Objectives are used for guidance, not for preparing test questions
Objectives are used for guidance, not for preparing test questions
The sections below have hyperlinks to other parts of this site, but
those are only first steps. The relevant subject will be addressed in
other posts, in the cases assigned, and in discussion.
Upon completion of the readings and lectures, students will be able to address:
Physician/Patient Relationship
Informed Consent & Duties That Lead to Physician Liability
2.
Elaborate on theduty to control pain and the conflicts that may arise
with respect to that
duty and the obligation to manage potentially addictive medications properly.
duty and the obligation to manage potentially addictive medications properly.
Expansion of Law and Limits of Personal Autonomy
HANDOUTS
Note: The Handouts have an ad hoc quality that arose from the way they evolved, usually in response to students questions. Originally there were only one or two that were intended to add a little to a particular issue that seemed to be causing problems for the class. Naturally, they multiplied to the point where they covered very nearly everything in class and supplanted other materials while still retaining their 'make do for the moment' character. They are merely a supplement to lecture and are not even intended to always be in the same order that the lecture might proceed.
Handout
1
GOVERNMENT
STRUCTURE
(State-Three Branches)
Legislature Executive
Courts
State Governor Supreme
Court (State)
Administrative Agencies
Courts of Appeal
Board of
Medicine Superior Court
\ Physician Licensing/Regulation \(Trial
Court)
Handout
2
State Court System
(California-Similar to Other States)
Supreme Court of California
The Supreme Court of California is the highest appellate
court in the State. It does not try
cases or hear witnesses. The role of the
court is to review cases brought in lower courts for error. The Supreme Court of California is the final
legal authority on issues of state law.
A decision of this court cannot
be appealed to the United States Supreme Court unless there is an issue of
federal law involved.
California Courts of Appeal
California has six Courts of Appeal. An appeal from a case heard in a trial court
will first be decided in one of the Courts of Appeal. Often, one of the Courts of Appeal will be
the end of the line for someone seeking appellate review because the Supreme
Court of California is not likely to accept an appeal from one of the Courts of
Appeal unless the issue is of great importance or, more frequently, there is a
conflict between the decisions in the various Courts of Appeal. As is true in the Supreme Court, the Court of
Appeal only reviews the record of the lower court for errors of law. It is very seldom that any appellate court
will set aside the factual determinations of a trial court.
California Superior Court
Every County in the State of California has a Superior Court
where trials are conducted, evidence introduced, and witnesses heard. Most medical
malpractice cases are based on state law and are heard in the trial court of
the state where the case is filed. In California, a medical
malpractice case will be heard in Superior Court. In other states, a medical malpractice case
will be heard in that state’s court of general jurisdiction (the equivalent of
Superior Court), although the name may be different. In Florida, for example, the court is called
the Circuit Court. In New York State,
the trial court is confusingly named the Supreme Court. In Canada the various provincial courts of
general jurisdiction are known as Superior Court, Court of Queen’s Bench, or,
as in New York, even Supreme Court. In
England, the trial court of general jurisdiction is the High Court, Queen’s
Bench Division. To be a court of general jurisdiction means that if an
issue is justiciable at all, it can be heard in a court of general
jurisdiction. A court of limited jurisdiction can decide only
those cases assigned to it by law. A
traffic court, for example, is a court of limited jurisdiction, and you cannot
be sued for medical malpractice in traffic court or tried and sentenced to
death for murder in traffic court.
Handout 3
Federal Court System
The Court System of the United States Government
United States Supreme Court
The United States Supreme Court is the highest court in the
nation, and its decisions become law throughout the United States. However, its jurisdiction is limited to
federal issues arising under the Constitution and the laws of the United
States. If a state supreme court has ruled on an issue its decision
is final and cannot be appealed to the U.S. Supreme Court unless a federal issue is involved.
Courts of Appeal
The United States has eleven circuit Courts of Appeal
together with the appellate court for the District of Columbia and also the
Court of Appeals for the Federal Circuit.
The eleven circuit Courts of Appeal primarily review cases decided in
the United States District Courts which are the principal trial courts in the
federal system. Like the courts of
appeals in the states, the federal Courts of Appeal serve as a buffer between
the trial courts and the U.S. Supreme Court.
After a case is decided in one of the federal appellate courts it is
unlikely that the U.S. Supreme Court will accept it for review unless the issue
is very important (Obamacare) or different Courts of Appeal have reached
different conclusions on the same issue (Obamacare) and the contradictory cases
need to be reconciled. As with the state
courts of appeal, the federal Courts of Appeal do not hold trials. They review the record established in the
trial court.
United States District Court
There are 94 judicial districts. Every state has at least one United States
District Court and many have more than one.
Federal trials are, for the most part, held in the United States
District Courts. It is in these courts
that cases are filed, juries empanelled, evidence introduced, and witnesses
heard. United States Courts are courts of
limited
jurisdiction, meaning that
they can hear only those cases allowed to them by law. Usually a Complaint filed in District Court
to begin a legal action leading to a trial will include a clause explaining why
the court has the jurisdiction (authority) to hear the issue. For the most part, United States District
Courts are the trial courts on issues of federal law. Since medical malpractice cases are based on
state law, a District Court will not normally have the authority to try
it. One exception is based on diversity jurisdiction. If the plaintiff (the party bringing the
suit) and the defendant (the person being sued) live in two different states,
then the U.S. District Court can provide a forum for the lawsuit (the trial can
be held there) but the law of the case will still be the law of the state where
the issue arose.
Handout 4
Priority of Laws
The laws of the United States and the States
The laws of the United States and the States
Federal Law is the supreme law of the land and the United States Constitution is at the peak of federal law.
The United States Constitution is supreme. Next in priority are the Acts (laws) passed
by Congress. Lower in priority are
regulations adopted by federal agencies such as the FDA or HHS. For example, the Health Insurance Portability
and Accountability Act (HIPAA) is an
act passed by Congress. The HIPAA Privacy Rule is an administrative
regulation adopted by a federal agency the United States Department of Health
and Human Services, HHS, under the rule-making authority granted HHS in
HIPAA. If an administrative regulation
contradicts or is not supported by an Act of Congress, it is unenforceable.
Strictly speaking, the federal government [United States
Government] is a limited government with only those powers allowed to it by the
United States Constitution. The federal
government does not have a general
police power permitting it to legislate on purely local matters.
State Law is supreme
within the state if there is no federal law to the contrary.
Unlike the federal government, state governments are general
governments and can exercise the police and regulatory power on all matters
within the state. Sometimes, the state
and federal government have police power over the same matter. Bank robbery is a federal crime because banks
are insured by the federal government, but it is also is also a state crime.
However, robbery of a liquor store is a state crime but not a federal crime
because no federal interest is involved in liquor store robberies. Physicians
are licensed and regulated and disciplined under state law. Physician discipline is not a federal matter.
THE CONFLICT-- As might be expected, there are many
situations in which it is not entirely clear whether an issue is a matter of
state jurisdiction or federal jurisdiction.
The federal government has been extending its reach in the last few
decades and come into conflict with state governments. Some of the areas of conflict include firearm
ammunition (Montana), public lands (Western states), incandescent light bulbs
(Texas and South Carolina), medical marijuana (16 states), physician-assisted
suicide (Oregon), and Obamacare (multiple states).
Handout
5
Where Do Laws Come From
The laws of the United States and the States
The laws of the United States and the States
I. LEGISLATURES.
Both the
federal legislature (United States Congress) and the State legislatures (50 of
them) pass laws [Bills, Acts or Statutes] that are law. The laws passed by Congress apply throughout
the entire United States. The laws
passed by a state legislature apply within the state itself. Laws created in this way can most easily be
found in collected codes such as the United States Code (for federal law) or
similar codes for each state.
2. ADMINISTRATIVE REGULATIONS. Agencies
created by legislatures are often given a limited authority to pass regulations
that have the force of law. For example,
the federal Food and Drug Administration [FDA] adopts regulations controlling
the manufacture and sale of drugs, etc.
The state Department of Motor Vehicles [DMV] adopts regulations for
motor vehicles within each state.
Administrative regulations are found in collections such as the federal
Code of Federal Regulations [CFR] and California’s Administrative Code.
3. COURT DECISIONS. The
decisions of courts, particularly the published decisions of courts of appeal
such as the Supreme Court, become a part of the law. For example, in the famous case of Canterbury v. Spence a Court of Appeals
upset traditional standards of care in medicine that favored allowing a doctor
to withhold frightening information from a patient so that the patient would
not foolishly [in the opinion of the doctor] refuse needed surgery. Instead, the court decision established the
rule—and standard of care—that a physician must
disclose the information material to the patient’s ability to make a decision
as to his own care. Cantebury is required reading for the course. Much of existing medical law has evolved in
court decisions rather than coming from legislatures or administrative
agencies.
Handout
6
Duty to Render Care
Physician/Patient
Relationship
The principal obligation assumed by a
physician who accepts a patient is the duty to render medical treatment within
the standard of care.
The standard
of care requires the physician to render medical care with the degree of
care, skill and learning that would be expected of a reasonably prudent
physician.
The
physician/patient relationship is a therapeutic relationship intended
primarily to deliver medical care to the patient.
The
physician/patient relationship is essentially contractual, and the
contract is created, and the contractual duties begin, at the moment the
physician accepts the patient for treatment.
The physician/patient
relationship is a fiduciary relationship (see Glossary), meaning
that it is primarily for the benefit of the patient and that the patient is
entitled as a matter of law to place his trust in the physician with the
confidence that the physician will not take personal advantage of the
relationship.
By contrast, a
physician conducting an employment or insurance physical examination has not
accepted the examinee as a patient for medical care and has not entered a
contractual physician/patient relationship.
Therefore, he is not held to the same set of duties that are imposed on
the physician in a true physician/patient relationship.
Handout
6a
Standard of Care
The standard
of care requires the physician to render medical care with the degree of
care, skill and learning that would be expected of a reasonably prudent
physician.
The standard
of care is based primarily on standards recognized and accepted within the
medical community. The opinion of the medical community is expressed as evidence
in courts through the testimony of expert witnesses.
The expert witness in a medical malpractice
case will normally be a physician. Both
the defendant
(physician being sued) and the plaintiff
(patient who is suing) will call expert witnesses to testify as to the
standard of care and whether it has been met in the case being heard.
Generally the
standard of care will be based on prevailing medical practice in the strict locality rule, or the similar locality community, or by the national standard rule.
As can be
seen from the above, usually the standards of care are established by
physicians whose expertise is given in court testimony.
Complications and
risks from the Affordable Care Act (ACA), (Obamacare).
ACA includes complex rules for
federal quality of care metrics for establishing ‘quality of care’ payments to
physicians. Although presumably intended
only to provide monetary incentives and disincentives to physicians, there is a
genuine concern that these regulatory standards can create a new avenue of
medical liability attack against physicians.
In effect, the regulations could shift some of the mechanism for establishing
standards of care from physicians to bureaucrats. One state, Georgia, has worked with the
American Medical Association to pass a law to protect physicians from
malpractice lawsuits based on bureaucratic payment standards rather than on
medicine as it is actually practiced by physicians.
Handout 7
JURY INSTRUCTION FOR MEDICAL MALPRACTICE
Arizona
Note re Jury Instructions: When a jury deliberates on a medical
malpractice case it does not get the law from books filled with
statutes, cases, or rules. The law is
given to the jury by the judge in the form of jury instructions. Many jury instructions have become relatively
standardized and printed as off-the-shelf forms. Some jury instructions have been reproduced
in these Handouts because they state the law simply, clearly and as the jury
sees it. The jury instructions
become the law of the case.
The Arizona Instruction:
The Arizona Instruction:
Plaintiff claims that defendant
physician was at fault for medical negligence.
Medical negligence is the
failure to comply with the applicable standard of care.
To comply with the applicable
standard of care, a physician must exercise that degree of care, skill and
learning that would be expected under similar circumstances of a reasonably
prudent physician within this state.
Fault is medical
negligence that was a cause of injury to the plaintiff. Before you can find defendant at fault, you
must first find that defendant’s negligence was a cause of injury to the
plaintiff. Negligence causes an injury
if it helps produce the injury, and if the injury would not have happened
without the negligence.
On the claim of fault for
negligence, plaintiff has the burden of proving:
(1) Defendant
[name] was negligent;
(2) Defendant’s negligence was a cause of
injury to plaintiff; and
(3)
Plaintiff’s damages.
California Jury Instruction
Success Not Required
A physician is
not necessarily negligent just because [his/her] efforts are unsuccessful or
[he/she] makes an error that was reasonable under the circumstances. A physician is negligent only if [he/she] was
not so skillful, knowledgeable, or careful as other reasonable physician would
have been in similar circumstances.
Handout 8
Expert Witnesses
The essence of
the physician/patient contract is that it is therapeutic, requiring the
physician to render medical care exercising the degree of care, skill and
learning that would be expected of a reasonably prudent physician.
That standard of care is established in court with
the testimony of expert witnesses.
Typically, the expert
witness is a physician who has some specialized (expert) knowledge of the
type of medicine and standard of care at issue.
A qualified expert witness may testify as to his expert opinion.
An ordinary lay
(non-expert) witness may testify only to facts of which he has personal
knowledge and he may not testify as to his opinion. For example, a patient could testify from his
personal experience that he lost much of his hearing following surgery, but
only an expert could testify that in his expert opinion the loss of hearing was
because the surgery was performed below the standard of care.
The
physician expert witness is paid for his research and testimony, but his
payment cannot be contingent upon a successful outcome in the suit. A physician expert witness who intentionally
misstates the standard of care or falsifies his testimony may be subject to
professional discipline and suspension or loss of medical license.
Note:
AMA Code of Medical Ethics, Opinion 9.07 Medical Testimony *** Medical
experts should have recent and substantive experience in the area in which they
testify and should limit testimony to their sphere of medial expertise. Medical witnesses should be adequately
prepared and should testify honestly and truthfully to the best of their
medical knowledge. The medical witness
must not become an advocate or a partisan in the legal proceeding. ***It is
unethical for a physician to accept compensation that is contingent upon the
outcome of litigation.
Note: Federal Rules of Evidence, Rule 702. Testimony by Experts. If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of
the case.
Note: California
Jury Instruction: “When you are
deciding whether (name of doctor) was negligent, you must base your
decision only on the testimony of the expert witnesses including (name of
doctor) who have testified in this case.”
Expert Witness Punished
Discipline by California
Board of Medicine
res ipsa loquitur
The Thing Speaks for Itself
The doctrine of res ipsa loquitur may be used when there
is no direct evidence of negligence on the part of someone, but the injury
itself could not have happened unless the party in control of the mechanism
that caused the injury had been negligent.
In such an instance, the fact that the injury occurred in the way it did
may serve as evidence of negligence, the injury speaks for itself .
1. Evidence of the actual cause of the injury is
not obtainable;
2. The injury is not the kind that ordinarily
occurs in the absence of negligence by someone;
3. The plaintiff was not responsible for his or
her own injury;
4. The defendant, or its employees or agents,
had exclusive control of the instrumentality that caused the injury; and
5. The injury could not have been caused by any
instrumentality other than that over which the defendant had control.
Handout
11 a
ABANDONMENT
Failure to
terminate the physician patient relationship properly is abandonment.
Abandonment
is a tort (see Glossary) for which the physician can
be held liable.
See: AMA Code of Medical Ethics, Opinion 8.115
Termination of the Physician-Patient Relationship. Physicians have an
obligation to support continuity of care for their patients. While physicians have the option of
withdrawing from a case, they cannot do so without giving notice to the
patient, the relatives, or responsible friends sufficiently long in advance of withdrawal
to permit another medical attendant to be secured.
CAUTION:
Certain situations
create the risk of committing abandonment of a patient.
1. CALL.
If you are on call and fail to answer that call you might be held liable
for abandonment if harm results.
2. VACATION:
Make sure you make arrangements for patients to be covered by another
physician when you go on vacation.
3. RETIREMENT:
Arrange for orderly notice and transfer of care on retirement.
4. ER. If
you are an ER physician should assume that every person coming through the door
is entitled to care. Be careful handling
transfers of care even within the ER.
California Jury Instruction
on Abandonment:
[Name of plaintiff] claims [name
of defendant] was negligent because [he/she] did not give [name of patient]
enough notice before withdrawing from the case.
To succeed, [name of plaintiff] must prove both of the following:
1. That [name
of defendant] withdrew from [name of patient]’s care and treatment;
and
2. That [name of defendant] did not
provide sufficient notice for [name of patient] to obtain another medical
practitioner.
However, [name
of defendant] was not negligent if [he/she] proves that [name of
patient] consented to the withdrawal or declined further medical care.
Handout
11
Duration of
Physician/Patient Relationship
Having
once accepted the patient for treatment, the contract continues, and the
physician must continue to provide care, until the physician/patient
relationship is properly ended.
The physician/patient
relationship ends when:
- The patient no longer requires treatment;
- When the patient unilaterally terminates the relationship;
- When the physician and patient mutually agree that the relationship has ended;
- When the physician unilaterally terminates the relationship by giving the patient notice that he will no longer serve as physician after a reasonable period of time during which the patient will have the opportunity to seek treatment from another physician.
Proper Termination of the
Physician/Patient Relationship
Failure to
terminate the physician/patient relationship properly is abandonment, a tort, meaning that abandonment is a wrongful act for
which one can be sued.
Steps
for proper, unilateral dismissal of the patient, and avoiding the tort of
abandonment, include:
1. Notify the patient in writing, by return
receipt mail and/or personal delivery, of your intention to withdraw as his
physician and terminate the physician/patient relationship.
2. Provide the patient with a reason for the
termination.
3. Offer to continue to provide
care for a reasonable period of time while the patient obtains alternate
medical care.
4. Provide the patient with the date when the
termination will be effective.
5. Provide information about resources for
finding alternate medical care.
6. Offer to transfer records to
the patient’s new physician upon receipt of an authorization to do so signed by
the patient.
7. Offer to see the patient in an
emergency within a stated period of time after termination.
8. Provide the patient with
information about risks and consequences faced if medical treatment is not
continued after the relationship is terminated.
9. Chart the preceding steps.
Handout 13
Confidentiality, Privacy & Privilege
Even
though they are sometimes used interchangeably, confidentiality, privacy, and privilege
relate to different concepts.
The Right to
Confidentiality
typically arises in a physician/patient relationship and is sometimes said to
apply to information one has disclosed to a person in a position of trust with
the expectation that the information will not be released without consent. When a physician obtains information from a
patient, or prospective patient, he is immediately under a duty of confidentiality
with respect to the information disclosed to him. A physician has a clear legal duty to protect
patient information and keep it confidential.
A breach of that duty is a tort for which a physician may be sued.
The Right to
Privacy
is a right that every person has and that right, accordingly, imposes a duty on
others to respect an individual’s privacy.
The right exists on its own and does not require a physician/patient
relationship to exist. The right to
privacy is complex and has several seemingly unrelated elements within it, but
it derives from a general right for a person to be left alone. An invasion of privacy is a tort for which
one can be sued.
Privilege is an
evidentiary protection accorded to certain types of communication or information. A court cannot compel the disclosure of
privileged information. For example,
communications between an attorney and his client are privileged and a court
cannot order their disclosure.
Communications between a psychotherapist and his patient are protected
by privilege and normally cannot be compelled to
be disclosed by a court. In some
jurisdictions communications between a physician and his patient are also
privileged.
Note:
These
distinctions are important. A claim for
an invasion of privacy may have a different statute of limitations than a legal
claim for a physician’s wrongful disclosure of confidential information. Also, an insurer may pay for one claim but
not the other. In addition, a court
might compel the disclosure of private or even confidential information but not
information that is privileged.
Privilege
relates to evidentiary protection. Legal
right to avoid disclosure.
Handout 14
Duty to Safeguard Confidences
AMA Principles of Medical
Ethics (III): A physician
shall…safeguard patient confidences within
the limits of the law.
There are common exceptions to
the laws protecting privacy, confidentiality and privilege.
Exceptions
to the rule:
·
Child/Elderly Abuse
·
Gunshot and Knife Wounds
·
Communicable and Other Diseases
·
Imminent Danger to Others
Tarasoff
[California Supreme Court]
Brenda
Tedrick v. Community Resource Ctr {Illinois Sup. Court]
Privilege. Privileged communications are given a higher
degree of protection than are confidential or private communications. Normally, a court cannot compel a witness to
reveal a privileged communication.
Attorney/Client communications are privileged as usually are
psychiatrist/patient communications and sometimes physician-patient
communications. Notice that in Tarasoff the court ruled that even privileged
communications may have to be revealed in some circumstances.
For
whose benefit. Whether we speak of
confidential communications or of privileged communications, the protection
given is for the benefit of the patient, not for the benefit of the physician.
Minors and Confidentiality. A difficult situation may arise when a mature minor needs medical care for a sexually transmitted disease or for birth control. Absent a State law to the contrary, the minor’s right to preserve the confidentiality of medical records should be respected even when a physician receives a request for them from the minor’s parents.
Handout 16
Duty to Respect Privacy
The
obligation to respect an individual’s right to privacy is a duty that exists
for all of us and is not limited exclusively to physicians acting in a
physician/patient relationship.
For
example, a physician conducting a pre-employment physical examination is not
providing medical treatment to a patient and is not in a physician/patient
relationship with the person being examined.
If that physician were improperly to reveal purely private information
about the individual he examined, that act probably would not be a
breach of physician patient confidentiality because the obligation to
“safeguard patient confidences” generally exists in a therapeutic relationship
in which the physician is actually treating the patient. Someone receiving a pre-employment
examination is not a patient receiving medical treatment. However, the improper disclosure of that
individual’s private information could be treated as a violation of his right
to privacy for which the physician could be held liable. Notice that in Berthiaume’s Estate
[this case is in the Law and Medicine manual] the alleged violation of
the right to privacy took place after the offending surgeon had ceased to
provide care for the victim and after he was no longer the victim’s doctor.
Whether
a physician’s act is a breach of confidentiality or a violation of privacy can
be important. For example, the statute
of limitations (the time within which suit must be filed) may be longer for
lawsuits based on an invasion of privacy.
Also, a physician’s malpractice policy may not cover a suite based on an
invasion of privacy.
The
right to privacy is a complex right, and the judge in Berthiaume’s Estate
cites four types of invasion of that right:
(1) Intrusion upon the plaintiff’s physical and
mental solitude and seclusion,
(2) Public disclosure of private facts,
(3) Publicity which places the plaintiff in a
false light in the public eye,
(4) Appropriation for the
defendant’s benefit or advantage of the plaintiff’s name or likeness.
The most common cause of invasion of privacy suits against
physicians arises from the unauthorized use of patient photographs.
Handout 17
Duty to Respect Privacy
Comment
The right
to privacy has evolved primarily in State legal systems, but the federal
(national) government has added to the architecture of privacy law.
The United
States Supreme Court has identified some types of governmental interference in
an individual’s life as being a prohibited and unconstitutional invasion of
privacy. In a famous case, Griswold
v. Connecticut, the Court held that the right to privacy was one of the
rights protected by the United States Constitution and that governmental
interference in private life can be so intrusive that it amounts to a violation
of that right. The Griswold case
invalidated a Connecticut state law that restricted access to contraceptives
because that State law infringed on a right to privacy protected by the United
States Constitution. The constitutional
right to privacy was asserted again in Roe v. Wade, where the Court
limited the power of individual state to interfere with a woman’s right to
obtain an abortion.
The
United States Congress has also had an impact on privacy through
legislation. The Health Insurance
Portability and Accountability Act (HIPAA) includes privacy standards that apply
to ‘covered entities’.
However
much HIPAA may (or may not) have added to patient privacy, it has undeniably
created a complex and often confusing bureaucratic tangle. For example, a covered entity must have Reasonable Safeguards that are ‘appropriate
administrative, technical, and physical safeguards that protect against uses
and disclosures not permitted by the Privacy Rule.’ This requirement has led to some
confusion. And, some physicians
have mistakenly thought that HIPAA regulations prohibit sending patient
information to another doctor’s office without an express consent signed by the
patient. In fact, the regulations permit
a physician (or ‘covered entity’) to use or release patient information to other
professionals for treatment without prior patient consent. E-mail can be sent to the patient
provided appropriate safeguards are in place “to ensure confidentiality,
integrity, and availability.” And one
may “disclose to a family member, other relative, or close personal friend of
an individual, or any other person identified by the individual,” medical
information directly relevant to that person’s involvement with the patient’s
care or payment related to the patient’s care.”
Handout 18
HIPAA Privacy Rule
U.S.
Department of Health and Human Services (HHS) issued the Privacy Rule
pursuant to implement the requirements of the Health Insurance Portability and
Privacy Act of 1996, Public Law 104-191, (HIPAA).
The Office
of Civil Rights (OCR) within HHS is responsible for administering and
enforcing the Privacy Rule.
The
Privacy Rule does not create a cause of action (a right to sue) for a
patient whose medical information has been released by a physician in violation
of the Rule. Instead of filing a civil
action against a physician under the HIPAA Privacy Rule, the patient may file a
complaint with the OCR which may then assess a penalty against the
physician. The penalty, if assessed, is
paid to the government rather than to the patient.
The patient may still have a right
to sue under state confidentiality or privacy laws.
45
CFR Part 160
and Part 164, Subparts A and E on the OCR website:
COMPLIANCE AND PENALTIES
Criminal
Penalties. A
person who knowingly obtains or discloses individually
identifiable
health information in violation of HIPAA faces a fine of $50,000 and up
to
one-year imprisonment.89 The
criminal penalties increase to $100,000 and up to
five
years imprisonment if the wrongful conduct involves false pretenses, and to
$250,000
and up to ten years imprisonment if the wrongful conduct involves the
intent
to sell, transfer, or use individually identifiable health information for
commercial
advantage, personal gain, or malicious harm. Criminal sanctions will be
enforced by the Department of Justice.
Civil
Money Penalties. HHS may impose civil money penalties on a covered entity
of
$100 per failure to comply with a Privacy Rule requirement.88 That penalty may
not
exceed $25,000 per year for multiple violations of the identical Privacy Rule
requirement
in a calendar year. HHS may not impose a civil money penalty under
specific
circumstances, such as when a violation is due to reasonable cause and did
not
involve willful neglect and the covered entity corrected the violation within
30
days of when it knew or should have known of the
violation.
Handout 19
**Omitted"
Handout
20
Duty to Obtain Informed
Consent
AMA Code of Medical Ethics,
Opinion 8.08 Informed Consent The patient’s right of self-decision
can be effectively exercised only if the patient possesses enough information
to enable an intelligent choice. *** et. seq.
Case Studies [Required
Reading]:
If a patient
consents to a course of treatment without properly understanding the nature of
that treatment then the consent may not be valid and the physician may be held
liable for failing to practice within the standard of care as in Canterbury
or liable for battery (see Glossary) as in Bang.
Depending
on the nature of the illness or proposed procedure, the patient ought to be
told in terms that he understands:
- Diagnosis
- Procedure or Treatment
- Risks and Consequences
- Feasible Treatment Alternative
- No Treatment Outcome
EXCEPTIONS
- Emergencies
- Unconscious or Incapacitated Patient
- Patient Waiver
- Therapeutic Privilege (largely ended by Canterbury case)
Handout 21
Duty to Obtain Informed Consent
Jury Instruction
Although the
rules for informed consent have been established by case law (see Glossary),
the rules may also be set forth in state statutes.
When a jury is deciding a case it does not read cases
or statute to find the applicable law.
Instead, the jury receives the law in the form of ‘jury instructions’
given by the judge. In California, a
jury hearing a case in which informed consent is an issue would probably be
given an instruction with the following definition of informed consent:
California Jury Instruction,
Definition of Informed Consent:
A patient’s
consent to a medical procedure must be “informed.” A patient gives an “informed consent” only
after the Physician has fully explained the proposed treatment or procedure.
A Physician must
explain the likelihood of success and the risks of agreeing to a medical
procedure in language the patient can understand and give the patient as much
information as [he/she] needs to make an informed decision, including any risk
that a reasonable person would consider important in deciding to have the
proposed treatment or procedure. The
patient must be told about any risk of death or serious injury or significant
potential complications that may occur if the procedure is performed.
A
Physician is not required to explain minor risks that are not likely to occur.
Handout
22
INFORMED CONSENT AND MINORS
As a general rule minors [usually those under eighteen-years-old] are
legally incompetent, meaning that they do not have the legal standing to make
their own legal decisions. Thus, for
example, a contract signed by a minor usually will not be enforceable, and a
minor’s consent to medical treatment may not be valid.
A minor’s medical decisions are generally made by a guardian. Usually the parents of a minor, the minor’s ‘natural
guardians’, are those who give consent to medical procedures. In the absence of the parents, another adult
acting in loco parentis (in place of
the parents) may give consent. If the
parents expect to be away for a period of time a minor may be placed in the
care of a relative who is in loco
parentis and can give consent to necessary medical care. Others charged with the responsibility for a
child, such as a teacher may also be in
loco parentis. In a more extreme case a court may appoint a permanent
guardian for a child and that guardian must give consent to medical
procedures. In special circumstances, a
temporary guardian appointed by the court for an express purpose—a guardian ad litem—may give consent to a medical
procedure. A guardian ad litem may, for example, be appointed
when parents refuse consent to needed medical care.
Emancipated Minors. Minors who are
‘emancipated’ or freed from parental control because they are married, in the
military, or living independently are not required to get parental or guardian
consent to a medical procedure. They are
legally competent.
Mature Minors. In some instances a
minor [usually 14 or older] may be assessed to be sufficiently mature and
competent to make medical decisions without parental involvement. Typically this situation could arise in
situations involving requests for treatment for sexually transmitted diseases,
requests for birth control, and similar personal issues.
Statutory Exceptions. Some states
have adopted express statutes that allow minors seeking birth control,
abortion, or STD treatment may consent to it without parental knowledge of
consent.
Emergencies. The consent of the parents may not be required in emergency circumstances where immediate care is required to protect the minor and neither of the parents can be reached.
Handout 23
Duty to Warn
There is a duty to warn a
patient, or a former patient, or even a non-patient receiving an employment physical
of medically dangerous conditions. If,
for example, a physician receives notice that a type of IUD he implanted in a
number of his patients was discovered to cause injury, the physician has an
obligation to notify current and former patients of the danger. If a patient has moved or changed a phone
number, it is important to document (chart) reasonable efforts to find the
patient and warn of the peril. If a
physician discovers a possible melanoma during an employment physical of a
non-patient, the physician must warn the individual of the condition and
recommend that he bring it to the attention of his own physician.
Duty to Disclose
Code of Medical Ethics,
Opinion 8.12 Patient Information It is a fundamental requirement
that a physician should at all times deal honestly and openly with
patients. Patients have a right to know
their past and present medical status and to be free of any mistaken beliefs
concerning their conditions. Situations
occur in which a patient suffers significant medical complications that may
have resulted from the physician’s mistake or judgment. In these situations, the physician is
ethically required to inform the patient of all the facts necessary to ensure
understanding of what has occurred. Only
through full disclosure is a patient able to make informed decisions regarding
future medical care.
Opinion
8.12 points to an ethical obligation on physicians to disclose
“significant medical complications” resulting from the physician’s errors. Because the physician/patient relationship is
a fiduciary relationship, one of trust intended to benefit the patient, there
is also a legal obligation to make disclosure of errors causing significant
medical complications.
Duty to Prevent Loss of Chance
There is a duty to prevent loss
of chance for a successful outcome.
Failure to meet this duty could arise, for example, when a managed care
organization unreasonably delays approval of needed medical treatment until the
opportunity for cure or recovery has been lost.
It could also arise if a physician neglects to order a standard
diagnostic test or fails to report test results to a patient and schedule a
follow-up appointment and a treatable disease progresses to the point that is
untreatable. A failure may also occur if
a physician elects to use alternative medicine in lieu of allopathic medicine
and the delay costs the patient his opportunity to receive an effective
treatment in time.
Handout 24
Duty to Control Pain
The
current standard of care in most jurisdictions requires that physicians
adequately treat pain.
In
California, and many other States, inadequate pain management of elderly
patients may be regarded as “elder abuse” and may expose a physician to
liabilities that do not arise in a normal medical malpractice suit.
Duty to Refer
The current standard of care in most
jurisdictions requires that physicians refer cases that require the
intervention of a specialist or that are otherwise outside the knowledge and
skills that the physician possesses.
However, consider this:
California Jury
Instruction
If a reasonably careful physician
in the same situation would have referred [name of patient] to a medical specialist, then the physician was negligent if [he/she] did not do so.
However, if the physician treated [name of patient]
with as much skill and care as a reasonable [insert type of medical
specialist] would have, the physician was not negligent.
Handout 25
Failure to Diagnose
If a
physician fails to diagnose a condition because his treatment has fallen below
the recognized standard of care, then he may be liable in a suit for medical
malpractice.
Typically a
failure to diagnose may arise when a physician neglects to order a diagnostic
test that is indicated by the patient’s condition, or when the physician fails
to interpret the results correctly, or when the physician neglects to inform
the patient that additional tests may be required if the original exams are
ambiguous. A failure to diagnose suit
may also arise if the physician simply misinterprets signs and symptoms that a
physician acting within the standard of care would have correctly interpreted.
“The most common way in which doctors are negligent by
failing to treat a medical condition is when they "dismiss" the
presenting symptoms as temporary, minor, or otherwise not worthy of treatment.
This situation may result in an exacerbation of the underlying condition or
injury, causing further harm or injury. For example only, an undiagnosed
splinter or chip in a broken bone may result in the lodging of a piece of bone
in soft tissue or internal bleeding caused by the sharp edge of the splintered
bone.”
Actual Cases:
1. Verdict $2.1 million. California. The 33-year-old patient suffered an ischemic,
left-sided stroke that caused unclear difficulties with speech, walking
together with a severe headache and other stroke symptoms. Physician diagnosed food poisoning and failed
to do a neurologic workup.
2. Verdict $2.4 million. Ohio. A 5-year-old boy suffered a hematoma when he
hit his head falling against a table. He
vomited and complained of jaw pain and was taken to the Emergency Room. The ER physicians stitched the boy’s left ear
and discharged him even though he vomited again in the ER. At home, the boy vomited again at 5:00 am and
began gasping for air. He was airlifted
to the trauma center where a CT scan revealed a massive hematoma with the brain
herniated and protruding from the bottom of the skull. After surgery and weeks in the hospital he
still suffered cognitive losses, emotional problems, and left-sided
weakness. Plaintiff’s lawyer argued that
the ER physician should have ordered the CT scan so surgery to relieve pressure
could have been done sooner and also claimed that the ER doctor failed to tell
the parents how to observe the child for a head injury.
Both cases discussed in The Journal of Family Practice, Vol. 60 #3, March 2011.
Handout 26
Duty to Supervise
A
physician has a duty to supervise adequately those working under his direction. Harm
caused by an individual supervised by a physician may lead to ‘vicarious
liability’ on the part of the physician.
That is, the physician will be legally liable as if he had committed the
wrong himself.
Besides
giving rise to tort liability, a failure to supervise may lead to disciplinary
action against the physician’s license.
Principal Categories of Vicarious Liability:
1. Respondeat Superior. Literally, ‘let
the master answer’. This relates to acts
committed by an employee of the physician.
2. Borrowed Servant. This
doctrine relates to situations in which a physician temporarily supervises another's employee. For example, if
a surgeon temporarily supervises a hospital employee during surgery.
3. Captain of the Ship. In some jurisdictions a surgeon may be legally
regarded as being in charge of everything and everyone in a surgical arena and,
hence, liable for any errors or omissions that take place there. Discussed at greater length at Island Court.
4. Ostensible Agency. One may be liable for the acts of another if
that other is permitted to operate with the appearance of an agent even if no
agency exists. Thus a hospitable may be
vicariously liable for the errors of a team of ER physicians working on
contract if the public is given the impression that they are actually employees
of the hospital.
5. Ostensible Partnership. Physicians
sharing office space or staff, but not in partnership, may be liable for wrongs
as if they were actual partners if their patients are given the impression that
they are partners.
Class Note: The following
jury instruction clearly relates to ‘Borrowed Servant’ rather than ‘Captain of
the Ship’ vicarious liability.
California
Jury Instruction:
A surgeon is held responsible for
the negligence of other medical practitioners or nurses who are assisting him
during an operation if the surgeon has direct control over how they perform
their duties.
This California jury instruction establishes a Borrowed Servant doctrine in that state.
Handout 27
Duty to Maintain Proper
Records
The
standard of care requires that a physician maintain adequate records of the
treatment given to a patient. In some
jurisdictions the duty to maintain proper records has been required by statute
and made a cause for disciplinary proceedings.
Remember:
- Records are your property but are accessible to your patient and his attorneys.
- Document and justify your treatment plan and changes to the plan.
- Chart! If it was not charted the assumption is that it did not happen.
- Legibility. Treatment errors can occur when you or others cannot read your notes.
- Do not erase. Make corrections by lining through the error so that it can still be read and enter the correction with the date the correction was made. Proper corrections can be made in electronic records following the protocol for corrections in the medical record program.
- Chart informed consent, missed appointments, non-compliance and the like.
- Document communication with other health care professionals caring for the patient.
- Document discharge fully. This can be a high-risk event. The record should reflect the patient’s status at discharge, his readiness to be discharged, and the patient’s understanding of his condition and his continuing responsibilities after discharge.
- Avoid inflammatory and potentially incorrect expressions
Patient fell
vs. Patient found at foot of bed
Hemorrhage vs.
Bleeding
- Avoid self-congratulatory remarks.
- Avoid criticism of other professionals
Handout 28
Duty to Maintain Proper
Records
More hints
Protect
yourself from denials of coverage by managed care organizations. Note, for example, HMO refusals to provide
services or care and that you discussed the refusals with the patient and that
you disagreed with the refusal.
Even
if you only considered ordering a medical test but ruled it out, explain why
you ruled it out.
Chart
negative findings. For example, chart
“patient in apparent good health” or “patient denies any complaints.”
Chart
your rationale for a diagnosis. Honest mistakes are less harmful so long as you demonstrate that
you were alert and attentive.
DO NOT tamper with records to make them “look
better” for pending litigation. Few
things can turn a winnable malpractice case to a dead loser faster than
evidence that a physician has altered or tampered with records.
Electronic
Records are subject to the same basic rules that apply to hard copy
records. But, in addition to HIPAA requirements, their very nature pose new
legal risks for the practitioner.
1. Take care to avoid inadvertent release or
disclosure of confidential or privileged information. Encrypt files and protect passwords.
2. Be prepared to notify the patient when
privileged information is released inadvertently.
3. Prevent destruction of electronic information
and electronic records when litigation has begun.
4. Remember that email communications can be
part of a patient’s record or a business record.
5. Make sure that patient health records are fully segregated from business records.
5. Make sure that patient health records are fully segregated from business records.
6. Remember that electronic records may be
searched electronically for metadata.
7. E-mails to patients may be part of the
medical chart
Handout 29
Duty to Maintain Proper
Records
Yes! They Mean it!
Handout 31
How to Avoid Being Sued
Communicate
with Patients. A number of studies
have shown that physicians in practices that communicate with patients and
treat patients with dignity are less likely to be sued than are physicians in
other practices. This tends to be true
even when the level of care is equally good in different practices.
Maintain
Standard of Care. Remain current in
your area of practice and be aware of both medical and legal trends that may
change the standard of care. Continuing
medical education courses and publications from medical associations can be of
immense help in staying current.
Risk
Management. Although nobody can
expect to be error free, risk management studies help to identify areas of your
practice that frequently lead to malpractice suits. Identifying areas of particular risk give you
the opportunity to take active steps to avoid those errors. Accurate documentation, including informed
consent, previous medical history and treatments, and a treatment plan also
help to reduce exposure.
Handout 32
What To Do When You Are Sued
Notify your
insurance carrier. Malpractice
insurance policies typically have a requirement that the insurer be notified in
the event of a malpractice suit. Failure
to notify the insurer promptly may create a policy defense that will allow the insurer
to avoid liability. Also, the sooner
that the problem is addressed the easier it will be to control.
Protect
records. Litigation can take more
than a year to complete. By the time of
trial records important to your case may have been misplaced, lost, or filed in
difficult to access locations. It is
important to you to protect the record.
Prepare
memorandum. During the course of
lengthy litigation memory fades and important details may be lost or
distorted. As soon as it becomes
apparent that a suit has been filed against you, prepare a memorandum of events
to preserve your recollection of what happened.
Important, the memorandum should be addressed “To
my Attorney for use in Litigation—Privileged Memorandum,” or addressed in some
similar language. Client communications
to one’s attorney are privileged and cannot be obtained by opposing counsel
using discovery.
DO NOT:
Do not destroy or alter records. Even minor alterations or corrections compromise your integrity. Few things can turn a winning case for the physician into a losing case faster than indications that the physician has made post-suit “corrections” or alterations to the medical record.
Do not assume
that alteration of electronic records cannot be detected.
Do
not attempt to influence co-worker’s opinions. Conversations with co-workers are
discoverable and any appearance that you were attempting to influence their
impressions can be used against you.
Handout 33
The Malpractice Lawsuit
(1) A
lawsuit is commenced when the Plaintiff files a Complaint with
the court. The Complaint and a Summons
will be served on the Defendant, the person being sued.
(2) The Defendant usually has about 20 days to
file an Answer responding to the Complaint. Failure to file the Answer can result in a ‘default
judgment’ against the Defendant.
(3)
The Plaintiff and Defendant enter a Discovery period during which
each is obligated to provide relevant—but not privileged—information to the
other.
(4)
Once a jury is accepted, the Plaintiff has the ‘Burden of Proof’
or obligation to go first and prove his case by a Preponderance of the
Evidence, or that his allegation is more likely true than not. Usually, the Plaintiff’s lawyer will begin
with an Opening Statement in which he tells the jury what evidence he is
going to introduce to prove the Plaintiff’s case. The lawyer for the Defendant may make his
Opening Statement immediately after the Plaintiff’s Opening Statement or he may
wait until he puts on the defense portion of the case.
(5)
The Plaintiff’s lawyer then calls witnesses for their testimony
and introduces exhibits in support of his case. After each Plaintiff’s witness testifies, the
attorney for the Defendant is entitled to ask questions on Cross Examination.
(6)
When the Plaintiff’s lawyer has presented his full case, he ‘rests’
and is finished. If he has failed to
make a basically adequate case on the face of it, a prima facie, case, the judge might grant the Defendant’s
request to dismiss the case. If the
request to dismiss is not granted, the Defendant then puts on his case.
(7)
The attorney for the Defendant calls witnesses and introduces the
exhibits he needs to present his case.
After a witness for the Defendant testifies, the attorney for the Plaintiff may question him on Cross Examination. When the Defendant has put on his entire case, the Defense ‘rests’ and the testimonial part of the trial is over.
After a witness for the Defendant testifies, the attorney for the Plaintiff may question him on Cross Examination. When the Defendant has put on his entire case, the Defense ‘rests’ and the testimonial part of the trial is over.
(8)
Attorney for the Plaintiff makes a Final Argument in which he
argues how the evidence he has presented proves the Defendant is liable. Next the attorney for the Defendant makes his
Final Argument in which he argues that the evidence shows that the Defendant is
not liable. Finally, the attorney for
the Plaintiff makes a rebuttal argument.
(9) Jury
instructions are prepared and given to the jury, and the jury retires to
confer and reach a verdict
.
.
(10)
The jury verdict is given to the judge and the judge enters a Judgment. The trial is over.
Handout 34
Discovery
Before
a case comes to trial, both the plaintiff and the defendant have the
opportunity to engage in discovery.
The means of discovery are extensive and
intrusive.
State court rules are often
similar to those used in federal court.
Federal Rules of Civil Procedure, Rule 26(a)(5).
Parties may obtain discovery by one or more of the following methods:
Parties may obtain discovery by one or more of the following methods:
1. Depositions upon oral examination;
2. Written interrogatories;
3. Production of documents or things;
4. Entry upon land or other property…for
inspection and other purposes;
5. Physical and mental examinations; and
6. Requests for admission.
The
scope of discovery is broad:
Federal
Rules of Civil Procedure, Rule 26(b). Parties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any
party….
NOTE: With the rapidly
expanding use of electronic medical records, discovery can include forensic
analysis of electronic documents by experts searching for meta-data among other
things. This can lead to much higher
discovery costs.
Handout 35
STATUTE
OF LIMITATIONS
The statute of limitations
requires that a suit be filed within a given period of time or it cannot be
pursued, no matter how meritorious the claim.
For example, if you surgically
remove a patient’s right leg when you were supposed to remove his left leg it
would seem to be a fairly clear case of negligence on your part. However, if the statute of limitations is one
year and the patient does not file suit against you until one year and one day
after the removal of the leg, then he has lost his right to sue and cannot
proceed against you.
However, the term of the statute
of limitations might be extended beyond the actual term set by the statute
under certain circumstances. If the patient is receiving ongoing treatment
for the same condition for which the malpractice occurred, the statutory time
may not begin to run until the last day for which treatment was given. If a foreign object is left in the
patient’s body, the clock may not begin to run until it is discovered. If the patient is a minor, the clock
on the statute of limitations may not begin to run until the patient becomes an
adult—at the age of 18 in most jurisdictions.
In general, a statute of limitations will place a limit on
the length of time that may pass before someone can sue for a particular
wrong. However, many things may
intervene to alter or extend the statute of limitations. Whether or not the statue applies to your
case is something that your attorney will determine at the very outset of the
litigation process.
Be aware that the statute of limitations may vary
depending on the nature of the injury and the identities of the parties. For example, in some jurisdictions the
statute of limitations for invasion of privacy may be longer than the statute
of limitations for a medical malpractice action based on failure to protect a
patient’s confidences.
Handout 36
Motions
A motion is
a formal request made to the court by one or more of the parties in a
lawsuit.
Some motions may
offer the possibility of stopping a lawsuit before it even gets to trial.
For
example, when the pleadings fail to state a legitimate claim or are otherwise
flawed, one can make a Motion to Dismiss on the Pleadings or a Motion
to Dismiss for Failure to State a Claim.
Also,
as discovery progresses and issues are clarified, one may make a Motion for
Summary Judgment. If it is shown
that there is no genuine issue as to material fact and that the moving party is
entitled to judgment as a matter of law, then judgment will be granted and a
full trial avoided.
Motions During or After Trial
If the plaintiff presents his
case, calling witnesses and introducing evidence, and it appears that he has
not presented a prima facie case (see Glossary;
It may also be
the case that the court will hear the entire presentation of both the plaintiff
and the defendant and will decide the case without permitting it to go to the
jury. In rare instances, when the court
has decided that the trial or jury’s verdict is fundamentally flawed and
erroneous, the court may order a new trial.
Judgment, Damages and Insurance
Judgment
The
judgment is the “final decision of the court resolving the dispute and
determining the rights and obligations of the parties,” (from Black’s Law
Dictionary).
The
jury gives its decision as a verdict, but the judgment
is given by the judge. The judgment may adopt the jury’s verdict, set the
verdict aside, or modify the verdict.
Once judgment is given, a party to the trial may appeal to an appellate
court.
A
money judgment can be collected by judicially enforced levy (seizure)
and sale of the physician’s property.
However it is preferable that a judgment be paid by the physician’s
malpractice insurer.
Damages
The
term damages used in a judgment awarded in a tort action refers
to the amount of money for which the judgment can be enforced. A distinction can be made between compensatory
damages and non-compensatory damages.
Compensatory
damages are intended to compensate a plaintiff for the loss that he has
suffered as a consequence of the wrongful acts of the defendant. Compensatory damages may be either economic
damages or non-economic damages. Economic damages generally can be related to
a calculable financial loss. For
example, medical bills and lost wages are quantifiable economic damages. On the other hand, non-economic damages may
be awarded for ‘losses’ such as pain and suffering that cannot easily be
assigned a definite monetary value.
Sometimes juries tend to award excessive verdicts for non-economic
injuries such as pain and suffering in medical malpractice cases, and it is
these damages that are sometimes the focus for tort reform legislation. California’s Medical Injury Compensation
Reform Act of 1975 (MICRA), for example, limits non-economic damage awards
to $250,000 in medical negligence cases.
Non-Compensatory
damages are awards that are not intended to compensate for a recognized
loss. Punitive damages
are non-compensatory damages that may be awarded to the plaintiff to penalize
the defendant for more or less outrageous conduct, such as conduct that has
been intentional, reckless or malicious.
Punitive damages might be appropriate, for example, if a physician
willfully and maliciously revealed private information learned in the course of
treating a patient. Punitive
(non-compensatory) damages may be awarded in addition to compensatory
damages (both economic and non-economic).
It is worth remembering that medical malpractice policies generally
insure for compensatory damages but not for punitive damages.
Malpractice Insurance
Insurance Types:
Occurrence
Based policies protect the insured physician from claims made for acts of
malpractice occurring during the time the policy was in effect even if the
claim has been made after the policy has expired.
Claims-Made policies
protect the insured for acts of malpractice occurring during the time the
policy is in effect but only if the claim is made while the policy is in effect
for the individual against whom the claim of malpractice has been made. An act of malpractice occurring while the
policy is in effect will not be covered by a claims based policy if the claim
is filed after the policy has expired or after the individual has ceased to be
insured by that policy because of a change of job, failure to pay premiums, or
other reason.
Tail
Coverage, is intended to protect the insured for a period of time after a
claims based policy has expired.
Usually, after a claims-based policy has expired, tail coverage will be
offered for a limited period of time by the insurer. Tail coverage is expensive, but if not
purchased within the time offered, it may not be available again. Tail coverage is also referred to as an ‘extended
reporting endorsement.’
Nose Coverage can be available to insure a physician for alleged acts of malpractice that occurred before a new malpractice policy takes effect.
Nose Coverage can be available to insure a physician for alleged acts of malpractice that occurred before a new malpractice policy takes effect.
Handout
40
Sources of Law
Constitutional
Law. The Constitution of the United
States is the basic and paramount law of the land. It has priority over every other law that may
conflict with it. When the United States
Supreme Court held that a constitutional right to privacy negated a state law
that prohibited abortion, it was the state law that became unenforceable, Roe
v. Wade. Each state has a
constitution establishing state government and guaranteeing fundamental rights
within the boundaries of that state. Any
state statute or regulation is subordinate to the state constitution.
Statutory
Law. Statutory law is what most of
us think of when we think of laws.
Statutes (or Acts) are the laws enacted by the legislative
authority. In the United States
government the legislative authority (according to the U.S. Constitution) rests
with the United States Congress. At the
state level, the legislative authority rests almost entirely with the state
legislature. However, a state may also
draw upon the people’s inherent pool of governmental authority and the voting
population of a state may pass an initiative enacting specific legislation. The state law allowing medical use of
marijuana was adopted in California by the initiative process.
Case
Law and Common Law. Case and/or
common law is a type of law that layman usually find most baffling. Essentially, court decisions, precedents, particularly
appellate court decisions, become a part of the law. That is why lawyers (and increasingly
physicians) are alert to changes in the law brought about by court
decisions. The Canterbury case
linked on Island Court blog site is a good example of how law may change
through a court decision. The Tarasoff
case (linked on Island Court) is another example of a court decision that
changed both law and medical ethics.
Administrative
Law. Rules and regulations adopted
by administrative agencies have the force of law.
Handout 41
Administrative Law
Administrative
law comes from executive agencies that have been created to oversee and
regulate important, and often complex, elements of society. One has only to look at the extensive regulations
set down by the Food and Drug Administration (FDA) or the Centers for Medicare
& Medicaid Services (CMS) to get an idea of the nature of administrative
law. It is massive, highly specialized,
frequently opaque, and often dangerous.
At least some of the physicians prosecuted for Medicare fraud have been
befuddled and ensnared by the complex regulations governing Medicare payment
without intending to commit actual fraud.
Quasi-judicial trials or hearings are an important
element of administrative law.
Frequently these proceedings will be held before an administrative
law judge, or a hearing examiner, or perhaps before a panel convened
for the purpose. These proceedings are
generally described as being “quasi-judicial” rather than truly judicial for
several reasons. The “judge” is not
actually a statutory or constitutional and independent judge and he generally
is an employee of the agency that is a party to the action. Moreover, the rules of evidence tend to be
less formal than are permitted in a true courtroom. Disciplinary proceedings brought against a
physician by the state medical board have the character of an administrative
hearing. The case will be heard and decided
by one or more individuals who are actually members of the board of medicine
rather than an independent judiciary.
Evidence that would be inadmissible in a true judicial setting may be
readily admitted against the physician in a disciplinary proceeding. Perhaps the most important thing to remember
for a physician facing a disciplinary proceeding before the board of medicine
is that these proceedings may end in serious consequences for the physician and
it is recommended that he retain counsel experienced in medical board hearings
as soon as possible.
Handout 42
Sources of Liability
TORT. Liability for tort arises when one causes
injury either accidentally (as in an auto accident) or deliberately (as in a
physical assault and battery), and is the area of law that involves lawsuits
for medical malpractice for physician errors.
CONTRACT. Liability arises in contract law when one of
the parties to a contract—a legally enforceable agreement—breaches or violates
the terms of that agreement. For
example, a physician may be found liable for violating a non-competition
agreement in his employment contract.
STATUTORY LIABILITY. Liability may arise when one violates the
terms of a statute. For example, a
physician who fails adequately to treat pain in an elderly person may be found
liable for violating the statute prohibiting elder abuse.
FIDUCIARY LIABILITY. The physician/patient relationship is a
fiduciary relationship, meaning that it is primarily for the benefit of the
patient and the patient is entitled to trust the physician. For example, if a physician sells overpriced
vitamins to his patients (thus taking unfair advantage of the relationship)
then he may be liable for breach of his fiduciary duty. Breach of this duty may also occur if the
physician withholds information from the patient.
Handout 43
Tort
Tort. A
private or civil wrong or injury, other than a breach of contract, for which
the court will provide a remedy in the form of an action for damages. BLACK’S LAW DICTIONARY 1335 (5th
ed.1979).
1. Duty.
There must be a duty to act in a particular fashion. A physician has a duty to practice at not
less than the standard of care.
2 Dereliction. There must be a dereliction of that
duty. Leaving surgical instruments in
your patient’s abdomen might, arguably, be practicing at below the standard of
care and therefore a dereliction of that duty.
SEE, res ipsa loquitur in the Glossary
.
.
3. Damage. There must be damage. Dereliction of duty does not create liability
in tort law unless it causes damage. If
surgical instruments left in an abdomen cause pain, temporary loss of work, and
require a medical procedure to recover them, then some may be inclined to argue
that those are damages.
4. Direct Cause. To be liable for tort, the dereliction of
duty must have caused the damage. It
must be apparent that the damage would not have occurred, as it occurred, but
for the physician’s dereliction of duty.
DAMAGE AWARDS
Damage
awards, in actions for medical malpractice, a type of tort, are typically
for compensatory damages. Compensatory
damages may be divided into special damages and general
damages. Special damages are damages
for which a dollar amount can easily be calculated, such as hospital and
doctors bills. General damages are
damages which generally have to be estimated, such as the dollar value of and
pain and suffering. Damages may also
distinguished, on the one hand, as economic damages such as medical
bills and loss of wages, and, on the other hand, non-economic damages, such
as pain, suffering and emotional distress.
Non-economic damages are thought to be the principal reason for the
exorbitantly high malpractice judgments that juries sometimes award. Less often, a jury may also award punitive
damages, that are not based on any proven loss suffered by the
plaintiff. Punitive damages are intended
to punish outrageous conduct on the part of the defendant. ALL damages are awarded in dollars
payable to the plaintiff. Do not
confuse ‘punitive damages’ which are sums of money awarded to the plaintiff to
chastise the defendant with the truly punitive penalties (fines, imprisonment,
execution) that are part of a sentence in a criminal case. Criminal fines are paid to the State and not
to the victim.
GOOD SAMARITAN LAW
A Good Samaritan Law protects
someone gratuitously rendering emergency aid away from regular medical
facilities from suits based on ordinary negligence.
Handout 44
Contracts
A contract is an
agreement between two or more parties that will be enforced by a court.
For
an agreement to be enforceable,
The parties must have legal
capacity. Thus minors and adult
incompetents cannot execute (enter into) enforceable contracts.
The agreement must be for a
legal purpose. A court will not, for
example, enforce the terms of an agreement to dump medical waste on a public
beach.
The contract must not violate
public policy. A contract in which
the patient agrees not to sue the doctor as a condition of treatment is not
enforceable because of public policy.
Read Exculpatory Contracts, Olson v. Molsen at Island Court blog site. But,
an Assumption of Risk type of exculpatory contract when Alternative
Medicine is demanded by the patient probably will be enforceable. See Assumption of Risk and Alternative Medicine
on Island Court blog site.
There must be consideration. That is to say, there must be an exchange of
value. If I promise to give you $200,
that is a “bare promise” and not an enforceable contract. If I promise to give you $200 if you paint my
kitchen, then the agreement includes consideration (a painted kitchen in
exchange for $200) and is enforceable.
Physician
employment contracts often include a non-competition clause by which the
physician agrees that when his employment ends he will not compete within a
specified distance for a given period of time.
In most states these agreements will be enforced so long as they are
reasonable. Some states, California and
Tennessee, for example, do not. However,
in states where these agreements are enforceable, a distance of 5 or 10 miles
for one year probably would be reasonable and enforceable. A distance of 100 miles or a term of 15 years
would probably be unreasonable and not enforceable.
A non-competition clause will often provide two or more remedies. Typically, one remedy will be an injunction, or court order, prohibiting the physician from violating the agreement on pain of being held in contempt of court. Contempt of court pain takes the form of fines and imprisonment. Another remedy frequently agreed to in non-competition agreements is a provision for payment of liquidated damages. Liquidated damages are in a stated amount agreed upon in the original contract and are enforceable. For example, a non-competition clause prohibiting competition within 5 miles for one year and allowing for the remedy of injunctive relief together with liquidated damages in the amount of $1,000 per day probably would be enforced by the court.
A non-competition clause will often provide two or more remedies. Typically, one remedy will be an injunction, or court order, prohibiting the physician from violating the agreement on pain of being held in contempt of court. Contempt of court pain takes the form of fines and imprisonment. Another remedy frequently agreed to in non-competition agreements is a provision for payment of liquidated damages. Liquidated damages are in a stated amount agreed upon in the original contract and are enforceable. For example, a non-competition clause prohibiting competition within 5 miles for one year and allowing for the remedy of injunctive relief together with liquidated damages in the amount of $1,000 per day probably would be enforced by the court.
Handout 45
Statutory Liability
State Law
Sometimes
a legislature will pass a statue or Act (law) to create a legal remedy (a right
to sue) to correct a perceived problem.
For
example, California passed a law protecting elderly and dependent adults from
abuse, and included the right to sue among the remedies available to abuse
victims.
‘Abuse’ was defined broadly:
“Abuse
of an elder or a dependent adult" means (among other things) the
following:
Physical
abuse, neglect, financial abuse, abandonment, isolation, abduction, or other
treatment with resulting physical harm or pain or mental suffering.
And
the new law provided that:
Where
it is proven by clear and convincing evidence that a
defendant
is liable for physical abuse: (a) The court shall award to the plaintiff
reasonable attorney's fees and costs.
Physicians
are not exempt from the provisions of this law, and there have been cases in
which physicians have been sued both for ordinary medical malpractice and for
“elder abuse.” Among the dangers to a
physician, a suit for “elder abuse” may not be covered by a physician’s
malpractice insurance policy, and some of the protections of ‘tort reform’
legislation may be negated. The
allowance for “reasonable attorney’s fees and costs” provides an additional
incentive for litigation. In normal
malpractice cases each party bears his own share of the attorney’s fees; in
“elder abuse” litigation the defendant physician may be liable for both his
attorney’s fees and the fees of the plaintiff’s attorney.
Handout 46
Statutory Liability
Federal Law
At the
present, most law relating to physicians comes from the state government of the
state in which the physician practices medicine. For example, Florida physicians are governed
primarily by Florida law.
However,
the federal, or national, government is becoming more involved with medical
practice and subjecting physicians to new areas of potential liability.
HIPAA
regulations provide one example of federal regulation that
increases a physician’s exposure to liability.
False
Claims Act. The False Claims Act
imposes great risk of loss to those participating in federally funded programs
such as Medicare or Medicaid. Any
physician who ‘knowingly’ submits a false claim for payment through Medicare or
Medicaid faces a fine of $5,000 to $11,000 per claim, plus treble
damages and attorney’s fees. Thus,
if you submit a false claim in the amount of $1,000, you face fines ranging
from $5,000 to $11,000 plus three times the amount of the bill, or $3,000 in
this case, plus any attorney’s fees associated with pursuing the claim. It is not necessary for the government to
prove an ‘intent to defraud’ to collect under False Claims Act. It is sufficient to show that the physician
was deliberately ignorant of the falsity of a submitted claim or acted with
reckless disregard of the truth.
Federal
Enforcement Recovery Act (FERA).
FERA imposes an obligation upon physicians to report overpayments
received under Medicare or Medicaid or any other federally funded program. Of course, if you do report the overpayments
you may face fines and treble damages under FTC, but if you do not report the
overpayments, you face additional penalties under FERA.
Qui
Tam suits. A private individual
can sue you on behalf of the federal government for FTC violations and share in
part of the damages recovered from you.
For example, if the billing clerk you fired for misconduct is aware that
your billing program sometimes sends out erroneous bills without your
knowledge, she may engage a private attorney to sue you in a qui tam
suit to collect treble damages plus attorney’s fees for every erroneous bill
that was submitted. The government takes
most of the award, but the billing clerk would share in the collection. Even if the errors in your billing program
result in 50% of the erroneous bills being for less than they should have been,
there is no allowance for offset against the bills for more than they should
have been.
Handout 47
It’s Not Just Malpractice Anymore
Medical
negligence is the failure to practice medicine with that degree of care, skill
and learning that would be expected under similar circumstances of a reasonably
prudent physician. When medical negligence
causes harm the physician may be sued for medical malpractice.
However,
there are torts other than medical malpractice.
Basically, when a physician is acting outside the scope of established
medical treatment, he may be exposed to liability that is not related to actual
medical malpractice. In such cases, the
physician may not be covered by his medical malpractice insurance policy. For example, elder abuse may be
alleged for failure to treat an elderly patient within the standard of care, and
elder abuse is not generally covered in medical malpractice insurance policies.
Indeed, a claim of elder abuse may be alleged along with elements of
traditional medical malpractice in an effort to intimidate a physician to
settle rather than defend against the suit. Battery (see Glossary) is a
tort that may result in a suit against a physician that may not be insured as
medical malpractice. And, if a physician
intermingles complementary or alternative medicine with his allopathic treatment
of a patient, then to the extent that a suit against the physician can be
linked with his use of alternative medicine he may not be covered by his
medical malpractice insurance policy.
.
Dangers
of suits against physicians that are based on legal theories other than medical
malpractice include:
- The statute of limitations may be longer.
- Malpractice insurance may not cover the judgment.
- Judgments may not be limited by medical malpractice tort reform.
- Some damages may differ. Normally pain and suffering damages do not survive the death of the plaintiff. However, in elder abuse cases awards for pain and suffering survive the death of the plaintiff.
- A judgment against the defendant may include an award for attorney’s fees.
Handout 48
Suing For Something Other Than Damages
Declaratory Judgment
A
declaratory judgment is usually sought to have the court declare the law on a
specific issue rather than to seek monetary damages. For example, if your insurer states prior to
trial that they are going to deny any claim because of a policy defense, you
may sue for a declaratory judgment to get the court to declare as a matter of
law that the insurer’s policy defense is not valid.
TRO and Injunction
A
Temporary Restraining Order (TRO) is an emergency, short-lived injunction that
orders a party to stop a particular action until the issue can be heard more
fully and the court can decide whether or not to issue an injunction, barring
action indefinitely. If, for example,
your mother’s physician is going to order your mother’s ventilator turned off
because it is “futile care,” you may ask for an emergency TRO to stop him until
the court can hear the matter in full and issue a permanent injunction
preventing him from turning it off.
Ignoring a TRO or Injunction can be perilous. It amounts to ignoring a court order and the
violator can be punished for contempt of court.
Habeas Corpus
Habeas
Corpus is a remedy for challenging the legality of the involuntary confinement
of an individual. If you think you are
being wrongly held in a mental institution, your means of challenging your
detention is to bring a habeas corpus action.
Guardianship
Guardianship
proceedings are for the purpose of appointing a competent guardian to look after
the affairs of one who is deemed legally incompetent, such as an infant without
parents or an elderly person whose senility has rendered him incapable of
looking after his own affairs.
Civil Commitment
Civil
Commitment proceedings usually are for the purpose of legally detaining someone
against his will in a non-criminal action. For example, a person who has become a danger
to himself or others may be committed to a mental institution against his will.
Handout 49
Complementary and
Alternative Medicine
There may be no precise definition of complementary
and alternative medicine (CAM), but the definition of the National Center
for Complementary and Alternative Medicine describes it “as those
treatments and health care practices not taught widely in medical schools, not
generally used in hospitals, and not usually reimbursed by medical insurance
companies.”
For
the purposes of a Law and Medicine course it should be added that damages for
injuries, damages for failure to diagnose, and damages for loss of chance (to
name a few possibilities) may not be covered by a physician’s medical
malpractice carrier. Put simply, if a
patient sues an allopathic physician for damages arising from CAM therapy in
which the physician played a role, the physician’s medical malpractice carrier
may see this as an opportunity to assert a policy defense and leave the
physician ‘bare’ and unprotected. If the
plaintiff is awarded a judgment, the judgment may have to be paid by the
physician’s personal assets rather than by his insurance carrier.
Another
risk arises when the physician is unaware of a patient’s use of CAM and harm
results because of the interaction of incompatible therapies. However, an error of this nature is less
egregious than that of actually participating in CAM in that it is an error
within the scope of allopathic medical practice and is likely to by covered by
a medical malpractice insurance policy.
A
physician may reduce his risks by communicating with his patients and inquiring
whether the patient is using any alternative therapies. Those questions are likely to be more
productive if they are non-judgmental and if the physician avoids making
disparaging remarks about CAM. However,
one should be careful not to drift into an actual endorsement of CAM so to
avoid a situation in which the patient/plaintiff is able to allege that you
encouraged CAM as a part of your treatment plan.
If
the physician is aware of actual risks that the patient faces when he chooses a
particular form of CAM, then there is a duty to warn the patient of those
risks. If the patient is electing a form
of CAM that the physician reasonably believes does not pose significant risks
while the patient is also continuing to receive medical treatment, the
preferred approach is to document the patient’s assumption of risk in
continuing the CAM. READ: Assumption of Risk and Alternative Medicine on Island Court.
Assumption
of risk is likely a better approach for the physician than informed consent
because assumption of risk includes the recognition that some of the risks and
consequences of CAM may not yet be known and that the patient is willing to
assume both the known and unknown risks and is going ahead with the treatment
without the recommendation of the physician.
Informed consent, on the other hand, implies that the physician is aware
of the risks and consequences, has informed the patient in a way he understands,
and that the patient is consenting to a recommended treatment.
Handout 50
Criminal Law
Criminal law
cases are brought against an individual when he has been charged with violating
a criminal statute. A criminal statute
is a statute that prohibits certain conduct, e.g. murder, rape, bank robbery,
and the like. A criminal case is pursued
by a prosecuting attorney who is the agent of the government, and the object of
a criminal case is to punish individuals who have engaged in the prohibited
activity and to discourage others who may be tempted to follow their examples. The punishments range from fines paid to the
state, to imprisonment, to the death penalty.
Because of the seriousness of a criminal case, it must be proven beyond
a reasonable doubt, that is to say, the case must be consistent with guilt
and inconsistent with any reasonable hypothesis of innocence.
Medical
malpractice cases, by contrast, are civil law matters. They are brought by private individuals who
have retained private attorneys and they seek money to compensate for damages
the injured party claims to have suffered.
If won, the final judgment in a civil suit is for the payment of money
to the injured private individual. The
standard of proof in most civil cases is the preponderance of the evidence
standard, meaning only that it is more likely than not that the allegations of
the plaintiff are true.
Doctors
are sometimes charged with crimes:
- Reckless Behavior. Although ordinary negligence causing injury to a patient may result in a malpractice suit against the physician, if his negligence is so grave that it amounts to recklessness, then the criminal law may also become involved. For example, an anesthesiologist was charged with a crime when he fell asleep during minor surgery on a young boy and failed to observe that the boy was dying for lack of oxygen.
- Medicare Fraud. Some physicians have defrauded the Medicare system and been prosecuted and jailed for that crime.
- Insurance Fraud. Submitting fraudulent insurance claims is a crime.
- Narcotics Abuse. Physicians have been prosecuted both for the personal misuse of narcotics and for unlawful use of their prescribing authority to distribute narcotics.
Handout 51
Mental Health Law
CIVIL COMMITMENT
Civil
Commitment refers to the incarceration of a person who has not committed a
crime but whose mental state is such that he is a danger to others or a danger
to himself.
The state may
compel the involuntary detention of an individual for civil rather than
criminal (punitive) purposes under two distinct governmental powers:
1. Parens Patriae (used when person is a
danger to himself). Under the parens
patriae power (see Glossary) the state may detain a person whose mental
condition has reached the point of decisional incompetence and he
has become a danger to himself. The parens
patriae power is exercised by the state in the best interests of
the individual endangered by his decisional incompetence.
2. Police Power (used when person is a danger to
others). The police power is the
government’s authority to restrain personal freedom for the protection of the
public safety, health and morals. It
could be used, for example, to quarantine individuals infected with a dangerous
and infectious disease. In the mental
health setting the police power is used to detain individuals whose mental
condition makes them a danger to others.
Due Process. An individual with mental illness or
developmental problems warranting confinement under parens patriae or
the police power is entitled to due process.
This means that there will generally be a commitment hearing
(like a trial) before an impartial tribunal, most often with notice and
representation by counsel.
Expert
Opinion. Psychologists or
psychiatrists may testify at commitment hearings as to their opinion of the
mental status of the person facing civil commitment, and the trier of fact may
rely upon the testimony of experts in reaching a final judgment, but the
ultimate legal issue is decided by the tribunal, not by the experts.
Standard
of Proof. A civil commitment
hearing is not a criminal proceeding.
Instead, the question is not whether the individual is guilty or
innocent but whether he is a danger to himself or others. Although civil commitment is a civil
rather than criminal proceeding, the usual standard of proof used in
civil cases [the ‘preponderance of the evidence standard] is too low a bar when
someone’s liberty is at stake.
Therefore, the Supreme Court has held that the standard of proof in
civil commitment proceedings may not be lower than the clear and convincing
evidence standard. This standard is
more exacting than the civil ‘preponderance of evidence’ standard used in
medical malpractice cases, but less exacting than the ‘beyond a reasonable
doubt’ standard used in criminal cases.
Handout 52
Mental Health Law
Civil Commitment
Sexual Predators
When
a person is incarcerated after being convicted of a crime, his imprisonment is
a part of his punishment.
On
the other hand, when a person is committed against his will because of mental
problems, his confinement is not punishment.
Instead, he is being confined by a civil (not a criminal) court for
treatment, and his confinement is for his protection or for the protection of
others.
In
this system, sexual predators pose an unusual problem. Often they have no detectable mental illness
or developmental problems. They are not
burdened with decisional incompetence.
They may even be highly intelligent and rational beyond the norm. But they prey sexually upon others
relentlessly. Their acts are criminal
and when they are caught they are punished, but they have an extraordinarily high
recidivism rate.
To
deal with the problem of sexual predators, Kansas adopted a law for the civil
commitment of sexual predators until such time as treatment or circumstance
renders them safe for release. Even
though civil commitment normally requires that the clear and convincing
standard of evidence be met, Kansas adopted the beyond a reasonable doubt
standard for the civil commitment of sexual predators. The high standard was adopted because there
is no treatment for sexual predators and confinement under the new law could be
indefinite.
One
of the first individuals to be ensnared by the new law was a man named
Hendricks. He had molested nearly every
child of both sexes with whom he had come in contact over a period of many
years. When released from prison, he
returned to his practices without remorse or hesitation. However, when he finished his last prison
term for his criminal sentence in Kansas, he was immediately given a civil
commitment hearing for being a sexual predator.
Upon a finding he was a sexual predator, he was confined in a mental
facility.
Hendricks
appealed to the United States Supreme Court claiming he had served his criminal
sentence and the civil commitment was nothing more than a disguised additional
punishment. He had no mental illness
meeting the normal standards warranting civil commitment. But the Supreme Court held that Kansas’ civil
commitment procedure for sexual predators did not offend the Constitution. Hendricks remained civilly locked up under
the police power for the protection of others. Kansas v. Leroy Hendricks, 521 U.S.
346, 117 S. Ct. 2072 (1997)
Handout 53
Mental Health Law
INSANITY
Both insanity and incompetency
are legal standards, not psychiatric standards, and their
provenance is the courtroom, not the couch.
In making a legal determination of insanity or incompetency a court may
use psychiatric testimony, but the ultimate issue rests with the court.
To
be insane means that you will not be held morally or criminally responsible
for your acts. One of the oldest tests
for insanity is the M’Naghten Rule.
Under this rule a person may be found insane if at the time of the act
the party was laboring under such a defect of reason he could not know the
nature and quality of the act he was doing; or if he did know it he did not
know that it was wrong.
If
a person is found to have been insane at the time that he commits what would
normally be a criminal act then he cannot be found guilty of a crime.
Some
states have adopted a guilty but mentally ill, or guilty but insane,
finding as an alternative to the finding of guilty or insane. A guilty but mentally ill verdict
might be particularly appropriate when an individual who has committed a crime
is clearly suffering from some mental illness but it is doubtful whether the
illness is so severe that it would rise to the M’Naghten Rule. In such a case, the convicted individual may
be sentenced to both punishment and mental health treatment.
Handout 54
Mental Health Law
INCOMPETENCY
To
be incompetent means that the law will not give validity to certain of your
legal acts. Its most profound expression
can be seen when a severely senile uncle is declared incompetent and a guardian
is appointed for him. At that point, the
guardian makes his legal decisions for him.
If an incompetent signs a contract to sell his home, it is invalid. If the property is to be sold, it is the
guardian who must act as the agent for the incompetent. On the other hand, a mature minor (see
Glossary) may be legally competent to make personal medical decisions but
legally incompetent to sign a real estate sales agreement.
Guardians
and Wards. A person who is
incompetent generally needs a guardian to make many decisions for him. A minor is incompetent and his guardians are
his parents. If a minor’s parents are
not immediately available, another person (often a relative) may be in loco
parentis, that is, in a position to act as if he were the
child’s parent. In medical practice this
may come up when a close, adult relative acting in loco parentis brings
a child in for treatment. Often in these
cases the adult relative will have a note or form signed by the child’s parents
authorizing the individual to act in their stead.
Foster
parents chosen by the state are also guardians in loco parentis and
authorized to make medical decisions for a minor child.
A
person who has a guardian to care for him is a ward. The ultimate guardian for a child placed with
foster parents is the state, or the court, and that child may be referred to as
a ward of the state, or a ward of the court.
An
adult whose mental facilities have declined to the point that he needs the
assistance of a guardian to manage some or all of his affairs may receive a
court hearing similar to a civil commitment hearing in which evidence is
presented to prove he is incompetent. If
the case is proven, the court will appoint a guardian, usually a close
relative, to act for him. The guardian
has to act according to the requirements of the court and may need court
permission for some acts, such as selling personal property. An elderly person who has had a guardian
appointed by a court to manage some or all of his affairs may be known as a ward
of the court. A physician treating a
person who has been found incompetent by a court probably will look to the
patient’s appointed guardian for consent for treatment.
IMPORTANT: An incompetent person is not insane. Even though he may not have the ability to
manage his financial or health concerns, he may understand the difference
between right and wrong and act accordingly.
Handout 55
Sources of Psychiatric
Liability
Liability
Imposed in Psychiatric Practice:
- Sex with patient. By case law liability may be imposed on a psychiatrist who breaches his fiduciary duty by having sex with his patient. Some jurisdictions prohibit sexual conduct with patients by statute. In the AMA Code of Medical Ethics, Opinion 8.14 Sexual Misconduct in the Practice of Medicine, it states flatly that “Sexual contact that occurs concurrent with the physician-patient relationship constitutes sexual misconduct.”
- Wrongful Discharge. Liability has been imposed on psychiatrists who have negligently released mental patients who posed a danger to others.
- Suicide. Liability has been imposed on psychiatrists whose patient committed suicide because the psychiatric therapy was deemed to be below the standard of care.
- Medication. Liability may be imposed because of inappropriate medication.
- Failure to Warn. Liability may be imposed because of a therapist’s failure to warn or protect a person from an imminent threat posed by a patient. See: Tarasoff in the Glossary.
- Third Party Liability. Recently the Supreme Court of Georgia held that a psychiatrist could be found liable for medication negligence when his patient murdered his mother. Brien v. Bruscatto [O’Brien v. Bruscatto] Supreme Court of Georgia, September 12, 2011. The Utah Supreme Court is considering a similar case.
Handout 56
Right to Refuse Treatment
The
right to self-determination includes the right for every competent adult
to determine what shall be done with his own body. The court in Canterbury gave
this as the root premise underlying a patient’s right to be informed of
the material facts he may need to make an intelligent decision in choosing to
undergo or refuse a medical procedure.
The corollary to this is that a
competent adult patient also has the right to refuse medical treatment even
including the refusal of artificial nutrition and hydration.
Minors
present a special problem. Refusal of treatment by a minor’s
parents usually will not pose a problem if the treatment is discretionary. However, if the minor is in some medical
danger a court may appoint a guardian ad litem (see Glossary) who
will have the authority to make medical decisions for the minor in lieu of the
parents.
Incompetent
or Incapacitated Adults are incapable of making personal medical decisions. If a guardian has been appointed for an
incompetent adult, that person will normally have the authority to accept or
reject medical care. If an incapacitated
adult has appointed a Health Care Proxy
or chosen a Durable Power of Attorney
then that appointee will make the medical decisions. If the incapacitated patient has a Living Will, that document may set firm
guidelines for what treatment may be done.
There are two standards to guide a health care proxy—or physician in some
circumstances—when treating an incapacitated patient. On the one hand, he may
elect to act in what he determines to be the best interests of the
patient when the patient’s preferences are unknown. On the other hand, if he knows something
about the patient’s preferences he may use a substituted judgment course
of decision making in which he makes the decision he believes the patient would
have made if his mental abilities were intact.
In actual practice, there is often blurring of the two standards with
the assumption that the patient’s known preferences would be that someone act
in his best interests.
Handout 57
Right to Die
Physician-Assisted Suicide: Some states permit physician-assisted suicide by a statute passed by the legislature. In a
December 31, 2009 case, Baxter et al v. Montana, the Supreme Court of
Montana held that physician-assisted suicide is not prohibited under Montana
law. It is a crime for a physician to assist a suicide in all other States.
In most jurisdictions it is
permissible to treat the pain of a dying patient aggressively, even if the
medications used to treat the pain suppress consciousness and repress
respiration to the point that the patient’s death occurs as a side effect of
the pain treatment. In such a case, the
stated goal is to relieve pain and it should be managed and charted as pain
relief and not spoken of or charted as a physician assisted suicide. It
would be unwise to treat pain this aggressively with illnesses that are not
terminal.
In the United States, deliberately
killing a patient without the patient’s consent and participation is murder.
In Canada the criminal code
prohibits physician-assisted suicide, but a British Columbia woman suffering
with Lou Gherig’s disease is one of five patients now challenging the
constitutionality of that law in the courts and it remains to be seen how the
courts will decide the issue.
In the Netherlands the law has progressed beyond ‘assisted
suicide’ to ‘assisted death’ or euthanasia in which the physician kills the
patient. Generally the euphemism
‘assisted death’ is more comfortably used than ‘killing’ the patient, but one
is left to wonder if execution by lethal injection could also be described as
an ‘assisted death’. The means are the
same and the results are the same.
In general:
Assisted Suicide
means giving the patient the means to end his own life.
Active Euthanasia
means killing the patient.
Passive Euthanasia
means ending the life of the patient by withholding medical care.
Doctor-Assisted Death
may mean physician-assisted suicide or euthanasia.
