Chapter Legal Considerations © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Sources of Law • Constitutional law – Constitution and 27 amendments • Statutory law – Laws made by states • Common law – “Judge-made” law © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Sources of Law • Criminal law – Malfeasance • Illegal conduct by an official – Felony • Serious crimes and serious punishments – Misdemeanor • Lesser crimes and lesser punishments © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Sources of Law • Civil law – Misfeasance • Lawful act improperly or unlawfully executed – Nonfeasance • Failure to perform an act, official duty, legal requirement – In a civil case, a plaintiff brings charges against a defendant – Common forms of civil law are administrative, contract, and tort law © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Administrative Law • IRS • Medicare/Medicaid • Title VII of the Civil Rights Act of 1964 – Protects employees from discrimination – Harassment • Equal Pay Act (EPA) of 1963 • Federal Age Discrimination in Employment Act of 1967 © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Administrative Law • Americans with Disabilities Act (ADA) of 1990 – Title I prohibits discrimination in employment – Titles II–IV mandate access to public services by individuals with disabilities • Family and Medical Leave Act (FMLA) of 1993 © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Administrative Law • Health Insurance Portability and Accountability Act (HIPAA) of 1996 – Requires national standards for electronic health care transactions – Assists in making health insurance more affordable and accessible when people change or lose their jobs – Identified in Titles I–VII © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Administrative Law • Occupational Safety and Health Act (OSHA) of 1967 • Controlled Substances Act of 1970 – Five schedules (I, II, III, IV, V) according to potential for abuse and dependence © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Administrative Law • Uniform Anatomical Gift Act of 1968 • Regulation Z of the Consumer Protection Act of 1967 (Truth in Lending Act) Medical Practice Acts â 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Contract Law • Expressed contracts – Written or verbal • Implied contracts – Indicated by actions – Majority of provider–patient contracts • Contract to be valid and binding, parties who enter into it must be competent • MAs considered agents of their employers © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Tort Law • Wrongful act other than a breach of contract • Standard of Care and Scope of Practice – Four Ds of negligence • Duty of care • Derelict: breach of duty of care • Direct cause: legally recognizable injury occurs as a result of the breach of duty of care • Damage: wrongful activity must have caused injury or harm that occurred © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Tort Law • Standard of Care and Scope of Practice – Medical Assistant’s role in negligence • • • • • Practice within scope of one’s instruction and education Each state is likely different Torts are intentional or negligent Intentional torts deliberate acts violating another’s rights Negligent torts not deliberate; result of omission or commission of an act Res ipsa loquitur and respondeat superior â 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Tort Law • Common torts – Battery: unprivileged touching of one person by another – Defamation of character • Libel • Slander – Invasion of privacy © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Informed Consent • Nature of any procedure and how it is performed • Possible risks as well as expected outcomes of any procedure • Any other methods of treatment and those risks © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Informed Consent • Risks if no treatment given • Implied consent • Consent and legal incompetence – Emancipated minors – Mature minors © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Risk Management • Practicing good risk management makes MA and provider less vulnerable to litigation Avoid incidents that may lead to litigation â 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Risk Management • Professional liability coverage – Cover costs of litigation that may occur – Health care employees need their own professional liability coverage – MAs can purchase from American Association of Medical Assistants (AAMA) © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Civil Litigation Process • Subpoenas – Court order naming date, time, reason to appear – Portion or entire medical record may be subpoenaed – Health care provider (subpoena duces tecum) may be subpoenaed to testify – For courts to have access to some records, a court order required in many states – HIPAA law requires clinics to identify what information they will release regarding patients © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Civil Litigation Process • Discovery – Interrogatory – Deposition – Expert witness • Pretrial conference – Alternative dispute resolution (ADR) • Mediation • Arbitration © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Civil Litigation Process • Trial – Held before a judge – Held before judge and a jury – If plaintiff’s case successful, judge or jury may award specific amount of money or damages – If defendant’s case successful, case is dismissed © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Statutes of Limitations • Begin at time negligent act was committed • When act discovered • When care of patient and provider– patient relationship ended • Time limit for individuals to initiate legal action © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Public Duties • Reportable diseases/injuries – “Nationally Notifiable Infectious Diseases” listed on CDC’s Web site (http://www.cdc.gov) – Electronic or telephone reporting – Local or state health departments provide lists of diseases and injuries © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Public Duties • Abuse – Child abuse – Elder abuse – Intimate partner violence (IPV) • Good Samaritan laws – Encourage health care professionals to provide medical care within scope of training without fear of being sued for negligence © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Advance Directives • Physician Orders for Life-Sustaining Treatment (POLST) • Living wills, advance directives, health care proxy • Samples available at U.S Legal Forms Web site (http://USlegalforms.com) • Durable power of attorney for health care © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Advanced Directives • See http://www.compassionandchoices.org/ • Patient Self-Determination Act (PSDA) of 1991 • Advanced directives provided to patients’ providers, family members, any agent identified © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part ... administrative, contract, and tort law © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Administrative. .. whole or in part Administrative Law • Americans with Disabilities Act (ADA) of 1990 – Title I prohibits discrimination in employment – Titles II–IV mandate access to public services by individuals... and Medical Leave Act (FMLA) of 1993 © 2014 Cengage Learning All Rights Reserved May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part Administrative