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Presentation Slides and Lecture Notes

Presentation Slides and Lecture Notes. Chapter 1: The Anglo-American Legal System. Cash Register Story.

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Presentation Slides and Lecture Notes

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  1. Presentation Slides and Lecture Notes

  2. Chapter 1: The Anglo-American Legal System

  3. Cash Register Story A businessman had just turned off the lights in the store when a man appeared and demanded money. The owner opened a cash register. The contents of the cash register were scooped up, and the man sped away. A member of the police force was notified promptly.

  4. Story: True or False? • A man appeared after the owner had turned off the store lights. • The robber was a man. • The man did not demand money. • The man who opened the cash register was the owner. • The store owner scooped up the contents of the cash register and the man ran away.

  5. Someone opened a cash register. • After the man who demanded the money scooped up the contents of the cash register, he ran away. • Although the cash register contained money, the story does not state how much. • The robber demanded money of the owner.

  6. Only three persons are referred to in the story: the owner, a man who demanded money, and a member of the police force. • Someone demanded money, a cash register was opened, its contents were scooped up, and a man dashed out of the store.

  7. Sources of law • Constitution • Statutes • Administrative law (regulations) • Judicial decisions (“common law”) • The federal system • The three branches of government • Separation of powers

  8. Checks and Balances 1. Impeach/convict 2. Appoint 3. Veto 4. Override or not confirm 1 1 2 Legislative Executive Judicial 3 (6) 4 5 5 5. Interpret or rule unconstitutional 6. Amend law (regulation) 6

  9. Structure of the Court System Sup. Ct. Ct. App. Ct. App. Ct. App. TC TC TC TC TC TC TC TC TC

  10. Chapter 2: Contracts and Intentional Torts

  11. Taxonomy of Law Criminal / Civil Contracts Torts Express Implied Strict Liability Negligent Intentional

  12. Elements of Valid Contracts • Competent parties • “Meeting of the minds” • Offer • Acceptance • Consideration • Legal purpose • Written document (sometimes)

  13. Doctor-Patient and Hospital-Patient Contracts • Relationships are based on contract • Right to accept/decline new patient • Each spell of illness = new contract • Can limit patients to type of practice or population • OB/GYN, orthopedics, etc. • VA, Missouri Pacific Railroad Hospital, etc.

  14. Intentional Torts • Assault and battery • Defamation (libel/slander) • False imprisonment • Invasion of privacy • Misrepresentation • Outrage (“intentional infliction of emotional distress”)

  15. Chapter 3: Negligence

  16. General Principles of Negligence • What is a “tort”? • A civil wrong not based on contract • Usually based on “fault” • Strict liability uncommon in healthcare • Intentional torts in Chapter 2 • Elements • Duty • Breach • Injury • Causation

  17. Duty How to establish? Published standard of care “Due care in the circumstances” foreseeability reasonable person Breach of duty Injury Causation Elements of Negligent Tort

  18. Misc. Thoughts • “Locality rule” • “Respected minority” rule • Respondeat superior vs. independent contractor • Tort reform

  19. A “structured settlement” $1 million Annual cost Reversionary trust $$ 0 Age 72

  20. Chapter 4: The Organization and Management of a Corporate Healthcare Institution

  21. The Organization and Management of a Healthcare Institution • Partnerships vs. corporations • For-profit vs. not-for-profit • Taxable vs. tax exempt • Member vs. nonmember

  22. Who Runs a Corporation? “Reserved powers” Share- holders Board Mgt. Mem- bers Board Mgt. Board Mgt. For-profit Not-for-profit

  23. Corporate Powers • Set by state corporation law • Limited by bylaws • Common reserved powers: • Amend articles and bylaws • Elect board • Merge/dissolve/sell • Appoint CEO • Approve budget

  24. Duties of Governing Board • Act with due care and loyalty • Protect corporate property • Avoid conflicts of interest • Set major policies • Appoint med staff members • Oversee quality of care

  25. Chapter 5: Liability of the Healthcare Institution

  26. Liability of the Healthcare Institution:Vicarious vs. Direct Liability • Vicarious • Indirect legal responsibility for acts of an agent or employee • Respondeat superior • Direct (corporate) • Duty is owed directly by the hospital corporation • E.g., failure to screen medical staff applicants, credential properly, monitor quality of care

  27. Defenses and Tactics that No Longer Work • Charitable immunity • Independent contractor • “Captain of the ship” • Locality rule Hospitals are no longer just bricks and mortar; they are expected to be quality-control institutions!

  28. Chapter 6: Admission and Discharge

  29. Admission and Discharge • Generally, no right to be admitted • Discharge by: • Doctor’s order • Death • Against medical advice • Distinguish traditional “discharge” from Medicare’s definition (cf. “transfer”)

  30. Treatment of the Mentally Ill • Even though mentally ill, psych patients still have rights • Involuntary commitment to protect self and others • Similar procedures for drug/alcohol users • Predictions of dangerousness: how reliable?

  31. UR, PROs, and Managed Care • Utilization review and case management are intended as quality assurance measures • Economic pressures from managed care

  32. Chapter 7: Medical Staff Appointments and Privileges

  33. Medical Staff Privileges • Why is med staff law important? • Source of med staff’s legal authority • Functions of the organized med staff • Rules for admitting privileges, credentials • Must be followed uniformly • Must be based on individual merit of physician • “Physician” includes MD, DDS, DO, OD, DPM, DC

  34. Medical Staff Privileges (cont’d) • Criteria for med staff privileges • Ability to work with others • Requirement to treat indigent patients, take call, etc. • Legal difficulties? • Minimum amount of med mal insurance • Proximity to the facility • Physical/mental health • Language proficiency?

  35. Depth of Knowledge Range of Subjects

  36. Chapter 8: Emergency Care

  37. Emergency Care • Common-law rule: no duty to assist • EMTALA • Duty to assess and stabilize (if possible) • May transfer if benefits > risks • What is an appropriate medical status examination? • Is indigence required?

  38. EMTALA Details • Impetus was “patient dumping” • Applies to everyone • Definition of “emergency” • Stabilize or transfer • Appropriate medical screening • Contrast with negligence cases

  39. Details (cont’d) • Where does the person have to be? (The logic gets a bit twisted.) • In the ED? • In the hospital? • Inability to pay as motive? • Duty to use reasonable care • Stabilize or transfer

  40. Staffing the ED • Emergency medicine is a specialty, not a collateral duty. Good Samaritan Statutes • Doctors wanted them; they weren’t really necessary; they don’t do any harm.

  41. Chapter 9: Consent for Treatment and Withholding Consent

  42. Consent and Informed Consent • Contrast the two • Consent relates to assault and battery • civil and criminal violation (potentially) • simple to prove • insurance might not cover • Informed consent relates to negligence • civil wrong only • standard malpractice-like case

  43. Types of Consent • Express • Oral or written • Implied (“inferred,” “presumed”) • Quite common (vaccinations, physical, routine office visit) • Emergencies (immediate treatment required to save life or limb) • Treat the emergency first; get consent later

  44. Who May Consent? • Competent adult • Age of majority varies state to state • Competency is a medical judgment • Consent of spouse/family not required • Even psych patients have rights to consent/refuse • Can give meds against their will only if needed to prevent injury to self/others, no lesser alternative, etc. • Minor parents for their children

  45. Minor women for their pregnancy Consent for a minor Parent/stepparent Power of attorney Grandparent Adult sibling Adult aunt or uncle Consent for an incompetent adult: Designated surrogate Guardian Spouse Adult child Parent Adult sibling Adult relative Close friend Who May Consent?

  46. Elements of Informed Consent • Diagnosis and prognosis • Nature/purpose of proposed treatment (in lay terms) • Risks, consequences, side effects • Probability of success • Reasonable alternatives • Prognosis without treatment (“informed refusal”) • Type of recuperation likely

  47. Examples of Risks Not Disclosed, But Consent = OK • When patient requests not to be informed • Blood loss during surgery (common knowledge) • Patient had the procedure before • Risks that arise only when procedure is poorly performed • 1 in 800,000 risk of aplastic anemia

  48. Judging the Adequacy of Informed Consent • What most doctors tell patients? • What a reasonable doctor would disclose? • What a reasonable patient would want to know? • What this patient would have wanted to know?

  49. The Hospital’s Role in Informed Consent • Primarily the physician’s responsibility • Cannot delegate to nursing staff • Hospital must have procedures in place • Forms for all procedures • Ensure consent is documented before treatment • Cancel procedure if informed consent not in chart

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