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Chapter 7

Chapter 7. Legal Considerations. Sources of Law. Constitutional law Constitution and 27 amendments Statutory law Laws made by states Common law “Judge-made” law. Sources of Law. Criminal law Malfeasance Illegal conduct by an official Felony Serious crimes and serious punishments

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Chapter 7

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  1. Chapter 7 Legal Considerations

  2. Sources of Law • Constitutional law • Constitution and 27 amendments • Statutory law • Laws made by states • Common law • “Judge-made” law

  3. Sources of Law • Criminal law • Malfeasance • Illegal conduct by an official • Felony • Serious crimes and serious punishments • Misdemeanor • Lesser crimes and lesser punishments

  4. Sources of Law • Civil law • Misfeasance • Improper execution of lawful act • Nonfeasance • Failure to perform an act or official duty • In a civil case, a plaintiff brings charges against a defendant • Common forms of civil law are administrative, contract, and tort law

  5. Administrative Law • IRS • Medicare/Medicaid • Title VII of the Civil Rights Act of 1964 • Federal Age Discrimination Act of 1967 • Uniform Anatomical Gift Act of 1968

  6. Administrative Law • Regulation Z of the Consumer Protection Act of 1967 • Truth in Lending Act • Occupational Safety and Health Act of 1967 (OSHA)

  7. Administrative Law • Controlled Substances Act of 1970 • Regulates persons who administer, prescribe, or dispense controlled substances • Identifies controlled substances in Schedules I–V with regulations for each schedule

  8. Administrative Law Click Here to play the video

  9. Administrative Law • Americans with Disabilities Act of 1990 (ADA) • Title I prevents discrimination in employment • Titles II–IV mandate access to public services by individuals with disabilities • The Family and Medical Leave Act (FMLA) of 1993

  10. Administrative Law • The Health Insurance Portability and Accountability Act of 1996 (HIPAA) • 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

  11. Administrative Law Click Here to play the video

  12. Contract Law • Expressed contracts • Written or verbal • Implied contracts • Indicated by actions • Critical elements to every contract

  13. Contract Law • Termination of contracts • Patient discharges provider • Provider withdraws from patient care • Treatment no longer needed by patient

  14. Tort Law • Wrongful act other than a breach of contract • State medical practice acts • Govern licensure, standards of care, professional liability, confidentiality, torts (Refer to Table 7-1) • May regulate personnel employed in ambulatory care settings • Medical assistants may be regulated under a nurse practitioner’s license, a physician’s license, or by their own state’s requirements • Some states regulate medical assistants’ ability to perform certain clinical functions

  15. Tort Law • Standard of Care • 4 Ds of Negligence • Duty of care • Derelict: breach of duty of care • Direct cause: a legally recognizable injury occurs as a result of the breach of duty of care • Damage: wrongful activity must have caused the injury or harm that occurred

  16. Tort Law • Standard of Care • Medical Assistant’s role in Negligence • Torts are intentional or negligent • Intentional torts are deliberate acts violating another’s rights • Negligent torts are not deliberate; result of omission or commission of an act • Res ipsa loquitur and respondeat superior

  17. Tort Law • Standard of Care • Battery: unprivileged touching of one person by another • Defamation of character • Libel • Slander • Invasion of privacy

  18. 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

  19. Informed Consent • Risks of no treatment • Implied consent • Consent and Legal Incompetence • Mature minors • Emancipated minors

  20. Risk Management • Practicing good risk management makes the MA and provider less vulnerable to litigation • See the list on page 105 for ways to avoid incidents that may lead to litigation

  21. Civil Litigation Process • Subpoenas • Some records are protected and will require a court order • Subpoena duces tecum • HIPAA requires written policies regarding release of information

  22. Civil Litigation Process • Discovery • Interrogatory • Deposition • Expert witness • Pre-trial conference • Alternative Dispute Resolution (ADR) • Mediation • Arbitration

  23. Civil Litigation Process • Trial • Judge only makes decision • Judge and jury make decision • See outline of civil case process in the text • Statute of Limitations

  24. Public Duties • Reportable Diseases and Injuries • See possible list at www.cdc.gov/ • Written and telephone reporting • Abuse • Child abuse • Elder abuse • Intimate partner violence

  25. Public Duties • Good Samaritan Law • Encourages health professionals to render aid at the scene of an accident • Must only respond within scope of knowledge and training

  26. Advanced Directives • Physician Orders for Life-sustaining Treatment or POLST • Living wills and health care directives • Samples available at www.USlegalforms.com • Durable power of attorney for health care

  27. Advanced Directives • See www.compassionandchoices.org • Patient Self-Determination Act of 1991 • Advanced directives provided to patients’ providers, family members, any agent identified

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