1 Introduction to Medical Law, Ethics, and Bioethics 1

Part 1

The Legal Environment 29

2 The Legal System 30

3 Essentials of the Legal System for Health Care Professionals 53

4 Working in Today’s Health Care Environment 71

Part 2

The Health Care Environment 93

5 The Physician–Patient Relationship 94

6 Professional Liability and Medical Malpractice 121

7 Public Duties of the Health Care Professional 153

8 Workplace Law and Ethics 176

9 The Medical Record 207

10 Patient Confidentiality and HIPAA 228

Part 3

Medical Ethics 255

11 Ethical and Bioethical Issues in Medicine 256

12 Ethical Issues Relating to Life 279

13 Death and Dying 305

14 Trends in Health Care 330

Brief Contents

Medical Law and Ethics

Sixth Edition

Bonnie F. Fremgen, Ph.D.

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Copyright © 2020, 2016, 2012 by Pearson Education, Inc. 221 River Street, Hoboken, NJ 07030. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Printed in the United States.

ISBN-13: 978-0-13-541452-1 ISBN-10: 0-13-541452-0

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To my children, who have always been my inspiration for ethical behavior. And a special thanks to my husband for his continual support and help.

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Contents Preface vii A Letter to the Student from the Author ix How to Interpret Case Citations x About the Author xi Reviewers xii

1 Introduction to Medical Law, Ethics, and Bioethics 1

Why Study Law, Ethics, and Bioethics? 2

Medical Law 6

Ethics 8

Models for Examining Ethical Dilemmas 17

What Ethics is Not 20

Bioethics 20

The Role of Ethics Committees 21

Quality Assurance Programs 22

Medical Etiquette 23

Part 1

The Legal Environment 29

2 The Legal System 30

The Legal System 31

Sources of Law 33

Classification of Laws 36

The Court Systems 44

The Trial Process 45

3 Essentials of the Legal System for Health Care Professionals 53

Medical Practice Acts 54

Licensure of the Physician 55

Standard of Care 58

Confidentiality 59

Statute of Limitations 60

Good Samaritan Laws 60

Respondeat Superior 62

Scope of Practice 63

Risk Management 64

4 Working in Today’s Health Care Environment 71

Today’s Health Care Environment 72

Types of Medical Practice 77

The Ethics of Fee Splitting 81

Medical Specialty Boards 81

Health Care Professionals and Allied Health Care Professionals 84

The Delegation of Duties 87

Part 2

The Health Care Environment 93

5 The Physician–Patient Relationship 94

Physician’s Rights 95

Physician’s Responsibilities 96

Professional Practice Responsibilities 96

Patient’s Rights 104

Advance Directives 106

Rights of Minors 110

Patient’s Responsibilities 110

Role of the Health Care Consumer 116

6 Professional Liability and Medical Malpractice 121

Professional Negligence and Medical Malpractice 123

The Tort of Negligence 124

Fraud 129

Office of the Inspector General 131

Defense to Malpractice Suits 133

Professional Liability 136

Alternative Dispute Resolution 141

Liability of Other Health Professionals 141

Tort Reform 145

Malpractice Prevention 145

vi Contents

7 Public Duties of the Health Care Professional 153

Public Health Records and Vital Statistics 154

Controlled Substances Act and Regulations 163

Protection for the Employee and the Environment 168

8 Workplace Law and Ethics 176

Professionalism in the Workplace 177

Discrimination in the Workplace 178

Privacy and the Workplace 179

Cultural Considerations 179

Religious Considerations 181

Effective Hiring Practices 182

Legal and Illegal Interview Questions 183

Federal Regulations Affecting Professionals 184

Equal Employment Opportunity and Employment Discrimination 185

Employee Health and Safety 192

Compensation and Benefits Regulations 195

Consumer Protection and Collection Practices 199

9 The Medical Record 207

Purpose of the Medical Record 208

Contents of the Medical Record 210

Ownership of the Medical Record 215

Confidentiality and the Medical Record 215

Retention and Storage of Medical Records 217

Electronic Health Records 218

Reporting and Disclosure Requirements 222

Use of the Medical Record in Court 222

10 Patient Confidentiality and HIPAA 228

Confidentiality 229

Privacy Act of 1974, Amended in 1988 231

Health Insurance Portability and Accountability Act of 1996, Updated in 2013 231

Ethical Concerns with Information Technology (Informatics) 247

Part 3

Medical Ethics 255

11 Ethical and Bioethical Issues in Medicine 256

Early History 258

Ethical Standards and Behavior 258

Codes of Ethics 259

Codes of Ethics for Other Medical Professionals 261

Bioethical Issues 261

Ethical Issues and Personal Choice 266

The Ethics of Biomedical Research 266

12 Ethical Issues Relating to Life 279

Fetal Development 280

Assisted or Artificial Conception 281

Contraception 286

Sterilization 287

Abortion 290

Genetic Counseling and Testing 295

Wrongful-Life Suits 298

“Do the Right Thing” 300

13 Death and Dying 305

The Dying Process 306

Legal Definition of Death 306

Stages of Dying 316

Quality-Of-Life Issues 316

Use of Medications 317

Hospice Care 318

Palliative Care 319

Viatical Settlements 319

Advance Directives 320

Choices in Life and Death 321

14 Trends in Health Care 330

Problems in the Current Health Care System 331

New Advances and Improvement in Health Care 335

Health Care Trends and Reform 336

The Ethics of Care 338

American Deaf Culture 338

Blindness and Visual Impairment 341

Life Issues of the Elderly 344

Allocation of Scarce Time and Resources 346

APPENDIX A. Codes of Ethics 351

APPENDIX B. Case Citations 354

Glossary 357

Index 365

vii

The allied health professional has always been an important member of the medical team. This team awareness is even more critical in today’s health

care environment, because the physician no longer prac- tices medicine alone. Therefore, the text discusses medical law and ethics as it relates to allied health care profession- als, as well as the physician’s duties and responsibilities.

Medical Law and Ethics is written in straightforward language that is aimed at the nonlawyer health profes- sional who must be able to cope with multiple legal and ethical issues. This text is appropriate for those studying in a college or university who are working toward careers in the allied health field in a variety of settings, such as medical offices, hospitals, clinics, laboratories, rehabilita- tion facilities, and skilled-nursing facilities. Because most allied health care professionals work either with or for a physician, it is important to understand the physician’s responsibilities and duties to the patient. Therefore, they are covered in this book. Included are examples of com- mon legal and ethical issues that affect those working in the health care field. A wide range of pertinent topics are discussed, such as the legal system, professional liability and medical malpractice, public duties of the physician, the medical record, and ethical and bioethical issues. The intent is to help health care professionals to better under- stand our ethical obligation to ourselves, our patients, and our employers. A new addition to stimulate discussion is the Critical Thinking Exercise at the end of each chapter.

Many legal cases are sprinkled throughout the text to demonstrate the history of the law as it pertains to sub- jects such as patient confidentiality, managed care, fed- eral regulations affecting the employee, death and dying, and abortion. In some examples, the cases may seem old, but because we as a country have a legal system based on case law, these laws are still pertinent today. A legal icon (scales of justice) appears in the margin to indicate legal case citations.

A special feature called Med Tips provides quick in- formation about law and ethics. These brief scenarios and hints help to maintain interest in this vital subject. Each chapter includes glossary terms highlighted in bold on first reference, extensive end-of-chapter exercises, and one actual practice case. The appendices include a sample of codes of ethics that form a basis for current practice and legal case citations.

This text provides an overview of medical law and ethics. Practicing health care professionals should know the legal requirements in their own jurisdictions.

Finally, many educators have offered thoughtful com- ments as reviewers of this text. I am extremely grateful that they have shared their time and experience to help develop this textbook.

Chapter Structure • Learning Objectives. These include an overview of

the basic knowledge discussed within the chapter and can be used as a chapter review.

• Key Terms. Important vocabulary terms are listed alphabetically at the beginning of each chapter and printed in bold the first time they are defined in the text.

• Introduction. Each chapter begins with an introduc- tory statement that reflects the topic of the chapter.

• Review Challenge. A selection of short answer, matching, and multiple-choice questions are included to test the student’s knowledge of the chapter material.

• Case Study. The case studies are based on real-life occurrences and offer practical application of informa- tion discussed within the chapter. These are included to stimulate and draw upon the student’s critical- thinking skills and problem-solving ability.

• Critical Thinking Exercise. These exercises at the end of each chapter challenge the student to answer the question “What would you do if  .  .  .” relating to many current health care and legal dilemmas in today’s environment.

• Bibliography. These useful resources provide fur- ther information on the topics included within the chapter.

Special Features • Med Tip. Med Tips are placed at strategic points

within the narrative to provide helpful hints and use- ful information to stimulate the student’s interest in the topic.

• Legal Case Citations. Discipline-specific cases are used throughout the text to illustrate the topic under discussion. The cases reflect the many medical dis- ciplines, including that of the physician, that come together in the care of the patient. Although this book

Preface

viii Preface

is not meant to be a law book, the cases cited are meant to emphasize the importance of the law for the students.

• Points to Ponder. Thought-provoking questions give students an opportunity to evaluate how they might answer some of the tough, medically related ethical dilemmas encountered in today’s society. These questions can also be used for critical debate among students during a class activity.

• Discussion Questions. These end-of-chapter ques- tions encourage a review of the chapter contents.

• Put It into Practice. These thought-provoking activ- ities appear at the end of each chapter. They provide a clinical correlation with the topics discussed in the chapter and stimulate the student’s own contempla- tion of legal and ethical issues that are apparent in everyday life.

• Web Hunt. This end-of-chapter Internet activ- ity encourages the student to access the multitude of medical resources available through this medium.

• Appendices. Codes of Ethics are included in Appen- dix A; the case citations used throughout the book are listed in Appendix B.

• Additional Examination Review Questions. These are included in the Instructor’s Resource Manual.

Visit our new Resource Page to accompany Medical Law and Ethics, 6th Ed. (http://www.pearsonhighered. com/healthprofessionsresources/) for a collection of downloadable quizzes, and reference materials.

What’s New in the Sixth Edition? The sixth edition of Medical Law and Ethics has been thoroughly updated throughout. New sections and infor- mation in this edition include the following:

Chapter 2 New sections on settling out of court and the trial process Chapter 3 New information on the two most frequent types of health care errors: patient falls and medica- tion errors Chapter 4 A new section on the delegation of duties Chapter 5 A new section on the American Hospital Association “Patient Care Partnership” Chapter 7 A new section on the opioid crisis Chapter  8 Information on amendments to the Americans with Disabilities Act Chapter 9 A new section on the use of electronic health records (EHR) and personal health records (PHR) Chapter 10 New, updated, and expanded information on the Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health (HITECH) Act, the privacy of health records, voice recognition technol- ogy, and facial recognition technology Chapter 12 A new, uplifting section titled “Do the Right Thing” Chapter  14 Three new sections: “American Deaf Culture,” “Blindness and Visual Impairment,” and “Life Issues of the Elderly.”

Acknowledgments This book would not have been possible without the as- sistance and guidance of many people. I am grateful to the editorial and production staffs at Pearson Educa- tion for their skill and patience with this project. I thank, Marlene Pratt, Acquisitions Editor and Faye Gemmellaro, Program Manager, for their leadership and guidance with this project. Their courtesy and thoroughness are greatly appreciated. And special thanks to Sandy Breuer, my Developmental Editor.

ix

A Letter to the Student from the Author

There is a lot of information in this book, some that you will use as soon as you begin your career in health care. Hopefully, some material and tips will

be usable as soon as you read them. You are working in a field that is full of people: patients of all ages, hospital and health care facilities with a variety of caregivers, and nu- merous fellow employees. If you remember one thing from this letter to you, remember to care. You and your skills— and your caring—are the gifts that you give to your pa- tients. Now, read on and prepare for that Ah-Ha! moment when you realize that you are doing what you should be doing.

It’s a natural tendency to read some of the case examples in this book and think that they must be fictional as no well-trained health care professional would ever be so negligent. However, the short ethics cases at the begin- ning of each chapter are indeed real. Most of these cases are drawn from the author’s experience, with the excep- tion of the historical cases.

Throughout the book there are numerous examples of actual legal cases that usually resulted in suffering for patients, as well as for physicians and other health care professionals. The cases discussed are not meant to focus on particular health care disciplines, nor to exclude any disciplines. And these cases are not meant to frighten but, rather, to alert all of us to the potential risks to patients when health care professionals are not diligent about the care they provide. Do not memorize the case citations, but rather try to understand the circumstances and why the case was included in this book.

I have a great respect for all the disciplines mentioned in this book. My intent is to prepare students to promote good patient care, as well as to protect themselves and their employers from lawsuits.

For a successful start to your study of medical law and ethics, consider following the ABCs of classroom suc- cess: Actively participate, Benefit from the experience, and Commit to learning. It is necessary for you to attend class to truly benefit from your ethics education. So much happens in the classroom—especially the interaction between you and your classmates. The discussion portion of an ethics class is one of the most important components. You must be present to contribute. The text serves as an in- formation source and as the first step in your education— the dynamics of classroom interaction between you, your

instructor, and the other students is critical for success in learning.

Actively participate when you attend class. It is nec- essary to absorb what takes place during the class session. Listen carefully to what your instructor and fellow students say. If you don’t share your ideas, experiences, and questions, then the rest of the class is losing what you have to offer. The dialogue about ethics that you have with your instructor and fellow classmates is a meaningful experience.

Benefit from the experience and ideas of your peers (classmates). Listen to the opinions of others during class discussions. Pay particular attention to the opinions that differ from your own. As a member of the health care team, you will frequently hear opinions that differ from your own—both from your coworkers and your patients. You do not have to change your opinions or beliefs, but try to keep an open mind to the opinions of others.

Commit to learning by carefully reading and analyzing the textbook material. Look for new information and also for discussion points that both agree and disagree with your own perspective. Take this course seriously so that it is not a waste of your time. In fact, your ethics class can be one of the most important classes that you take! Com- municate what you have learned. Your perspective is important for others to hear.

The law is dynamic and often is revised as changes take place in society. An example is the Healthcare Insurance Portability and Accountability Act (HIPPA). It has had an impact on health care organizations as well as physicians’ offices. This textbook is not meant to be a study of the law, but rather to introduce students to the impact that law and ethics have on their professional lives. Societal ethical norms also change. Three current ethical concerns— dealing with the Deaf, dealing with the visually impaired, and life issues of the elderly—are discussed in the final chapter.

Finally, our goal as teachers is to help our students learn how to judge themselves and their actions. Because you won’t have us with you in the workplace, we want you to be able to evaluate your own actions in light of their ethical and legal impact on others.

I wish you the very best in your health care career.

—Bonnie F. Fremgen

x

How to Interpret Case Citations

Selected legal cases are used in this textbook to illus- trate various legal principles. At the end of each case summary is a citation, such as Moon Lake Convales-

cent Center v. Margolis, 433 N.E.2d 956 (Ill. App. Ct. 1989). This citation, similar to a street address, tells you where you can find this case among the many sets of reported cases (called reporters) in the library. Most case citations end with information in parentheses, such as (Ill. App. Ct. 1989), which tells you what court (the Illinois Appellate Court) decided the case and the year (1989) of the decision, but you do not need that information when you are simply trying to locate a particular case in the library. The small v. between the litigants’ names stands for “versus.” For example, a case citation may consist of

• The italicized case name—usually the name of the plaintiff and the defendant. In our example, Moon Lake Convalescent Center (defendant) and Margolis (plaintiff).

• The name of the reporter(s) where the case is pub- lished (Northeast Reporter, 2d series).

• The volume number(s) of the reporter(s) where the case is published (433).

• The page number of the volume where the case begins (956).

• The year the case was decided (1989).

• For federal Court of Appeals cases, a designation of the circuit; for federal District Court cases, the state

and judicial district where the court is located; for state cases, an indication of the state if it is not apparent from the name of the reporter (Illinois Appellate Court).

Therefore, our example case between Moon Lake Convalescent Center and Margolis is found in volume 433 of the Northeast Reporter, 2d series, on page 956.

Abbreviations for other reporters (books) are:

A (Atlantic Reporter) P (Pacific Reporter) U.S. (United States Reporter) F.Supp. (Federal Supplement) F (Federal Reporter) NE (Northeast Reporter) NW (Northwest Reporter) NYS (New York Supplement) So (Southern Reporter) SW (Southwestern Reporter)

Most reporters have been published in two or more series, such as 2d, meaning second series. The student should not be concerned with memorizing the names of the reporters. The abbreviations for them are found at the beginning of most of the legal research publications that we use. As you do research within your own state, you will become familiar with the abbreviations that are most commonly used. Legal research can be done through a law library or via the Internet from Lexis-Nexis, which is a sub- scription service used by law firms and libraries.

xi

About the Author

Bonnie F. Fremgen, Ph.D., is a former associate dean of the Allied Health Program at Robert Morris College and was vice president of a hospital in suburban Chicago. She has taught medical law and ethics courses as well as clinical and administra- tive topics. She has broad interests and experiences in the health care field, including hospitals, nu