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65 Cards in this Set
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Duty to Render Care
Physician/Patient Relationship What is the PRINCIPLE OBLIGATION assumed by a physician who accepts a patient? |
Duty to render medical treatment within the standard of care.
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Duty to Render Care
Physician/Patient Relationship What is standard of care? |
It requires the physician to render medical care w/ the degree of care, skill and learning that would be expected of a reasonably PRUDENT PHYSICIAN. Based primarily on standards recognized and accepted w/in the medical community.
(evolved from reasonable man standard, regardless of a person's intelligence) |
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Duty to Render Care
Physician/Patient Relationship The physician/patient relationship includes 3 parts, what are they? |
1. Therapeutic Relationship
2. Contractual Relationship 3. Fiduciary Relationship |
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Duty to Render Care
Physician/Patient Relationship What is the purpose of a Therapeutic Relationship? |
Intended primarily to deliver medical caer to the patient.
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Duty to Render Care
Physician/Patient Relationship When does the contractual duties begin after the contract is created? |
At the moment the physician accepts the patient for treatment.
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Duty to Render Care
Physician/Patient Relationship What is a fiduciary relationship? |
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 w/ the confidence that the physician wil not take personal advantage of the relationship.
This person will be held to higher legal standards than normally obtain b/t individuals. Ex. Guardian of an incompetent, a trustee of a trust, and attorney w/ respect to his client, and a physician w/ respect to his pt. Violation of F. relationship is breach of fiduciary duty |
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Duty to Render Care
Physician/Patient Relationship When is the physician not held to the same set of duties that are imposed on them during a true physician/pt. relationship? |
When a physician is conducting an employment or insurance physical examination in which the physician has not accepted the examinee as a patient for medical care and has not entered a contractual physician/pt. relationship.
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Duty to Render Care
Physician/Patient Relationship The opinion of the medical community is expressed as evidence in courts through the testimony of what? |
Expert Witnesses.
Ex. Another physician |
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Duty to Render Care
Physician/Patient Relationship What is the Principles of Medical Ethics (I)? |
A physician shal be dedicated to providing competent medical service w/ compassion and respect for human dignity.
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Duty to Render Care
Physician/Patient Relationship What is Statute of Limitation? |
Time period you can bring forth a law suit.
Statute that limits the period of time w/in which a particular case must be brought or be lost forever. |
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Duty to Render Care
Physician/Patient Relationship What is TORT? |
A wrong that may be remidied by civi action.
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Duty to Render Care
Physician/Patient Relationship What is INFORMED CONSENT? |
law requires that a physician obtain his pt's consent b4 commencing many medical procedures. TO be legally sufficient, a pt's consent must be voluntary and it must be based on sufficient info. for him to understand the risks and consequences associated w/ the procedure, that is to say, it must be an "informed" consent.
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Duty to Render Care
Physician/Patient Relationship If someone speaks a different language and cannot comprehend what you are saying is this informed consent? |
No. It should be noted as no consent.
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Duty to Render Care
Physician/Patient Relationship What is Common Law? |
Law which evolved from the decisions of courts, and relies heavily on the precedents (previous decisoins) of courts.
Found in England, Canada (- Quebec), US (- Louisiana), Indian and Grenada. |
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Duty to Render Care
Physician/Patient Relationship What is CIVIL LAW? |
Body of law which derives its ultimate origins from Roman law and is the system of law found in continental Europe, Latin America and in the State of Lousiana in the US.
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Duty to Render Care
Physician/Patient Relationship What is BATTERY? |
Any unauthorized touching is battery. This tort formed an early legal basis for the informed consent rules.
Ex. Bang v. Charles T Miller Hospital |
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Arizona Jury Instruction
Medical Malpractice on the claim of fault for negligence, plaintiff has the burden of proving what 3 things? |
1. defendent was NEGLIGENT
2. defendent's negligence was a cause of injury to plaintiff 3. Plaintiff's DAMAGES |
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California Jury Instruction
Success Not Required What does success not required mean? |
A physician is not neccessarily negligent just b/c his/her efforts are unsuccessful or he/she makes an error that was reasonable under the circumstances. A physician is ONLY negligent if he/she was not so skillful, knowledgeable, or careful as other reasonal physician would have been in similar circumstances.
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California Jury Instruction
Success Not Required What are JURY INSTRUCTIONS? |
How the law is presented to the jury b/c the jury does not get law from books full of statutes, cases and rules. They state the law simply, clearly and as the jury sees it. Becomes the law of the case.
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Expert Witness
What is an EXPERT WITNESS? |
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.
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Arizona Jury Instruction
Medical Practice What is MEDICAL NEGLIGENCE? |
Failure to comply w/ the applicable standard of care.
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Arizona Jury Instruction
Medical Practice What is FAULT? |
Medical negligence that was a cause of injury to the plaintiff.
Before you can find a defendent at fault you must first find that the defendent's negligence was a CAUSE OF INJURY to the plaintiff. |
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Duration of Physician/Patient Relationship
When does the physician/patient relationship end? |
1. The patient no longer requires tx
2. When the pt unilaterally terminates the relationship 3. When the physician and pt. mutually agree that the relationship has ended 4. When the physician unilaterally terminates the relationship by giving the pt. notice that he will no longer serve as physician after a reasonable period of time during which the pt. will have the opportunity to seek tx from another physician. |
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Duration of Physician/Patient Relationship
Failure to terminate the physician patient relationship properly is? |
ABANDONMENT
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Duration of Physician/Patient Relationship
Is abandonment a tort? |
YES, for which the physician can be held liable
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Duration of Physician/Patient Relationship
What is the AMA code of Medical Ethics, Opinion 8.115? |
Termination of the physician-pt. relationship.
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Proper Termination of the physician/pt relationship
What are the steps to a proper termination? |
1. Notify the pt. in writing by return receipt mail and/or personal delivery, of your intention to withdraw as his physician and terminate the physician/pt. relationship
2. Provide the pt w/ a reason for the termination (Ex. missing an appointment/noncompliancy 3. Offer to continue to provide care for a reasonable period of time while the pt obtains alternate medical care 4. Provide the pt. w/ the date when the termination will be effective 5. Provide info. about resources for finding alternate medical care 6. Offer to transfer records to the pt's new physician upon receipt of an authorization to do so signed by the patient 7. Offer to see the pt. in an emergency w/in a standard period of time after termination 8. Provide the pt. w/ information about risks and consequences faced if medical tx is not continued after the relationship is terminated. 9. Chart the preceding steps |
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Duty to Safeguard Confidences
What is the HIPPOCRATIC OATH? |
All that may come to my knowledge in the exercise of my profession or outside of my profession or in my daily commerce with men which ought not to be spread abroad, I will keep secret and never reveal.
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Duty to Safeguard Confidences
What are the exceptions to the Hippocratic Oath and Duty to Safeguard Confidences rule? |
1. Child/Elderly Abuse
2. Gunshot and Knife Wounds 3. Communicable and Other Diseases 4. Imminent Danger to Others (ex. Tarasoff case) |
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Duty to Safeguard Confidences
What is the Tarasoff vs. Regents of Univ. of Cal. case? |
California Supreme Court case that held that an individual's duty to warn another of danger permits a physician to break the confidences of a pt.
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Duty to Safeguard Confidences
What kind of communications are PRIVILEDGED? |
1. Attorney/Client
2. Psychiatrist/pt. 3. Physician/pt. Normally a court cannot compel a witness to reveal priviledged communications. |
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Duty to Safeguard Confidences
If a mature minor's parents request medical records of their child, as a physician do you grant it? |
No. The minor's right to preserve confidentiality of medical records should be respected.
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Duty to Respect Privacy
The Bertiaume's Estate vs. Pratt, M.D. case provides a good example of what? |
An instance in which a physician both violated an individual's privacy and committed battery
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Duty to Respect Privacy
What are the 4 types of invasions of the right to privacy? |
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. appropiation for the defendent's benefit or advantage of the plaintiff's name or likness |
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Duty to Respect Privacy
What is the most common cause of invasion of privacy suits against physicians? |
Unauthorized use of pt. photographs.
Ex. "hot rod" penis photo shot by chief resident |
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Duty to Respect Privacy
What 2 cases are examples to the right to privacy? |
1. Griswold v. Connecticut - invalidated a CT state law that restricted access to contraceptives b/c that state law infringed on a right to privacy protected by the US constitution
2. Roe v. Wade - Court limited the power of individual state to interfere w/ a woman's right to obtain an abortion. |
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Duty to Respect Privacy
What is HIPAA? |
Health Insurance Portability and Accountability Act
Permit a physician (or covered entity) to use or release pt. info. for tx w/o pt consent. (can do this via email as well) |
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Duty to Respect Privacy
Can pts sue physicians for failure to comply w/ HIPAA Privacy Regulations? |
No.
HIPAA doesn't create an individual cause of action or right to sue. Pt. can file an administrative complaint w/ the Office of Civil Rights of the US dept. of Health and Human Services (HHS) and that agency can impose an administrative civil penalty and even criminal penalties against the offending physician. penalty is paid to the govt. |
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HIPAA Privacy Rule
Who is in responsible for enforcing the privacy rule? |
Office of Civil Rights (OCR)
w/in HHS (US Dept of Health and Human Services) |
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What is DUTY to WARN?
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there is a duty to warn a pt. or a former pt, or even a non pt receiving an employment physical of medically dangerous conditions. If pt is no longer a pt, there must be documented efforts to find that pt and warn them of the peril.
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what is DUTY TO DISCLOSE?
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Code of medical ethics, opinion 8.12 Patient Info.
Fundamental requirement that physician should at all times deal honestly and openly w/ pts. Pts. have the right to know their past and present medical status and to be free of any mistaken beliefs concerning their conditions. |
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What is DUTY to PREVENT LOSS OF CHANCE for a succesful outcome?
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Ex. When managed care org. unreasonably delays approval of needed medical tx until the opportunity for cure or recovery has been lost. OR if a Dr fails to order a standard diagnostic test or fails to report test results to a pt and schedule a follow up appt and a treatable disease progresses to the pt that is untreatable.
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Duty to Obtain Informed Consent
What are the 5 things that the pt should be told in terms that he/she should understand? What are the EXCEPTIONS? |
1. Dx
2. Procedure/Tx 3. Risks and Consequences 4. Feasible Tx alternative 5. No Tx Outcome 1. Emergencies 2. Unconscious of Incapacitated Pt. 3. Pt. Waiver (document this) 4. Therapeutic Privilege (ex. Nose job and want a boob job?) |
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Informed Consent and Minors
Who is in charge of minors? |
1. Parents are natural guardians
2. Emergencies 3. Guardian ad litem 4. "mature" minor (14 y.o.)- can tx w/o telling parents 5. "Emancipated or Married Minor" - if divorce still "mature minor" |
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What is DUTY TO CONTROL PAIN?
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Physicians must adequately treat pain.
If failed to do so in elderly may be regarded as elder abuse. |
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What is DUTY TO REFER?
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When a physician doesn't refer properly to a medical specialist.
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In DUTY REGARDING EQUIPMENT ,what are the 4 things a physician do to protect him/herself?
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1. Selecting the appropriate equipment for the task
2. Educating all staff in the proper use of the equipment, document that training 3. Repair equipment when it is neccessary, documenting proper repairs 4. Maintaining equipment according to the manufacturer's guidelines Ex. Vaccuum cleaner and Penis incident |
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DUTY REGARDING EQUIPMENT
Can a manufacturer of medical devices that have received pre-market approval from the FDA be sued under state law? |
No.
Riegel v. Medtronic |
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What are the 16 Rules for Duty to Maintain Proper Records?
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1. Records are your property but are accessible to your pt and their attorneys
2. document and justify your tx plan and changes to the plan 3. Chart! Not charted, assumption is that it did not happen 4. Legibility 5. Do not Erase, make corrections by lining through them 6. Chart informed consent, mnissed appts., non compliance and the like 7. document communication w/ other health care professionals caring for the pt 8. Document discharge fully. can be a high risk event. record should reflect pt's status at discharge, readiness to be discharged and pt's understanding of his condition and his continuing responsibilities after discharge 9. Avoid inflammatory and potentially incorrect expressions (ex. hemorrhage vs. bleeding, pt. fell vs found at the foot of the bed) 10. Avoid self congratulatory remarks 11. Avoid criticisms of other professionals 12. Protect yoursef from denials of coverage by managed care organizations (chart that you disagree w/ refusals) 13. Explain why you ruled our a medical test 14. Chart negative findings ("pt denies any complaints, pt in good health" 15. Chart rationale for your Dx 16. DO NOT tamper w/ records to make them "look better" for pending litigation. |
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Duty to Maintain Proper Records
What problems do electronic records give practitioners? |
1. Take care to avoid inadvertent release or disclosure of confidential or privileged info.
2. Be prepared to notify the pt. when privileged info. is released inadvertently 3. Prevent destruction of electronic info. and electronic records when litigation has begun 4. Remember that email communications can be part of a pt's record or a business record 5. Make sure that pt. health records are fully segregated from business records 6. Remember that electronic records may be searched electronically for metadata |
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Failure for a physician (duty) to SUPERVISE gives rise to what?
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1. tort liability
and may lead to 2. disciplinary action against the physician's license |
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duty to Supervise
A dereliction (tort) of this duty may lead to? |
Vicarious Liability
Ex. 30 minute Pizza Delivery |
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what 4 things are needed to have LIABILITY?
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1. Duty
2. Dereliction (tort) 3. Damages 4. Direct (or Proximate) Cause If any of these are absent there is NO liability. |
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duty to Supervise
What are the 5 principle categories of VICARIOUS LIABILITY? |
1. Respondant Superior - "let the master answer" (ex. nurse at fault, dr at fault then)
2. Borrowed Servant (ex. surgical nurse employed under a hospital, Surgeon may be at risk) 3. Capt. of the Ship (ex. surgeon in charge of "crew" EXCEPT anesthesiologist) 4. Ostensible Agency (can sue umbrella hospital that dr works under) 5. Ostensible Partnership (office sharing) |
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duty to Supervise
What is VICARIOUS LIABILITY? |
When an individual working for someone or under that person's direction commits a tort
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what are the 3 rules to avoid being sued?
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1. Communicate with patients
2. Maintain Standard of care 3. Risk Management (identify areas of practice that lead to malpractice suits) |
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What 3 things do you do when you are sued?
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1. Notify your insurance carrier
2. Protect your records 3. Prepare Memorandum |
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What 3 things do you NOT do when you are being sued?
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1. Do not destroy or alter records
2. Do not assume that alteration of electronic records cannot be detected 3. Do not attempt to influence co-worker's opinions |
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What to do when you are sued
What so your MEMORANDUM be addred to? |
"To my attorney for use in litigation - Privileged Memorandum" or addressed in a similar language
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What to do when you are sued
What is DISCOVERY? |
Legal process by which partied to litigation obtain access to info. needed to pursue or defend their case.
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What does the case BANG V. CHARLES T. MILLER HOSPITAL deals with?
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Alleged Physician battery
Pt's spermatic cords were severed and plaintiff states he was not informed of the procedure before hand. |
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What does the case of Mohr v. Williams deal with?
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Alleged Physician Battery and Informed Consent
Pt went into surgery to get her R ear fixed and Physician operated on L ear w/o her consent. |
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Which case is the Landmark for INFORMED CONSENT?
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Canterbury v. Spence
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Duty to obtain Informed Consent
What is a PRIMA FACIE CASE? |
"on the face of it" is sufficiently strong for a jury to be legally justified in finding for the plaintiff if the defense elects not to introduce any add'l evidence. If a plaintiff in a lawsuit fails to present a prima facie case, then the judge may decide to dismiss the case w/o submitting it to the jury and w/o requiring the defense to present case.
Ex. Canterbury vs. Spence |
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Duty to obtain informed consent
What was the CANTERBURY v. SPENCE trial about? |
Canterbury went under a laminectomy, which he claimed caused his lower body paralysis and incontinence.
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