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Florida National University
HSA-5425 Health Care Law and Legislation: Week 2
Critical Reflection Paper: Chapters 4 to 6
Objective: To judgmentally reproduce your understanding of the readings and your skill to
apply them to your Health care Setting.
ASSIGNMENT GUIDELINES (10%):
Students will critically appraise the readings from Chapter 4 to 7 in your textbook. This
assignment is planned to help you assessment, examination, and apply the readings to your
Health Care setting as well as become the foundation for all of your remaining assignments.
You need to read the article (in the additional weekly reading resources localize in the Syllabus
and also in the Lectures link) assigned for week 1 and develop a 2-3-page paper reflecting your
understanding and ability to apply the readings to your Health Care Setting. Each paper must be
typewritten with 12-point font and double-spaced with standard margins. Follow APA style 7th
edition format when referring to the selected articles and include a reference page. Similarity
SafeAssign is required.
EACH PAPER SHOULD INCLUDE THE FOLLOWING:
1. Introduction (25%) Provide a short-lived outline of the meaning (not a description) of each
Chapter and articles you read, in your own words.
2. Your Critique (50%)
What is your reaction to the content of the Chapters?
What did you absorb about the tort law and their purpose?
What did you acquire about criminal law, its classification and purpose?
What did you learn about contract, the elements of a contract and the contract law?
Did these Chapter and articles change your thoughts about the civils procedures, trial process
and the purpose of the Judge’s charge to the jury? If so, how? If not, what remained the same?
3. Conclusion (15%)
Rapidly summarize your thoughts & assumption to your critique of the articles and Chapter you
read. How did these articles and Chapters impact your thoughts about the more common crimes
that occur in the healthcare setting?
Evaluation will be based on how clearly you respond to the above, in particular:
a) The clarity with which you critique the articles;
b) The depth, scope, and organization of your paper; and,
c) Your conclusions, including a description of the impact of these articles and Chapters on any
Health Care Setting.
ASSIGNMENT RUBRICS
Assignments Guidelines
10 Points
Introduction
25 Points
Your Critique
50 Points
Conclusion
15 Points
Total
100 points
ASSIGNMENT GRADING SYSTEM
A
B+
B
C+
C
D
F
Dr. Gisela LLamas
90% – 100%
85% – 89%
80% – 84%
75% – 79%
70% – 74%
60% – 69%
50% – 59% Or less.
10%
25%
50%
15%
100%
Chapter 4
Criminal Aspects
of Health Care
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LEARNING OBJECTIVES
â–ª Explain what criminal law is, the classification of crimes, and its purpose.
â–ª Describe several of the more common crimes that occur in the
healthcare setting.
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â–ª Describe the criminal procedure process from arrest through trial.
Criminal law
â–ª What is the purpose of criminal law?
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â–ª Criminal law (also known as penal law) is the body of statutory and
common law that deals with crime and the legal punishment of criminal
offenses.
Purpose of Criminal Law
â–ª Maintain Public Order & Safety
â–ª Use Punishment as a Deterrent
â–ª Provide for Criminal Rehabilitation
â–ª What are the definitions of a crime, misdemeanor & felony?
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â–ª Protect Individuals
Definitions
▪ Crime – social harm defined & made punishable by law.
▪ Felony – imprisonment in a state or federal prison for more than a year.
â–ª What is an arraignment?
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▪ Misdemeanor – offense punishable by less than 1 year in jail and/or a
fine.
Complaint, Investigation & Arrest
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â–ª Components of a Crime
â–ª act itself (the actus reus or guilty act);
â–ª requisite mental state/intent (the mens rea or guilty mind); and
â–ª causation; harm that is the result of the act that was
committed. The accused performed the act that caused the harm with
the intent to cause that harm.
Arraignment
â–ª Formal reading of the accusatory instrument
â–ª What is the purpose of a conference with the defendant and prosecutor?
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â–ª a generic term that describes a variety of
documents, each of which accuses a defendant of
an offense
â–ª includes the setting of bail
Indictment
â–ª A formal charge or accusation of a serious crime.
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Conference
â–ª Meeting for purposes of deliberation
â–ª Commences with the goal of an agreed-upon disposition
â–ª If no disposition can be reached, a case may be
assigned to a trial court.
â–ª Describe the process of conducting a criminal trial.
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â–ª Plea bargaining time
Criminal Trial – I
â–ª Jury selection
â–ª Presentation of witnesses & evidence
â–ª Standard of proof must be beyond a reasonable
doubt.
â–ª Summations
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â–ª Opening statements
Criminal Trial – II
â–ª Instructions to the jury by the judge
â–ª Verdict
â–ª must be unanimous
â–ª Sentencing
â–ª Opportunity for appeal
â–ª What does the False Claims Act of 1986 prohibit?
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â–ª Jury deliberations
Health Care Fraud
â–ª Unlawful Act generally deception for personal gain.
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â–ª FBI Primary agency for exposing & investigating healthcare fraud.
False Claims Act – 1986
â–ª Knowingly presenting a false claim for payment.
â–ª conspiring to defraud the government.
â–ª making a false record to avoid an obligation to pay or transmit property to
the government.
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â–ª making a false record to get a false claim paid.
Ethics in Patient Referral Act – 1989
â–ª Requires Medicare providers to report the names & provider numbers of
all physicians or their immediate relatives with ownership interests in a
provider entity.
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â–ª Prohibits physicians who have ownership interest or compensation
arrangements with a clinical laboratory from referring Medicare patients
to that laboratory.
HIPPA -1989
â–ª Requires U.S. Attorney General & Secretary of DHHS, acting through the
Office of Inspector General (OIG), to establish a national healthcare
fraud & abuse control program.
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â–ª Provides criminal & civil enforcement tools & funding to fight against
healthcare fraud.
Schemes to Defraud
â–ª Billing for services not rendered
â–ª Misrepresenting procedures performed to obtain payment for noncovered services
â–ª Upcoding services (billing for a more costly service than the one actually
performed,
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▪ Falsifying a patient’s diagnosis to justify tests, surgeries, or other
procedures that are not medically necessary
Schemes to Defraud – II
â–ª Billing for unnecessary services (services that are not medically
indicated)
â–ª Accepting kickbacks for patient referrals
â–ª Waiving patient co-pays or deductibles
â–ª Overbilling insurance carrier or benefit plan.
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â–ª Unbundling (billing each stage of a procedure as if it were a separate
procedure)
Kickbacks
â–ª Laboratory
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â–ª Architectural Contract
Health Care Fraud: Text Cases
â–ª Scheme to Defrauding Medicare & Medicaid
â–ª Pharmacist Submits False Drug Claims
â–ª Inflating Insurance Claims
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â–ª False Medicaid Claims
â–ª Physician & Office Manager
Health Care Fraud: Text Cases – II
▪ Falsification of Records
â–ª Misuse & Theft of Drugs
â–ª Homecare Fraud
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â–ª Fraudulent Billing: Lab Tests
Physicians Victims of Fraud
How to Prevent Office Fraud
â–ª familiarize themselves with patient billing & record keeping practices
â–ª Conduct annual audit of office procedures & records
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â–ª Avoid having one person in charge of both billing & collection process
Falsification of Records
â–ª Anyone who suffers damage as a result of falsification of records may
claim civil liability.
â–ª The provider could lose Medicare & Medicaid funding.
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â–ª Falsification of medical & business records is grounds for criminal
prosecution.
Fraud & Ethics
â–ª Behind every act of healthcare fraud lies a lapse in ethics.
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Patient Abuse
â–ª Mistreatment or neglect of patients
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â–ª Types of abuse
â–ª Physical
â–ª Psychological
â–ª Medical
â–ª financial
Misuse and Theft of Drugs
â–ª Internet Pharmacy
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â–ª Failure to review patient prescriptions prior to
dispensing.
â–ª Fraudulent billing.
â–ª Transfer of funds to offshore account.
Physicians: Victims of Fraud
Prevention
â–ª Familiarize themselves with patient-billing & recordkeeping practices.
â–ª Arrange for an annual audit of office procedures & records by an outside
auditor.
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â–ª Avoid having one individual in charge of billing & collection procedures.
Forms of Abuse
â–ª Physical
â–ª Medical
â–ª Financial
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â–ª Psychological
CRIMINAL NEGLIGENCE
â–ª Abuse & Revocation of License
â–ª Abusive Search
â–ª Cruelty to the Infirm
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â–ª Neglect of Residents
HOMICIDE
â–ª Unusual Number of Deaths
â–ª Fatal Injection of Pavulon
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â–ª Nurse Sentenced for Diabolical Acts
Removal of Life Support
Not Murder
â–ª No duty to continue use once it has become futile & ineffective to do so
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â–ª Generally duty to provide life-sustaining equipment in immediate
aftermath of cardiopulmonary arrest.
Manslaughter
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â–ª Commission of an unintentional act that results in the death of another
person.
â–ª Voluntary manslaughter: intentional killing of another person without
premeditation or malice of forethought
â–ª Involuntary manslaughter: negligent act that occurs when defendant
does not intend to kill the victim but acted in a criminally negligent or
reckless manner that resulted in a death.
Rape & Sexual Assault
â–ª Statutory rape occurs when a person under the age of legal consent has
sexual intercourse with another.
â–ª Text Case: Dupree v. Plantation Pointe
▪ plaintiff’s mother sexually assaulted at the nursing home by a
dementia patient.
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â–ª Rape occurs when one person is forced, without giving consent, to have
sexual intercourse with another.
Theft
â–ª Cost Millions Annually
â–ª Staff Valuables
â–ª Supplies
â–ª Medical Equipment
â–ª Text Case:
▪ Commingling Resident’s Personal Funds
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â–ª Patient Valuables
Review Questions
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1. What are the objectives of criminal law?
2. Describe the difference between a misdemeanor & a felony. Give an
example of each.
3. List the processes of a criminal trial.
4. Why has health care fraud been so costly?
Review Questions – II
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1. Based on cases in the chapter, discuss why physicians historically
have been reluctant to remove a patient’s life-support systems.
2. Discuss why you believe patients are sometimes reluctant to complain
about their health care.
Chapter 1
Reflections of the Past
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History is relevant to
understanding the Past, defining
the Present, and influencing the
Future.
Who Am I?
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I was Created at the End of the Renaissance,
Watched Pirates Rule the Oceans,
As Ivan the Terrible Ruled Russia,
And witnessed the arrest of Galileo,
For Believing the Earth Revolved Around the Sun.
I AM HISTORY
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History, despite its wrenching pain,
cannot be unlived,
but if faced with courage,
need not be lived again.
−Maya Angelou
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We can learn from history how past generations thought and
acted, how they responded to the demands of their time and
how they solved their problems. We can learn by analogy,
not by example, for our circumstances will always be
different than theirs were. The main thing history can teach
us is that human actions have consequences and that
certain choices, once made, cannot be undone. They
foreclose the possibility of making other choices and thus
they determine future events.
—Gerda Lerner
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Those who cannot remember the
past are condemned to repeat it.”
—George Bernard Shaw
LEARNING OBJECTIVES
â–ª Explain how advances in medicine through the ages led to the rise of the
modern day hospital and improving the quality of patient care.
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â–ª Discuss how the conflicts of society due to politics, religion, and warfare
have often impeded the growth of hospitals, as well as, contributed to
their progress.
LEARNING OBJECTIVES
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â–ª Describe how knowledge gained from best practices (e.g., infection
control) can lead to progress while at the same time result in patient
harm if not consistently followed over time.
Early Hindu & Egyptian Hospitals
â–ª
6th century BC: Buddha appointed a physician for every 10 villages
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â–ª built hospitals for the crippled & the poor;
â–ª Provided Fresh Fruits & Vegetables
â–ª Administered Medications
â–ª Provided Massages
â–ª Maintained Rules of Personal Cleanliness
Hindu Physicians
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â–ª Took Daily Baths
â–ª Keep Hair & Nails Short
â–ª Wore White Clothes
â–ª Respected Confidence of Patients
Egyptian Physicians
â–ª Used Castor Oil & Opium
â–ª Surgery mostly limited to Fractures
â–ª Medical Care in the Home
â–ª Temples functioned as Hospitals
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â–ª Used Wooden Mallet for Anesthesia
Greek & Roman Hospitals
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â–ª Hospital derives from Latin word hospitalist, which relates to guests &
their treatment
â–ª Early use of these institutions not merely as places of healing but as
havens for the poor & weary travelers
â–ª Medical Practice Rife with Mysticism
Greek Temple Medicine – I
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▪ Hospitals first appeared in Greece as Aesculapia
â–ª named after Greek god of medicine
â–ª Patients Presented Gifts before Altar
â–ª Greek Temples – Refuge for Sick
â–ª Holistic Medicine – Body & Soul
â–ª Medications – Salt, Honey, Sacred Springs
â–ª Hot & Cold Baths
â–ª Sunshine, Sea Air, Pleasant Vistas
â–ª Libraries for Visitors
Temple at Epidaurus
â–ª 1st Clinical records
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â–ª Inscribed on columns of temple
â–ª Recorded
â–ª Patients Names
â–ª Brief Histories
â–ª Treatment Outcomes
Hippocrates – The Physician
â–ª Noted for:
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â–ª Principles of Percussion & Auscultation
â–ª Performed surgery
â–ª Wrote about fractures
â–ª Described Epilepsy, TB, Malaria, & Ulcers
â–ª Maintained detailed records
Hospitals of the Early Christian Era
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â–ª Hospitals Outgrowth of Religion
â–ª Care included – Magical & Religious Rites
â–ª Doctrines of Jesus – Love & Pity
â–ª Sick treated outside temples & churches
Islamic Hospitals
▪ home to world’s oldest known teaching hospital
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â–ª Luxurious hospital accommodations frequently provided School at
Gundishapur
â–ª Medical care free
â–ª Gundishapur
Persian Physician Rhazes
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â–ª Skilled in Surgery
â–ª Used Sheep Intestines for Suturing
â–ª Cleansed Wounds with Alcohol
â–ª 1st descriptions of smallpox & measles
Islamic Medicine – I
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â–ª Inhalation Anesthesia
â–ª Precautions against Adulterated Drugs
â–ª Origination of New Drugs
â–ª Asylums for Mentally Ill
â–ª Brilliant beginnings in Medicine
â–ª Promise that glowed in early medicine not fulfilled
â–ª Wars, Politics, Superstitions, stunted growth
Early Military Hospitals – I
▪ Limestone pillar – 2920 B.C.
â–ª Moses laid down rules of Military Hygiene
▪ Hippocrates – “war is the only proper school for a surgeon”
â–ª Under Romans, Surgery Advanced
â–ª Experience through military surgery
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â–ª Pictures illustrating wounded
Medieval Hospitals – I
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▪ Religion – dominant influence in hospitals
â–ª England built Municipal Hospitals
â–ª Military Hospitals during Crusades
â–ª Lazar Houses Established
Hotel Dieu of Paris
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â–ª Provided rooms for various stages of disease
â–ª Provided room for Convalescents
â–ª Provided room for Maternity Patients
â–ª Two persons often shared 1 bed
â–ª Draperies not washed, infection spread
▪ Patients often worked on hospital’s farm
Dark Age of Hospitals
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â–ª Hospitals Commonly crowded patients into one bed
â–ª Monks preserved the writings of Hippocrates
â–ª Al-Mansur Hospital, built in Cairo in 1276
â–ª Equipped with separate wards for the more serious diseases
â–ª laid the groundwork for hospital progress to come in later centuries
Hospitals of the Renaissance – I
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â–ª Building of hospitals continued
â–ª New Drugs
â–ª Anatomy – Recognized Study
â–ª New writings Printed
â–ª New writings Printed
â–ª Dissections Performed
â–ª Surgery was more scientific
â–ª Van Leeuwenhoek- Microscope
Hospitals of the Renaissance – II
â–ª 16th Century
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â–ª Hospitals associated with Catholic Church ordered
by Henry VIII to be given over to secular uses or
destroyed
â–ª Sick Turned into Streets
â–ª Hospitals conditions intolerable
▪ St. Bartholomew’s restored
Hospitals of the Renaissance – III
â–ª Long robed surgeons
â–ª Short robed surgeons (barber-surgeons)
â–ª Generally allowed only to leech & shave
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â–ª Trained in universities
â–ª Permitted to perform all surgeries
â–ª Royal College of Surgeons founded-1540
Hospitals of the 18th Century
â–ª Royal College of Physicians Establishes Dispensary
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â–ª Medications Distributed at cost to Poor
â–ª Free Medical Care for Poor
â–ª Controversies & lawsuits
â–ª Untimely End to Early Clinic
Westminster Charitable Society
â–ª Infirmary built – voluntary subscription
â–ª Staff provide services gratuitously
â–ª Deterioration of hospitals continues
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â–ª Established Similar Dispensary in 1715
â–ª Established Westminster hospital in 1719
Early Hospitals in the U.S. – I
â–ª Manhattan Island
â–ª Philadelphia
â–ª 1st Almshouse Established – Philadelphia
▪ The Pennsylvania Hospital – 1st chartered
â–ª Williamsburg, VA
â–ª Site of 1st Psychiatric Hospital
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â–ª 1st account of hospital for sick soldiers
Early Hospitals in the U.S. – II
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â–ª Hotel-Dieu Paris, Dr. Jones wrote
â–ª 3-5 patients placed in 1 bed
â–ª Convalescent patients placed with dying
â–ª Fracture cases placed with infectious cases
â–ª 1/5th of 22,000 patients died each year
â–ª Patient wounds washed with same sponge
â–ª Infection rate said to be as high as 100%
â–ª Mortality after amputation as high as 60%
Early Hospitals in the U.S. – III
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â–ª Increase in Surgical Procedures
â–ª Inappropriate Wound Care Administered
â–ª Wards Filled with Discharging Wounds
â–ª Nurses of that period are said to have used snuff to make conditions
tolerable
Late 19th Century Renaissance – I
â–ª Nurses used Snuff to make Conditions Tolerable
â–ª Same Bed Linens Served Several Patients
â–ª Mortality from Operations 90 to 100%
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â–ª OR Coats Worn for Months without Washing
Late 19th Century Renaissance – II
â–ª Florence Nightingale improves care
â–ª Crawford Long uses ether as anesthetic to remove small tumor
â–ª American Medical Association founded – 1847
â–ª Chloroform 1st used as an anesthetic – 1847
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â–ª Considered 1st hospital administrator
â–ª Founded Nightingale School of Nursing – 1860
Mass General Hospital – 1846
â–ª Surgery at Operating Theater – Mass General
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â–ª W.T.G. Morgan Develops Sulfuric Ether
â–ª Morgan arranges for 1st operation under Anesthesia, using ether vapors
W.T.G. Morgan
â–ª Patient did not Scream
▪ “Gentlemen,” Dr. Warren proclaimed, “this is no humbug!”
â–ª Discipline of anesthesiology was born.
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â–ª Morgan performed surgery with on looking skeptical audience
â–ª Audience Astonished
Semmelweis Of Vienna
â–ª Determined Deaths from Puerperal Fever of Maternity patients
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â–ª due to infections transmitted by students leaving
dissecting room to take care of maternity patients
without washing hands.
Civil War Days
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â–ª As many as 25 to 50 beds in ward
â–ª Little provision for segregation of patients.
Roosevelt Hospital – 1871
â–ª became know as the American plan
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â–ª Built on lines of pavilion
â–ª small wards
â–ª set the style for new type of architecture
Dr. W.G. Wylie – 1877
â–ª to be destroyed when it became infected.
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â–ª Favored Roosevelt Hospital pavilion
â–ª Wylie advocated temporary structure
America’s 1st Nursing Schools
▪ Brigham and Women’s Hospital – 1872
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▪ Bellevue – 1873
â–ª Massachusetts General Hospital – 1873
Medicine 1880 – 1890
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â–ª Tubercle Bacillus Discovered
â–ª Pasteur vaccinated against anthrax
â–ª Koch Isolates Cholera Bacillus
â–ª Diphtheria 1st treated with antitoxin
â–ª Tetanus Bacillus & Parasite of Malarial Fever Isolated
â–ª Rabies Inoculation Successful
▪ Halstead & Rubber Gloves – 1890
â–ª Bergmann & steam sterilization – 1886
â–ª Roentgen discovers the X-ray – 1895
19th Century Inventions
â–ª Clinical Thermometer
â–ª Hermann Helmholtz Ophthalmoscope
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â–ª Laryngoscope
Medicine 1880 – 1890
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â–ª Hospitals crowded, patients suffering
â–ª Scarlet Fever
â–ª Diphtheria
â–ª Typhoid
â–ª Smallpox
â–ª Most Disorders Untreated for
â–ª Metabolism
â–ª Glandular Disturbances
â–ª Nutritional Diseases
20th Century Progress
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â–ª Treatment of
â–ª Metabolic Diseases
â–ª Nutritional & Vitamin Deficiencies
â–ª Rickets with Ultra-Violet Light
▪ Banting’s Introduction of Insulin
â–ª Treatment of Pernicious Anemia
20th Century Inventions
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â–ª Einthoven invents Electro-cardiograph
â–ª Wassermann Test for Pancreatic Function
â–ª Introduction of Radium for Treatment of Malignant Growths
â–ª Increased use of Examination of Tissue
Hospital Standardization – 1918
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â–ª American College of Surgeons – development of “Minimum Standards”
for Hospitals
â–ª Established Requirements for Care of Patients
â–ª First Survey Conducted – 1918
▪ Today known as “The Joint Commission”
1929 Trying Period for Hospitals
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â–ª Critical economic conditions
â–ª Lowered bed occupancy
â–ª Decreasing revenues from endowments
Latter Half of 20th Century
â–ª CT, MRI, & PET scanners
â–ª For-profit chains spring up
â–ª Competing delivery systems
â–ª Many new medications introduced
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â–ª Increased hospital competition
â–ª Notable advances in medical technology
Healthcare in the 21st Century
â–ª Grading Hospital Safety
â–ª Minimally Invasive Surgery
â–ª Surgical Simulation Training
â–ª Social Media Impacts Caregivers
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â–ª Translational Medicine
Healthcare in the 21st Century – II
â–ª National Health Insurance
â–ª Medical Errors Plague Hospitals
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â–ª Boutique Medicine
History Challenges Us to Do Better
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â–ª The maintenance of hospitals today is a result of the human emotions of
fear, pity, and sympathy, together with civic consciousness and religious
zeal. If society has changed, human nature has remained much the
same, for it was with these fundamental emotions which led ancient
peoples to build hospitals for their sick and injured.
Malcolm T. MacEachern, MD., C.M., D.Sc., L.L.D.—
Review Questions – I
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1. Who is often recognized as being the first hospital
administrator?
2. Which invention attributed to Van Leeuwenhoek had a
pronounced influence on the creation of the sciences of
cytology, bacteriology, and pathology?
3. What issue did Florence Nightingale identify in the 1800s
as being a major source/vehicle for the spread of infection
and continues to be so today?
Questions – II
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4. What data did Semmelweis collect? What was the significance of that
data as related to performance improvement in the present-day hospital?
5. What were two of the greatest influences in the development of presentday hospitals?
6. Describe how you think history is repeating itself in todays health care
system.
Chapter 2
Government, Law, and
Ethics
“Laws are the very bulwarks of Liberty; they
define every man’s rights, and defend the
individual Liberties of all men.”
– J.G. Holland (1819-1881)
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LEARNING OBJECTIVES
â–ª Describe organization structure of Department of Health and Human
Services.
â–ª Explain the development and sources of law.
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â–ª Discuss 3 branches of government, & importance of separation of
powers.
LEARNING OBJECTIVES – II
â–ª Explain the term political malpractice and give an example of how it
might apply to government officials.
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â–ª Describe the function of various government ethics committees herein
presented.
Government Organization
â–ª Executive Branch
â–ª Judicial Branch
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â–ª Legislative Branch
Branches & Powers of Government
Executive
Judicial
Write laws
Implement &
Enforce Laws
Veto Laws
Interpret Laws
Enact, amend,
Apply Laws
or repeal Laws
Declare War
Commander-inDeclare laws
unconstitutional
Confirm Justices Chief Armed
Forces
Enact Taxes & Appoint Justices
Compel
set the budget
Testimony
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Legislative
−Alexis de Tocqueville (1805–1859)
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Scarcely any political question
arises in the United States that is
not resolved, sooner or later, into
a judicial question.
Judicial Branch
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â–ª When government bureaus & agencies go awry, which are adjuncts of
the legislative or executive branches, the people flee to the third branch,
their courts, for solace & justice.
Federal Court System
â–ª District Courts
â–ª Supreme Court
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â–ª U.S. Circuit Court of Appeals
U.S. District Court
â–ª Trial courts of the Federal System
â–ª Jurisdiction over all categories of federal cases
â–ª including civil & criminal matters
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â–ª 96 Courts
U.S. Court of Appeals
â–ª Reviews
â–ª District court decisions
â–ª Administrative agency decisions
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â–ª Created to help reduce workload of U.S. Supreme Court
â–ª 12 Regional Court
â–ª 1 Judicial Circuit in DC
U.S. Supreme Court
â–ª Highest federal court
â–ª Comprised of 8 Associate & 1 Chief Justice
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â–ª Only court created by federal constitution
−Justice J. Henderson, Supreme Ct. of S. D.
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“As I have said in the past, when government
bureaus and agencies go awry, which are
adjuncts of the legislative or executive
branches, the people flee to the third branch,
their courts, for solace and justice.”
Separation of Powers
Model for Government
â–ª Under this model government is divided into branches
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â–ª Each branch
â–ª has separate & independent powers
â–ª areas of responsibility
â–ª each branch is also able to place limited restraints on the power
exerted by the other branches.
Dept of Health & Human Services
â–ª Centers for Medicare & Medicaid
â–ª National Institutes of Health
â–ª Centers for Disease Control and Prevention
â–ª Food & Drug Administration
â–ª Health Resources & Services Administration
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â–ª Public Health Service
Public Health Service includes
â–ª Agency for Healthcare Research and Quality
â–ª Indian Health Service
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â–ª Agency for Toxic Substances & Disease Registry
Laws
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â–ª Govern the relationships between private individuals and organizations;
and between both of these parties and government.
Categories of Law
â–ª Private Law
â–ª Deals with relationships among individuals.
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â–ª Public Law
â–ª Deals with the relationships between government and individuals.
Sources of Law
â–ª Statutory Law
â–ª written laws
â–ª Administrative Law
â–ª public law, rules & regulations issued by administrative agencies to
direct the enacted laws of the federal and state governments.
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â–ª Common Law
â–ª derived from judicial decisions.
Common Law in U.S.
â–ª Origins in English Common Law.
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â–ª Body of principles that has evolved and expanded from judicial
decisions.
Common Law Principles
â–ª Res Judicata:
▪ means the thing is decided—refers to that which has been previously
acted on or decided by the courts.
â–ª Stare Decisis:
â–ª common-law principle meaning let the decision stand.
â–ª based on similar cases and fact patterns.
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â–ª Precedent:
â–ª a judicial decision that may be used as a standard in subsequent
similar cases.
Statutory Law
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â–ª Written law emanating from a legislative body.
â–ª Hierarchical Order
â–ª U.S. Constitution: highest in hierarchy of laws
â–ª State Constitution
Constitution: Article VI
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â–ª This Constitution and Law of the United States . . . Shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby .

Administrative Law
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â–ª Extensive body of public law issued by administrative agencies to direct
enacted laws of federal & state governments.
Administrative Procedures Act – I
Describes different procedures under which federal administrative
agencies must operate.
â–ª
Prescribes procedural responsibilities & authority of administrative
agencies.
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â–ª
Administrative Procedures Act – II
â–ª Provides legal remedies for those wronged by agency actions.
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â–ª Rules & regulations established by administrative agency must be
administered within scope of authority delegated Congress.
Conflict of Laws
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â–ª When state & federal laws conflict
â–ª Resolution sought in appropriate federal court.
GOVERNMENT ETHICS
â–ª Executive Branch: Office of Government Ethics
â–ª U.S. Senate Select Committee on Ethics
â–ª Judicial Branch: U.S. Judical Code of Conduct
â–ª Office of Congressional Ethics
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â–ª House of Representative Committee on Ethics
Political Malpractice
â–ª Negligent conduct by an elected or appointed political official
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−Martin Luther King, Jr.
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The tragedy of society is not the
noisiness of the so-called bad
people, but the appalling silence
of the so-called good people.
Review Questions – I
1. Define the term law and describe the sources from which law is derived.
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2. Define the legal terms:
a. precedent
b. res judicata
c. stare decisis
d. original jurisdiction
e. appellate jurisdiction
Review Questions – II
3. Describe the function of each branch of government.
5. What is the function of an administrative agency?
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4. What is the meaning of separation of powers?
Review Questions – III
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6. Describe the responsibilities of the DHHS.
7. Describe how ethical issues are addressed in the Executive, Legislative,
and Judicial branches of government.
Chapter 3
Tort Law and Reform
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LEARNING OBJECTIVES
â–ª Describe what a tort is and the purpose of tort law.
â–ª Identify various intentional torts and their application in
the healthcare setting.
â–ª Explain the theories a plaintiff could use in pursuing a
products liability case.
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â–ª Describe the elements of negligence.
LEARNING OBJECTIVES – II
â–ª Describe the meaning of defensive medicine.
â–ª Describe the various ways to reduce the number of negligence claims.
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â–ª Describe various programs designed to lower the cost of malpractice
insurance.
Tort
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â–ª A civil wrong, other than a breach of contract, committed against a
person or property for which a court provides a remedy in form of an
action for damages.
Objectives of Tort Law
â–ª Preservation of peace between individuals.
â–ª Deterrence by discouraging the wrongdoer from committing future
tortious acts
â–ª Compensation to indemnify injured person/s.
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â–ª Find fault for wrongdoing.
Categories of Tort Law
â–ª Negligence
â–ª Strict liability regardless of fault
â–ª e.g., products liability
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â–ª Intentional
Negligence
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â–ª Commission or omission of an act that a reasonably prudent person
would or would not do under given circumstances.
Commission of an Act
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â–ª Administering the wrong medication
â–ª Administering the wrong dosage of a medication
â–ª Administering medication to the wrong patient
â–ª Performing a surgical procedure without patient consent
â–ª Performing a surgical procedure on the wrong patient
â–ª Performing the wrong surgical procedure
Omission of an Act
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â–ª Failing to conduct a thorough history & physical examination
â–ª Failing to assess & reassess a patient’s nutritional needs
â–ª Failing to administer medications
â–ª Failing to order diagnostic tests
â–ª Failing to follow up on abnormal test results
Malpractice
â–ª Negligence of a professional person
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â–ª surgeon who conducts a surgical procedure on
wrong body part
Criminal Negligence
â–ª Reckless disregard for safety of another.
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â–ª Willful indifference to injury that could follow an act.
Forms of Negligence
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â–ª Malfeasance
â–ª Execution of an unlawful or improper act, i.e.,
performing a partial birth abortion when prohibited by
law
â–ª Misfeasance
â–ª Improper performance of an act, i.e., wrong sided
surgery.
â–ª Nonfeasance
â–ª Failure to act when there is a duty to act, i.e., failing to
prescribe medications that should have been under
the circumstances
Degrees of Negligence
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â–ª Slight
â–ª Minor deviation of what is expected under the circumstances.
â–ª Ordinary Negligence
â–ª Failure to do what a reasonably prudent person would or would not
do.
â–ª Gross Negligence
▪ Intention or wanton “omission of care” that would be proper to
provide or the “commission of an act” that would be improper to
perform.
Elements of Negligence
â–ª Duty to Use Due Care
â–ª Breach of Duty
â–ª Injury/Actual Damages
â–ª Proximate Cause/Causation
â–ª Foreseeability
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â–ª Standard of care
I. Duty to Care
â–ª Obligation to conform to a recognized standard of care.
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Standard of Care
â–ª Describes the conduct expected of an individual in a given situation.
â–ª Measuring stick for properly assessing actual conduct required of an
individual.
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▪ Describes how a “reasonably prudent person” would or would not act
under “similar circumstances”.
Reasonably Prudent Person
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â–ª A nonexistent – hypothetical person who is put forward as community
ideal of what would be considered reasonable behavior.
Similar Circumstances
â–ª Circumstances at the time of the injury.
â–ª Age
â–ª Physical condition
â–ª Education & training
â–ª Licenses held
â–ª Mental capacity, etc.
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â–ª Circumstances of the alleged wrongdoer/s at the time of injury.
Determining Standard
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â–ª Established by legislative enactment or administrative
regulation.
â–ª Adopted by the court from a legislative enactment or
administrative regulation.
â–ª Established by judicial decision.
â–ª Applied to the facts of the case by the trial judge or jury, if
there is no such enactment, regulation or decision.
â–ª courts often rely on testimony of an expert witness as to
the standard of care required.
Community v. National Standard
â–ª Community Standard
â–ª National Standard
â–ª most currently accepted standard of care on a
national basis.
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â–ª hometown standard (we want to do things our way).
Case: Hiring Practices
â–ª Nurse hired sight unseen over telephone.
â–ª His license was not verified by the employer.
â–ª He had committed 56 criminal offenses of theft.
â–ª He assaulted a resident a resident & broke his leg.
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â–ª Applicant falsely stated in an employee application that he was licensed
as an LPN.
Case: Hiring Practices
Duty
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â–ª Standard expected:
▪ Employer had a “duty” to validate the nurse’s professional license.
II. Breach of Duty
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â–ª Deviation from the recognized standard of care.
â–ª Failure to adhere to an obligation.
â–ª Failure to conform to or the departure from a required duty of care owed
to a person.
â–ª Occurs when
â–ª a physician fails to respond to his/her on-call duties.
â–ª an employer fails to adequately conduct a pre-employment check
(e.g., licensure, background check).
Case: Hiring Practices
Breach of Duty
▪ The employer failed to verify the applicant’s licensure.
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â–ª A more thorough background check should have revealed this
employee’s previous criminal conduct.
III. Injury
â–ª Actual damages must be established.
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â–ª If there are no injuries, no damages are due.
Case: Hiring Practices
Injury
â–ª The resident suffered a broken leg.
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▪ Hospital vicariously liable for nurse’s conduct.
IV. Causation
â–ª But-for Rule
▪ the defendant’s action, the injury would not have occurred
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â–ª Proximate cause
â–ª breach of duty was the proximate cause of the injury
Case: Hiring Practices
Causation
â–ª Reasonable anticipation that harm or injury was likely to occur.
â–ª Departing from recognized standard of care
â–ª failure to verify licensure & conduct an adequate
background check
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â–ª The patient suffered a broken leg
Hiring Practices – III
â–ª Injury resulted from the breach of duty.
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â–ª Injury was foreseeable.
Failure to Hydrate
Causation
â–ª Failure to administer proper hydration.
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▪ Not unreasonable to conclude that one’s
dehydration can be caused by failing to provide
water.
Foreseeability
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â–ª Reasonable anticipation that harm or injury is likely to result from an act
or an omission to act.
Test for Foreseeability
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â–ª The test for foreseeability is whether a person of ordinary prudence and
intelligence should have anticipated danger to others caused by his or
her negligent act.
Case: Hiring Practices
Foreseeability
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â–ª A person of ordinary prudence and intelligence should have anticipated
the danger to the resident caused by the employer’s negligent act.
Hot Radiator
Foreseeability
▪ The defendant had knowledge of the plaintiff’s condition.
â–ª The defendant should have shielded the radiator or not placed the
plaintiff next to it.
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▪ A patient’s left foot came in contact with a radiator and she suffered thirddegree burns.
Sponge & Instrument Count
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â–ª Dr. Smith owns the local Outpatient Surgery Center.
â–ª He instructs employees to count all instruments & surgical sponges
following a surgical procedure, prior to closing the surgical site.
â–ª Annie, an employee, failed to conduct the count following Bills
surgery.
â–ª Two months later, Bill, suffering from extreme abdominal pain, was
noted to have several sponges and an instrument in his abdomen.
â–ª He had developed a massive infection.
â–ª Was the doctrine of Vicarious liability applicable in this case?
YES
â–ª To determine otherwise would undermine the doctrine of vicarious
liability, since employers would almost always escape liability by
presenting evidence that employees were given careful instructions.
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â–ª Even though Annie had strict instructions to count the sponges & surgical
instruments prior to closing the surgical site, she failed to do so.
Failure to Follow Instructions
â–ª She was instructed not to drive home after release. Her daughter Leslie
picks her up.
â–ª On the way home Leslie stops for a donuts. Meanwhile, her mother
moves to the driver seat.
▪ Upon leaving the parking lot, Sarah hits Carol’s car.
â–ª Carol sustains a broken arm & sues ABC for releasing Sarah before she
is completely recovered from the anesthesia.
▪ Was the hospital liable for Sarah’s injuries?
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â–ª Sarah has a minor surgical procedure under general anesthesia at ABC
Surgery Center.
NO!
▪ It was Sarah’s duty not to drive and her breach of that duty that caused
Carol’s injury.
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â–ª Sarah was negligent, not the hospital. She failed to adhere to both verbal
& written instructions not to drive following anesthesia.
Remember
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â–ª The four elements of negligence must be presented in order for the
plaintiff to recover damages caused by negligence.
Intentional Torts
â–ª Assault and Battery
â–ª Defamation of Character
â–ª Fraud
â–ª Invasion of Privacy
â–ª Intentional Infliction of Mental Distress
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â–ª False Imprisonment
Assault
1. Person attempting to touch another unlawfully must
possess apparent present ability to commit battery.
2. Person threatened must be aware of or have actual
knowledge of an immediate threat of a battery and must
fear it.
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â–ª Deliberate threat, coupled with apparent ability to do
physical harm to another. Actual contact not necessary.
Battery
â–ª Failure to obtain consent prior to surgery.
▪ Administering blood against patient’s express wishes.
â–ª Physically restraining one who refuses to eat.
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▪ Intentional touching of another’s person in socially impermissible manner
without person’s consent.
False Imprisonment
â–ª Restraining patient without cause.
â–ª Locking patient in secluded room for failing to attend
therapy session.
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▪ Unlawful restraint of individual’s personal liberty or
unlawful restraining or confining an individual.
Legal Justification for Restraint or Seclusion
â–ª Person represents a danger to self or others.
â–ª Persons with highly contagious diseases, as provided by state or federal
statutes.
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â–ª Criminal conduct.
Reducing Use of Restraints – I
â–ª Education & orientation of staff
â–ª Education for patients & families
â–ª Sound appraisal of need for restraints
â–ª Application of least restrictive restraints
â–ª Continuous monitoring of patients to determine continuing need for
restraints
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â–ª Development of policies and procedures that conform to state & federal
guidelines
Defamation of Character
â–ª False oral or written communications to someone other than person
defamed that tends to hold that person’s reputation up to scorn or
ridicule in eyes of others.
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▪ The offense of injuring a person’s character, fame, or reputation by false
& malicious statements.
Defamation of Character
▪ Slander – oral form of defamation
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▪ Libel – written form of defamation
â–ª Signs
â–ª Letters
â–ª Photographs
â–ª Cartoons
Proof of Defamation
â–ª A false & defamatory statement.
â–ª Fault on the part of the defendant.
â–ª Special monetary harm.
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â–ª Communication of a statement to a person other than the plaintiff.
Proof of Harm Not Required
to recover damages when:
â–ª Accusing a person of a crime.
▪ Using words are harmful to a person’s profession or business.
â–ª Calling a woman unchaste.
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â–ª Accusing a person of having a loathsome disease.
Libel – Performance Appraisals
â–ª Performance appraisals are not meant for general publication.
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â–ª To recover damages, the appraisal must be published in defamatory
manner that injures one’s reputation.
Cartoon – I
â–ª Can a defamatory statement can take the form of a cartoon?
â–ª Yes, a defamatory statement can take the form of a cartoon because it is
capable of adversely affecting a person’s reputation.
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â–ª Jack draws a cartoon depicting Paul having a rendezvous with a new
grad nurse in an empty patient room. The incident in fact never occurred.
Newspapers Articles
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â–ª Newspaper editorial cartoon depicting 3 persons resembling gangsters in
dilapidated building, identified as particular facility that had been closed
by state order, was an expression of pure opinion and was protected by
1st Amendment.
Accused of an Affair
▪ Assuming Dr. Smith’s letter is defamatory, is it libel or slander?
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â–ª Nurse Rachet suggests to Dr. Smith that he should leave his wife Sharon
because she is having an affair with Dr. Doe. Dr. Smith writes a letter to
Mrs. Doe, repeating Rachet’s statement.
Accused of an Affair
â–ª It is libel, even though Dr. Doe is repeating a slanderous statement.
â–ª The rule is: once libel, always libel.
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▪ The reverse is not true – the spoken repetition of a written defamation is
still considered libel.
Slander
â–ª Person who brings suit must prove special damages.
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â–ª When defamatory words refer to person in professional capacity,
professional need not show that words caused damage.
Defenses to a Defamation Action
▪ Truth – no liability for defamation if it can be shown that statement is true.
â–ª Absolute
â–ª Qualified
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â–ª Privilege
Absolute Privilege
â–ª Statements made during judicial & legislative hearings
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â–ª Confidential communications between spouses
Qualified Privilege
â–ª Statements must be without malice
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â–ª Statements made as result of a legal or moral duty to speak in interests
of 3rd persons
Public Figures
â–ª Vulnerable to public scrutiny
â–ª malice
â–ª actual knowledge statements are false
â–ª recklessness as to truth
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â–ª Suits generally dismissed in absence of
Proof of Fraud
â–ª Misrepresentation by the defendant.
â–ª Intent to reduce reliance on misrepresentation.
â–ª Justifiable reliance by the plaintiff.
â–ª Damage to the plaintiff.
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â–ª Knowledge of falsity.
Health Care Fraud
â–ª Billing Tradename Drugs/Issuing Generic
â–ª Billing for Services not Rendered
â–ª Accepting referral fees
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â–ª Office Visits/Double Billing
Invasion of Privacy
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â–ª The right to
â–ª be left alone
â–ª be free from unwarranted publicity
â–ª be free from exposure to public view
▪ be free from unwarranted intrusions into a one’s personal affairs
â–ª personal privacy
â–ª have records/kept confidential
Intentional Infliction
of Mental Distress
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â–ª Conduct that is so outrageous that it goes beyond bounds tolerated by
decent society.
Mental Distress
â–ª Grief
â–ª Public humiliation
â–ª Despair
â–ª Shame
â–ª Human pride
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â–ª Shame
Mental Distress
â–ª Verbally abusive physician to patient and/or spouse.
Greer v. Medders
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â–ª Mother shown premature infant in a jar.
Johnson v. Womens Hospital
Fraud
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â–ª Willful & intentional misrepresentation that could cause harm or loss to
person or property.
â–ª e.g., purposeful concealment from patient of the presence of surgical
sponges in his/her abdomen following surgery.
Products Liability
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â–ª Liability of a manufacturer, seller, or supplier of chattels to a buyer, or
other third party for injuries sustained because of a defect in a product.
Products Liability Legal Theories
â–ª Negligence
â–ª Strict liability
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â–ª Breach of warranty
â–ª Express
â–ª Implied
Negligence
â–ª Breach
â–ª Product defective when it left the manufacturer
â–ª Injury
â–ª Plaintiff/s injured by the product
â–ª Causation
â–ª Product proximate cause of injury
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â–ª Duty
â–ª Product manufactured by the defendant
Defective X-ray Unit – I
â–ª While in the control room, Mindy hears a crash.
â–ª She rushes to the patient & finds that a section of the x-ray unit fell on
Candice, further injuring her already broken leg.
â–ª Candice sues the manufacturer for negligence.
▪ Can the manufacture be held liable for the plaintiff’s injuries?
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▪ Mindy places Candice on the table of the hospital’s newly manufacturerinstalled x-ray unit.
YES!
â–ª Duty: manufacturer to properly install the x-ray unit.
â–ª Injury: plaintiff suffered injury.
▪ Causation: improper installation was the proximate cause of the plaintiff’s
injury.
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â–ª Breach: failure to properly install the x-ray unit.
Express Warranty
â–ª Includes specific promises or affirmations made by seller to buyer.
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â–ª e.g., drug manufacturer represents the product as free from addiction &
is not
Crocker v. Winthrop Laboratories
Implied Warranty
â–ª e.g., consumers have right to assume that food is not contaminated
Jacob E. Decker & Sons v. Capps
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▪ A warranty that exists by operation of the law as a matter of “public
policy” for protection of the public.
Strict Liability
â–ª Liability without fault
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â–ª Elements required to establish strict liability
â–ª Product manufactured by defendant
â–ª Product defective at time it left manufacturer
â–ª Plaintiff injured by product
â–ª Defective product proximate cause of injuries
Wrong Medication – I
â–ª Prior to taking his nightly dosage, he noticed the pill appeared larger than
normal.
â–ª He phoned D Drugs & explained his concern.
â–ª The Pharmacist assured Stanley generic drugs sometimes are larger
because of formula fillers but that the medication dosage in his drug was
correct.
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â–ª Stanley refills his drug prescription at D Drugs, where he has been a
customer for 10 years.
Wrong Medication – II
▪ The container from which the pharmacist filled Stanley’s prescription had
been mislabeled by the manufacturer.
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â–ª Stanley took the drug & never woke up; the dosage given was 5 times
that which had been prescribed.
Wrong Medication – III
Court’s Decision
â–ª Product was manufactured by the defendant
â–ª Plaintiff injured by the product
â–ª Stanley passed away in his sleep.
â–ª Defective product proximate cause of injuries
▪ The mislabeled container was the proximate cause of Stanley’s death.
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â–ª Product defective at time it left manufacturer
â–ª The drug was placed in a mislabeled container.
Products Liability
Res Ipsa Loquitur
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â–ª Must establish
â–ª Product did not perform in way intended
â–ª Product not tampered with by buyer/3rd parties
â–ª Defect existed at time it left defendant
Products Liability Cases
â–ª Manufacture of unsafe drugs
▪ Merck’s Vioxx
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â–ª Tainted Tylenol Capsules
â–ª Elsroth v. Johnson & Johnson
Products Liability Defenses – I
â–ª Assumption of the Risk
â–ª Intervening Cause
â–ª an IV solution contaminated by product user
â–ª Contributory Negligence
â–ª use of product in a way it was not intended to be
used.
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â–ª voluntary exposure to risks: Smoking, radiation
therapy, Chemotherapy
Products Liability Defenses – III
â–ª Comparative Fault
â–ª Disclaimers
â–ª manufacturers inserts
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â–ª injury due to concurrent negligence of both
manufacturer & plaintiff.
Review Questions – I
1. Describe the objectives of tort law.
3. What forms of negligence are described in this chapter?
4. How does one distinguish between negligence and malpractice?
5. What elements must be proven in order to be successful in a
negligence suit? Illustrate your answer with a case (the facts of the
case can be hypothetical).
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2. Discuss the distinctions among negligent torts, intentional torts, and
strict liability.
Review Questions – III
7. Describe the categories of intentional torts.
8. How does slander differ from libel? Give an example of each.
9. What is products liability? Describe what legal theories an injured party
may use in proceeding with a lawsuit against a seller, manufacturer, or
supplier of goods.
10. Describe the defenses often used in a products liability case.
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6. Can a “duty to care” be established by statute or contract? Discuss
your answer.
Chapter 4
Criminal Aspects
of Health Care
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LEARNING OBJECTIVES
â–ª Explain what criminal law is, the classification of crimes, and its purpose.
â–ª Describe several of the more common crimes that occur in the
healthcare setting.
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â–ª Describe the criminal procedure process from arrest through trial.
Criminal law
â–ª What is the purpose of criminal law?
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â–ª Criminal law (also known as penal law) is the body of statutory and
common law that deals with crime and the legal punishment of criminal
offenses.
Purpose of Criminal Law
â–ª Maintain Public Order & Safety
â–ª Use Punishment as a Deterrent
â–ª Provide for Criminal Rehabilitation
â–ª What are the definitions of a crime, misdemeanor & felony?
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â–ª Protect Individuals
Definitions
▪ Crime – social harm defined & made punishable by law.
▪ Felony – imprisonment in a state or federal prison for more than a year.
â–ª What is an arraignment?
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▪ Misdemeanor – offense punishable by less than 1 year in jail and/or a
fine.
Complaint, Investigation & Arrest
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â–ª Components of a Crime
â–ª act itself (the actus reus or guilty act);
â–ª requisite mental state/intent (the mens rea or guilty mind); and
â–ª causation; harm that is the result of the act that was
committed. The accused performed the act that caused the harm with
the intent to cause that harm.
Arraignment
â–ª Formal reading of the accusatory instrument
â–ª What is the purpose of a conference with the defendant and prosecutor?
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â–ª a generic term that describes a variety of
documents, each of which accuses a defendant of
an offense
â–ª includes the setting of bail
Indictment
â–ª A formal charge or accusation of a serious crime.
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Conference
â–ª Meeting for purposes of deliberation
â–ª Commences with the goal of an agreed-upon disposition
â–ª If no disposition can be reached, a case may be
assigned to a trial court.
â–ª Describe the process of conducting a criminal trial.
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â–ª Plea bargaining time
Criminal Trial – I
â–ª Jury selection
â–ª Presentation of witnesses & evidence
â–ª Standard of proof must be beyond a reasonable
doubt.
â–ª Summations
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â–ª Opening statements
Criminal Trial – II
â–ª Instructions to the jury by the judge
â–ª Verdict
â–ª must be unanimous
â–ª Sentencing
â–ª Opportunity for appeal
â–ª What does the False Claims Act of 1986 prohibit?
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â–ª Jury deliberations
Health Care Fraud
â–ª Unlawful Act generally deception for personal gain.
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â–ª FBI Primary agency for exposing & investigating healthcare fraud.
False Claims Act – 1986
â–ª Knowingly presenting a false claim for payment.
â–ª conspiring to defraud the government.
â–ª making a false record to avoid an obligation to pay or transmit property to
the government.
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â–ª making a false record to get a false claim paid.
Ethics in Patient Referral Act – 1989
â–ª Requires Medicare providers to report the names & provider numbers of
all physicians or their immediate relatives with ownership interests in a
provider entity.
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â–ª Prohibits physicians who have ownership interest or compensation
arrangements with a clinical laboratory from referring Medicare patients
to that laboratory.
HIPPA -1989
â–ª Requires U.S. Attorney General & Secretary of DHHS, acting through the
Office of Inspector General (OIG), to establish a national healthcare
fraud & abuse control program.
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â–ª Provides criminal & civil enforcement tools & funding to fight against
healthcare fraud.
Schemes to Defraud
â–ª Billing for services not rendered
â–ª Misrepresenting procedures performed to obtain payment for noncovered services
â–ª Upcoding services (billing for a more costly service than the one actually
performed,
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▪ Falsifying a patient’s diagnosis to justify tests, surgeries, or other
procedures that are not medically necessary
Schemes to Defraud – II
â–ª Billing for unnecessary services (services that are not medically
indicated)
â–ª Accepting kickbacks for patient referrals
â–ª Waiving patient co-pays or deductibles
â–ª Overbilling insurance carrier or benefit plan.
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â–ª Unbundling (billing each stage of a procedure as if it were a separate
procedure)
Kickbacks
â–ª Laboratory
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â–ª Architectural Contract
Health Care Fraud: Text Cases
â–ª Scheme to Defrauding Medicare & Medicaid
â–ª Pharmacist Submits False Drug Claims
â–ª Inflating Insurance Claims
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â–ª False Medicaid Claims
â–ª Physician & Office Manager
Health Care Fraud: Text Cases – II
▪ Falsification of Records
â–ª Misuse & Theft of Drugs
â–ª Homecare Fraud
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â–ª Fraudulent Billing: Lab Tests
Physicians Victims of Fraud
How to Prevent Office Fraud
â–ª familiarize themselves with patient billing & record keeping practices
â–ª Conduct annual audit of office procedures & records
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â–ª Avoid having one person in charge of both billing & collection process
Falsification of Records
â–ª Anyone who suffers damage as a result of falsification of records may
claim civil liability.
â–ª The provider could lose Medicare & Medicaid funding.
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â–ª Falsification of medical & business records is grounds for criminal
prosecution.
Fraud & Ethics
â–ª Behind every act of healthcare fraud lies a lapse in ethics.
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Patient Abuse
â–ª Mistreatment or neglect of patients
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â–ª Types of abuse
â–ª Physical
â–ª Psychological
â–ª Medical
â–ª financial
Misuse and Theft of Drugs
â–ª Internet Pharmacy
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â–ª Failure to review patient prescriptions prior to
dispensing.
â–ª Fraudulent billing.
â–ª Transfer of funds to offshore account.
Physicians: Victims of Fraud
Prevention
â–ª Familiarize themselves with patient-billing & recordkeeping practices.
â–ª Arrange for an annual audit of office procedures & records by an outside
auditor.
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â–ª Avoid having one individual in charge of billing & collection procedures.
Forms of Abuse
â–ª Physical
â–ª Medical
â–ª Financial
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â–ª Psychological
CRIMINAL NEGLIGENCE
â–ª Abuse & Revocation of License
â–ª Abusive Search
â–ª Cruelty to the Infirm
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â–ª Neglect of Residents
HOMICIDE
â–ª Unusual Number of Deaths
â–ª Fatal Injection of Pavulon
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â–ª Nurse Sentenced for Diabolical Acts
Removal of Life Support
Not Murder
â–ª No duty to continue use once it has become futile & ineffective to do so
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â–ª Generally duty to provide life-sustaining equipment in immediate
aftermath of cardiopulmonary arrest.
Manslaughter
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â–ª Commission of an unintentional act that results in the death of another
person.
â–ª Voluntary manslaughter: intentional killing of another person without
premeditation or malice of forethought
â–ª Involuntary manslaughter: negligent act that occurs when defendant
does not intend to kill the victim but acted in a criminally negligent or
reckless manner that resulted in a death.
Rape & Sexual Assault
â–ª Statutory rape occurs when a person under the age of legal consent has
sexual intercourse with another.
â–ª Text Case: Dupree v. Plantation Pointe
▪ plaintiff’s mother sexually assaulted at the nursing home by a
dementia patient.
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â–ª Rape occurs when one person is forced, without giving consent, to have
sexual intercourse with another.
Theft
â–ª Cost Millions Annually
â–ª Staff Valuables
â–ª Supplies
â–ª Medical Equipment
â–ª Text Case:
▪ Commingling Resident’s Personal Funds
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â–ª Patient Valuables
Review Questions
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1. What are the objectives of criminal law?
2. Describe the difference between a misdemeanor & a felony. Give an
example of each.
3. List the processes of a criminal trial.
4. Why has health care fraud been so costly?
Review Questions – II
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1. Based on cases in the chapter, discuss why physicians historically
have been reluctant to remove a patient’s life-support systems.
2. Discuss why you believe patients are sometimes reluctant to complain
about their health care.
Chapter 6
Civil Procedure &
Trial Practice
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LEARNING OBJECTIVES
â–ª Discuss the pretrial discovery process.
▪ Explain the purpose of the judge’s charge to the jury.
â–ª Describe the types of damages and how they are awarded.
â–ª Discuss the appeals process and execution of judgments.
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â–ª Describe the trial process.
Pleadings
â–ª Generally include:
â–ª Complaint
â–ª Demurrer
â–ª Counterclaim
â–ª answer
â–ª bill of particulars
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â–ª Written statements of fact & law filed with a court by the parties to a
lawsuit.
Pleadings – II
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â–ª Parties to a Lawsuit
â–ª Plaintiff: person who initiates filing a complaint.
â–ª Defendant: person against whom a lawsuit is brought.
Summons
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â–ª Summons
â–ª Legal document issued by a court and served on an individual
announcing a legal proceeding has been commenced.
â–ª Provides date & place where the defendant must appear to respond
to and answer the complaint.
• Note: some jurisdictions, a complaint must accompany the summons
(announcement to defendant that legal action has been commenced).
Complaint
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â–ª Complaint
â–ª 1st pleading in a lawsuit filed by the plaintiff(s)
â–ª Sets forth;
â–ª relevant allegations of fact that give rise to one or more legal
causes of action &
â–ª damages requested.
Demurrer
â–ª Defendant claims evidence presented by the plaintiff is insufficient to
sustain a lawsuit.
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â–ª Pleading filed by defendant[s] challenging legal sufficiency of a
complaint.
Answer
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â–ª Defendant responds to the allegations in the complaint
â–ª statute of limitations has tolled
â–ª contributory negligence on part of plaintiff
â–ª obligation has been paid
â–ª general release was presented to the defendant
â–ª contract was illegal & therefore null & void
Answer – II
â–ª Complaint filed with court having jurisdiction
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â–ª Copy provided to plaintiff[s] attorney.
Counterclaim
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â–ª Generally filed with the answer
▪ denying the plaintiff’s claims
Bill of Particulars
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â–ª Request for written itemization of claims made
â–ª date & time of day negligence
â–ª where the alleged malpractice occurred
â–ª the act negligent alleged to have occurred
â–ª how the alleged the negligence occurred
â–ª listing of injuries claimed
â–ª listing of any witnesses alleged malpractice
Discovery
â–ª Process of investigating facts of a case before trial.
â–ª Parties to a lawsuit have a right to discovery & to examine witnesses
before trial.
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â–ª Discovery rules promulgated to prevent trial by ambush.
Discovery – II
Objectives
â–ª Obtain evidence that might not be obtainable at time of trial.
â–ª Gather knowledge of the existence of additional evidence that may be
admissible at trial.
â–ª Obtain leads to enable discovering party to gather further evidence.
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â–ª Isolate & narrow issues for trial;
Attorney-Client Privilege
â–ª Confidential communications made by a client & his attorney.
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Elements Needed to Establish
Attorney-Client Privilege
â–ª Client must seek advice from an attorney in his or her capacity as a legal
advisor.
â–ª Communication between attorney & client must be identified to be
confidential.
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â–ª Both parties must agree that the attorney-client relationship does or will
exist.
Incident Reports
▪ Statistical Data – Not Always Privileged
â–ª Case Example: Braverman, in Braverman v. Columbia Hospital, Inc.
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â–ª Incident Reports
â–ª not generally protected from discovery
Examination Before Trial
â–ª A deposition, taken at an EBT, is the testimony of a witness that has
been recorded in a written format.
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â–ª EBT may reveal sufficient facts discouraging plaintiff from continuing the
case or encourage parties to settle the case.
Preparation of Witnesses
â–ª Review records
â–ª Be organized in:
â–ª thinking
â–ª recollection of facts
▪ Answer “only” questions asked
â–ª Explain simply, succinctly
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â–ª Do not be antagonistic
Preparation of Witnesses – II
â–ª Do not over-dramatize
â–ª Be polite, sincere, & courteous
â–ª Dress appropriately
â–ª Be well groomed
â–ª Listen for objections
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â–ª Do not become over-powered by cross-examiner
Preparation of Witnesses – III
â–ª Review your EBT before trial
â–ª Do not show displeasure
â–ª Ask for questions to be repeated for clarification
▪ Not sure of answer – indicate you are not sure
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â–ª Be honest with examiner
Pre-Trial Motions
â–ª Motion for Summary Judgment
â–ª Either party to a suit may believe that there are no
triable issues of fact & only issues of law to be decided.
â–ª In such event, either party may make a motion for
summary judgment.
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â–ª Motion to Dismiss a case
▪ Defendant alleges plaintiff‘s complaint does not set
forth a claim or cause of action recognized by law.
Pre-Trial Conference
▪ May be ordered at the judge’s initiative or parties to a lawsuit.
â–ª Parties agree on the issues, and settle procedural matters prior to trial.
â–ª Cases can be settled outside the courtroom.
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â–ª Eliminate matters not in dispute.
Notice of Trial
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â–ª Once a decision to go forward is reached, the case is placed on a court
calendar.
Memorandum of Law
(Trial Briefs)
â–ª Aids the court regarding points of law.
â–ª Trial briefs prepared by both plaintiff/s and the defendant/s attorneys.
â–ª A trial brief is not always required, but is a recommended strategy.
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â–ª Presents to the court nature of the case, cites case decisions to
substantiate arguments.
Judge
â–ª Handles conduct of trial
â–ª Determines issues of procedure
â–ª Decides if evidence admissible
â–ª Charges the jury
â–ª May direct a verdict
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â–ª Decides questions of law
Jury
â–ª Selected from jury list
â–ª Determines damages, if any
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â–ª Determines issues of fact
Jury Selection Process
â–ª The defendant can waive the right to trial by jury.
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â–ª Counsel for both parties to a lawsuit questions each prospective jury
member for impartiality, bias, and prejudicial thinking.
â–ª This process is referred to as the voir dire.
Subpoena
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A legal order requiring the appearance of a witness and/or the
presentation of documents at a legal proceeding.
Types of Subpoenas
â–ª Subpoena duces tecm
â–ª Subpoena of records
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â–ª Subpoena ad testificandum
â–ª Subpoena for a witness
Burden of Proof
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Obligation of the plaintiff to persuade the jury regarding the truth of his or
her case.
Res Ipsa Loquitur
â–ª The thing speaks for itself
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â–ª Legal doctrine that shifts the burden of proof from the plaintiff to the
defendant.
Res Ipsa Loquitur: Proof Required
Event causing injury – would not normally have occurred in the
absence of negligence
2.
Defendant – must have exclusive control over instrument causing
injury
3.
Plaintiff – must not have contributed to the event causing injury.
© 2014 Jones and Bartlett Publishers
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1.
Case: Wrong Medication
â–ª Stanley refills his drug prescription at Discount Drugs.
â–ª He phoned Discount Drugs & explained his concern.
â–ª The Pharmacist, stating he was busy, assured Stanley generic drugs
sometimes are larger & the medication was correct.
© 2014 Jones and Bartlett Publishers
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â–ª Prior to taking his nightly dosage he noticed the pills appeared larger
than normal.
Case: Wrong Medication – II
▪ The pharmacist filled Stanley’s prescription from the wrong container.
▪ Is the pharmacy liable for Stanley’s death?
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â–ª Stanley took the drug & never woke up; the dosage given was five times
that prescribed.
Yes
â–ª See res ipsa loquitur above.
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▪ The plaintiff, Stanley, need not prove conclusively that the defendantpharmacist’s negligence resulted in injury, only that all reasonably
probable causes of the accident can be traced to the defendant.
Opening Statements
â–ª Defense attorney: explains the facts as they apply to the case for the
defendant.
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â–ª Plaintiff’s attorney: provides, in capsule form, the facts of the case, what
he or she intends to prove by means of a summary of the evidence to be
presented, and a description of the damages to his or her client.
Examination of Witnesses
▪ Following opening statements, the judge calls for the plaintiff’s witnesses.
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Preliminary Questions
for Physician Witness
â–ª Please state your name, residence, and any prior residences.
â–ª Are you licensed in this state?
â–ª Where did you serve your residency?
▪ Describe the treatment you rendered? ∙∙∙
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â–ª Where did you attend medical school?
EVIDENCE
â–ª Evidence consists of the facts proved or disproved during a lawsuit.
â–ª Rules of evidence govern the admission of items of proof in a lawsuit.
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â–ª Law of evidence is a body of rules under which facts are proved.
Direct Evidence
â–ª Evidence offered through direct testimony.
â–ª Violation of a statute may constitute direct
evidence of negligence
â–ª Policy and Procedure violations can be offered as direct evidence
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â–ª Statutory
Judicial Notice Rule
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â–ª Well-known facts universally recognized as truth without need for
evidence.
â–ª Need for a CT scan or MRI, as a diagnostic tool to diagnose a
suspected skull fracture, can be considered a matter of common
knowledge.
â–ª A court, in the absence of expert testimony, can take judicial notice
that such evidence is within the realm of common knowledge..
Expert Testimony
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