Today’s health care consumers want to partner with the physician and the rest of the health care team in the management of their health needs. They want to be a part of the decision-making process regarding their care and treatment. The relationship between the patient, the patient’s doctor, and others who participate in the patient’s health care involves both legal and ethical considerations. This lesson discusses issues such as malpractice, informed consent, and litigation, as well as specific regulations and documents that protect the patient, the patient’s family, physicians, and medical staff involved in care and treatment. Other topics presented include the public duties of the physician, documentation in medical records and electronic health records, and the role of risk management in the medical office. The ethics of medical practice are also discussed.
Classification of the Law Laws may be considered to fall into four classifications:
• Criminal
• Civil
• International
• Military
Criminal Law
Criminal laws are made to protect individuals and the public as a whole from the harmful acts of others. Criminal acts fall into two categories: felony and misdemeanor. Conviction of a felony can carry a punishment of imprisonment in a state or federal prison or a death sentence. Murder, rape, robbery, and practicing medicine without a license are examples of felonious crimes.
Misdemeanors are less serious offenses and carry a punishment of fines or imprisonment in jail for up to a year. They include traffic violations, disturbing the peace, and theft. A physician’s license may be revoked, or taken away, if that physician is convicted of a crime. Sexual misconduct, murder, and violating narcotics laws are all criminal convictions that have resulted in the revocation of a license to practice medicine.
The practice of medicine is defined as diagnosing and prescribing treatment or medication.
As a medical assistant, you are not licensed to practice medicine and must make sure that you always assist the physician and do not try to diagnose or treat a patient’s condition. A medical assistant who attempts to diagnose or treat a patient could be prosecuted for practicing medicine without a license.
Civil Law
Civil law concerns relationships between individuals or between individuals and the government. Civil law includes tort law, contract law, and administrative law. Tort law covers acts that result in harm to another person or another person’s property. Contract law includes enforceable promises and agreements between two or more persons. Administrative law covers regulations that are set by governmental agencies. Health care employees are most frequently involved in cases of civil law, particularly tort and contract law.
Tort Law
A tort is a wrongful act, resulting in harm, that is committed by one person against another person or property. In medical law, to meet the definition of a tort, an individual must be able to prove damage or injury to the patient was caused by the physician or the physician’s employee. A person who commits a tort is known as a tortfeasor.
Torts are classified as either unintentional or intentional.
Intentional torts include: assault, battery, false imprisonment, defamation of character, fraud, and invasion of privacy.
The most common unintentional tort in the health care arena is negligence.
Negligence is the failure to do or perform a specific action, which results in injury to another person. A health care professional must exercise the type of care that a “reasonable” person with similar training would use in a similar circumstance. This is known as the reasonable person standard.
Negligence is often the key factor in a medical malpractice lawsuit.
To obtain a judgment for negligence against a physician or other health care professional, the patient must be able to show proof of what is referred to as the “four Ds of negligence” as listed here.
Duty • Dereliction or neglect of duty • Direct cause • Damages
The Four D’s of Negligence
• Duty refers to the physician–patient relationship. The patient must prove that this relationship has been established. When the patient has made an appointment and been seen by the physician, a relationship has been established.
Further office visits and treatment will establish that the physician had a duty or obligation to the patient, which is considered to be a contract.
• Dereliction or neglect of duty refers to a physician’s failure to act as any ordinary and prudent physician (a peer) within the same community would act in a similar circumstance when treating a patient. To prove dereliction or neglect of duty, a patient would have to prove that the physician’s performance or treatment did not comply with the acceptable standard of care based on the norm of the ordinary and prudent physician.
• Direct cause requires the patient to prove that the physician’s dereliction or breach of duty was the direct cause of the injury that resulted.
• Damages refer to any injuries that were received by the patient. The court may award compensatory damages (monetary compensation) to pay for the patient’s injuries.