Patient Self-Determination Act 

The Patient Self-Determination Act (PSDA), enacted in 1990,  mandates that health care institutions encourage patients to  make advance decisions regarding the type of care and services they wish to have (or deny) in the event, in the future,  that they are unable to make health care decisions because of  illness. Several documents, recognized by the PSDA, when  executed by the patient provide protection for both the  patient and physician. These documents include the living  will, the durable power of attorney, and the Uniform Anatomical Gift Act card.

 

Living Will 

The living will (Figure 3-3) allows patients to designate, in  advance, which forms of treatments and nutritional support  intended to prolong the patient’s life either may be used or  may not be used. This document gives patients the legal  right to direct the type of care they wish to receive or wish  not to receive when their death is imminent. The document  provides protection for physicians and hospitals when they  follow the patient’s wishes. This process is often discussed  in the physician’s office with patients when they are capable  of making the decision. Other family members or significant others can also be part of the discussion and decision.  One copy of the living will should be kept with the patient’s  record. A living will is very similar to an advance directive,  but the advance directive generally includes not only the  living will but also the durable power of attorney. A sample  of an advance directive and additional information are provided in the chapter titled “Assisting with Life Span Specialties: Geriatrics.” 

 

Durable Power of Attorney 

The durable power of attorney (DPOA), when signed by  the patient, names an agent or representative who may act  on behalf of the patient. If the patient wishes to assign an  agent for health care only, then that agent may make only  health-care-related decisions on behalf of the patient and is  termed a medical durable power of attorney (MDPOA). This  agent may be a spouse, grown child, friend, or, in some  cases, an attorney. 

The DPOA or MDPOA is a safeguard that someone  will be able to act on the patient’s behalf if the patient  becomes physically or mentally incapacitated. This document is in effect until the patient cancels it. A copy of the  signed document should be kept with the patient’s record.  The DPOA or MDPOA acts on behalf of the patient until  the patient is again capable of making his or her own  decisions. Figure 3-4 shows a medical durable power of  attorney.

 

 

 

 

 

Uniform Anatomical Gift Act 

The Uniform Anatomical Gift Act allows persons 18 years or  older and of sound mind to make a gift of any or all parts of  their body for purposes of organ transplantation or medical  research at the time of death. Two regulations that are held  within this act include: 

• The physician performing the transplant operation cannot be the same physician to determine death or the time of death. 
• Money is not allowed to change hands for the purpose of organ donation.

The donor carries a card that has been signed in the presence of two witnesses (Figure 3-5). In some states the driver’s  license has an option to indicate the desire to be an organ  donor with space for a signature. 

In some cases, the family will make the decision for organ  donation if a formal decision was not made while the donor  was alive. It is generally agreed that if a member of the family opposes the donation of organs, then the physician and  hospital do not insist on it. 

 

DOCUMENTATION  

The medical record, either electronic or paper, is considered  a legal document. Therefore, complete and accurate documentation is absolutely necessary. There’s a useful saying  many health care professionals keep in mind: If it isn’t written, it wasn’t done. Carefully document all calls, visits, treatments, no-shows, appointment cancellations, medications,  prescription refills, vital signs, and other pertinent information in the patient’s medical record. If an action is not  recorded in the medical record, then it is considered by most  courts not to have been performed. 

 

Use of Records in Litigation 

 

Litigation is the term for a lawsuit tried in court. For purposes of litigation, a court of law may subpoena a medical  record. A subpoena is an order to appear in court. Should  you or your employing physician receive a subpoena duces  tecum (an order to appear in court and to bring with you  certain medical records or materials for trial), remember that  only the records specifically stated in the subpoena are  required; the entire medical record does not need to be sent. 

Unless the original record is subpoenaed, a certified photocopy may be sent. A receipt for the subpoenaed record  should then be placed in the patient’s medical record. The  patient should also be notified that the record has been subpoenaed. Both the subpoenaed record and the notification to  the patient should be sent by certified mail.

 

FIGURE 3-3 Living will.

FIGURE 3-4 Medical durable power of attorney.

FIGURE 3-5 Organ donor card.

 

 

 

 

 

Court Testimony 

Not everyone who has information relating to a case will be  called into court to testify. An attorney may interrogate, or  ask questions, of a witness. Another means of obtaining  information from a witness to be used during a court case is  to submit a deposition. In this case, a written statement is  taken of oral testimony given in front of a court officer. The  person who gives the oral testimony and then signs a deposition is not required to actually appear in court. An attorney  submits the deposition during the court case. Arraignment  occurs when a defendant is called before the court to answer  a charge.  An expert witness is a person called on to testify in court  regarding the proper standard of care for a patient in a similar community.

An expert witness in a medical malpractice  suit is generally a physician.  In the event that you are called on to appear in court, you  will want to be as comfortable as you can when giving testimony. Remember the following pointers: 

• Be professional—You will be judged by your appearance and behavior as well as by what you say. Your attorney will advise you on how to dress and behave when preparing you for your court appearance. 
• Remain calm, dignified, and serious at all times— The opposing attorney may try to make you nervous. Keep your mind focused on the questions being asked,  and take deep breaths to help remain calm. 
• Do not answer questions you do not understand— Simply ask the attorney to repeat the question or state, “I don’t know.” 
• Only present facts surrounding the case—Do not give any additional information. Do not insert your opinion. Stating, “He was angry,” is stating your opinion. “The patient was shouting” is stating a fact.
• Do not memorize your testimony ahead of time— You will generally be allowed to take some notes with you to refresh your memory concerning dates or other  specifics surrounding the court case. 
• Always tell the truth—A medical assistant must demonstrate veracity at all times (truthfulness; truth in speech or statement) 

Giving testimony in court is a crucial and sensitive matter. It is best to consult an attorney if you have any  questions. 

In some instances, the parties involved may not want to  pursue the case in court and may decide to submit to arbitration. Arbitration is a hearing in which a neutral third party or  parties determines the outcome of a dispute or settle a difference between parties. Before arbitration, both parties must  agree to abide by the decision made by the arbitrator.