Laws are classified as private and public. Private (or civil) laws can be divided into six categories: tort, contract, property, inheritance, family, and corporate law. Only tort and contract law are discussed here, since they most often affect the medical professional. Public law can be divided into four categories: criminal, administrative, constitutional, and international law. This chapter discusses criminal and administrative law.
Civil (Private) Law
Civil law concerns relationships either between individuals or between individuals and the government. It involves all the law that is not criminal law, although the same conduct may violate criminal and civil law. For instance, murder is a crime that the government prosecutes in order to punish the defendant by inflicting a prison term or even death, while the surviving family members can sue the person in a civil suit for wrongful death and receive compensation for their loss. Civil law cases generally carry a monetary damage or award as compensation for harm or injury. An individual can sue another person, a business, or the government. Some civil law cases include divorce, child custody, auto accidents, slander, libel, and trespassing.
In a civil law case there must be a preponderance of evidence , meaning the fact of the issue is more probable than not, in order to receive a determination of guilty. This means that it is more likely than not that the incident did occur.
Civil law includes tort law and contract law. Tort law covers private or civil wrongful acts that result in harm to another person or that person’s property. A tort can result in money damages having to be paid. Contract law includes enforceable promises and agreements between two or more persons to do, or not do, a particular action. Healthcare employees are most frequently involved in cases of civil law, in particular, tort and contract law. Most medical malpractice lawsuits fall within the category of the civil law of torts.
In many cases, civil law matters are handled and settled outside of the courtroom.
A tort is a civil injury, or wrongful act, that is committed against another person or property, resulting in harm, and is compensated by money damages. To sue for a tort, a patient must have suffered a mental or physical injury that was caused by the physician or the physician’s employee. A tort case is tried before either a judge or a jury. In certain cases in which a jury trial has been waived, a “bench trial” may take place in which the trial is held before a judge sitting without a jury. Torts can be either intentional or unintentional, and the patient may recover monetary damages. In order to recover damages there must be “fault” on the part of the defendant.
Under tort law, if a wrongful act has been committed against another person and there is no harm done, then there is no tort. However, in medical practice, every wrongful act or error must be reported, since patients may experience harm sometime later than when the tort occurs. For instance, if a woman in the first trimester (first three months) of her pregnancy has an x-ray procedure, the fetus may not demonstrate any harmful effects until several months later at birth.
Intentional Torts Intentional torts occur when a person has been intentionally or deliberately injured by another. Intentional torts include assault, battery, false imprisonment, defamation of character, fraud, and invasion of privacy. Table 2.1 provides a description and example of each.
Assault No healthcare professional would knowingly perform a tort against a patient or any other person. However, even a trained professional can make a mistake if he or she is not aware of what constitutes a “wrongful act” under these torts. For example, for a tort of assault , it is sufficient for the patient to just fear that he or she will be hurt or has an “imminent apprehension of bodily harm.” So, if a healthcare professional threatens a patient by saying, “If you don’t lie still, we will have to hold you down,” and the patient believes this will cause him or her injury or harm, this is considered a tort of assault. Shaking of one’s fist in a patient’s face in a threatening manner can also be considered assault.
Battery The tort of battery requires bodily harm or unlawful touching (touching without the consent of the patient) and not just the fear of harm. No procedure, including drawing blood for a laboratory test, can be performed without the patient’s knowledge and consent. When a patient offers an arm or rolls up a sleeve for the phlebotomist, this constitutes a form of consent (implied) for the procedure. When a surgeon has a patient sign an informed consent for a specific surgical procedure, then it is considered battery if he or she does anything to the patient that is not listed on the informed consent form. (This does not include emergency life-saving procedures such as CPR.) For example, if, during surgery for a hysterectomy (removal of the uterus), a surgeon notes that the patient’s appendix is inflamed, he or she cannot remove that appendix unless this procedure was stated on the consent form. The surgeon would have to complete the surgery for the hysterectomy and then, after the patient is awake, discuss the need for surgical removal of the appendix. Often assault and battery occur together.
TABLE 2.1 Intentional Torts
|Assault||The threat of bodily harm to another. There does not have to be actual touching (battery) for an assault to take place.||Threatening to harm a patient or to perform a procedure without the informed consent (permission) of the patient.|
|Battery||Actual bodily harm to another person without permission. This is also referred to as unlawful touching or touching without consent.||Performing surgery or a procedure without the informed consent (permission) of the patient.|
|False imprisonment||A violation of the personal liberty of another person through unlawful restraint.||Refusing to allow a competent patient to leave an office, hospital, or medical facility when he or she requests to leave.|
|Defamation of character||Damage caused to a person’s reputation through spoken or written word.||Making a negative statement about another physician’s ability.|
|Fraud||Deceitful practice that deprives another person of his or her rights.||Promising a miracle cure.|
|Invasion of privacy||The unauthorized publicity of information about a patient.||Allowing personal information, such as test results for HIV, to become public without the patient’s permission.|
Other examples of battery include hitting a patient or forcing competent patients to do anything against their wishes, such as having therapy or getting out of bed.
False Imprisonment False imprisonment in healthcare occurs when a medical professional, or a person hired by that professional, takes an action to confine a patient. There have been cases in which patients were not allowed to leave a room or building when they wished, and had no reasonable means of escape resulting in a tort of false imprisonment in which the patient (plaintiff) won the case. This occurred in a Texas case in which the patient, who was assessed as being competent, was detained against his will from leaving a nursing home (Big Town Nursing Home v. Newman, 461 S.W.2d195, Tex. Civ. App. 1970).
A more common situation occurs when a patient wishes to leave a hospital against medical orders. In this case, the patient is asked to sign a statement that says he or she is leaving against the advice of the physician. There have also been a few cases of false imprisonment, resulting from hospitals trying to hold patients until their bills were paid (Williams v. Summit Psychiatric Ctrs., 363 S.E.2d 794, Ga. App. 1987). However, no such cases have been reported in the last few years because hospitals now understand that this practice is unacceptable.
Defamation of Character Making false and/or malicious statements about another person constitutes defamation of character if the person can prove damages. Defamation can be in two forms: slander or libel. According to Black’s Law Dictionary, slander (oral defamation) is speaking false and malicious words concerning another person that brings injury to his or her reputation. There are four recognized exceptions that require no proof of actual harm to a person’s reputation in order to recover damages for slander: accusing a person of a crime; accusing someone of a “loathsome” disease, such as a venereal disease; using words against a person’s business or profession; and calling a woman unchaste. Libel is, in general, any publication in print, writing, pictures, or signs that injures the reputation of another person. Physicians and nurses are protected against an accusation of libel when complying with a law to report venereal disease or cases of abuse. See Chapter 7 , “Public Duties of the Healthcare Professional.”
Fraud Fraudulent practices consist of attempts to deceive another person. For example, making a statement to a cancer patient that “Dr. Williams is a miracle worker; she’ll have you feeling better in no time.” is a false promise, since there are too many variables when dealing with cancer. However, a more common type of medical fraud consists of false billing practices, especially relating to Medicare and Medicaid.
Physicians are prohibited from accepting kickbacks, or payments of any kind, for the referral of Medicare and Medicaid patients under the Medicare-Medicaid Antifraud and Abuse Amendments. In some cases, physicians have received kickbacks from medical technology companies for using their products on patients. This is considered a criminal offense under the antifraud law and could result in a large penalty and even imprisonment.
Embezzlement , a form of fraud, is the illegal appropriation of property, usually money, by a person entrusted with its possession. It can occur in a physician’s or dentist’s office when a trusted office manager has total control over the office finances. To embezzle means to willfully take another person’s rightly owned property or funds. For control purposes, more than one person should receive payments, issue receipts for payments, audit the accounts, and deposit the money.
Invasion of Privacy An invasion of privacy can occur at any time during a patient’s treatment, even after the patient has granted permission to allow publicity. For example, in the case of allowing photographs or videotapes to be taken, the patient may cancel the permission at any time. In Estate of Berthiaume v. Pratt, an invasion of privacy case was tried after a patient with cancer of the larynx died. The deceased patient had allowed his physician to take several photographs that were to be used for the medical record but not for publication. A few hours before the hospitalized patient died, the surgeon and a nurse attempted to take more photographs in spite of the patient’s indication he did not want this done and his wife’s protests. The wife sued the surgeon for assault, since he had moved the patient’s head during the photo taking, as well as invasion of privacy. An appeals court found in favor of the plaintiff and stated that taking photographs in spite of the patient’s protests was an invasion of his legal rights to privacy (Estate of Berthiaume v. Pratt, 365 QA.2d 792, Me. 1976).
The famous Supreme Court case in 1973, Roe v. Wade, gave strength to the argument that a woman had a right to privacy over matters that related to her body, which included pregnancy (Roe v. Wade, 410 U.S. 113, 1973).
Unintentional Torts Unintentional torts , such as negligence, occur, for example, when the patient is injured as a result of the healthcare professional’s not exercising the ordinary standard of care. The term standard of care means that the professional must exercise the type of care that a “reasonable” person would use in a similar circumstance.
Morrison v. MacNamara illustrates the standard of care issue. In this case, MacNamara, a technician, took a urethral smear from the patient, Morrison, while the patient was standing. Morrison fainted, hit his head, and permanently lost his sense of smell and taste. An expert witness from Michigan testified that the national standard of care for taking a urethral smear requires the patient to sit or lie down. Thus, the court found in favor of the patient (Morrison v. MacNamara, 407 A.2d 555, D.C. 1979). Standard of care is discussed more fully in Chapter 3 .
An unintentional tort exists when a person had no intent of bringing about an injury to the patient. Healthcare professionals can be sued for a variety of situations, but most lawsuits relate to the unintentional tort of negligence.
Negligence is the failure or omission to perform professional duties to an accepted standard of care, such as a “reasonable person” would do. In other words, negligence occurs when a person’s actions fall below a certain level of care. Negligence can involve doing something carelessly or failing to do something that should have been done. It can also involve doing something reckless such as performing a procedure without adequate training. Physicians and other healthcare professionals usually do not knowingly indulge in acts that are negligent. Malpractice, which is misconduct or demonstration of an unreasonable lack of skill, relates to a professional skill such as medicine or the law. Malpractice is a particular type of negligence that can be thought of as “professional negligence.” While anyone can be accused of being negligent, only professionals can be sued for malpractice. Examples of professionals who are sued for malpractice include physicians, nurses, lawyers, accountants, pharmacists, and physical therapists.
Negligence and malpractice are similar in that both relate to wrongdoing. In medical malpractice, negligence is considered the predominant theory of liability. You can only be sued for malpractice if you are negligent in something done within your professional capacity. The topics of negligence and malpractice are discussed further in Chapter 6 .
See Table 2.2 for some actions that are considered unintentional or negligent torts.
Remember that it is easier to prevent negligence than it is to defend it.
Contract law addresses a breach , or neglect, of a legally binding agreement between two parties. The agreement or contract may relate to insurance, sales, business, real estate, or services such as healthcare.
Breach of contract refers to the failure, without legal excuse, to perform any promise or to carry out any of the terms of a contract.
TABLE 2.2 Unintentional or Negligent Torts
|· Altering or tampering with a medical record|
· Failure to adequately assess or monitor a patient’s condition
· Failure to maintain a safe environment
· Failure to dispense the correct medication
· Failure to document in a timely manner
· Failure to follow policies and procedures
A contract consists of a voluntary agreement that two parties enter into with the intent of benefiting each other. Something of value, which is termed consideration , is part of the agreement. In the medical profession, the consideration might be the performance of an appendectomy for a specific fee. An agreement would take place between the two parties that would include the offer (“I will perform the appendectomy”) and the acceptance of the offer (“I will allow you to perform the appendectomy”). Therefore, a surgeon who has consent to perform a hysterectomy on a patient may not perform an appendectomy at the same time unless there is consent from the patient for both procedures.
In order for the contract to be valid (legal), both parties must be competent . The concerned party (patient) must be mentally competent and not under the influence of drugs or alcohol at the time the contract is entered into.
Types of Contracts A contract can be either expressed or implied. An expressed contract is an agreement that clearly states all the terms. It can be entered into orally or in writing.
Most contracts are enforceable, even if oral.
Each state identifies certain types of contracts that must be in writing. The sale of property, mortgages, and deeds is required to be in writing by most state statutes.
There are state statutes and federal laws that relate to the medical profession. For example, if a third party agrees to pay a patient’s bill, a contract must be placed in writing and signed by the third party. A copy of this document should be kept in the patient’s chart or file. If physicians agree to allow their patients to pay bills in four or more installments, the interest (if any) must be stated in writing (Truth in Lending Act of 1969, discussed in Chapter 8 ).
A signed permit to receive a vaccine would be an example of an expressed or written contract in a medical situation.
An implied contract is one in which the agreement is shown through inference by signs, inaction, or silence. For example, when a patient explains his or her symptoms to the physician, and the physician then examines the patient and prescribes treatment, a contract exists, even though it was not clearly stated, and both parties must follow through on the implied agreement. This can cause problems for both parties if there is not a clear understanding of the implied contract. For example, a New York court found an implied contract to pay for medical services existed when a physician listened to a patient describe his symptoms over the telephone (O’Neill v. Montefiore Hosp., 202 N.Y.S.2d, 436, App. Div. 1960). An implied contract can exist when a patient brought into an emergency department needs immediate treatment.
Termination of the Contract A breach of contract occurs when either party fails to comply with the terms of the agreement. For example, if a physician refuses to perform a medical procedure he or she had agreed to perform, the physician has breached the contract. If a patient does not pay an agreed-upon fee, then the patient breached the contract with the physician.
The termination of a contract between patient and physician generally occurs when the treatment has ended and the fee has been paid. However, issues may arise that cause premature termination of a contract. It should be noted that both physicians and patients have the right to terminate the contractual agreement. A breach of contract occurs when one of the parties that entered into the contract does not keep his or her promise as, for example, when a patient refuses to pay a bill. A physician may be liable for breach of contract if he or she has promised to cure a patient and then failed to do so. The breach of contract can occur even if there were no negligence on the part of the physician.
When terminating a contract, physicians should be careful that they are not charged with abandonment of the patient. To protect against an abandonment charge, any letter from the physician to the patient should indicate the date his or her services will be terminated. A copy of this letter to the patient should be placed in the patient’s record. In addition, there should be a notation in the patient’s chart that a notification of termination letter was sent. See Chapter 5 for a complete discussion of abandonment. Some of the reasons for premature termination of a medical contract are
· Failure to follow instructions.
· Missed appointments.
· Failure to pay for service.
· The patient states (orally or in writing) that he or she is seeking the care of another physician (e.g., the patient’s insurance may have changed and the physician may not be covered by the new insurance, or the patient may move).