Principles of medical law and ethics – Knowledge for medical students and physicians
physically interferes with the plaintiff's (e.g., patient's) bodily security (e.g., In Canada, the physician–patient relationship has long been recognized as one. Under the Stark Law, “financial relationship” is a broad term that includes of payments are allowed under "safe harbors" established by HHS. The legal duty of care is created when a physician agrees to treat a patient who has However, an abrupt severance of the physician–patient relationship could result in a . They cannot refuse to work for a reason unrelated to safety. Workers .
Authorize the conscription of persons needed to meet an emergency. No liability Nunavut Civil Emergency Measures Act Authorize or require a qualified person to render aid of the type that the person is qualified to provide. No liability Open in a separate window Regardless of a declared state of emergency, physicians may wonder whether they have a legal obligation to treat people who are not their patients if they require immediate emergency attention. The traditional view is that physicians owe a duty of care only to their existing patients, even in an emergency.
Physicians working in emergency departments or who regularly provide emergency services may be found to owe a duty of care to people who are not their patients because of the reliance the public places on these physicians to provide emergency treatment. What will be deemed incautious will depend on the circumstances; in assessing liability, the courts will consider what a reasonable physician would have done in those circumstances.
A physician serving a rural or isolated community might also legally be precluded from turning away a person who is not his or her patient, at least while the condition of the individual is serious and travel to an alternative medical facility is unrealistic.
This legislation states that physicians who provide aid at the scene of an emergency and without expectation of compensation will be found liable only if they commit gross negligence.
Legal right to refuse to work Hospitals and health care facilities in Canada are governed by the occupational health and safety statutes of each province. The provisions for the right to refuse to work because of unsafe conditions are slightly different in each province. For example, in Manitoba, a worker may refuse to work or do particular work if he or she believes on reasonable grounds that it constitutes a danger to his or her safety or health or to the safety or health of another worker or person.
The right to refuse to work while unsafe conditions exist depends on the circumstances and the province in which physicians practise.
If physicians have a legal right, they may stop working until the unsafe situation has been addressed without facing discipline from their superiors.
Because this right exists to protect workers from discipline, physicians who are self-employed and practise from their office do not have a right to refuse to work. Pandemic as a workplace hazard A preliminary issue is whether a pandemic virus constitutes a workplace hazard; much depends on the nature of the virus. One labour board has stated that an infectious disease might be considered a workplace hazard if the risk of contracting the virus is substantially higher in the workplace than in the community.
They cannot refuse to work for a reason unrelated to safety. That is, another worker with the same training and experience would also believe that the circumstances represent an unacceptable hazard.
This usually requires workers to notify their supervisor of their refusal to work, and the reasons for their refusal, as soon as possible. The danger must be sufficiently serious to justify the action; it must be immediate 13 and more than a matter of repugnancy, unpleasantness or fear of minor injury.
When a physician with a susceptibility to infection is justifying a refusal to work, he or she should consider the four criteria outlined earlier.
- Core ethical principles
- Legal right to refuse to work
- Modern Regulations and Procedures for Licensing Physicians
Employers have a duty under human rights law to try to accommodate workers with particular susceptibilities. What is considered sufficient accommodation depends on each case. Human rights law requires accommodation to the point of undue hardship — that is, employers must be willing to endure some degree of hardship, 16 such as creating a new position or displacing another worker. Also, the Constitutional issue involves an expansion of federal authority, an issue that can get a conservative jurist's blood boiling.
Never before has Congress required purchase of a private good or service, wrote a Virginia judge ruling against the mandate. The Supreme Court could strike down the individual mandate or it could go all the way and repeal the whole law.
The high court generally shies away from this, not wanting to be seen as usurping the powers of Congress.
Patient Rights and Responsibilities
But the healthcare reform law could be an exception. Breaches of electronic data have become a major problem, as more providers switch to electronic systems. In addition, interoperability of systems is expected to create yet more breaches, as information is traded between networks.
Laptop theft is the most common type of data breach, accounting for 24 percent of reported breaches, according to HHS. Desktop computers were involved in 16 percent of breaches and portable devices such as smart phones were involved in 14 percent. Almost all the states have developed their own data-breach laws.
California enacted the first such law inand 46 states quickly followed. However, the laws vary on what counts as personal information, how notice of the breach has to be made and the amount of fines for noncompliance.
Affected patients must be notified in writing within 60 days of discovering the breach, and if more than people are impacted, local media outlets must be alerted, and the breach must be posted on the HHS website.
If a breach affects fewer than individuals, the provider can notify HHS on an annual basis. And if the data is encrypted in accordance with HHS guidances, an organization is exempt from notification because the information is unusable by unauthorized individuals. The notice followed a finding by HHS' Office of Civil Rights that the health system failed to provide 41 patients with copies of their medical records.
Cignet also allegedly failed to respond to requests from the Office for Information on the complaints. The allegations involved the loss of documents — a patient schedule containing names and medical record numbers for patients, as well as billing encounter forms containing the name, date of birth, medical record number, health insurer and policy number, diagnosis and name of providers for 66 of those patients.
Cignet Health's settlement underscores the necessity of cooperating with OCR investigations. Federal antitrust laws will likely have to be reinterpreted to make way for accountable care organizations. ACOs present a new legal problem because competing hospital systems would be able to come together and share pricing information, which could be viewed as "per se" illegal under Section One of the Sherman Act.
The possibility that ACOs could be a means for hospitals to raise prices runs counter to the basic concept of ACOs, which is to bring hospitals together to lower prices, but it could happen. CMS, which is currently drafting proposed regulations for ACOs, doesn't have a direct concern with antitrust.
Raising prices due to market dominance is not an issue for Medicare, because it set prices unilaterally. However, private payors, who are beginning to create their own ACO-like relationships with hospitals and physicians, are exposed to market forces and have a strong interest in ensuring strong antitrust regulations for providers — even as insurers themselves enjoy wide exemptions from antitrust laws under the McCarran-Ferguson Act.
The two federal antitrust agencies, the Federal Trade Commission and the Department of Justice's Antitrust Division, also want to keep antitrust enforcement strong. But it is not a perfect fit and antitrust agencies are expected to provide more guidance. Some stakeholders suggested that without advice and support from antitrust agencies, ACOs — as well as other integration strategies — might pose an insurmountable risk for providers.
The agencies have the option of setting up new "market power" safe harbor for ACOs, but more likely, they might provide recognition of allowable ACO activities. For example, the agencies might decide CMS' designation of Medicare ACO status to competing providers is evidence they are committed to clinical integration and reducing costs, rather than creating an unlawful combination to raise prices.
The False Claims Act is a federal law that covers fraud involving any federally funded contract or program, including Medicare or Medicaid, allowing healthcare providers to be prosecuted for various actions leading to the submission of a fraudulent claim.
The primary activities that may constitute violations under the False Claims Act include: The Patient Protection and Affordable Care Act will expand the government's reach under the FCA with requirements aimed at enhancing fraud-fighting and increasing penalties for submitting false claims.
Starting inphysicians must return known overpayments to the government within 60 days of discovering an error. Another issue affecting false claims is the empowerment of whistleblowers under reform.
Under PPACA, whistleblowers may initiate false claims actions based on information publicly disclosed through federal criminal, civil and administrative proceedings in which the government or its agent is a party, as well as federal reports, hearings, audits or investigations.
While state proceedings no longer qualify, following Congress' revision of the statute to apply to only federal sources, news media reports are still considered public disclosure. In other words, a whistleblower no longer has to be the actual source of the information.
Both critics and proponents say this measure will make it easier for whistleblowers to bring cases against healthcare organizations, though opinions differ on whether the increase in cases will help or hurt the industry. False Claims Act investigations of hospitals have come under fire recently from the American Hospital Association.
Of that recovery, healthcare providers and pharmaceutical companies represented over 75 percent of the total payment. Joseph Medical Center in Towson, Md. The Anti-Kickback Statute governs a hospital's financial relationships with physicians. To avoid being stung by the law, a hospital first has to make sure its physician relationships are not just a way to pay physicians for referrals. The statute prohibits knowingly offering or receiving payment to induce referrals of items or services.
The law is similar to the Stark self-referral law and, indeed, one transaction can violate both laws at once. An Anti-Kickback violation is also expensive. Healthcare organizations can run afoul of the Anti-Kickback Law by providing free services or staff to a practice, paying for unneeded services, providing discounts to practices and paying physicians different amounts than what had been contracted. Recruitment arrangements could also violate the statute. To comply, payments to physicians have to be at fair market value and be commercially reasonable.
The health reform law makes it clear that starting inAnti-Kickback Statute violations can spur false claims liability. In addition, the government no longer has to prove an individual had "actual knowledge" of the Anti-Kickback Statute in order to violate it; instead, a conviction requires proof that the defendant knew his or her conduct was illegal, according to the AHLA Connections report. Previously, the Ninth Circuit's holding in Hanlester Network v.
Under the current law, a violation of the AKS is enough to pursue conviction. The year presented its fair share of major anti-kickback cases. In November, Towson, Md. The patient has the right to formally access his medical records. The patient shall complete the Authorization to Disclose Protected Health Information form which is then sent to Health Information Management for processing.
Communication The patient has the right of access to people outside the hospital by means of visitors, and by oral and written communication. The patient may request not to be included in the patient directory. Inclusion in the patient directory means that the patient's name; room number and a general condition report may be given to people who ask about the patient by name. The prisoner patient has the right to visitors only as approved by the warden of the prison or jail where the prisoner patient is incarcerated.
This is particularly true where language barriers are a continuing problem. Where medically significant alternatives for care or treatment exist, the patient shall be so informed.
The patient has the right to know who is responsible for authorizing and performing the procedures or treatment. The patient may refuse treatment to the extent permitted by law.
If a patient is unconscious or is determined to be mentally incompetent and no consent can be obtained from an appropriate family member, legal action may be taken to obtain a court order for diagnostic and therapeutic procedures.
Physicians’ legal duty of care and legal right to refuse to work during a pandemic
In life-threatening emergencies, where the patient is incompetent or unconscious, appropriate treatment may be administered without consent.
The patient shall be informed of eligibility for reimbursement by any third-party coverage during the admission or pre-admission financial investigation. The hospital's Notice of Privacy Practices is available from the Admitting Department or can be found on the hospital website.
Complaint Process The patient has the right to file a complaint regarding services and is entitled to information regarding the hospitals mechanism for the initiation, review and resolution of such complaints.