Study Guide for Final Exam
Study Guide for Final Exam HADM 3700
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This 8 page Study Guide was uploaded by Kayla Notetaker on Sunday February 28, 2016. The Study Guide belongs to HADM 3700 at Auburn University taught by Debra Armstrong Wright in Fall 2015. Since its upload, it has received 54 views. For similar materials see Health Law and Bioethics in Nursing and Health Sciences at Auburn University.
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Date Created: 02/28/16
Study Guide for Final Exam Health Law – Fall 2015 Chapters 10, 11, 13, 15 Emergency Care (Basically know everything about EMTALA) 1. Who is covered? Protects everyone who comes to the ER, not just medicare participants. 2. Duties of hospital- 1. Perform an appropriate medical screening examination (MSE) 2. Ensure stabilization of any emergency medical condition (to extent possible) 3. Ensure compliance with Transfer Requirements 3. Duties of sending hospital 4. Duties of receiving hospital 5. Duties of physician- 1) Patient- MSE, Stabilization, Disclosures, Documentation 2) Hospital #1(sending)- Documentation- hospital one makes the decision to send the patient somewhere else 3)Hospital #2 (receiving)- Documentation- relies on hospital #2 6. On-Call physicians 7. Comes to the hospital 8. Request for emergency treatment 9. Stabilized- to stabilize means “with respect to an emergency medical condition” -to provide such medical treatment of the condition necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility -no material deterioration of the condition is likely, within reasonable medical probability to result from or occur during the transfer of the individual from facility 10. Psychiatric conditions 11. Appropriate medical screening- level of screening must be consistent with the hospitals facilities and personnel, including ancillary services available. 12. Appropriate transfer- transfer means the movement (including the discharge) of an individual outside a hospital’s facilities at the direction of any person employed by (or affiliated or associated, directly or indirectly, with) the hospital - EMTALA requires receiving hospitals with the specialized capabilities, capacity and resources needed by a patient with an unstabilized emergency medical condition that are not then available at the transferring hospital to accept that patient. EMTALA does not require hospitals to accept a patient who does not require the specialized capabilities of the hospital whether or not the patient has an emergency medical condition. The obligation to accept a patient under EMTALA does not apply to -- 1. Emergency patients whose emergency medical conditions are stabilized/resolved. 2. Inpatient transfers. 3. Individuals in private medical offices, clinics and other non-hospital facilities. …unless the hospital or physician has a contractual or other legal obligation to accept the patient 13. Signage- This sign must be clearly visible from a distance of 20 feet away or from patient's likely viewing point and posted in a manner likely to be seen. This requirement typically requires signs in general areas to be approximately 18" x 20". Signs must be posted in foreign languages where applicable, and the same size requirements apply. Signs in small cubicles or areas less than 20 feet may be smaller, but still must be clearly visible. Conflicting signs are not permitted if they detract from the COBRA sign or may raise confusion by references to payment, advanced authorization, co-pays, etc. 14. Liability for violations- Civil Monetary Penalties Hospitals - Up to $50,000 per violation ($25,000 per violation for hospitals with less than 100 beds) Physicians - Up to $50,000 per violation Negligence standard applied to both hospitals and physicians Direct liability of hospitals to patients No direct liability of physicians to patients Possible termination of hospital provider number – loss of Medicare Consent 1. What is consent? Voluntary agreement by a person who possesses sufficient mental capacity to make an intelligent choice to allow something proposed by another to be performed on himself or herself. 2. Informed consent- doctrine is predicated on the duty of the physician to disclose sufficient info to enable the patient to evaluate proposed medical or surgical procedures before submitting to them. -Legal doctrine under which a patient has a right to know the potential risks, benefits, & alternatives of a proposed procedure. 3. Express consent- can take form of a verbal agreement, and a written document authorizing medical care. 4. Implied consent- determined by some act or silence, which raises a presumption consent has been authorized. 5. General v specific consent -general- gives hospital authority to provide routine care and services. -specific-gives authority for special services such as surgery or special diagnostic procedures. 6. Informed consent based on battery theory v negligence theory -battery theory- the law of informed consent first developed from the law on battery. -negligence theory- as the law of informed consent developed, the tendency has been to base it on negligence law because of the burden placed on the physician by a battery theory. Battery: Plaintiff must show unconsented touching occurred. Does not have to prove the standard of care. Negligence: Plaintiff must show the physician failed to disclose the necessary information and that he (plaintiff) would have declined the procedure had he been fully informed. Where do we see the standard of care in the negligence theory? Under Negligence Theory 1. Duty- Dr. has to disclose necessary info to enable patient to make an intelligent decision. 2. Breach- Dr. Failed to disclose 3. Injury- Patient had injury. 4. Causation- physical- prove that the breach caused the physical injury- different outcome -decisional- patient would have made a different decision if dr. had fully disclosed. 7. When is full disclosure excused? -Where patient is incompetent, disclosure to the patient may not be required. -Where an emergency exists and attempting to secure consent could detrimentally delay proper treatment. -Where patient is already aware of the information or risks are commonly known. -Where disclosure would be upsetting or otherwise would interfere with treatment or adversely affect the condition or recovery of the patient. (See, AMA Opinion 8.082 on “Withholding Information from Patients.” Therapeutic privilege.) 8. Defenses to lack of informed consent case 9. Challenges to consent form- The patient brings up the challenges. 1. Lack of capacity- can be caused by inebriation, mental, emotional, psychological, and age 2. Readability- too complex in terms of technical language or reading ability of person consenting. 3. Translation- patient’s first language is another language. 4. Voluntariness- patient was threatened or coerced. 5. Withdrawal. They signed it and then changed their mind. Look at Harvey Strickland case. 10. Duties of physician in securing consent 11. What must be disclosed? -The physician has to disclose. 1. Diagnosis: diagnose the patient, explain the illness. How did Dr. determine what test were used and the alternatives to the test. 2. Nature and purpose of treatment- recommending “X” treatment 3. Risk and outcomes- prognosis w/ treatment and without treatment 4. Skills or status risks- you do not have to tell them your success rate, but if they ask you tell them. You should disclose if you have not done the procedure before. 5. Alternatives- should disclose alternative methods of diagnosis and treatment that are generally acknowledged as feasible. 6. Prognosis is declined 7. Prognosis of treatment if accepted. 12. Who may consent? Competent adults. Guardianship . -Of the person vs. of the estate. -Court may also appoint temporary guardian. Consent for minors. -May be emancipated by marriage or military service Incompetent patient. Where dr. doubts competency, but patient not adjudicated incompetent , consent of nearest relative should be obtained. Spousal consent Compare : Greynolds v. Kurman & Perkins v. Lavin 13. Consent by and for minors Different states have different ages. Age of consent usually < age of majority. Where children are under age of consent, parents or guardians consent. -Refusal by parents can be overridden by “Mature minor” Court order Where possible, hospital/dr. should seek court order. Where not possible and time is of the essence, usually treatment is given. 14. Right to refuse treatment- Religious Beliefs -Blood or blood products -May be overridden by the state’s interest in protecting a third party or even the patient where there is evidence the patient lacks capacity. 15. Advanced directives -Living Will -Authority given to doctor to withdraw or withhold treatment in the event of terminal illness. -Durable Power of Attorney- Gives authority to a healthcare proxy to make medical decisions. -Physician Orders for Life Sustaining Treatment (POLST) -Completed after conversation between patient and physician with very specific “orders” for action to be taken by physician in the event of certain occurrences. -Medical Orders for Scope of Treatment Same as POLST. Healthcare Fraud 1. Application of criminal law 2. Rights of administrators when healthcare facility is under criminal investigation – what may employees be told? 3. Medicare requirements – what does submitting a bill for reimbursement really mean? 4. Healthcare fraud statutory laws – what each generally prohibits FCA 1. Knowingly presenting a false claim for payment. 2. Making a false record to get a false claim paid. 3. Conspiring to defraud the government. 4. Making a false record to avoid an obligation to pay or transmit property to the government. Applies to all claims submitted to US government for payment, not just health care. No “intent to defraud” government is required. Reckless conduct is enough to violate the law. “Knew or should have known” actual knowledge of falsity deliberate ignorance of falsity reckless disregard of falsity Corporate Compliance Program can dispel “deliberate ignorance” or “reckless disregard” allegations ACA HIPAA Congress passed HIPAA in 1996. Provides criminal & civil enforcement tools & funding to fight health care fraud. HIPAA requires U.S. AG & Secretary of DHHS acting through OIG to establish coordinated national Health Care Fraud & Abuse Control Program. Program provides coordinated national framework for federal, state, & local law enforcement agencies; the private sector; and public to fight health care fraud. Stark A physician may not refer to an entity with which s/he or a family member has a financial relationship… unless an exception applies….where bill for services may be paid by Medicare or Medicaid. Anti-kickback Caveat: The test is the same basic length as regular exams. However, since you have double the amount of time, I will be grading the case analysis much more carefully. It is worth 15 points and I will expect you to be able to discuss the legal issues in addition to spotting them. This case will involve the topics covered in this exam so rather than simply spotting and listing instances of medical malpractice, negligence, intentional torts, and indicating who can sue whom and for what, you should be prepared to identify and analyze the issues that relate to emergency care, consent, right to refuse treatment, etc.
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