blaw

Mod 1 Steps:

INSTRUCTIONS:  

1. 

Watch two original short videos by Sandra Benson:   (1) “Basic Legal Terminology” (especially for students who have never or have not recently taken a business law course); and (2)  “Introduction to Reading Legal Opinions” (important for ALL students to watch) (see links below)

 

2.

Read Chapter 1 (p. 1 -51) and Chapter 5 (p. 139-152) from our textbook, Legal and Ethical Issues for Health Professionals by George D. Pozgar (5th Edition). 

 

3. 

Read The case S
anfiel v. Department of Health (see link below).

 

4.

Complete and upload your answers to Mod 1 Class Preparation and Participation 

MODULE #1 WRITTEN ASSIGNMENTS FOR Class Preparation and Participation

Healthcare Legal and Ethical Foundation

INSTRUCTIONS: This written assignment will not be separately graded but is your ticket to participate in class and receive a grade for Class Preparation and Participation. Copy the questions, then type your answers below each question. Save your answers in a Word document using 12-point Times New Roman font, 1-inch margins, double-spaced. Upload your written assignment by the due date and times posted in D2L.

There is no partial credit for preparing but not attending class or vice versa. 

Name:

Date:

Part I: Sanifel v. Department of Health Ethical Dilemmas:

a. What principle(s) (described in pages 10-21 ) did each of the following demonstrate. Provide facts to explain why you picked the principles you selected:
(1) Sanfiel
(2) The State Board of Nursing
b. What virtues and values (pages 22-38) do you think each of the following held? Provide facts to explain why you picked those virtues and values.
(1) Sanfiel
(2) The State Board of Nursing
(3) Charter
(4) The news media.

Part II: Ethical Reasoning Exercise

Assume you are Sanifel and you just discovered the computer. Assume you do not know the outcome that we now know from this case. Answer questions below:

1.

As Sanfiel, what is the ethical dilemma you are facing?

2. Identify and describe the relevant facts:

3. What are at least two different ways Sanfiel could have handled this situation to solve his ethical dilemma?

A. Alternative Action 1:

B. Alternative Action 2:

4. Evaluate your Alternatives:

A. Evaluate Alternative Action 1 by answering the following questions:

1) Compliance – Do company policies, codes of ethics, societal norms and/or the law provide guidance for the issue?

2) Personal Integrity – Am I being honest, fair, and truthful if I select this alternative? Does this alternative respect others and show professionalism? Does this alternative help to build trust? How would this look to the public?

3) Individual Rights – Does this alternative adequately protect the rights of others?

4) Promotes More Good than Harm – Who is affected by the alternative? Does the alternative do more harm to those impacted than it does good? How might this alternative impact the larger community?

5) Empathy – Does this alternative allow me to treat others the way I would like to be treated?

B. Evaluate Alternative Action 2 by answering the following questions:

1) Compliance – Do company policies, codes of ethics, societal norms and/or the law provide guidance for the issue?
2) Personal Integrity – Am I being honest, fair, and truthful if I select this alternative? Does this alternative respect others and show professionalism? Does this alternative help to build trust? How would this look to the public?
3) Individual Rights – Does this alternative adequately protect the rights of others?
4) Promotes More Good than Harm – Who is affected by the alternative? Does the alternative do more harm to those impacted than it does good? How might this alternative impact the larger community?
5) Empathy – Does this alternative allow me to treat others the way I would like to be treated?

5. Identify the best decision for Sanfiel from your ethical analysis of your two alternatives. Be sure your answer is complete, clear, and realistic and supported by the complete use of the questions you considered in 4. above.

Reflect on the ethics decision outcome. What insights did you gain from using this Ethics Decision Making Process to evaluate your alternatives and for taking an active role to foster ethical conduct? Are there ways you might change your decision process to make a better decision next time?

PART III: Sanifel v. Department of Health Legal Analysis

1.
Summarize the Facts:

· Briefly summarize the key facts of the Sanfiel v. Department of Health case.

2.
Identify the Legal Issue:

· What is the legal issue (the reason the case is on appeal)?

3.
Plaintiff’s (Department of Health’s) Arguments:

· What did the Department of Health argue as to why the Department’s decision to suspend Sanfiel’s professional nursing license and to place Sanfiel on probation for five years should be upheld? (You may need to infer this from the case.)

4.
Defendant’s (Sanfiel) Arguments:

· What did Sanfiel argue in his defense? (You may need to infer this from the case).

5.
Court’s Decision and Reasoning:

· In whose favor did the District Court of Appeal of Florida decide? Briefly describe why the court ruled this way.

6.
Evaluate Your Position: Take a position for the side that you favor in this case from both an ethical standpoint and from a legal standpoint. Is there a difference in your legal opinion and your ethical opinion? Briefly explain.

Jose N. PROENZA SANFIEL, R.N., Appellant,
v.
DEPARTMENT OF HEALTH, Appellee.

No. 98-1717.

District Court of Appeal of Florida, Fifth District.

December 17, 1999.

Citation: Proenza Sanfiel
 v. Department of Health, 749 So. 2d 525 (Fla. Dist. Ct. App. 1999)

Attorneys:

Jose N. Proenza Sanfiel, St. Cloud, pro se.

Kathryn L. Kasprzak, Senior Attorney for the Agency for Health Care Administration, Tallahassee.

Opinion: The Honorable Emerson Thompson.

Jose N. Proenza Sanfiel appeals a final order issued by the State Board of Nursing following disciplinary proceedings. The order suspends Proenza Sanfiel’s psychiatric nursing license and places him on probation for five years for disclosing confidential patient information. We affirm.

Proenza Sanfiel raises several issues which have no merit. We address one issue: whether the State Board of Nursing was authorized to suspend Proenza Sanfiel’s license because of his conduct involving patients not under his care.

Proenza Sanfiel obtained a computer[1] which was previously owned by Charter Behavioral Health System(“Charter”), a psychiatric hospital in Orlando. Charter’s *526 patient records were contained in the computer. Proenza Sanfiel testified that he reviewed this information and recalled that Charter was being investigated for defrauding the government. He contacted local law enforcement and the state attorney’s office to initiate a criminal investigation. The agencies declined, telling him that the matter was outside their jurisdictions. Proenza Sanfiel then called the news media and allowed them to see the information concerning the patients. He asked that the patients’ names be blurred to protect their identity. He believed that the information on the computer should have been erased before the computer was donated as surplus. He told reporters that the hard drive contained the names of psychiatric patients, their admission dates, types of addiction, treatments and psychiatric disorders. The story was broadcast along with the patients’ names and diagnoses shown on the computer screen. One of the journalists located and interviewed a patient identified from Sanfiel’s computer. The patient was tremendously distraught over the fact that his confidential medical information was being exposed to the public. An unknown number of other patients were also contacted by the news media.

The State Agency for Health Care Administration (“AHCA”) immediately began investigating and ordered an emergency suspension of Proenza Sanfiel’s nursing license. When the representative for AHCA asked for the hard drive with the patients’ confidential information, Proenza Sanfiel refused to surrender it. When representatives from Charter asked that the computer be returned, Proenza Sanfiel again refused, but suggested he would be willing to return the computer and the information for $20,000. Charter obtained an injunction prohibiting Proenza Sanfiel from disclosing confidential patient information.

Proenza Sanfiel does not dispute that he made the disclosure or that as a psychiatric nurse he knew that the information on the computer was confidential. He admitted that he was aware that a nurse could be disciplined for disclosing confidential psychiatric information to unauthorized persons. However, he argues that he could not be punished because he was acting in a private capacity and not as a nurse to the patients whose records were contained on the computer.

The Board’s authority to discipline Proenza Sanfiel is derived from Chapters 455 and 464, Florida Statutes. Chapter 455 contains general provisions for the regulation of all professions, while Chapter 464 specifically addresses nursing. Proenza Sanfiel may not have been practicing nursing in January 1997, but he was licensed and his license was active and evidently in good standing. Therefore, the Board had jurisdiction to discipline him. 
Compare Boedy v. Dept. of Professional Regulation, Board of Medical Examiners, 

433 So. 2d 544

 (Fla. 1st DCA 1983) (Board of Medical Examiners had jurisdiction to discipline physician whose license was inactive) 
with Taylor v. Dept. of Professional Regulation, Board of Medical Examiners, 

534 So. 2d 782

 (Fla. 1st DCA 1988) (Board of Medical Examiners lacked jurisdiction to discipline physician for professional misconduct which occurred before he became licensed). That Proenza Sanfiel was not working as a nurse and had no professional relationship with the patients whose records were on his computer has no bearing on the Board’s jurisdiction to discipline him. Rather, those circumstances are relevant to whether he may be disciplined for his actions.

Under section 464.108(1)(
l), Florida Statutes (1997), Proenza Sanfiel could be disciplined for “[k]nowingly violating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding *527 or failing to comply with a lawfully issued subpoena of the department.” The Board the determined that Proenza Sanfiel violated Florida Administrative Code Rule 59S-8.005(1)(e) “by violating the confidentiality of information or knowledge concerning a patient.” An agency’s interpretation of a statute or rule it has authority to administer should receive deference from a reviewing court and should not be overturned unless it is clearly erroneous. 
Okeechobee Health Care v. Collins, 

726 So. 2d 775

 (Fla. 1st DCA 1998); 
Republic Media, Inc. v. Dept. of Transp., 

714 So. 2d 1203

 (Fla. 5th DCA 1998); 
Metropolitan Dade County v. State Dept. of Environmental Protection, 714 So. 2d 512 (Fla. 3d DCA 1998). So long as the agency’s interpretation “is within the range of possible and reasonable,” it should be affirmed. 
Republic Media at 1205 (citing 
Natelson v. Dept. of Insurance, 

454 So. 2d 31

 (Fla. 1st DCA 1984)).

Rule 59S-8.005[2] states in part that unprofessional conduct includes violating the confidentiality of information or knowledge concerning a patient. The Board reasonably interpreted this provision to apply to the circumstances present in this case. Proenza Sanfiel testified that he knew the information he possessed was confidential patient information, and that he understood the danger in disclosing psychiatric records to unauthorized persons. He knew that a nurse could be disciplined for disclosing such information, yet he intentionally released the information to the news media. It is reasonable to characterize Proenza Sanfiel’s actions as unprofessional conduct even though Proenza Sanfiel was acting in a “private” capacity. Therefore, we do not disturb the Board’s determination.

AFFIRMED.

ANTOON, C.J., and COBB, J., concur.

NOTES

[1] Proenza Sanfiel testified that he obtained the computer from a thrift shop for $20. The executive director of the shop testified there were no records of any purchase of a computer at any time by Proenza Sanfiel. Charter maintains it did not donate the computer to the thrift shop.

[2] Rule 59S-8.005 has been renumbered and is now Rule 64B9-8.005.

FIFTH EDITION

LEGAL
AND ETHICAL ISSUES

for Health professionals

George D. Pozgar, MBA, CHE, D.Litt.

Consultant

GP Health Care Consulting

Annapolis, Maryland

 

LEGAL REVIEW

Nina M. Santucci, MSCJ, JD

 

MEDICAL REVIEW

John W. Pinnella, MD, DDS, FICS

World Headquarters

Jones & Bartlett Learning

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26705-1

Production Credits

VP, Product Management: Amanda Martin

Director of Product Management: Cathy L. Esperti

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Library of Congress Cataloging-in-Publication Data

Names: Pozgar, George D., author.

Title: Legal and ethical issues for health professionals / George D. Pozgar ; legal review, Nina M. Santucci ; medical review, John W. Pinnella.

Description: Fifth edition. | Burlington, Massachusetts : Jones & Bartlett Learning, [2020]

Identifiers: LCCN 2018040864 | ISBN 9781284144185 (pbk.)

Subjects: | MESH: Legislation, Medical | Ethics, Clinical | Health Personnel–ethics | Patient Rights | United States

Classification: LCC KF3821 | NLM W 33 AA1 | DDC 174.2—dc23

LC record available at
https://lccn.loc.gov/2018040864

6048

Printed in the United States of America

22 21 20 19 18 10 9 8 7 6 5 4 3 2 1

 

 

I dedicate this book to healthcare professionals who have chosen to serve in the noblest of professions, the healing ministry.

You stood by the bedsides of many patients during times of loneliness and frustration. When they wanted to give up, you gave them hope and the strength to fight on.

You watched over them while they slept, eased their pain with words of kindness, and gave them sips of water when they could not drink.

You stood by their bedside when fears arose within their souls.

Thank you, treasured caregivers, for you have been their light during the darkest of nights.

It has been my honor to have stood by your side as you provided care to so many patients as I surveyed your hospitals and ambulatory care sites.

It has been my privilege to have stood by those who I have taught, and those who have taught me.

Forever Thankful

Epigraph

He has achieved success who has lived well, laughed often, and loved much; who has gained the respect of intelligent men and the love of little children; who has filled his niche and accomplished his task; who has left the world better than he found it, whether by an improved poppy, a perfect poem, or a rescued soul; who has never lacked appreciation of earth’s beauty or failed to express it; who has always looked for the best in others and given them the best he [or she] had; whose life was an inspiration; whose memory a benediction.

—
Bessie Anderson Stanley

Every mistake brings a teaching moment, an opportunity to learn.

—
Nina Santucci

Each life is like a novel. Filled with moments of happiness, sadness, crisis, defeat, and triumph. When the last page has been written, will you be happy or saddened by what you read?

—
Author Unknown

Brief Contents

Epigraph

Foreword

Preface

Acknowledgments

Chapter 1
Introduction to Ethics

Chapter 2
Contemporary Ethical Dilemmas

Chapter 3
End-of-Life Dilemmas

Chapter 4
Healthcare Ethics Committee

Chapter 5
Development of Law

Chapter 6
Introduction to Law

Chapter 7
Government Ethics and the Law

Chapter 8
Organizational Ethics and the Law

Chapter 9
Healthcare Professional Legal-Ethical Issues

Chapter 10
Physicians’ Ethical and Legal Issues

Chapter 11
Employee Rights and Responsibilities

Chapter 12
Patient Consent

Chapter 13
Patient Abuse

Chapter 14
Patient Rights and Responsibilities

Chapter 15
Summary Case: Search for Truth

Glossary

Index

Contents

Epigraph

Foreword

Preface

Acknowledgments

Chapter 1 Introduction to Ethics

Learning Objectives

Introduction

Ethics

Why Study Ethics

Morality

Code of Conduct

Moral Judgments

Morality Legislated

Moral Dilemmas

Ethical Theories

Meta-Ethics

Normative Ethics

Descriptive Ethics

Applied Ethics

Consequential Ethics

Utilitarian Ethics

Deontological Ethics

Nonconsequential Ethics

Ethical Relativism

Principles of Ethics

Autonomy

Beneficence

Nonmaleficence

Justice

Virtue Ethics and Values

Courage as a Virtue

Wisdom as a Virtue

Temperance as a Virtue

Commitment

Compassion and Empathy

Conscientiousness

Discernment

Fairness

Fidelity

Freedom

Honesty/Trustworthiness/Truth Telling

Integrity

Kindness

Respect

Hopefulness

Tolerance

Cooperation and Teamwork

Forgiveness

Religious Ethics

Judaism

Hinduism

Buddhism

Taoism

Christianity

Islam

Religious Beliefs and Duty Conflict

Secular Ethics

Atheism

Situational Ethics

Reasoning and the Decision-Making Process

Absence of a Moral Compass

Creating a Culture of Ethics

Summary Thoughts

Chapter 2 Contemporary Ethical Dilemmas

Learning Objectives

Introduction

Noteworthy Historical Events

68,000–58,000 BC

AD 1932–1972

1933–1945

1946

1949

1954

1960s

1964

1968

1970

1971

1972

1973

1974

1976

1978

1980

1983

1987

1990

1993

1994

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2009

2010

2013

2017

2018

Abortion

Right to Abortion

Abortion Restrictions

Undue Burden Rule

Funding

Refusal to Fund Abortion Counseling Not Unconstitutional

Spousal Consent

Parental Consent

Informed Consent

States May Protect Fetus

State Abortion Statutes

Law and Morality of Abortion—Conflicting Beliefs

Sterilization

Elective Sterilization

Therapeutic Sterilization

Eugenic Sterilization

Wrongful Birth, Life, and Conception

Wrongful Birth

Wrongful Life

Wrongful Conception

Artificial Insemination

Consent

Confidentiality

Surrogacy

Organ Donations

Who Lives? Who Dies? Who Decides?

Uniform Anatomical Gift Act

Failure to Obtain Consent

Altruism vs. Sale of Organs

Research, Experimentation, and Clinical Trials

Right to Try Experimental Drugs

Office of Research Integrity

Food and Drug Administration

Institutional Review Board

Informed Consent

Experimental Subject’s Bill of Rights

Patient Responsibilities

The Cures Act

Human Genetics

Genetic Markers

Genetic Information Nondiscrimination Act of 2008 (HR493)

Stem Cell Research

Acquired Immune Deficiency Syndrome

Spread of AIDS

Confidentiality

The Right to Treatment

AIDS Education

Chapter 3 End-of-Life Dilemmas

Learning Objectives

Introduction

Where Do Americans Die?

Euthanasia

Active or Passive Euthanasia

Voluntary or Involuntary Euthanasia

Right to Self-Determination

Defining Death

Legislative Response

Assisted Suicide

Physician-Assisted Suicide

Assisted Suicide Versus Refusal or Withdrawal of Treatment

Oregon’s Death with Dignity Act (1994)

Patient Self-Determination Act of 1990

Advance Directives

Living Will

Right to Die Without a Living Will

Durable Power of At torney

Surrogate Decision Making

Futility of Treatment

Withholding and Withdrawal of Treatment

Patient Not in a Persistent Vegetative State

Removal of Life-Support Equipment

Feeding Tubes

Do-Not-Resuscitate Orders

Competent Patients Make Their Own Decisions

A New Beginning and a Better Ending

Chapter 4 Healthcare Ethics Committee

Learning Objectives

Introduction

Committee Structure

Committee Goals

Committee Functions

Policy and Procedure Development

Expanding Role of the Ethics Committee

Internal Ethical Issues

External Ethical Issues

Resolution of Ethical Dilemmas

Making Better Decisions

Chapter 5 Development of Law

Learning Objectives

Introduction

Public Law

Private Law

Sources of Law

Common Law

Statutory Law

Administrative Law

U.S. Government Organization

Separation of Powers

Conflict of Laws

Legislative Branch

Judicial Branch

Executive Branch

Department of Health and Human Services

Administration on Aging

Centers for Medicare and Medicaid Services

Public Health Service

Chapter 6 Introduction to Law

Learning Objectives

Introduction

Tort Law

Negligence

Intentional Torts

Assault and Battery

False Imprisonment

Defamation of Character

Invasion of Privacy

Infliction of Mental Distress

Criminal Law

Criminal Procedure

Healthcare Fraud

Manslaughter

Murder

Theft

Contracts

Elements of a Contract

Employment Contracts

Exclusive Contracts

Trial Procedure and the Courtroom

Pleadings

Discovery

Preparation of Witnesses

The Court

The Jury

Subpoenas

Opening Statements

Burden of Proof

Evidence

Examination of Witnesses

Defense of One’s Actions

Closing Statements

Judge’s Charge to the Jury

Jury Deliberation

Damages

Appeals

Chapter 7 Government Ethics and the Law

Learning Objectives

Introduction

U.S. Office of Government Ethics

House of Representatives Committee On Ethics

Senate Select Committee On Ethics

Office of Congressional Ethics

U.S. Judicial Code of Conduct

State Ethics Committees

Public Policy

Veterans Administration

Fourteenth Amendment to the Constitution

Title VI: Civil Rights Act

Sherman Antitrust Act

Privacy Act

Health Insurance Portability and Accountability Act (HIPAA)

Emergency Medical Treatment and Active Labor Act (EMTALA)

Health Care Quality Improvement Act

Agency for Healthcare Research and Quality

Ethics in Patient Referral Act

Patient Self-Determination Act

Sarbanes-Oxley Act

Patient Protection and Affordable Care Act (2010)

Political Malpractice

Oath of Office

Ethics in Public Service

Chapter 8 Organizational Ethics and the Law

Learning Objectives

Introduction

Corporate Authority

Fiduciary Responsibility

Express Corporate Authority

Implied Corporate Authority

Ultra Vires Acts

Corporate Ethics

Code of Ethics for Organizations

Corporate Compliance Program

Unprofessional Conduct

Trust and Integrity

False Advertising

Concealing Mistakes

Corporate Negligence

Doctrine of Respondeat Superior

Independent Contractor

Corporate Duties and Responsibilities

Appointment of a CEO

CEO Licensure

CEO Responsibilities and Challenges

CEO Code of Ethics

Screen Job Applicants

Credentialing, Appointment, Privileging, and Discipline

Ensure Competency

Discipline of Physicians

Provide Adequate Staff

Provide Adequate Supplies and Equipment

Allocate Scarce Resources

Provide Quality Patient Care

Comply with Rules and Regulations

Provide Timely Treatment

Avoid Conflicts of Interest

Provide a Safe Environment

Prevention of Falls

Protect Patients and Staff from Sexual Harassment and Assault

Decisions that Collide with Professional Ethics

A Life Needlessly Shortened

Financial Incentive Schemes

Restoring Trust

Effective Communication Builds Trust

Improving Organizational Performance and Ethics

Board Education

Policies and Procedures

Search for Best Practices

Reduce Variation

Assure Continuity of Care

Partner with the Community

Develop a Culture of Compassion and Kindness

Chapter 9 Healthcare Professional Legal-Ethical Issues

Learning Objectives

Introduction

Paramedics and First Responders

Emergency Medical Responder

Emergency Medical Technician

Advanced Emergency Medical Technician

Paramedic

Nurses: Ethics and Legal Issues

Registered Nurse

Advanced Practice Nurse

Nurse Practitioner

Clinical Nurse Specialist

Nurse Anesthetist

Nurse Midwife

Special Duty Nurse

Float Nurse

Agency Personnel

Nursing Assistants

Student Nurses

Negligent Acts in Nursing

Chiropractor

Dentistry

Dental Hygienist

Dietary

Incidence and Recognition of Malnutrition

Emergency Department

Timely Response May Require a Phone Call

Laboratory

Ethics and Inaccurate Lab Results

Refusal to Perform HIV Testing

Medical Assistant

Medical Records

Pharmacy

Dispensing and Administration of Drugs

Drug Substitution

Expanding Role of the Pharmacist

Duty to Monitor Patient’s Medications

Warning Patients About Potential for Overdose

Refusal to Honor a Questionable Prescription

Reducing Medication Errors

Physical Therapy

Incorrectly Interpreting Physician’s Orders

Resident Neglect

Physician Assistant

Psychology

Failure to Minimize Harm: Unethical Conduct

Sexual Harassment

Reporting Child Abuse

Radiology

Failure to Restrain Causes Patient Fall

Respiratory Care

Social Work

Certification of Healthcare Professionals

Licensing of Healthcare Professionals

Suspension and Revocation of License

Helpful Advice for Caregivers

Chapter 10 Physicians’ Ethical and Legal Issues

Learning Objectives

Introduction

The Hippocratic Oath

Code of Medical Ethics

Law and Ethics Intertwine

Morally Wrong, Legally Actionable

Hippocratic Oath and AMA Code of Ethics Violated

Principles of Medical Ethics

Compassionate Care

Responsibility to the Patient Is Paramount

Trust

Failure to Refer for Consultation

Falsification of Records

Justice

Respect for Privacy

Negligence

Patient Assessments and Diagnosis

Patient Diagnosis

Patient Treatment

Discharge and Follow-Up Care

Untimely Discharge

Failure to Provide Follow-Up Care

Failure to Follow-Up on Test Results

Physician–Patient Relationship

Personalized Treatment Versus Assembly-Line Medicine

Treat Caregivers with Respect

Chapter 11 Employee Rights and Responsibilities

Learning Objectives

Introduction

Employee Rights

Fair Treatment and Employment at Will

Refuse to Participate in Patient Care

Question Patient Care

Suggest Changing Physician

Freedom from Disruptive Behavior

Sexual Harassment

Treatment with Dignity and Respect

Freedom from Intimidation

Privacy and Confidentiality

Family Medical Leave

Whistleblowing

Safe Environment

Unemployment Compensation

Employee Responsibilities

Know Your Patient

Educate and Encourage Patients to Ask Questions

Be Compassionate

Comply with State and Federal Regulations

Comply with Hospital Policy

Comply with Assigned Duties

Honor and Respect Patient Rights

Maintain Confidentiality

Adhere to Safe Practices

Admit to Mistakes

Adhere to Professional Standards

Maintain Professional Relationships

Sexual Harassment

Report Unethical Behavior

Protect Patients from Harm

Report Patient Abuse

Stand as a Patient Advocate

Maintain Professional Competence

Encourage Teamwork

Helpful Advice

The Caregiver’s Pledge

Chapter 12 Patient Consent

Learning Objectives

Introduction

Informed Consent

Codes of Ethics

Proof of Consent

Statutory Consent

Capacity to Consent

Adequacy of Consent

Competent Patient

Spouse

Parental Consent

Consent by Minors

Incompetent Patients

Guardian

Right to Refuse Treatment

Refusal of Care Based on Religious Beliefs

Chapter 13 Patient Abuse

Learning Objectives

Introduction

Child Abuse

Reporting Abuse

Detecting Abuse

Good-Faith Reporting

Immunity and Good-Faith Reporting

Senior Abuse

Reporting Senior Abuse

Signs of Abuse

Intimidation of Abusive Resident/Disciplinary Overkill

Abusers Abused

Prevention of Senior Abuse

Look Closer, See Me

Chapter 14 Patient Rights and Responsibilities

Learning Objectives

Introduction

Patient Rights

Right to Know One’s Rights

Right to Explanation of One’s Rights

Right to Exercise Rights

Right to Ask Questions

Right to Complain

Right to Emergency Care

Right to Admission

Right to Examination and Treatment

Right to Know Caregivers

Right to Informed Consent

Right to Refuse Treatment

Right to Execute Advance Directives

Right to Have Special Needs Addressed

Right to Choose Physician(s)

Right to Trust Caregivers

Right to Patient Advocacy Services

Right to Have Spiritual Needs Assessed and Addressed

Right to Ethics Consultation

Right to Choose Treatment

Right to Try Experimental Drugs

Right to Timely Response to Care Needs

Right to Receive Quality Care

Right to Compassionate Care

Right to Respect

Right to Pain Management

Privacy and Confidentiality

Right to Freedom from Abuse and Harassment

Right to Know Hospital’s Adverse Events

Right to Discharge

Right to Transfer

Right to Access Medical Records

Right to Access Lab Reports

Right to Know Third-Party Care Relationships

Right to Know Hospital Charges

Right to Know Medical Errors

Right to a Safe Healing Environment

Right to be Free from Restraints and Seclusion

Which Right is the Greater Good?

Patient Responsibilities

Maintain a Healthy Lifestyle

Keep Appointments

Maintain Current Medication Records

Accurately Describe Symptoms

Provide Full and Honest Disclosure of Medical History

Report Sudden Changes in Health Status

Adhere to the Treatment Plan

When in Doubt, Seek a Second Opinion

Stay Informed

Ask Questions

Follow Discharge Instructions

Treat Caregivers with Respect

Respect the Rights of Other Patients

Show Compassion for Caregivers

Advisory Commission Describes Patient Responsibilities

Teamwork and Professional Relationships

Chapter 15 Summary Case: Search for Truth

Learning Objectives

Introduction

Case: Code of Silence

Characters

Settings

Background

Events of Sunday, October 2

Events of Thursday Morning, October 6

Events of Thursday Luncheon, October 6

Events of Thursday Late Afternoon, October 6

Events of Thursday Evening, October 6

Events of December 27–29 Educational Conference

Glossary

Index

Foreword

The goal of this book is to help clarify the legal and ethical issues that are essential in the delivery of health care. Health care is perhaps the most personal of services anyone will receive in their lifetime. Our society regulates it with specific criteria for its administration. Much of this foundational information is concentrated in this convenient resource for students that will also aid healthcare workers and administrators in making better decisions for patient care.

Scientific advances in such areas as genetics and stem cell biology, nanotechnology, robotic surgery, tissue transplantation, and so much more promise humanity the potential for a longer, healthier, more optimistic future. The explosion of information technology is resulting in an exponential increase of scientific knowledge. Reaping the benefits of these advances can pose complicated considerations of safety, efficacy, availability, and affordability. The challenge is to administer rapidly changing healthcare science in a legal and ethical manner.

Legal and ethical parameters are subject to change, variable interpretation, and even contradiction. Codes of ethics and regulations vary among professional organizations, hospitals, and religions. Federal, state, and local laws may not be consistent. It can get complicated. Correct choices are not always obvious. Intuition and good intentions are not enough. That is why this book presents a coherent foundation of information from which to advance into the future. Making quality decisions in the administration of health care is the ultimate goal.

Dr. Pozgar has accumulated a wealth of information in this exhaustive review. The information presented here has been laboriously extracted from multiple sources and presented in logical order. Dr. Pozgar is perhaps the most relevant source, since he has had a lifetime of actual, real-world, practical experience as chief executive officer of a large hospital in a multi-hospital system, a Joint Commission hospital surveyor in literally hundreds of hospitals and ambulatory care sites, healthcare consultant in a wide variety of hospitals and medical centers, and a malpractice case reviewer for legal counsel. The result is this comprehensive text, which is a unique contribution to the improvement of patient care and which continues to be a classical reference work on the subject.

—John W. Pinnella, MD, DDS, FICS

Preface

Man’s duty is to improve himself; to cultivate his mind; and, when he finds himself going astray, to bring the moral law to bear upon himself.

—Immanuel Kant

What’s the One Thing You Would Invent If You Could?

A “decision-making” machine. You input your life dilemmas, and just like that, the right decision is displayed on a screen. The invention would save me so much time in torment.

—Caitlin Ghilarducci,
O, The Oprah Magazine, August 2013

Legal and Ethical Issues for Health Professionals, Fifth Edition, has been designed to encourage the reader to learn the often-dreaded subject of ethics and the law while enjoying the journey from the didactics of the classroom to the practical application in the workplace. The
Fifth Edition provides the reader with a clearer understanding of how the law and ethics are interwoven as they relate to healthcare dilemmas. The practical application of ethics in the healthcare setting is accomplished by interspersing the thoughts of great minds through
Quotes; current healthcare events through
News Clippings; human behavior through
Reality Checks; and legal rulings and summaries through legal
Cases. The book concludes with a courtroom drama that illustrates the complexities of human behavior, while tying together the contents of the book in one case.

The reader will learn how to evaluate and distinguish between the rightness and wrongness of alternative courses of action when faced with complex ethical dilemmas. Ethics in the healthcare setting focuses on doing the right thing for both patients and caregivers. When caregivers consider matters of law and ethics, they often involve matters of freedom in regard to personal choices, values, judgments about human character, and obligations to others.

This book, as with the previous editions, begins and ends with the premise that to act in an ethical manner requires the reader to engage in conduct according to generally accepted principles of right and wrong. The author’s objective is therefore to provide the reader with a formidable and meaningful understanding of ethics and the law as they relate to addressing many of the more common ethical dilemmas encountered in the delivery of patient care and how to apply that knowledge in the healthcare setting. A study published in the
American Journal of Bioethics, in a July 2008 article entitled “An Urgent Call for Ethics Education,” describes the importance of ethics education and its influence on moral confidence and moral action.

To make good decisions, we must first understand that they will be only as good as our knowledge of what is right and what is wrong. There is a deluge of ethical issues in every aspect of human existence. Although cultural differences, politics, and religion influence who we are, it is all of life’s experiences that affect who we will become.

Ethics and the law are interwoven. Ethics describes our values and morality—distinguishes good from evil. The law, on the other hand, describes our commonly accepted principles of good behavior and provides punishment for those who fail to adhere to these principles.

The cases presented here are not exhaustive for any one profession but often have application across all healthcare disciplines. Caregivers who have a clear grasp of the ethical and legal concepts discussed in this book will be better prepared to make healthcare decisions that are ethically sound and legally correct. Presented here is a sampling of the wide range of questions that can be asked and discussed when analyzing ethical dilemmas.

What are the relevant ethical and legal issues in the case?

What could have been done to bring more clarity to the ethical dilemma?

How should the legal issues of the case be addressed?

How might one’s professional code of ethics be violated in the case?

How might the principles of patient autonomy, beneficence, nonmaleficence, and justice affect the decision-making process when faced with an ethical dilemma with legal implications?

What are the issues that could affect those involved in the resolution of an ethical dilemma (e.g., family members, physicians, and other caregivers, including nurses, chaplains, and/or ethics committee members)?

If you were friendly with the patient, would it affect your ability to give an objective opinion?

How can moral values, religious beliefs, education, and life experiences of both caregivers and patients complicate the resolution of healthcare dilemmas?

How can financial concerns affect the decision-making process?

How can corporate culture affect the decision-making process?

One of the most difficult things to come to terms within the decision-making process is to know when the endless loop of asking questions must end and a decision has to be made.

This
Fifth Edition is not an indictment of any one profession or organization. It does, however, illustrate how a minority of people can often cast a dark shadow on the good that is done by so many for so many. Ethics is good people doing good things through acts of caring, compassion, and kindness.

It is comforting to know that some universities are helping to resolve the current healthcare financial crisis for those wishing to enter the field of medicine. The New York University School of Medicine, for example, is planning to offer free tuition to all current and future medical students. Robert I. Grossman, MD, the Saul J. Farber Dean of NYU School of Medicine and CEO of NYU Langone Health, stated: “This decision recognizes a moral imperative that must be addressed, as institutions place an increasing debt burden on young people who aspire to become physicians.”

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This same financial burden also exists for others with hopes of pursuing a health career. Ultimately, the hope is that more colleges and universities will follow suit by providing financial assistance to help address the financial needs of students in other health professions.

The three hardest tasks in the world are neither physical feats nor intellectual achievements, but moral acts: to return love for hate, to include the excluded, and to say, “I was wrong.”

—Sydney J. Harris

New to the
Fifth Edition

The
Fifth Edition of
Legal and Ethical Issues for Health Professionals has been updated to expand discussion on difficult topics and includes a wide variety of current
News Clippings and
Reality Checks, which are real-life events experienced by both patients and healthcare professionals in leadership positions in the healthcare industry. These experiences include those of the author, incorporating his observations from a unique background as a hospital administrator in a multihospital system, instructor, author, consultant, and Joint Commission surveyor who conducted surveys of more than 1,000 hospitals and outpatient facilities from Alaska to Puerto Rico.

The author has made every attempt in this
Fifth Edition to provide the student with the tools necessary for applying the law and ethics in the healthcare setting with the end goal of improving the professional’s skills, performance, and decision-making processes.

The following is a summary of changes that have been made to improve the readability of the law and ethics content, which can be difficult topics for the reader to grasp owing to the need to learn new terminology, theories, and concepts that have substantial impact on each healthcare professional’s daily tasks.

Chapter-specific changes are outlined in the following pages.

Chapter 1: Introduction to Ethics

New or expanded topics include:

Meta-ethics

Tuskegee Syphilis Experiment

Code of Conduct

Morality Legislated

Physicians and Paternalism

Justice and Government Spending

Injustice for the Insured

Teaching Doctors to Care

Fidelity

Freedom

Honesty/Trustworthiness/Truth Telling

Integrity

Spiritual Health and Education

Creating a Culture of Ethics

Reasoning and the Decision-Making Process

The following
Reality Checks have been added or revised:

Paternalism and Breach of Confidentiality

Man of Integrity

The following
News Clippings have been added or revised:

Abusing Assisted Suicide Laws

WWII Veteran Calls for Help and Dies as Nurses Laugh, Video Shows

Elderly Patient Hit by Motorcycle Dies in Japan After Being Rejected by 14 Hospitals

Medical Errors Are Hard for Doctors to Admit

Chapter 2: Contemporary Ethical Dilemmas

Informed Consent

Unethical Experiments on Children

Radiation Experiments: Human Subjects Unaware

Hospital Allowed to Remove Life Support: Contrary to the Wishes of the Legal Guardian

UK Supreme Court Denies Right to Treatment

Texas Restrictions on Women’s Rights

Abortions after 20 Weeks Prohibited

Law and Morality of Abortion—Conflicting Beliefs

Surrogacy

Altruism vs. Sale of Organs

Research, Experimentation, and Clinical Trials

Institutional Review Board

The Cures Act

The following
News Clipping has been added:

House Passes Bill That Would Give Patients Access to Experimental Drugs

Chapter 3: End-of-Life Dilemmas

New or expanded topics include:

Introduction

Physician-Assisted Suicide

Living Will

Substituted Judgment

Withholding and Withdrawal of Treatment

A New Beginning and a Better Ending

Administration on Aging

The following
News Clippings have been added:

Mom Wanted to Live on Her Own Forever

Doctor Says Insurers Push Suicide Over Medical Care

Chapter 4: Healthcare Ethics Committee

New or expanded topics include:

Policy and Procedure Development

Autonomy and the Law Collide

A Statement Explaining a Patient’s Right to Transfer is Now Included

Chapter 5: Development of Law

New or expanded topics include:

Public Law

Administration on Aging

National Institutes of Health

Food and Drug Administration

The following
Reality Check has been added:

50 and You Lived Your Life?

Chapter 6: Introduction to Law

New or expanded topics include:

Standard of Care Set by Statute

Causation/Proximate Cause

Assault and Battery

Indictment

Health Care Fraud

Medical Identity Theft

Contracts

Summons and Complaint

Burden of Proof

Closing Statements

Judge’s Charge to the Jury

The following
News Clipping has been added:

National Health Care Fraud Takedown Results in Charges Against Over 412 Individuals Responsible for $1.3 Billion in Fraud Losses

Chapter 7: Government Ethics and the Law

New or expanded topics include:

U.S. Office of Government Ethics

U.S. Judicial Code of Ethical Conduct

State Ethics Committees

Ethics in Public Service

The following
News Clipping has been added:

Poll: Americans Have Highest Trust in Military, While Congress and Media Fall Last

Chapter 8: Organizational Ethics and the Law

New or expanded topics include:

Fiduciary Responsibility

Corporate Ethics

Corporate Compliance Program

Appointment of a CEO

CEO Licensure

CEO Responsibilities and Challenges

Maintain Moral Integrity

Provide Adequate Staff

Provide Quality Patient Care

Comply with Accreditation Standards

Provide a Safe Environment

Improving Organizational Performance and Ethics

The following
Reality Checks have been added or revised:

Ensuring Board Integrity

Windows Wide Open

The following
News Clippings have been added:

Why So Many Doctors Kill Themselves

Video of Md. Patient Put Out in Cold Stirs Fury

Chapter 9: Healthcare Professionals Legal-Ethical Issues

New or expanded topics include:

Paramedics and First Responders

Nurse Practitioner

Chiropractor

Dietary

Emergency Department:
Timely Response Required

Laboratory

Pharmacy:
Reducing Medication Errors

Psychology

Radiology

The following
Reality Check has been added:

Abnormal Laboratory Results Not Addressed

The following
News Clipping has been added:

Short on Staff: Nursing Crisis Strains U.S. Hospitals

The following
Case has been revised:

Case: Poor Judgment

Chapter 10: Physician Ethical and Legal Issues

New topics include:

Discharge and follow-up care

The following
Reality Checks have been added or revised:

Staff Lacks Compassion

My Hopes for Help Crumble

The following
News Clippings have been added:

Doctors Perform Thousands of Unnecessary Surgeries

Your Doctor Is Here and There

Is U.S. Medicine Becoming Assembly Line Medicine?

Chapter 11: Employee Rights and Responsibilities

The following
Reality Checks have been added:

Dear Dr. XYZ

Multidisciplinary Approach to Patient Care

Chapter 12: Patient Consent

The following
News Clippings have been added:

Surgery to Ease Pain Sounded Really Simple

Eastern Shore Doctor Convicted of Criminal Charges in Stent Case

Chapter 13: Patient Abuse

New topics include:

Abusers Abused

Prevention of Senior Abuse

Chapter 14: Patient Rights and Responsibilities

Expanded topic:

Right to Try Experimental Drugs

The following
Reality Checks have been added or revised:

Right to Complain

Your Dad Is an Example of Why Healthcare Costs Are Excessively High

Why Must I Fear?

Over-Surveyed vs. Under-Surveyed

The following
News Clipping has been added:

Suddenly, Unexpectedly, He Grabs My Shirt. “Don’t Let Me Die!” He Says, Spraying Me with Blood.

Key Features

Quotes The practical application of ethics in the healthcare setting is accomplished by interspersing the thoughts of great minds through Quotes

News Clippings The legal and ethical issues of current healthcare events are reviewed and explored as News Clippings of actual published editorials

Reality Checks Patient, personal, provider, and organizational experiences are shared through Reality Checks

Cases Legal rulings and summaries are showcased through Case Law examples

Summary Case The book concludes with a closet drama that illustrates the real world of human behavior and ties together its contents in one case

Instructor Resources

Qualified Instructors will receive a full suite of Instructor Resources, including the following:

More than 250 Slides in PowerPoint format

A Test Bank with chapter-by-chapter questions alone with a midterm and a final

An Instructor’s Manual containing a summary, teaching tips, and suggested classroom activities

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Alicia Ault, “NYU to Offer Free Tuition to All Current, Future Med Students,” Medscape News (August 16, 2018).
https://www.medscape.com/viewarticle/900860.

Acknowledgments

I would be remiss if I failed to acknowledge my publisher, Mike Brown, who was the inspiration for this particular text. Without him, the book would never have been written. Thank you for encouragement and for believing and trusting in me over the years.

The author especially acknowledges the staff at Jones & Bartlett Learning, whose guidance and assistance were so important in making this
Fifth Edition of
Legal and Ethical Issues for Health Professionals a reality. Special thanks to Cathy Esperti during the signing stage of the
Fifth Edition; Rachael Souza, who worked tirelessly during the editorial stages; the project specialists, Nancy Hitchcock and Alex Schab; Thais Miller in Rights & Media; Shannon Sheehan, the media developer; and the all-important Michael Sullivan in marketing. As with the publication of any book, there are numerous people behind the scenes with whom I have not dealt with directly. Please know that your hard work is much appreciated. Thanks to all for allowing me to leave behind this legacy of writing.

I am grateful to the very special people in the more than 1,000 hospitals and ambulatory sites from Alaska to Puerto Rico with whom I have consulted, surveyed, and provided education over many years. Their shared experiences have served to remind me of the importance in design of this book to ensure its value in the classroom as well as its ongoing reference value for practicing healthcare professionals.

To my students in healthcare law and ethics classes at the New School for Social Research, Molloy College, Long Island University–C.W. Post Campus, Saint Francis College, and Saint Joseph’s College; my intern from Brown University; my resident in hospital administration from The George Washington University; and those I have instructed throughout the years at various seminars, I will always be indebted to you for your inspiration.

Many thanks are also extended to all those special people at the National Library of Medicine and the Library of Congress for their guidance over the years in locating research materials.

CHAPTER 1

Introduction to Ethics

I expect to pass through this world but once. Any good therefore that I can do, or any kindness I can show to any creature, let me do it now. Let me not defer it, for I shall not pass this way again.

—Stephen Grellet

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Explain what ethics is, its importance, and its application to ethical dilemmas.

Describe the concepts of morality, codes of conduct, and moral judgments.

Understand relevant ethical theories and principles.

Describe virtue ethics and values and how they more clearly describe one’s moral character.

Understand how religious ethics can affect one’s moral character.

Explain the concept of situational ethics and how changes in circumstances can alter one’s behavior.

Understand the importance of reasoning in the decision-making process.

INTRODUCTION

Good can triumph over evil.

—Author Unknown

This chapter provides an overview of the study of ethics as it relates to the delivery of patient care. The intent here is not to burden the reader with complex philosophical theories; however, as with the study of any new subject,
words are the tools of thought, and thus an overview and basic understanding of ethics is necessary to help the reader more effectively address many of the common ethical dilemmas that often confront caregivers in the delivery of patient care. Although ethical concepts are often thought of in daunting philosophical terms, the reader who grasps and applies the theories and principles of ethics discussed here will have the tools necessary to empathize with and guide patients, families, and caregivers through the conflicts they often encounter when making care decisions. Therefore, some new vocabulary is a necessary tool, as a building block for the reader to establish a foundation for applying the abstract theories and principles of ethics in order to put them to practical use. Just as the directions on a map are of little value until one makes the journey, so it is with ethics; caregivers must begin to make the journey by learning the thought processes that will help guide the caregiver when addressing complex ethical dilemmas. The learning process for ethics becomes a more enjoyable and rewarding journey as we grasp the ideas, build upon them, and practice all the good we learn by helping all the people we can for as long as we can.

ETHICS

How we perceive right and wrong is influenced by what we feed on.

—Author Unknown

Ethics is the branch of philosophy that seeks to understand the nature, purposes, justification, and founding principles of moral rules and the systems they comprise. Ethics and morals are derivatives from the Greek and Latin terms (roots) for
custom. The etymology of the words “ethics” and “morality” is derived from the roots
ethos and
mos, which both convey a meaning describing customs or habits. This etymology supports the claims of anthropologist Ruth Benedict that all values are rooted in customs and habits of a culture, because the words
moral and
ethics themselves were essentially created to describe these topics.

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Ethics deals with values relating to human conduct. It focuses on the rightness and wrongness of actions, as well as the goodness and badness of motives and ends. Ethics encompasses the decision-making process of determining ultimate actions—that is, answering the questions
What should I do? and
Is it the right thing to do? Ethics is an expression of how individuals decide to live with one another within accepted boundaries and how they live in harmony with the environment as well as one another. Ethics is concerned with human conduct as it ought to be, as opposed to what it actually is.

Microethics involves an individual’s view of what is right and wrong based on one’s personal life teachings, traditions, and experiences.
Macroethics involves a more global view of right and wrong. Although no person lives in a vacuum, solving ethical dilemmas involves consideration of ethical issues from both a micro and macro perspective.

Man’s duty is to improve himself; to cultivate his mind; and, when he finds himself going astray, to bring the moral law to bear upon himself.

—Immanuel Kant

The term
ethics is used in three distinct but related ways, signifying (1)
philosophical ethics, which involves inquiry about ways of life and rules of conduct; (2) a
general pattern or way of life, such as religious ethics (e.g., Judeo-Christian ethics); and (3) a
set of rules of conduct or “moral code” (e.g., professional codes for ethical behavior).

The scope of healthcare ethics encompasses numerous issues, including the right to choose or refuse treatment and the right to limit the suffering one will endure. Incredible advances in technology and the resulting capability to extend life beyond what might be considered a reasonable quality of life have complicated the process of healthcare decision making. The scope of healthcare ethics is not limited to philosophical issues but embraces economic, medical, political, social, and legal dilemmas.

Bioethics addresses a diversity of issues that include the nature of life and death, what sort of life is worth living, how we distinguish between assisted suicide and murder, how we should treat people who are especially vulnerable, and the responsibilities that we have toward other human beings. It is about making better decisions when addressing diverse complex care issues with a wide variety of circumstances.

Why Study Ethics

We study ethics to help caregivers make sound judgments, good decisions, and right choices; if not right choices, then better choices. To those in the healthcare
industry, it is about anticipating and recognizing healthcare dilemmas and making good judgments and decisions based on universal values that work in unison with the laws of the land and our Constitution. Where the law remains silent, we rely on the ability of caregivers to make sound judgments, guided by the Wisdom of Solomon to do good. Doing the right thing by applying the universal morals and values described in this text (e.g., the 10 Commandments) will help shield and protect all from harm.

MORALITY

The three hardest tasks in the world are neither physical feats nor intellectual achievements, but moral acts: to return love for hate, to include the excluded, and to say, “I was wrong.”

—Sydney J. Harris

The following
News Clippings portray how a deficiency in the morality of society can lead to a betrayal of humanity. Lawlessness and heartless actions run rampant in a land void of courage and compassion. The reader who thoroughly absorbs, understands, and practices the virtues and values discussed in the pages that follow will see hope spring forth in what often seems a desperate and hopeless world.

Vietnam—Terror of War

Fire rained down on civilians. Women and children ran screaming. Ut snapped pictures. A little girl ran toward him, arms outstretched, eyes shut in pain, clothes burned off by napalm. She said, “Too hot, please help me!”

—1973 Spot News, Newseum, Washington, DC

Ethiopian Famine (1985 Feature)

People searched everywhere for food. Some 30,000 tons of it, from the United States, had been held up by an Ethiopian government determined to starve the countryside into submission. And starve the people it did—half a million Ethiopians, many of them children so hungry their bodies actually consumed themselves.

I’ll never forget the sounds of kids dying of starvation.

—Newseum, Washington, DC

Waiting Game for Sudanese Child …

Carter’s winning photo shows a heartbreaking scene of a starving child collapsed on the ground, struggling to get to a food center during a famine in the Sudan in 1993. In the background, a vulture stalks the emaciated child.

Carter was part of a group of four fearless photojournalists known as the “Bang Bang Club” who traveled throughout South Africa capturing the atrocities committed during apartheid.

Haunted by the horrific images from Sudan, Carter committed suicide in 1994 soon after receiving the award.

—A Pulitzer-Winning Photographer’s Suicide,
National Public Radio (NPR), March 2, 2006

Trek of tears describes many horrible historic events, from broken treaties with American Indians to an African journey of horror, where people would flee together as a village to escape the barbaric slaughter of men, women, and children as the remainder of the world stood cowardly by watching the death and starvation of hundreds of thousands of people. Human atrocities committed by humans. Is it not time to stand up and be counted on to do what is right and leave all excuses behind for our complacency toward the genocide that continues throughout the world?

—GP

There are those who have been brainwashed into believing, in the name of religion, that if they blow themselves up in public places, killing innocent people, that they will be rewarded in the afterlife. This is not religion and it is not culture; it is evil people brainwashing young minds to do evil things.

—GP

Aim above morality. Be not simply good; be good for something.

—Henry David Thoreau

Morality describes a class of rules held by society to govern the conduct of its individual members. It implies the quality of being in accord with standards of right and good conduct. Morality is a code of conduct. It is a guide to behavior that all rational persons should put forward for governing their behavior. Morality requires us to reach a decision as to the rightness or wrongness of an action.
Morals are ideas about what is right and what is wrong; for example,
killing is wrong, whereas helping the poor is right, and causing pain is wrong, whereas easing pain is right. Morals are deeply ingrained in culture and religion and are often part of its identity. Morals should not be confused with religious or cultural habits or customs, such as wearing a religious garment (e.g., veil, turban). That which is considered morally right can vary from nation to nation, culture to culture, and religion to religion. In other words, there is no universal morality that is recognized by all people in all cultures at all times.

Code of Conduct

A
code of conduct generally prescribes standards of conduct, states principles expressing responsibilities, and defines the rules expressing duties of professionals to whom they apply. Wikipedia describes a
code of conduct as a “set of rules outlining the social norms, religious rules and responsibilities of, and or proper practices for, an individual, party or organization. Related concepts include ethical, honor, moral codes and religious laws.”

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Most members of a profession subscribe to certain “values” and moral standards written into a formal document which describes the organization’s code of conduct. Codes of conduct often require interpretation by caregivers as they apply to the specific circumstances surrounding each dilemma.

Michael D. Bayles, a famous author and teacher, describes the differences between standards, principles, and rules:

Standards (e.g., honesty, respect for others, conscientiousness) are used to guide human conduct by stating desirable traits to be exhibited and undesirable ones (dishonesty, deceitfulness, self-interest) to be avoided.

Principles describe responsibilities that do not specify what the required conduct should be. Professionals need to make a judgment about what is desirable in a particular situation based on accepted principles.

Rules specify specific conduct; they do not allow for individual professional judgment.

Moral Judgments

Moral judgments are those judgments concerned with what an individual or group believes to be the right or proper behavior in a given situation. Making a moral judgment is being able to select an option from among choices. It involves assessing another person’s moral character based on how he or she conforms to the moral convictions established by the individual and/or group. A lack of conformity can result in moral disapproval and possibly ridicule or censure of one’s character.

Morality Legislated

When it is important that disagreements be settled, morality is often legislated. Law is distinguished from morality by having explicit rules and penalties, as well as officials who interpret the laws and apply penalties when laws are broken. There is often considerable overlap in the conduct governed by morality and that governed by law. Laws are created to set boundaries for societal behavior. They are enforced to ensure that the expected behavior happens.

“You can’t legislate morality” has become a common turn of phrase. The truth is, however, that every law and regulation that is proposed, passed, and enforced has inherent in it some idea of the good that it seeks to promote or preserve. Indeed, no governing authority can in any way be understood to be morally neutral. Those who think such a chimerical understanding is possible could hardly be more wrong. For, in fact, the opposite is true: You can’t
not legislate morality.

Moral Dilemmas

Moral dilemmas in the healthcare setting often arise when values, rights, duties, and loyalties conflict. Caregivers often find that there appears to be no right or wrong answer when faced with the daunting task of determining which decision path to follow. The best answer when attempting to resolve an ethical dilemma includes the known wishes of the patient and other pertinent information, such as a living will, that might be available when the patient is considered incompetent to make his or her own choices. The right answer is often elusive when the patient is in a coma, there are no known documents expressing a patient’s wishes, and there are no living relatives. However, an understanding of the concepts presented here will assist the caregiver in resolving complex ethical dilemmas.

ETHICAL THEORIES

Ethics, too, are nothing but reverence for life. This is what gives me the fundamental principle of morality, namely, that good consists in maintaining, promoting, and enhancing life, and that destroying, injuring, and limiting life are evil.

—Albert Schweitzer

Ethics seeks to understand and to determine how human actions can be judged as right or wrong. Ethical judgments can be made based on our own experiences or based upon the nature of or principles of reason.

The
theories and principles of ethics introduce order into the way people think about life. They are the foundations of ethical analysis that provide guidance in the decision-making process. The various theories present differing viewpoints that assist caregivers in making difficult decisions that impact the lives of others. Ethical theories help caregivers determine the outcome of alternative choices, when following their duties to others, in order to reach the best ethical decision under the circumstances. The more commonly discussed ethical theories are presented here.

Meta-Ethics

Meta-ethics is the study of the origin and meaning of ethical concepts. Meta-ethics seeks to understand ethical terms and theories and their application. “Meta-ethics explores as well the connection between values, reasons for action, and human motivation, asking how it is that moral standards might provide us with reasons to do or refrain from doing as it demands, and it addresses many of the issues commonly bound up with the nature of freedom and its significance (or not) for moral responsibility.”

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Meta-ethics is “A classification within western philosophy that attempts to discover the origin or cause of right and wrong.”

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An example question within meta-ethics is: “How can we know what is right and wrong?” There are almost as many different answers as there are different people answering the question. Some individuals may say that right and wrong are dictated by holy books, or philosophy books, or political books, or by popular speakers, but there is no good explanation yet within philosophy that can illustrate the origins and nature of right and wrong that are verifiable and acceptable to everyone.

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A patient faces illness, disease, and end-of-life issues as a result of all of his life experiences. The caregiver must be committed to understanding and accepting that people have different viewpoints when facing end-of-life decisions in order to better help the patient in his journey through the fears and ups and downs of illness. “Comfort care is an essential part of medical care at the end of life. It is care that helps or soothes a person who is dying. The goals are to prevent or relieve suffering as much as possible and to improve quality of life while respecting the dying person’s wishes.”

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Normative Ethics

Normative ethics is prescriptive in that it attempts to determine what moral standards should be followed so that human behavior and conduct may be morally right. Normative ethics is primarily concerned with establishing standards or norms for conduct and is commonly associated with investigating how one ought to act. It involves the critical study of major moral precepts, such as what things are right, what things are good, and what things are genuine. One of the central questions of modern normative ethics is whether human actions are to be judged right or wrong solely according to their consequences.

The determination of a universal moral principle for all humanity is a formidable task and most likely not feasible due to the diversity of people and their cultures. However, there is a need to have a commonly held consensus about what is right and wrong in order to avoid chaos. Thus, there are generally accepted moral standards around which laws are drafted.

Normative Ethics and Assisted Suicide

Oregon’s Death with Dignity Act of 1997 allows terminally ill state residents to end their lives through the voluntary self-administration of a lethal dose of medications prescribed by a physician.

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Although this act was voted upon by the Oregon state legislature and agreed upon by referendum, there are those who disagree with the law from a religious or moral standpoint. The Oregon act is controversial at best and has placed morality and the law in conflict. In the middle of the continuing controversy is the terminally ill patient, who must make the ultimate decision of life versus death. It could be argued that it is morally wrong to take one’s own life regardless of the law, or it can be argued that ending one’s life is a morally permissible right because the law provides the opportunity for terminally ill patients to make end-of-life decisions that include the right to self-administer a lethal dose of medications.

As there is a diversity of cultures, there is diversity of opinions as to the rightness and wrongness of the Oregon act. From a microethics point of view as it relates to the Oregon law, each individual must decide what is the right thing to do.

Descriptive Ethics

Descriptive ethics, also known as comparative ethics, is the study of what people believe to be right and wrong and why they believe it. Descriptive ethics describes how people act, “and/or what sorts of moral standards
they claim to follow,”

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whereas normative ethics prescribes how people ought to act. Both normative and descriptive ethical theories have application in the Oregon act. The controversial nature of physician-assisted suicide in the various states is but one of many healthcare dilemmas caregivers will experience during their careers (e.g., abortion, euthanasia,

right to try experimental drugs
).

Applied Ethics

Applied ethics is “the philosophical search (within western philosophy) for right and wrong within controversial scenarios.”

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Applied ethics is the application of normative theories to practical moral problems, such as abortion, euthanasia, and assisted suicide.

Consequential Ethics

The end excuses any evil.

—Sophocles,
Electra (c. 409 B.C.)

The theory of consequential ethics emphasizes that the morally right action is whatever action leads to the maximum balance of good over evil. From a contemporary standpoint, theories that judge actions by their consequences have been referred to as
consequential ethics. Consequential ethical theories revolve around the premise that the rightness or wrongness of an action depends on the consequences or effects of an action. The theory of consequential ethics is based on the view that the value of an action derives solely from the value of its consequences. The consequentialist considers the morally right act or failure to act is one that will produce a good outcome. The goal of a consequentialist is to achieve the greatest good for the greatest number. It involves asking such questions as:

What will be the effects of each course of action?

Who will benefit?

What action will cause the least harm?

What action will lead to the greatest good?

These questions should be applied when answering the questions in the following
Reality Check.

No Good Deed Goes Unpunished

Matt was assigned to survey Community Medical Center (CMC) in Anytown, Minnesota, with a team of three surveyors and one observer. He related to me his experience of surveying the children’s dental clinic.

Following his tour of CMC’s dental clinic, Matt reviewed with the clinic’s staff the dental program, which served the city’s underserved children. He also reviewed the care rendered to several patients based on common and complex diagnoses, as well as the clinic’s performance improvement activities. During the survey, Dr. Seiden, the clinic director, asked, “Are surveyors trained about the importance of dental care in disease prevention? As you know, dentistry is often a stepchild when it comes to allocation of scarce resources. Departments like surgery and radiology often receive the lion’s share of funds.” Matt responded by describing a film sponsored by the American Dental Association that was shown when he was in training to become a surveyor. The film presented a man whose dental care had been sorely neglected throughout his life and not been addressed prior to replacement of a heart valve. The patient developed a systemic infection following surgery, which led to deterioration of the heart valve and the patient’s ultimate death. The film described the lessons learned and opportunities for performance improvement that included the need for a dental evaluation by a dentist prior to valve replacement. Dr. Seiden was pleased to learn that the importance of dentistry is included in surveyor training.

Following Matt’s survey of the dental clinic, the staff relayed to him their concern that the clinic was going to be closed for lack of funds. Cheryl, the clinic manager, explained, “I sometimes feel the importance of the dental clinic to the underserved population is not well-understood.” A bit emotional, Cheryl said, “Matt, have you surveyed other dental clinics?” Matt replied, “Yes, several well-funded clinics that come to mind were in Philadelphia and New York City.” Cheryl then asked, “Matt, do you have any ideas as to how we can save our clinic from closing?” Matt replied, “I have some time before lunch, and I can share a few ideas with you.” Cheryl replied, “The staff will be eager to listen.” The staff proceeded to place several chairs in a semicircle and brainstormed with Matt a variety of ideas for saving the clinic. The staff discussed several fund-raising activities including a car wash by children to bring awareness to Anytown’s dental clinic. Matt looked at his watch and said, “I need to get back to my survey team, but I want to leave you with one other thought to ponder that could be applicable to any department in the hospital. I was surveying a veteran’s hospital physical therapy department and noticed on their bulletin board the staff’s dream plan for renovation of their department. I asked the physical therapy staff about the plan. They related how their vision of a new physical therapy department had been sketched out and placed on their bulletin board. Several weeks later, a veteran who had been sitting in the waiting area became curious about their dream. After studying the board during his visits for therapy, he walked to the reception desk
on his last visit and asked about their vision for physical therapy. They explained it was a $200,000 dream. Gary looked at the staff at the reception desk and said, ‘It is no longer a dream. I don’t have much, but what I do have is enough to make your dream come true.’ And, so he did.” Matt continued, “You see, if people know your dreams, something as small as a bulletin board can make all the difference.” Dr. Seiden smiled and said, “I see where this is going: community awareness as to the need to fund the clinic. It’s really not merely about a car wash, it’s about a concept of how the hospital can save not only the dental clinic but other programs earmarked for closing.” Matt smiled, as the staff regained hope. Dr. Seiden, seeing that Matt had little time for lunch, stood up, extended his hand and said, “Matt, you gave us hope when we believed there was none. Thank you so much. I will be sure to discuss this with administration.”

Matt presented his observations the following morning to the organization’s leadership, which included his roundtable discussion with the staff. He was, however, cut short in his presentation by the surveyor team leader, Brad, who later reported to Victor, Matt’s manager, that Matt should not be discussing how to save a dental clinic by opening a car wash. Matt received a reprimand from Victor and was removed at the end of day 4 of a 5-day survey without explanation.

—Anonymous

Discussion

Discuss Matt’s approach to addressing the staff’s concerns for saving the children’s dental clinic.

If Matt’s roundtable session led to saving the clinic, was Matt’s reprimand worth the risk if he could have foreseen the resulting reprimand?

The goal of a consequentialist is to achieve the greatest good for the greatest number. Discuss how this applies in this Reality Check.

Utilitarian Ethics

Happiness often sneaks in a door you did not think was open.

—Author Unknown

The utilitarian theory of ethics involves the concept that the moral worth of an action is determined solely by its contribution to overall usefulness. It describes doing the greatest good for the greatest number of people. It is thus a form of
consequential ethics, meaning that the moral worth of an action is determined by its outcome, and, thus, the ends justify the means. The utilitarian commonly holds that the proper course of an action is one that maximizes utility, commonly defined as maximizing happiness and reducing suffering, as noted in the following
Reality Check.

Maximizing Happiness and Reducing Suffering

Daniel was the last of five people interviewed for the CEO’s position at Anytown Medical Center. During the interview, a member of the finance committee asked, “Daniel, how would you maximize an allocation of $100,000 to spend as you wished for improving patient care, aside from capital budget and construction projects?” Bishop Paul, the board chairman, added, “Daniel, think about the question. I will give you five minutes to form an answer.” Daniel responded, “Bishop Paul, I am ready to answer your question now.” The trustees looked somewhat surprised, as Bishop Paul quickly responded with a smile, “You may proceed with your answer.” Daniel replied, “An old Chinese proverb came to mind as quickly as the question was asked: ‘Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime.’ You are interviewing me as CEO of your hospital. I see my job as assuring you that employees are thoroughly trained to care for the patients the hospital serves. I will maximize the value of each and every dollar by determining skill sets that the staff are lacking and retraining staff in the areas where deficiencies are noted.”

Bishop Paul looked around the long oval table at the trustees. “This has been a long day and a grueling interview process for Daniel. Are there any other questions you would like to ask him?” There was silence as the trustees shook their heads. Bishop Paul looked at Daniel and thanked him for his interest in becoming the hospital’s next CEO.

As Daniel began to leave the boardroom, Bishop Paul smiled and turned his swivel chair around as Daniel was walking toward the exit and asked, “Daniel, could I ask that you not leave the building just yet? If you could, just wait
outside the room and have a seat in the doctors’ lounge area.” After about 20 minutes, a trustee went into the lounge where Daniel was sitting and asked him to return to the boardroom. As he entered the room, Bishop Paul stood up and looked at Daniel straight in his eyes and said, “Daniel, you were the last to be interviewed because you were on the short list of candidates selected to be interviewed. Speaking for the board, your response to the last question was merely icing on the cake confirming our interest in you joining our staff. Both the Board of Trustees and members of the Medical Executive Committee unanimously have recommended you as our CEO, with which I unconditionally concur! Welcome to Anytown Hospital.” The trustees stood and clapped their hands. The bishop turned to the trustees and said, “Wow, that’s a first.”

—Anonymous

Discussion

Discuss how Daniel’s response to the trustee’s question of how he would spend the $100,000 fits the utilitarian theory of ethics.

Did Daniel, metaphorically speaking, succeed in maximizing happiness in the eyes of the board? Discuss your answer.

Deontological Ethics

Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.

—Immanuel Kant

Deontological ethics is commonly attributed to the German philosopher Immanuel Kant (1724–1804). Kant believed that although doing the right thing is good, it might not always lead to or increase the good and right thing sought after. It focuses on one’s duties to others and others’ rights. It includes telling the truth and keeping your promises. Deontology ethics is often referred to as duty-based ethics. It involves ethical analysis according to a moral code or rules, religious or secular.
Deon is derived from the Greek word meaning “duty.” Kant’s theory differs from consequentialism in that consequences are not the determinant of what is right; therefore, doing the right thing may not always lead to an increase in what is good.

Duty-based approaches are heavy on obligation, in the sense that a person who follows this ethical paradigm believes that the highest virtue comes from doing what you are supposed to do—either because you have to, for example, following the law, or because you agreed to, for example, following an employer’s policies. It matters little whether the act leads to good consequences; what matters is “doing your duty.”

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The following
Reality Check illustrates how duty-based ethics focuses on the act and not the consequences of an act.

Duty Compromises Patient Care

At 33 years of age, Daniel was the youngest administrator in New York State and was about to learn that adhering to company policy sometimes conflicts with the needs of the patient. In this case, it was a 38-year-old employee who had been diagnosed with cancer. He remembers the day well, even though it was more than 30 years ago. His secretary alerted him that Carol, a practical nurse and employee, had been admitted to the 3-North medical-surgical unit, where she worked. Without delay, he left his office and went to the nursing unit and inquired as to what room Carol was in. Beth, the unit’s nurse manager, overheard the question. She walked up and asked, “Daniel, could I please talk to you for a moment before you visit with Carol?” He looked at her and nodded yes and without thought, they both walked to her office. She closed the door and said, “As you know, we are self-insured, and the health insurance program we have does not cover Carol’s chemotherapy treatments. She cannot bear the cost. Is there anything you can do to help her?” Daniel replied that he would make an inquiry with the human resources director to see what could be done.

Beth asked, “Would you mind if I went with you to Carol’s room for a few minutes?” Daniel compassionately replied, “Of course you can.”

They walked to Carol’s room. Her husband and children had just left. Beth stayed for only a few minutes, and while Daniel remained behind, chatting with Carol for a few moments, and said he would be back to talk with her more.

Daniel went to speak with Christine, the hospital’s human resources director. There were two other hospitals in the multihospital system. He explained Carol’s financial situation and her lack of funds for chemotherapy treatment. Christine replied, “Daniel, this is corporate policy that is applicable to all three hospitals with which we must comply. We do not include chemotherapy treatment in the hospital’s self-insurance plan for employees.” Following much discussion, Daniel said, “Christine, Carol is an employee, and I realize there are conflicting duties here. One is to follow corporate policy, and the other is to choose to do, as I see it, what is right for Carol. If you prefer, I can request an exception to the rule. To me, right trumps duty.” Christine looked at Daniel and said, “Daniel, I will see what I can do. I have a good relationship with the corporate vice president for human resources. If anyone can make an exception, he can make it happen. I know you would do the same for me and any other employee.”

—Anonymous

Discussion

Discuss the potential long-term effect of granting an exception for Carol.

Do you believe that duty should be trumped by good? Discuss your answer.

Would you describe Daniel as consequentialist because he favors evaluating the outcome of an act rather than the act itself? Discuss your answer.

Discuss how deontological ethics in this case is in conflict with consequential thinking.

Nonconsequential Ethics

The
nonconsequential ethical theory denies that the consequences of an action are the only criteria for determining the morality of an action. In this theory, the rightness or wrongness of an action is based on properties intrinsic to the action, not on its consequences. In other words, the nonconsequentialist believes right or wrong depends on the intention, not the outcome.

Bad Outcome, Good Intentions

Chelsea was preparing to drape Mr. Smith’s leg in OR 6 for surgery, when she was approached by Nicole, the nurse manager, and asked, “Chelsea, please come to OR 3. We have an emergency there and urgently need your skills to assist the surgeon.” Chelsea turned to Daniel, the surgical technician, and asked him to continue prepping Mr. Smith’s leg for surgery. Daniel prepped the leg prior to the surgeon entering the room. The surgeon entered the room a few minutes later and asked, “Where is Chelsea?” Daniel replied, “She was called away for an emergency in OR 3. Karen will be in shortly to assist us.”

Following surgery, Mr. Smith was transferred to the recovery room. While he was in the recovery room, a nurse was looking at the patient’s medical record as to the notes regarding the patient’s procedure during surgery. She noticed that surgery was conducted on the wrong leg.

Although there was heated discussion between the surgeon and nursing staff, each member of the staff had good intentions, but the outcome was not so good. Nonconsequentialists believe that right or wrong depends on the intention. They generally focus more on deeds and whether those deeds are good or bad. In this case, the intentions were good, but the outcome was bad. It should be noted that nonconsequentialists do not always ignore the consequences. They accept the fact that sometimes good intentions can lead to bad outcomes. In summary, nonconsequentialists focus more on character as to whether someone is a good person or not. Nonconsequentialists believe that right or wrong depends on the intention. Generally, the consequentialist will focus more on outcomes as to whether or not they are good or bad.

Discussion

Describe how the nonconsequential theory of ethics applies in this case.

What questions might the consequentialist raise after reviewing the facts of this case?

Ethical Relativism

The theory of
ethical relativism holds that morality is relative to the norms of the culture where one lives. In other words, right or wrong depends on the moral norms of the society in which it is practiced. A particular action by an individual may be morally right in one society or culture and wrong in another. What is acceptable in one society may
not be considered as such in another. Slavery may be considered an acceptable practice in one society and unacceptable and unconscionable in another. The administration of blood may be acceptable as to one’s religious beliefs and not acceptable to another within the same society. The legal rights of patients vary from state to state, as is well borne out, for example, by Oregon’s Death with Dignity Act. Caregivers must be aware of cultural, religious, and legal issues that can affect the boundaries of what is acceptable and what is unacceptable practice, especially when delivering health care to persons with beliefs different from their own. As the various cultures of the world merge together in communities, the education and training of caregivers become more complex. The caregiver must not only grasp the clinical skills of his or her profession but also have a basic understanding of what is right and what is wrong from both a legal and an ethical point of view. Although decision making is not always perfect, the knowledge gained from this text will aid the reader in making better decisions.

PRINCIPLES OF ETHICS

You cannot by tying an opinion to a man’s tongue, make him the representative of that opinion; and at the close of any battle for principles, his name will be found neither among the dead, nor the wounded, but the missing.

—E. P. Whipple (1819–1886)

An army of principles can penetrate where an army of soldiers cannot.

—Thomas Jefferson

Ethical principles are universal rules of conduct, derived from ethical theories that provide a practical basis for identifying what kinds of actions, intentions, and motives are valued. Ethical principles assist caregivers in making choices based on moral principles that have been identified as standards considered meaningful when addressing health care–related ethical dilemmas. As noted by the principles discussed in the following sections, caregivers, in the study of ethics, will find that difficult decisions often involve choices between conflicting ethical principles.

Autonomy

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestioned authority of law.

—
Union Pacific Ry. Co. v. Botsford [141 U.S. 250, 251 (1891)]

The principle of
autonomy involves recognizing the right of a person to make one’s own decisions. “Auto” comes from a Greek word meaning “self” or the “individual.” In this context, it means recognizing an individual’s right to make his or her own decisions about what is best for him- or herself. Autonomy is not an absolute principle. The autonomous actions of one
person must not infringe upon the rights of another. The eminent Justice Benjamin Cardozo, in
Schloendorff v. Society of New York Hospital, stated:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages, except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained.

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Each person has a right to make his or her own decisions about health care. A patient has the right to refuse to receive health care even if it would be beneficial to saving his or her life. Respect for autonomy has been recognized in the Fourteenth Amendment to the Constitution of the United States. The law upholds an individual’s right to make healthcare decisions. Patients can refuse treatment, refuse to take medications, and refuse invasive procedures regardless of the benefits that may be derived from them. They have a right to have their decisions adhered to by family members who may disagree simply because they are unable to let go. Although patients have a right to make their own choices, they also have a concomitant right to know the risks, benefits, and alternatives to recommended procedures.

Autonomous decision making can be affected by one’s disabilities, mental status, maturity, or incapacity to make decisions. Although the principle of autonomy may be inapplicable in certain cases, one’s autonomous wishes may be carried out through an advance directive and/or an appointed healthcare agent in the event of one’s inability to make decisions.

What happens when the right to autonomy conflicts with other moral principles, such as beneficence and justice? Conflict can arise, for example, when a patient refuses a blood transfusion considered necessary to save his or her life whereas the caregiver’s principal obligation is to do no harm. Determining the right thing to do in any given circumstance is not always an easy decision, as noted in the following
Reality Check where the husband decides to withhold his wife’s prognosis.

Spouse’s Grief Leads to Withholding the Truth

Annie, a 27-year-old woman with one child, began experiencing severe pain in her abdomen while visiting her family in May. After describing the excruciating pain to her husband, Daniel, he scheduled Annie for an appointment with Dr. Sokol, a gastroenterologist, who ordered a series of tests. While conducting a barium scan, a radiologist at Community Hospital noted a small bowel obstruction. Dr. Sokol recommended surgery, to which both Annie and Daniel agreed.

After the surgery, on July 7, Dr. Brown, the operating surgeon, paged Daniel over the hospital intercom as he walked down a corridor on the ground floor. Daniel, hearing the page, picked up a house phone and dialed zero for an operator. The operator inquired, “May I help you?” “Yes,” Daniel replied. “I was just paged.” The operator replied, “Oh, yes. Dr. Brown would like to talk to you. I will connect you with him. Hang on. Don’t hang up.” (Daniel’s heart began to pound.) Dr. Brown asked, “Is this you, Daniel?” Daniel replied, “Yes, it is.” Dr. Brown replied, “Well, surgery is over. Your wife is recovering nicely in the recovery room.” Daniel was relieved, but only for a moment; he sensed Dr. Brown had more to say. Dr. Brown continued, “I am sorry to say that she has carcinoma of the colon.” Daniel replied, “Did you get it all?” Dr. Brown reluctantly replied, “I am sorry, but the cancer has spread to her lymph nodes and surrounding organs.” Daniel, with tears in his eyes, asked, “Can I see her?” Dr. Brown replied, “She is in the recovery room.” Before hanging up, Daniel told Dr. Brown, “Please do not tell Annie that she has cancer. I want her to always have hope.” Dr. Brown agreed, “Don’t worry, I won’t tell her. You can tell her that she had a narrowing of the colon.”

Daniel hung up the phone and proceeded to the recovery room. After entering the recovery room, he spotted his wife. His heart sank. Tubes seemed to be running out of every part of her body. He walked to her bedside. His immediate concern was to see her wake up and have the tubes pulled out so that he could take her home.

Later, in a hospital room, Annie asked Daniel, “What did the doctor find?” Daniel replied, “He found a narrowing of the colon.”

“Am I going to be okay?”

“Yes, but it will take a while to recover.”

“Oh, that’s good. I was so worried,” said Annie. “You go home and get some rest.”

Daniel said, “I’ll be back later,” as Annie fell back to sleep.

Daniel left the hospital and went to see his friends, Jerry and Helen, who had invited him for dinner. As Daniel pulled up to Jerry and Helen’s home, he got out of his car and just stood there, looking up a long stairway leading to
Jerry and Helen’s home. They were standing there looking down at Daniel. It was early evening. The sun was setting. A warm breeze was blowing, and Helen’s eyes were watering. Those few moments seemed like a lifetime. Daniel discovered a new emotion, as he stood there speechless. He knew then that he was losing a part of himself. Things would never be the same.

Annie had one more surgery 2 months later in a futile attempt to extend her life. In November 2002, Annie was admitted to the hospital for the last time. Annie was so ill that even during her last moments she was unaware that she was dying.

Dr. Brown entered the room and asked Daniel, “Can I see you for a few moments?”

“Yes,” Daniel replied. He followed Dr. Brown into the hallway.

“Daniel, I can keep Annie alive for a few more days, or we can let her go.” Daniel, not responding, went back into the room. He was now alone with Annie. Shortly thereafter, a nurse walked into the room and gave Annie an injection. Daniel asked, “What did you give her?” The nurse replied, “Something to make her more comfortable.” Annie had been asleep; she awoke, looked at Daniel, and said, “Could you please cancel my appointment to be sworn in as a citizen? I will have to reschedule. I don’t think I will be well enough to go.”

Daniel replied, “Okay, try to get some rest.” Annie closed her eyes, never to open them again.

Discussion

Do you agree with Daniel’s decision not to tell Annie about the seriousness of her illness? Explain your answer.

Should the physician have spoken to Annie as to the seriousness of her illness regardless of Daniel’s desire to give Annie hope and not a death sentence? Explain your answer.

Describe the ethical dilemmas in this case (e.g., how Annie’s rights were violated).

Place yourself in Annie’s shoes, the physician’s shoes, and Daniel’s shoes, and then discuss how the lives of each may have been different if the physician had informed Annie as to the seriousness of her illness.

This case raises numerous questions, often resulting in conflicts among ethics, the law, patient rights, and family wishes. From a professional ethics point of view, the American Medical Association provides in its
Principles of Medical Ethics that:

IV. A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.

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Legally, pursuant to the Patient Self-Determination Act of 1990, patients have a right to make their own healthcare decisions, to accept or refuse medical treatment, and to execute an advance healthcare directive. Practically speaking, as discussion of this case illustrates, one size does not fit all. Both legal and ethical edicts have often served to raise an unending stream of questions that involve both the law and ethics. Although discussed later, a case here has been made for the need of a well-balanced ethics committee to help caregivers, patients, and family come to a consensus in the decision-making process.

Life or Death: The Right to Choose

A Jehovah’s Witness in
Stamford Hospital v. Vega

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executed a release requesting that no blood or its derivatives be administered during hospitalization. The Connecticut Superior Court determined that the hospital had no common law right or obligation to thrust unwanted medical care on the patient because she had been sufficiently informed of the consequences of the refusal to accept blood transfusions. She had competently and clearly declined that care. The hospital’s interests were sufficiently protected by her informed choice, and neither it nor the trial court in this case was entitled to override that choice. “Thus, under the facts of this case, Vega’s common law right of bodily self-determination was entitled to respect and protection. The trial court, therefore, improperly issued an injunction that permitted the hospital to administer blood transfusions to Vega.”

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Beneficence

Beneficence describes the principle of doing good, demonstrating kindness, showing compassion, and helping others. In the healthcare setting, caregivers demonstrate beneficence by providing benefits and balancing benefits against risks. Beneficence requires one to do good. Doing good requires knowledge of the beliefs, culture, values, and preferences of the patient—what one person may believe to be good for a patient may in reality be harmful. For example, a caregiver
may decide to tell a patient frankly, “There is nothing else that I can do for you.” This could be injurious to the patient if the patient really wants encouragement and information about care options from the caregiver. Compassion here requires the caregiver to tell the patient, “I am not aware of new treatments for your illness; however, I have some ideas about how I can help treat your symptoms and make you more comfortable. In addition, I will keep you informed as to any significant research that may be helpful in treating your disease processes.”

Paternalism

Paternalism is a form of beneficence. People sometimes believe that they know what is best for another and make decisions that they believe are in that person’s best interests. It may involve, for example, withholding information, believing that the person would be better off that way. Paternalism can occur because of one’s age, cognitive ability, and level of dependency. A patient’s rights to self-determination are compromised when a third party imposes their wishes upon those of another person.

CPR and Paternalism in Nursing Homes

Some nursing homes have implemented no-CPR policies, as noted in the following Centers for Medicare and Medicaid Services Memorandum. Nursing home patients have a right to make their own care decisions. Having a policy of no resuscitation measures in the nursing home setting is a paternalistic approach to patient care that eliminates patients’ option to make that decision for themselves—a clear violation of patients’ rights and autonomous decision making. Such policies are unconditionally morally and legally wrong.

Memorandum Summary

Initiation of CPR—Prior to the arrival of emergency medical services (EMS), nursing homes must provide basic life support, including initiation of CPR, to a resident who experiences cardiac arrest (cessation of respirations and/or pulse) in accordance with that resident’s advance directives or in the absence of advance directives or a Do Not Resuscitate (DNR) order. CPR-certified staff must be available at all times.

Facility CPR Policy—Some nursing homes have implemented facility-wide no-CPR policies. Facilities must not establish and implement facility-wide no-CPR policies.

Surveyor Implications—Surveyors should ascertain that facility policies related to emergency response require staff to initiate CPR as appropriate and that records do not reflect instances where CPR was not initiated by staff even though the resident requested CPR or had not formulated advance directives.

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Physicians and Paternalism

Medical paternalism often involves physicians unwittingly making decisions for patients who are capable of making their own choices. Physicians often find themselves in situations where they can influence a patient’s healthcare decision simply by selectively telling the patient what he or she prefers based on personal beliefs. This directly violates patient autonomy. The problem of paternalism involves a conflict between the principles of autonomy and beneficence, each of which may be viewed and weighed differently, for example, by the physician and patient, physician and family member, or even the patient and a family member.

Paul Ramsey in
The Patient as Person (1970) discusses the question of paternalism. As physicians are faced with many options for saving lives, transplanting organs, and furthering research, they also must wrestle with new and troubling choices—for example, who should receive scarce resources (e.g., organ transplants), determining when life ends, and what limits should be placed on care for the dying.

Dr. David S. Brody describes in the November 1980 issue of the
Annals of Internal Medicine how physicians have traditionally played a paternalistic role in the delivery of patient care. He writes that physicians today must bear in mind the autonomous right of patients to participate in the decision-making process.

Practicing physicians must frequently make decisions about how much they wish to encourage patient participation in clinical decision-making and how to respond to rational patient demands that do not coincide with their own decisions. These are difficult ethical dilemmas with no indisputable or universal solutions. The traditional concept of the doctor-patient relationship places the patient in a passive, compliant role. The patient’s only obligation is to seek competent help and cooperate with the physician. A number of factors have contributed to the continued dominance of the traditional doctor-patient imbalance of power. Despite these factors, there seems to be a great deal of public dissatisfaction with health care delivery in the United States; demands for more patient autonomy are increasing.

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Ultimately, as determined by court decisions, it is the patient’s right to know and choose what course of treatment they wish to pursue without undue pressure from the physician.

Employment-Related Paternalism

Employment-related paternalism at its best is a shared and cooperative style of management in which the employer recognizes and considers employee rights when making decisions in the workplace. Paternalism at its worst occurs when the employer’s style of management becomes more authoritarian, sometimes arbitrary, and unpredictable, as noted in the
Reality Check presented next. In this scenario the employer has complete discretion in making workplace decisions and the individual employee’s freedom is subordinate to the employer’s authority. Here the employer requires strict obedience to follow orders without question. The supervisor in this case illustrated a lack of respect and consideration for the employee in a place remote from his office.

Paternalism and Breach of Confidentiality

Nina traveled with her husband, Dan, to his work assignment at a hospital in Michigan so that she could visit her brother, who lived nearby. While visiting with her brother, Nina believed that her potassium was low—a frequent occurrence with her for many years. Nina’s brother suggested she could have her blood tested at a local blood drawing station. Dan later learned Nina’s potassium was low; he confided this to a colleague, a nurse named Joan, who’d asked how his wife was doing.

Later that morning, while at work, Joan called Bill, Dan’s supervisor, to discuss Nina’s health. Bill, however, had overslept and had not yet arrived at work. Joan decided to speak to the supervisor on call. After that conversation, Joan tracked Dan down on several occasions that morning by asking staff members his whereabouts. On the first occasion, at approximately 10:15 AM, Dan was surveying the organization’s Oncology Infusion Center when Joan arrived. She called Dan aside, excusing the organization’s staff from the immediate area, and said with surprise, “Dan, you are working?” Dan, even more surprised at the question, “Yes, I have been working.” Joan replied, “Well, anyway, the corporate office wants to speak to you.” Dan said he would call during lunch hour. Joan, somewhat agitated, walked away.

Joan again tracked Dan down once again with the help of the organization’s staff at 11:30 AM. She located Dan while he was in the organization’s transfusion center. She entered the conference room where Dan was discussing the care being rendered to a cancer patient. She said in a stern tone of voice, “Could everyone please leave the room. I need to talk to Dan.” The organization’s staff left the room, and Joan said, “I finally reached Bill and he wants you to call him.” Dan inquired, “Is he pulling me off this assignment?” Joan replied, “Yes, he is. I spoke to Bill, and he has decided that out of concern for Nina, you should be removed from this particular assignment. He wants you to call him.” Dan replied, “I don’t understand why you did this—calling Bill, continually interrupting my work, and sharing confidential information about my wife with others. I will wrap up with the staff my review of this patient and call Bill.” As Joan left the conference room, Dan added, “I trusted you, and you shared confidential information about my wife?” Joan, realizing that she had no right to share the information, quickly walked away.

Dan called Bill during his lunch break. During that call Bill said, “I am going to remove you from your assignment because I think your wife’s health needs should be addressed, and this could be disruptive to the survey.” Dan replied, “The only disruption has been the nurse tracking me down with staff from the organization and not conducting her work activities.” Bill said, “My decision stands. You can opt to take vacation time for the remainder of the week.”

Discussion

Discuss what examples of paternalism you have gleaned from this case.

Discuss the issues of trust, confidentiality, and fairness as they relate to this case.

At present, the federal employment discrimination laws fail to provide uniform and consistent legal protection when an employer engages in applicant-specific paternalism—the practice of excluding an applicant merely to protect that person from job-related safety and/or health risks uniquely attributable to his or her federally protected characteristic(s). Under Title VII of the Civil Rights Act of 1964, the courts and the Equal Employment Opportunity Commission (EEOC) reject such paternalism, demanding that the applicant alone decide whether to pursue (and accept) a job that poses risks related to his or her sex, race, color, religion, or national origin.

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Case Studies

Can a Physician “Change His or Her Mind”?

Bill Walls had a condition that caused his left eye to be out of alignment with his right eye. Walls discussed with Dr. Shreck, his physician, the possibility of surgery on his left eye to bring both eyes into alignment. Walls and Shreck agreed that the best approach to treating Walls was to attempt surgery on the left eye. Before surgery, Walls signed an authorization and consent form that included the following language:

I hereby authorize Dr. Shreck … to perform the following procedure and/or alternative procedure necessary to treat my condition … of the left eye.

I understand the reason for the procedure is to straighten my left eye to keep it from going to the left.

It has been explained to me that conditions may arise during this procedure whereby a different procedure or an additional procedure may need to be performed, and I authorize my physician and his assistants to do what they feel is needed and necessary.

During surgery, Shreck encountered excessive scar tissue on the muscles of Walls’s left eye and elected to adjust the muscles of the right eye instead. When Walls awoke from the anesthesia, he expressed anger at the fact that both of his eyes were bandaged. The next day, Walls went to Shreck’s office for a follow-up visit and adjustment of his sutures. Walls asked Shreck why he had operated on the right eye, and Shreck responded that “he reserved the right to change his mind” during surgery.

Walls filed a lawsuit. The trial court concluded that Walls had failed to establish that Shreck had violated any standard of care. It sustained Shreck’s motion for directed verdict, and Walls appealed. The court stated that the consent form that had been signed indicated that there can be extenuating circumstances when the surgeon exceeds the scope of what was discussed presurgery. Walls claimed that it was his impression that Shreck was talking about surgeries in general.

Dr. Roussel, an ophthalmologist, had testified on behalf of Walls. Roussel stated that it was customary to discuss with patients the potential risks of a surgery, benefits, and the alternatives to surgery. Roussel testified that medical ethics requires informed consent.

Dr. Shreck claimed that he had obtained the patient’s informed consent not from the form but from what he discussed with the patient in his office. The court found that the form itself does not give or deny permission for anything. Rather, it is evidence of the discussions that occurred and during which informed consent was obtained. Shreck therefore asserted that he obtained informed consent to operate on both eyes based on his office discussions with Walls.

Ordinarily, in a medical malpractice case, the plaintiff must prove the physician’s negligence by expert testimony. One of the exceptions to the requirement of expert testimony is the situation whereby the evidence and the circumstances are such that the recognition of the alleged negligence may be presumed to be within the comprehension of laypersons. This exception is referred to as the “common knowledge exception.”

The evidence showed that Dr. Shreck did not discuss with Walls that surgery might be required on both eyes during the same operation. There was evidence that Walls specifically told Shreck he did not want surgery performed on the right eye.

Expert testimony was not required to establish that Walls did not give express or implied consent for Shreck to operate on his right eye. Absent an emergency, it is common knowledge that a reasonably prudent healthcare provider would not operate on part of a patient’s body if the patient told the healthcare provider not to do so.

On appeal, the trial court was found to have erred in directing a verdict in favor of Shreck. The evidence presented established that the standard of care in similar communities requires healthcare providers to obtain informed consent before performing surgery. In this case, the applicable standard of care required Shreck to obtain Walls’s express or implied consent to perform surgery on his right eye.

[
Walls v. Shreck, 658 N.W.2d 686 (2003)]

Ethical and Legal Issues

Discuss the conflicting ethical principles in this case.

Did the physician’s actions in this case involve medical paternalism? Explain your answer.

Abusing Assisted Suicide Laws

The debate surrounding legalizing assisted suicide is largely cast as one focusing on an individual who genuinely wants to end his or her life because of the pain and suffering they’re experiencing due to a terminal medical condition. But this issue is wholly different—the possible cold-blooded and brutal abuse of those laws by bureaucrats in insurance companies against patients whom they determine are too expensive to keep alive.

And then there are the doctors. Healers who pledge to do no harm are now facing a system which will eventually expect them to do just that.

—Tammy Bruce,
The Washington Times, June 7, 2017

Nonmaleficence

Nonmaleficence is an ethical principle that requires caregivers to avoid causing patients harm. It derives from the ancient maxim
primum non nocere, translated from the Latin, “first, do no harm.” Physicians today still swear by the code of Hippocrates, pledging to do no harm. Medical ethics requires healthcare providers to “first, do no harm.” A New Jersey court in
In re Conroy

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found that “the physician’s primary obligation is … First do no harm.” Telling the truth, for example, can sometimes cause harm. If there is no cure for a patient’s disease, you may have a dilemma. Do I tell the patient and possibly cause serious psychological harm, or do I give the patient what I consider to be false hopes? Is there a middle ground? If so, what is it? To avoid causing harm, alternatives may need to be considered in solving the ethical dilemma.

The caregiver, realizing that he or she cannot help a particular patient, attempts to avoid harming the patient. This is done as a caution against taking a serious risk with the patient or doing something that has no immediate or long-term benefits.

Law and Ethics Intersect

Peninsula Child Psychiatrist William Ayres Sentenced to Eight Years for Molesting Patients

REDWOOD CITY—As one victim after another testified, calling William Ayres a monster and a serial child-abuser who robbed them of their innocence, the once-renowned child psychiatrist sat stoically Monday as a judge sentenced him to eight years in prison for molesting his former patients.

Ayres used his work with boys having trouble at school, at home or with the law as a setting to abuse them, the victims said. His position of authority allowed him to deflect suspicions about his sexual interest in boys and keep parents from believing their sons’ complaints, victims said.

—Joshua Melvin,
San Jose Mercury News, August 27, 2013

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The patients described in the news clippings were harmed because the physician who was trained to do good did wrong by taking advantage of the patients’ weaknesses. The beneficent person does good and not harm (nonmaleficence). The law in the news clipping is clear. If a person with intent and action causes harm to the patient, that person will be punished.

One of the many lessons in the next
Reality Check teaches the reader that one may have good intent, but that intent can lead to a perceived wrong and thus be damaging to one’s good character and possibly one’s career path.

Patient Questions Physical Exam

Dear Sir:

I was a patient on your short-term acute-care psychiatric unit. It was a voluntary admission, as is the case with all patients on that unit. Dr. X was my psychiatrist. Although he was very good as a psychiatrist, I was somewhat disturbed in the way he conducted my physical examination. He had come to my room on the day of my admission and said that he needed to perform a physical exam. He had already conducted a thorough history of my physical ailments and thoroughly reviewed my family history as far back as I could remember.

We were in the room alone when he entered. He had a gown in his hand and asked me to put it on. He walked out of the room and said he would be back in a few minutes. When he returned, he began to conduct a physical examination. Early on in the exam, he asked when I had my last breast examination. I told him that I was 28 and never had one. He said, “Well, I’d better do one.” I thought it was a bit odd that he conducted the exam without a female nurse
present. I became more concerned when he touched my breasts in what I considered a sensual manner. It was uncanny. It seemed to be a bit more than what I would’ve expected during a breast examination. He seemed to be caressing my breasts, as opposed to examining them. I don’t know if this is a routine procedure, but I was very uncomfortable in the situation. I think it would be better if you considered having a female nurse present when conducting female examinations in a patient room on a psychiatric unit or on any other unit for that matter.

Thanks for listening to my concerns.

—Anonymous

Administrator

I called Dr. X into my office and discussed the patient’s concerns with him. He said this is what physicians are trained to do. “We are trained to conduct both history and physical examinations.” He had brought with him a letter from one of his professional associations that stated psychiatrists are permitted to perform physical examinations on their patients. I asked him why he did not have someone in the room with him when he examined the patient. He stated, “I generally do, but I was extremely busy, and the staff was swamped with other patients. It was just a hectic day.”

Discussion

Discuss how you would respond to the patient.

Describe how you would resolve this issue with the physician, assuming this was the first complaint that you had received regarding his care.

Explain what policy decisions you would implement.

Knowing that the physician is in a position of trust with his patient, discuss what action the physician should take to prevent complaints of this nature from recurring.

The intersection of “law” and “ethics” is clear. Deviation from either can lead to unsatisfactory outcomes for both physicians and patients. Although a caregiver may be trained to conduct a physical examination, the question may not be “can I do it?” but “should I do it?”

Tuskegee Syphilis Experiment

The Tuskegee syphilis experiment, conducted by the U.S. Public Health Service between 1932 and 1972, was designed to analyze the natural progression of untreated syphilis in African American men. The participants were not warned during the study that penicillin was available as the cure for syphilis. They believed that they were receiving adequate care and unknowingly suffered unnecessarily. The Tuskegee syphilis study used disadvantaged, rural black men to investigate the untreated course of the disease, one that is by no means confined to that population. The study should have recognized from the beginning that selection of research subjects, regardless of race, must be closely monitored to ensure that specific classes of individuals (e.g., terminally ill patients, welfare patients, racial and ethnic minorities, or persons confined to institutions) are not selected for research studies based on their availability, compromised position, or manipulability. Rather, they must be selected for reasons directly related to the research being conducted. The ethical principle of
nonmaleficence requires all people to avoid causing harm. In this case, the failure to alert those involved in the research study that a cure was available was both ethically and legally wrong.

Nonmaleficence and Ending Life

The principle of nonmaleficence is defeated when a physician is placed in the position of ending life by removing respirators, giving lethal injections, or writing prescriptions for lethal doses of medication. Helping patients die violates the physician’s duty to save lives. In the final analysis, there needs to be a distinction between killing patients and letting them die. It is clear that killing a patient is never justified.

Justice

Justice is the obligation to be fair in the distribution of benefits and risks. Justice demands that persons in similar circumstances be treated similarly. A person is treated justly when he or she receives what is due, is deserved, or can legitimately be claimed. Justice involves how people are treated when their interests compete with one another.

Distributive justice is a principle requiring that all persons be treated equally and fairly. No one person, for example, should get a disproportional share of society’s resources or benefits. There are many ethical issues involved in the rationing of health care. This is often a result of limited or scarce resources,
limited access as a result of geographic remoteness, or a patient’s inability to pay for services combined with some physicians unwilling to accept patients who are perceived as “no-pays” with high risks for legal suits.

Senator Edward M. Kennedy, speaking on health care at the John F. Kennedy Presidential Library in Boston, Massachusetts, on April 28, 2002, stated:

It will be no surprise to this audience that I believe securing quality, affordable health insurance for every American is a matter of simple justice. Health care is not just another commodity. Good health is not a gift to be rationed based on ability to pay. The time is long overdue for America to join the rest of the industrialized world in recognizing this fundamental need.

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Later, speaking at the Democratic National Convention on August 25, 2008, Kennedy said:

And this is the cause of my life—new hope that we will break the old gridlock and guarantee that every American—North, South, East, West, young, old—will have decent, quality health care as a fundamental right and not a privilege.

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Although Senator Kennedy did not live to see the day his dream would come true, President Barack Obama signed into law the final piece of his administration’s historic healthcare bill on March 23, 2010. The law, however, has yet to provide the coverage as described by the late Senator Kennedy and remains a political football in Congress.

The costs of health care have bankrupted many, and research dollars have proven to be inadequate, yet many members of Congress elected to address the needs of the country have chosen to continue their bipartisan bickering while they “enjoy” the lowest acceptance ratings in the nation’s history. They have, however, ensured that their own healthcare needs are met with the best of care in the best facilities with the best doctors. They have taken care of themselves. Their pensions are intact, whereas many Americans have to face such dilemmas as which medications they will take and which they cannot afford. Many Americans often have to decide between food and medications, with life-and-death consequences. Is this justice or theft of the nation’s resources by the few incompetents who have been elected to protect the American people? Unfortunately, these problems continue to this day as Congress continues to wrangle over national health insurance.

Justice and Government Spending

He Won His Battle With Cancer. Why Are Millions of Americans Still Losing Theirs?

For an increasing number of cancer activists, researchers, and patients, there is too much death and too much waiting for new drugs and therapies. They want a greater sense of urgency, a new approach that emphasizes translational research over basic research—turning knowledge into therapies and getting them to patients pronto. The problem is, that’s not the way our sclerotic research paradigm—principally administered by the National Institutes of Health and the National Cancer Institute (NIH/NCI)— is set up. “The fact that we jump up and down when cancer deaths go from 562,000 to 561,000, that’s ridiculous. That’s not enough,” says Lance Armstrong, the cyclist and cancer survivor turned activist, through his Lance Armstrong Foundation (LAF).

—
Time, September 15, 2008

Limited financial resources are challenging to the principles of justice. Justice involves equality; nevertheless, equal access to health care is at best a hope, a dream, and a promise to which all are committed on both sides of the political spectrum. A pathway to achieving this goal remains controversial. With total U.S. health spending costing over $10,000 per person,

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,

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how should healthcare dollars be allocated between healthcare education, preventative care, healthcare insurance programs (e.g., Medicare, Medicaid, Indian Health Services, TRICARE, Veterans Health Administration) for curative care, rehabilitation programs, long-term care, and research. [Note: There is no accurate, foolproof way to know what people spend on health care. For example, added unknown costs include over-the-counter drugs, questionable health supplements and vitamins, among many other expenses that are difficult to track, such as travel and transportation to a practitioner or healthcare facility.] The “U.S. federal budget deficit for fiscal year 2019 is $985 billion. FY 2019 covers October 1, 2018 through September 30, 2019. The deficit occurs because the U.S. government spending of $4.407 trillion is higher than its revenue of $3.422 trillion.”

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Considering the scarcity of resources for healthcare expenditures, who and what should the parameters be as to how to allocate scarce financial resources? If the parameter sets merely short-term objectives to maximize the health
benefits for the population served, some will receive a higher quality of care while others will receive, at best, satisfactory care. With an aging population, long-term care will require more funding, thus competing for dollars with education and prevention, which are the driving forces to ensure a healthier lifestyle. It will also compete with the research funding that over the long term will lead to lower costs of care associated with debilitating diseases that accompany the aging process. Education and prevention will improve the quality of life, as well as life expectancy, thus they more effectively address the quality of life for future generations. The funding allocation challenge remains as to how this generation will prioritize the need for a healthier lifestyle and allowing for improved funding for research activities that extends the quality of life. Justice in the distribution of limited dollars often results in fewer dollars for so-called orphan diseases (e.g., scleroderma, lupus), which are underfunded because they affect fewer people. Thus, the lion’s share of dollars continues to be directed toward research on diseases that affect the greater proportion of the population, leaving less for research on less widespread conditions.

There are many variables to take into consideration when determining how to distribute limited funds that will equally benefit all when there are other variables that must be considered that affect the quality of a healthy society. The obligation to be just and fair in the distribution of scarce resources is not an easy pathway to follow when there are so many competing interests in an ever-changing world. It would be easy to allocate funds if the formula for total
unfailing quality patient care would be: a + b + c = d (where a = unlimited resources for equipment, b = unlimited number of caregivers, c = sufficient facilities, and d = unfailing quality patient care). The formula for improving the health of the people may be much more complicated and written, with tongue in cheek, as: a
x + b
y + c
z + c
z − b
y − a log a (c
z − b
y) = d. To better understand the complexity of the first formula requires understanding that the factors necessary to deliver high-quality care are ever-expanding; for example:

It is not enough to merely have equipment; it must be high-quality equipment that improves patient outcomes.

It is not enough to have merely the “right” number of persons on staff; the individual staff members must also be competent enough to perform the assigned tasks.

It is not enough to have health facilities; they must be high-quality facilities.

Improving the health and well-being of the people is a moral concern. The careless allocation of scarce resources that are not cost-effective produces fewer benefits than would have been possible through the thoughtful and wise distribution of scarce resources. Because resources are limited, the allocation of funding must be equitable and just. Justice requires the fair distribution of limited funds, which is associated with the moral theories of
utilitarianism and
consequentialism.

Utilitarianism’s starting point is that we all attempt to seek happiness and avoid pain, and therefore our moral focus ought to center on maximizing happiness (or, human flourishing generally) and minimizing pain for the greatest number of people. This is both about what our goals should be and how to achieve them. Consequentialism asserts that determining the greatest good for the greatest number of people (the utilitarian goal) is a matter of measuring outcome, and so decisions about what is moral should depend on the potential or realized costs and benefits of a moral belief or action. This is largely about determining how to attain our goals, which are taken to be self-evident.

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In summary, the allocation of limited resources requires the appropriate distribution of funds that address the promotion of healthy lifestyles, improvement in education and training programs, building state-of-the-art safe healthcare facilities equipped with the latest medical equipment, research, and translational medicine.

States Have Double Standards

It is no secret that states have had double standards over the years—one for healthcare organizations and one for physicians and investors, who often duplicated the financially more lucrative hospital services while referring Medicaid patients and no-pays to hospital programs for care. As administrator of one hospital, allow me to give you a few examples:

A radiology group was able to purchase their own computed tomography (CT) scanner, while the hospital had to jump through hoops to be able to purchase one for the hospital.

A group of surgeons and private investors established an ambulatory surgery center in direct competition with the hospital without scrutiny. At the same time, the hospital was required to justify the hospital’s proposed surgery center. The hospital was required to complete lengthy questionnaires and gather supporting documentation to justify construction and operation of an outpatient surgery center.

The hospital had to justify opening an outpatient rehabilitation program within the hospital in order to provide a continuum of care for patients needing physical therapy services. While hospital staff was busy justifying the need for an outpatient rehabilitation program, orthopedic surgeons were busy setting up their own outpatient programs to compete with the hospital.

I remember walking to my car one day after work and one of my orthopedic surgeons caught up to me and said, “You know, Dan, I have made enough money in the 3 years that I have been on your staff to buy your hospital.”

Discussion

Discuss the issues of justice as they apply to this scenario.

Discuss the issues of fairness and how physician competition with hospitals can affect the quality of patient care.

Injustice for the Insured

Even if you’re insured, getting ill could bankrupt you. Hospitals are garnishing wages, putting liens on homes and having patients who can’t pay arrested. It’s enough to make you sick.

—Sara Austin

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Hospitals are receiving between $4 million and $60 million annually in charity funds in New York City alone, according to Elizabeth Benjamin, director of the health law unit of the Legal Aid Society of New York City; however, even the insured face injustice. In 2003, almost 1 million Americans declared bankruptcy because of medical issues, accounting for nearly half of all of the bankruptcies in the country. In 2016, a Kaiser Family Foundation poll found that nearly as many were declaring bankruptcy or struggling to pay medical bills despite expansion of affordable health insurance under the Affordable Care Act.

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When an insured patient gets ill and exhausts his or her insurance benefits, should the hospital be able to:

Withhold the money from the patient’s wages?

Place a lien on the patient’s home?

Arrest the patient?

Block the patient from applying for the hundreds of millions of dollars in government funds designated to help pay for care for those who need it?

According to an article that appeared in the
Journal of the American Medical Association entitled “Medical Bankruptcy in the United States, 2007: Results of a National Study,” “The US health care financing system is broken, and not only for the poor and uninsured. Middle-class families frequently collapse under the strain of a health care system that treats physical wounds, but often inflicts fiscal ones.”

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Not only are patients facing financial crisis and/or going bankrupt, hospitals are facing the same fate. As of September 2017, hospital bankruptcies totaled 22. Ayla Ellison, author of “22 Bankruptcies So Far in 2017,” writes in her article: “From reimbursement landscape challenges to dwindling patient volumes, many factors lead hospitals and other healthcare organizations to file for bankruptcy.”

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Age and Justice

New Kidney Transplant Rules Would Favor Younger Patients

The nation’s organ transplant network is considering giving younger, healthier people preference over older, sicker patients for the best kidneys.

Some also complain that the new system would unfairly penalize middle-aged and elderly patients at a time when the overall population is getting older.

If adopted, the approach could have implications for other decisions about how to allocate scarce resources, such as expensive cancer drugs and ventilators during hurricanes and other emergencies. …

—Rob Stein,
The Washington Post, February 24, 2011

Should an 89-year-old patient get a heart transplant, rather than a 10-year-old girl, just because he or she is higher on the waiting list?

Should a 39-year-old single patient, rather than a 10-year-old boy, get a heart transplant because he or she is higher on the waiting list?

Should a 29-year-old mother of three get a heart transplant, rather than a 10-year-old girl, because she is higher on the waiting list?

Should a 29-year-old pregnant mother with two children, rather than a 10-year-old boy, get a heart transplant because she is higher on the waiting list?

Justice and Emergency Care

When two patients arrive in the emergency department in critical condition, consider who should receive treatment first. Should the caregiver base his or her decision on the:

First patient who walks through the door?

Age of the patients?

Likelihood of survival?

Ability of the patient to pay for services rendered?

Condition of the patient?

Patients are to be treated justly, fairly, and equally. What happens, however, when resources are scarce and only one patient can be treated at a time? What happens if caregivers decide that age should be the determining factor as to who is treated first? One patient is saved, and another dies. What happens if the patient saved is terminal and has an advance directive in his wallet requesting no heroic measures to save his life? What are the legal issues intertwined with the ethical issues in this case?

The principle of distributive justice raises numerous issues, including how limited resources should be allocated. For example, when there is a reduction in staff in healthcare organizations, managers are generally asked to eliminate “nonessential” personnel. In the healthcare industry, this translates to those individuals not directly involved in patient care (e.g., maintenance and housekeeping employees). Is this fair? Is this just? Is this the right thing to do?

In Search of Economic Justice

In 2008, Avery Comarow, in his article “Under the Knife in Bangalore,”

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wrote that the high cost of U.S. hospital care is motivating patients to travel to places like India and Thailand for major procedures. A decade later, not much has changed: A 2016 article estimated 1.4 million Americans would travel overseas to obtain less expensive healthcare services.

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There would be no need for uninsured patients to go abroad if the prices they were quoted in the United States were more in line with what insurers and Medicare pay. The uninsured often pay full price for medical procedures in the United States. For example, a self-pay patient will pay between $70,000 and $133,000 for coronary bypass surgery, whereas Medicare will pay between $18,609 and $23,589. Commercial insurance plans often get up to a 60% discount off the list cost of medical procedures. In India, the same surgery will cost the patient $7,000, and in Thailand, it will be $22,000.

To avoid bankruptcy and loss of assets, maybe their homes, Americans risk the unknowns of going abroad for health care.

Boomer Bubble “Bioeconomics”

As baby boomers become Medicare eligible, there is likely to be a huge strain on the federal budget. Is this dramatically increased cost justified, beneficial, and necessary to the country as a whole?

The revenue from working, taxpaying baby boomers over the past four decades has fueled unprecedented prosperity. That revenue has made many entitlements possible, but it is going to diminish drastically as boomers retire and become recipients instead of contributors to the revenue base. Advances in medical technology have increased longevity dramatically, and boomers therefore are likely to be on the receiving end of entitlements for a long time. Medical advances, however, also can increase productivity as well as longevity. Boomers with a lifetime of work experience can be a valuable resource if they are kept healthy enough to remain gainfully employed at some level. Maintenance of a skilled American workforce is essential for future prosperity and economic stability. Boomers are a substantial resource of experienced skilled workers. It is a political necessity that they are encouraged to stay productive. The government’s subsidizing health care through Medicare and other programs is therefore an investment that can facilitate this worthwhile goal. Additional incentives may even be appropriate. Even on an ethical basis, boomers that fueled our economy for so long deserve to be taken care of in their later years. Hopefully, many of them will be healthy enough and willing enough to continue being productive beyond the usual retirement age. Thus, from a political perspective, the moral and ethical choice may also turn out to be the profitable choice for the people.

—Physician

VIRTUE ETHICS AND VALUES

Virtue ethics focuses on the inherent character of a person rather than on the specific actions he or she performs. A
virtue is a positive trait of moral excellence. Virtues are those characteristics that differentiate good people from bad people. Virtues such as courage, honesty, and justice are abstract moral principles. A morally virtuous person is one who does the good and right thing by habit, not merely based on a set of rules of conduct. The character of a virtuous person is naturally good, as exhibited by his or her unswerving good behavior and actions.

Resilience of the Health Caregiver Spirit

I’ve been in leadership roles for two sister hospitals in southeast Louisiana, with each experiencing the devastation of hurricane damage twice in the past 3 years. The first experience was temporarily suspending normal operations in New Orleans, and recently, history repeated itself at the sister hospital in Houma, Louisiana.

In both instances, I was stunned at the determination and strength of healthcare teams to rebuild. Both hospitals needed to resort to MASH-type tent hospitals to allow rebuilding of the hospitals. Health care for the communities was not interrupted. Back-to-basics care ensued, but not without close attention to needed regulatory compliance standards. The regulatory agencies were called and involved from the get-go, and the caregiver teams and support service staff flourished with enthusiasm to survive and care for the patients in need. Was this because of the nonprofit nature of our state-sponsored hospitals? I don’t think so. The human spirit takes over when it comes to patient care, no matter what.

I am happy to say that both New Orleans and Houma are back on track, with care being provided in top-quality hospitals. This is only due to the diligence of all, including facilities management, housekeeping, and multiple direct and indirect caregiver departments. What is the ethical issue here? There is no issue. Support for the art of caregiving will never be disappointed—at least not in southeast Louisiana. I stand in awe of what I have seen and look forward to growing with this team of devoted professionals.

—Nurse

Values are standards of conduct. They are used for judging the goodness or badness of some action. A
moral value is the relative worth placed on some virtuous behavior. Values are rooted in customs and habits of a culture because the words
moral and
ethics themselves were essentially created to describe these topics: “The acquisition of culture begins at birth and continues throughout the life span.”

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Values are the standards by which we measure the goodness in our lives.
Intrinsic value is something that has value in and of itself (e.g., happiness).
Instrumental value is something that helps to give value to something else (e.g., money is valuable for what it can buy).

Values may change as needs change. If one’s basic needs for food, water, clothing, and housing have not been met, one’s values may change such that a friendship, for example, might be sacrificed if one’s basic needs can be better met as a result of the sacrifice. As a mother nears the end of her life, a financially well-off family member may want to take more aggressive measures to keep Mom alive despite the financial drain on her estate. Another family member, who is struggling financially, may more readily see the futility of expensive medical care and find it easier to let go. Values give purpose to each life. They make up one’s moral character.

All people make value judgments and make choices among alternatives. Values are the motivating power of a person’s actions and necessary to survival, both psychologically and physically.

The relationship between abstract virtues (principles) and values (practice) is often difficult to grasp. The virtuous person is one who does good, and his or her character is known through the values he or she practices consistently by habit.

We begin our discussion here with an overview of those virtues commonly accepted as having value when addressing difficult healthcare dilemmas. The reader should not get overly caught up in the philosophical morass of how virtues and values differ but should be aware that the words “virtues” and “values” have been used interchangeably. This text is not about memorizing words; it is about applying what we learn for the good of all whose lives we touch.

Whether we call compassion a virtue or a value or both, the importance for our purposes in this text is to understand what compassion is and how it is applied in the healthcare setting.

Pillars of Moral Strength

I am part of all I have met.

—Alfred Tennyson

There is a deluge of ethical issues in every aspect of human existence. Although cultural differences, politics, and religion influence who we are, it is all of our life experiences that affect who we have become. If we have courage to do right, those who have influenced our lives were most likely courageous. If we are compassionate, it is most likely because we have been influenced by the compassionate.

The
Pillars of Moral Strength illustrated in

FIGURE 1-1

describes a virtuous person. What is it that sets each person apart? In the final analysis, it is one’s virtues and values that build moral character. Look beyond the words and ask, “Do I know their meanings?” “Do I apply their concepts?” “Do I know their value?” “Are they part of me?”

Courage as a Virtue

Courage is the greatest of all virtues, because if you haven’t courage, you may not have an opportunity to use any of the others.

—Samuel Johnson

Courage is the mental or moral strength to persevere and withstand danger. Courage can be characterized as the ladder upon which all the other virtues mount. Courage is the strength of character necessary to continue in the face of fears and the challenges in life. It involves balancing fear, self-confidence, and values. Without courage, we are unable to take the risks necessary to achieve the things most valued. A courageous person has good judgment and a clear sense of his or her strengths, correctly evaluates danger, and perseveres until a decision is made and the right goal that is being sought has been achieved. The
Reality Check below describes the courage of a young lady facing a difficult journey in her battle with cancer.

My Journey—How Lucky Am I?

No words can be scripted to say what I have been through, so I will just speak from my heart and off the cuff. From the day the doctor said to me, “Denise, you have a rare cancer and we are sorry there is nothing we can do,” I did not waver in my faith in God. He was in me, he was through me and he was around me. I just asked the doctor, “What do I do?” And yet, although he said a whole bunch of words, I wasn’t focused so much on what was being said. It’s like a calmness was over me, not much worry, just a feeling of,
I will never be alone on this new journey I’m about to experience. I felt calm. Not until I looked at my loved ones’ faces did I realize,
oh my, this can be bad. But again, a feeling came over me that I will not face this ALONE. God has plans for me and I will surrender in his grace and as time past [
sic], I realized how lucky and blessed I am, for most people who may feel that death may be close by, I didn’t feel that way. What I felt was WOW!! Everyone gets to show me their love in the NOW and not in the later when I am no longer here. How lucky am I?

—Denise

Courage, in differing degrees, helps to define one’s character (the essence of one’s being) and offers the strength to stand up for what is good and right. It crosses over and unites and affects all other values. Courage must not be exercised to an extreme, causing a person to become so foolish that his or her actions are later regretted.

When the passion to destroy another human being becomes such an obsession that one is willing to sacrifice the lives of others, that person has become a bully and a coward and not a person of courage. History is filled with men and women who have hidden their fears by inciting others to do evil. Such people are not the role models that we want our children to look to for character.

Wisdom as a Virtue

True wisdom comes to each of us when we realize how little we understand about life, ourselves, and the world around us.

—Socrates

We can learn from history how past generations thought and acted, how they responded to the demands of their time and how they solved their problems. We can learn by analogy, not by example, for our circumstances will always be different than theirs were. The main thing history can teach us is that human actions have consequences and that certain choices, once made, cannot be undone. They foreclose the possibility of making other choices and thus they determine future events.

—Gerda Lerner (pioneer of women’s history)

Wisdom is the judicious application of knowledge. Wisdom begins first by learning from the failures and successes of those who have preceded us. Marcus Tullius Cicero (106–43 BC), a Roman philosopher and politician, is reported to have said, “The function of wisdom is to discriminate between good and evil.” In the healthcare setting, when the patient’s wishes and end-of-life preferences are unknown, wisdom with good judgment without bias or prejudice springs forth more easily.

Temperance as a Virtue

Being forced to work, and forced to do your best, will breed in you temperance and self-control, diligence and strength of will, cheerfulness and content, and a hundred virtues which the idle will never know.

—Charles Kingsley

Temperance involves self-control and restraint. It embraces moderation in thoughts and actions. Temperance is evidenced by orderliness and moderation in everything one says and does. It involves the ability to control one’s actions so as not to go to extremes. The question arises, without the ability to control oneself from substance abuse, for example, how can a person possibly live the life of a virtuous person. The old adage, “the proof is in the pudding” lies in one’s actions. A virtuous person stands out from the crowd by actions and deeds.

Commitment

Unless commitment is made, there are only promises and hopes, but no plans.

—Peter F. Drucker

I know the price of success: dedication, hard work, and an unremitting devotion to the things you want to see happen.

—Frank Lloyd Wright

Commitment is the act of binding oneself intellectually and/or emotionally to a course of action (e.g., pursue a career, adhere to a religious belief) or person (e.g., marriage, family, patient care). It is an agreement or pledge to do something. It can be ongoing, such as in a marriage, or a pledge to do something in the future, such as an engagement as a commitment to marry a particular person.

Compassion and Empathy

Compassion is the basis of morality.

—Arthur Schopenhauer

Compassion is the profound awareness of and sympathy for another’s suffering. The ability to show compassion is a true mark of moral character. Compassion is a moral value expected of all caregivers. There are those who argue that compassion will blur one’s judgment. Caregivers need to show the same compassion for others as they would expect for themselves or their loved ones. A person with compassion recognizes that someone is in pain (emotional, physical, or both) and tries his best to alleviate it.

Those who lack compassion have a weakness in their moral character. In 1996, Dr. Linda Peeno, featured in Michael Moore’s 2007 film
Sicko, testified before Congress to discuss her prior work for Humana, where she worked as a claims reviewer for several health maintenance organizations (HMOs). Dr. Peeno showed compassion as she testified before the Committee on Commerce on May 30, 1996. Here is her story in part:

I wish to begin by making a public confession. In the spring of 1987, I caused the death of a man. Although this was known to many people, I have not been taken before any court of law or called to account for this in any professional or
public forum. In fact, just the opposite occurred. I was rewarded for this. It brought me an improved reputation in my job and contributed to my advancement afterwards. Not only did I demonstrate that I could do what was asked, expected of me, I exemplified the good company employee. I saved one half million dollars.

Since that day, I have lived with this act and many others eating into my heart and soul. The primary ethical norm is do no harm. I did worse, I caused death. Instead of using a clumsy bloody weapon, I used the simplest, cleanest of tools: my words. This man died because I denied him a necessary operation to save his heart. I felt little pain or remorse at the time. The man’s faceless distance soothed my conscience. Like a skilled soldier, I was trained for the moment. When any moral qualms arose, I was to remember, “I am not denying care; I am only denying payment.”

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Duty-based ethics required Dr. Peeno to follow the rules of her job. In so doing, a life was lost. Although Dr. Peeno eventually came forward with her story, the irony here lies in the fact that Dr. Peeno lacked the courage, integrity, and compassion to report her story sooner. The lack of compassion for others plagues the healthcare industry in a variety of settings.

The stream of news clippings that illustrate the ongoing need for compassionate caregivers is presented here. The first clipping describes an incident where two nurses and an aide were indicted in the death of an elderly World War II veteran in an Atlanta, Georgia, nursing home. The three staff members were caught on camera laughing as the man gasped for air and pleaded for help.

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WWII Veteran Calls for Help and Dies as Nurses Laugh, Video Shows

A hidden video from 2014 showed nurses laughing as a World War II veteran repeatedly called for help and died while in their care.

The family of James Dempsey, 89, of Woodstock, Ga., hid a camera in the late veteran’s room in the Northeast Atlanta Health and Rehabilitation Center which captured the night he died.

The video showed the decorated WWII veteran repeatedly calling for help, saying he could not breathe. It also showed the nurses failing to take life-saving measures and laughing as they tried to start an oxygen machine.

—Fox News, November 18, 2017

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Lack of compassion is illustrated in another news report where a video showed a woman dying on the floor in a psychiatric facility.

Hospital Video Shows no One Helped Dying Woman

A woman died on the floor in the psych ward at Kings County Hospital, while people around her, including a security guard, did nothing to help. After an hour, another mental patient finally got the attention of the indifferent hospital workers, according to the tape obtained by the
New York Daily News.

Worse still, the surveillance tape suggests hospital staff may have falsified medical charts to cover the utter lack of treatment provided to Esmin Green before she died.

—John Marzulli,
New York Daily News, June 30, 2008

A second egregious example that illustrates the lack of compassion was illustrated when a man expired while the ambulance crew attempted to find a hospital that would accept him for care.

Elderly Patient Hit by Motorcycle Dies in Japan After Being Rejected by 14 Hospitals

After getting struck by a motorcycle, an elderly Japanese man with head injuries waited in an ambulance as paramedics phoned 14 hospitals, each refusing to treat him.

He died 90 minutes later at the facility that finally relented—one of thousands of victims repeatedly turned away in recent years by understaffed and overcrowded hospitals in Japan.

—Maria Yamaguchi,
Associated Press, February 5, 2009

Teaching Doctors to Care

At Harvard and other medical schools across the country, educators are beginning to realize that empathy is as valuable to a doctor as any clinical skill … doctors who try to understand their patients may be the best antidote for the widespread dissatisfaction with today’s healthcare system.

—Nathan Thornburgh

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Empathy is a visceral feeling where a person sees another in pain and can place themselves in their shoes and feel that pain. According to Webster’s dictionary, empathy is “the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner.”

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Nothing is more important than empathy for another human being’s suffering.

Nothing. Not a career, not wealth, not intelligence, certainly not status.

We have to feel for one another if we’re going to survive with dignity.

—Audrey Hepburn

Jodi Halpern, in her article “Empathy and Patient–Physician Conflicts,” writes in the
Journal of General Internal Medicine how physicians can
foster empathy during conflict:

Physicians associate empathy with benevolent emotions and with developing a shared understanding with patients. While there have been many articles on managing “difficult” patients, little attention has been paid to the challenges physicians face during conflicts with patients, especially when both parties are angry and yet empathy is still needed. This topic is especially important in light of recent studies showing that practicing medicine increasingly requires physicians to manage their own feelings of anger and frustration. This article seeks to describe how physicians can learn to empathize with patients even when they are both subject to emotions that lead to interpersonal distancing. Empathy is defined as engaged curiosity about another’s particular emotional perspective. Five specific ways for physicians to foster empathy during conflict are described: recognizing one’s own emotions, attending to negative emotions over time, attuning to patients’ verbal and nonverbal emotional messages, and becoming receptive to negative feedback. Importantly, physicians who learn to empathize with patients during emotionally charged interactions can reduce anger and frustration and also increase their therapeutic impact.

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The Fear Factor and Patient Satisfaction

Nurses tend to score highly on measures of empathy, care, and compassion. … Here is some specific advice about what hospitals can do to help nurses improve at calming their patients’ fears.

Encourage nurses to be sensitive to the level of fear their patients experience when they’re admitted to the hospital. Empathy and communication are key …

Set nurses up for success through training and support. In many instances, it is easy to deal with safety concerns by providing detailed protocols, policies, and procedures …

—Rick Blizzard, D.B.A.

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Tony Padilla writes with vision in his article entitled “Kindness: At the Center of Patient Experience Strategies,” where he states:

With its vision of “healing human kind, one patient at a time, by improving health, alleviating suffering, and delivering acts of kindness,” UCLA Health has fulfilled the commitment to kindness by improving care delivery systems with patient experience and quality foremost in mind. In addition, as we have learned, when patient-centered communications become the norm, employees follow suit.

Kindness truly is the foundation of any cultural transformation aimed at improving the patient experience.

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Detachment

Detachment, or lack of concern for the patient’s needs, often translates into mistakes that result in patient injuries. Those who have excessive emotional involvement in a patient’s care may be best suited to work in those settings where patients are most likely to recover and have good outcomes (e.g., maternity units). As with all things in life, there needs to be a comfortable balance between compassion and detachment.

Never apologize for showing feeling. When you do so, you apologize for the truth.

—Benjamin Disraeli

Policy Ruled—Compassion Missing

Mr. Jones was trying to get home from a long trip to see his ailing wife. Mrs. Jones had been ill for several years, suffering a great deal of pain. His flight was to leave at 7:00 PM. Upon arrival at the airport in New York at 4:30 PM, he inquired at the ticket counter, “Is there an earlier flight that I can take to Washington?” The counter agent responded, “There is plenty of room on the 5:00 PM flight, but you will have pay a $200 change fee.” The passenger inquired, “Could you please waive the change fee? I need to get home to my ailing wife.” The ticket agent responded, “Sorry, your ticket does not allow me to make the change. You can, however, try at the gate.”

The passenger made a second attempt at the gate to get on an earlier flight, but the manager at the gate was unwilling to authorize the change, saying, “I don’t make the rules.”

Mr. Jones decided to give it one more try. He called the airline’s customer service center. The customer service agent responded to Mr. Jones’s plea: “We cannot overrule the agent at the gate. Sorry, you just got the wrong supervisor. He is going by the book.”

—Anonymous

Discussion

Should rules be broken for a higher good? Discuss your answer.

Do the rules seem to be consistently or inconsistently applied in this
Reality Check? Discuss your answer.

Conscientiousness

The most infectiously joyous men and women are those who forget themselves in thinking about and serving others.

—Robert J. McCracken

A
conscientious person is one who has moral integrity and a strict regard for doing what is considered the right thing to do. A person acts conscientiously if he or she is motivated to do what is right, believing it is the right thing to do. Conscience is a form of self-reflection on and judgment about whether one’s actions are right or wrong, good or bad. It is an internal sanction that comes into play through critical reflection. This sanction often appears as a bad conscience in the form of painful feelings of remorse, guilt, shame, disunity, or disharmony as the individual recognizes that his or her acts were wrong.

Kill the Messenger

Frank, working as a hospital inspector, found a number of things wrong in his recent building inspection. At first glance the building looked clean and polished—Frank was amazed by how the floors sparkled in the old building. But then, as Frank always does, he asked to look behind a corridor door. Behind the door, Frank found a small storage closet with medical records strewn on the floor and others stored in cardboard boxes. The records had been soaked by water and floor wax that had seeped under the door when the corridors where cleaned. Entries on the records were blurred, making them difficult to read, and the records appeared to have black mold growing on them.

Behind another door was a medical equipment repair room. Dust balls floated on the floor as the door was opened. There was food on the floor, and a can of soda had been spilled and allowed to dry. Equipment parts were also scattered on the floor.

The staff complained about Frank’s findings. Before he left, the staff corrected the issues he had noted and asked, “Frank, could you remove these comments from your report. We cleaned the room and it is spotless. In addition, we stored the records in the medical records department.” Frank replied, “I could not in good conscience remove my findings. Yes, the room may be clean, but what about the information that had been recorded on the medical records that is not readable? Further, our process for inspecting your facility is a sampling process. I did not look behind every door, and I am not sure what we would find if we did. I would suggest, as we discussed earlier, that a written plan of action be prepared and implemented to address the issues I identified. More important, your action plan should be implemented facility-wide. For example, no boxes should be stored on the floors, including medical supplies, as well as medical records.”

—Anonymous

Discussion

Should Frank have overlooked his findings, as the staff pressed him not to report them? Discuss your answer.

Assuming you were Frank, would you have deleted the findings from your report? Explain your answer.

Discernment

Get to know two things about a man—how he earns his money and how he spends it—and you have the clue to his character, for you have a searchlight that shows up the innermost recesses of his soul. You know all you need to know about his standards, his motives, his driving desires, and his real religion.

—Robert J. McCracken

Discernment is the ability to make a good decision without personal biases, fears, and undue influences from others. A person who has discernment has the wisdom to decide the best course of action when there are many possible actions to choose from.

9/11 Value Judgment

James had been scheduled to fly Monday evening, September 10, 2001, from Ronald Reagan Washington National Airport to New York LaGuardia Airport, and then rent a car and drive to Greenwich, Connecticut, where he was assigned to inspect a hospital. As luck would have it, there was one flight cancellation after another. After the last flight to LaGuardia was canceled, he went to the ticket counter and scheduled the first flight out Tuesday morning, September 11, 2001, at 6:00 AM.

The following morning James flew into LaGuardia, picked up his car, and drove to Connecticut to work with an assigned team led by Dr. Matthews. Not long after he arrived at the hospital, the first plane hit the World Trade Center. Shortly after the second plane crashed into the World Trade Center, the corporate office called and asked if the hospital wanted to reschedule the survey. The hospital opted to continue the survey.

On Thursday, the last day of the survey, a hospital staff member approached Dr. Matthews and asked if he and his survey team would like to attend a short memorial service in the lobby at noon for the victims and workers of 9/11. Without hesitation, Dr. Matthews replied, “No, we really have to finish our reports.”

—Anonymous

Discussion

Did the team leader make an appropriate decision? Discuss your answer.

Describe the various virtues and values that come into play in this case.

Discuss how you would have addressed the hospital’s request to attend the memorial service.

Realizing that hindsight is 20/20, could you defend the decision not to attend the ceremony? Explain your answer.

Fairness

Do all the good you can, By all the means you can, In all the ways you can, In all the places you can, At all the times you can, To all the people you can, As long as you ever can.

—John Wesley

In ethics,
fairness requires each person to be objective, unbiased, dispassionate, impartial, and consistent with the principles of ethics. Fairness is the ability to make judgments free from discrimination, dishonesty, or one’s own bias. It is the ability to be objective without prejudice or bias. We often tolerate mediocrity. We sometimes forget to thank those who just do their jobs, and we often praise the extraordinary, sometimes despite questionable faults. To be fair, it is important to see the good in all and to reward that good.

Questions of fairness in the Affordable Care Act have led to lawsuits in a number of the nation’s top hospitals including the Mayo Clinic in Minnesota and Cedars-Sinai in Los Angeles because they are cut out of most insurance plans sold on the exchange.

Health Costs Cut by Limiting Choice

As Americans have begun shopping for health plans on the insurance exchanges, they are discovering that insurers are restricting their choice of doctors and hospitals in order to keep costs low, and that many of the plans exclude top-rated hospitals. … The result, some argue, is a two-tiered system of health care: Many of the people who buy health plans on the exchanges have fewer hospitals and doctors to choose from than those with coverage through their employers.

Insurers “looked at the people expected to go on the exchanges and thought: ‘these are people coming out of the ranks of the uninsured. They don’t care about the Mayo Clinic or the Cleveland Clinic. They will go to community providers,’” explained Robert Laszewski, a consultant to the health-care industry.

—Sandhya Somashekhar and Ariana Eunjung Cha,
The Washington Post

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Although care is generally cheaper at community-based hospitals than academic medical centers, the quality of that care often comes into question, as noted in the preceding
Reality Check.

Community Hospital vs. Respected Medical Center

My closest friend Nick was admitted to a small community hospital for what was described as a minor surgical procedure. During surgery, the surgeon unknowingly nicked the large bowel, which went unidentified for several days. Nick, as a result, developed a methicillin-resistant
Staphylococcus aureus (MRSA) infection. Further surgeries were conducted, complicating an already botched surgery. One evening a nurse called his family aside and said, “Although I am jeopardizing my job, I would get Nick out of here if I was you.” The family decided to move Nick to a major teaching medical center several hours away from his hometown. Following an extended stay at the medical center and discharged home under hospice care, I visited Nick at his home. He looked intensely straight at me with deep sadness and said, “They took my life from me.” He told another friend, “My life is over.”

—Anonymous

So where are we as it relates to fairness in the delivery of health care? Is it true that people coming out of the ranks of the uninsured don’t care about the Mayo Clinic, Cleveland Clinic, the Lahey Hospital and Medical Center, or the Massachusetts General Hospital, to name but a few? Or perhaps they do care, but just don’t know the quality differences from one hospital to the next? Or is it a question of accessibility in remote areas of the country? Do we need hospital selection exchanges more than we need insurance exchanges? If one has money or connections, is one more likely to get a higher quality of medical care than a poorer patient? Who determines what routine care is? Is routine care based on each patient’s needs and comorbidities? Should those who have a financial interest in where a patient is treated be excluded from the decision-making process?

Cheaper is not always better and providing “care” may not be enough. Although fairness in the delivery of health is a laudable value, it is most likely unachievable. The disparity as to who holds the nation’s wealth continues to widen, as noted in the news clippings that follow. With so much wealth in the hands of the few, fairness in the delivery of high-quality health care for all is unlikely. However, the human race must continue to strive to meet the needs of all.

Of the 1%, By the 1%, for the 1%

Americans have been watching protests against oppressive regimes that concentrate massive wealth in the hands of an elite few. Yet in our own democracy, 1 percent of the people take nearly a quarter of the nation’s income—an inequality even the wealthy will come to regret.

—Joseph E. Stiglitz,
Vanity Fair, May 2011

World’s Richest 1% Own 40% of All Wealth, UN Report Discovers

The richest 1% of adults in the world own 40% of the planet’s wealth, according to the largest study yet of wealth distribution. The report also finds that those in financial services and the internet sectors predominate among the super-rich.

Europe, the US and some Asia Pacific nations account for most of the extremely wealthy. More than a third live in the US. Japan accounts for 27% of the total, the UK for 6% and France for 5%.

—James Randerson,
The Guardian, December 2006

Fidelity

Nothing is more noble, nothing more venerable, than fidelity. Faithfulness and truth are the most sacred excellences and endowments of the human mind.

—Cicero

Fidelity is the virtue of faithfulness, being true to our commitments and obligations to others. A component of fidelity, veracity, implies that we will be truthful and honest in all our endeavors. It involves being faithful and loyal to obligations, duties, or observances. The opposite of fidelity is infidelity, meaning unfaithfulness. Caregivers must be faithful to their duties and obligations to provide quality patient care.

The Supreme Court of New Jersey in
Perna v. Pirozzi

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determined that a patient’s consent form did not apply to the partners in a group practice. The patient had specifically requested Dr. Pirozzi to perform the surgery. However, a different surgeon in the group performed the surgical procedure.
Apparently, this was a common practice in the group and the surgeon who was working in the operating room on the scheduled day of surgery performed the surgery. The patient only learned that a different surgeon had performed the surgery when he was readmitted to the hospital due to post-surgical complications.

Mr. Perna first learned of the identities of the operating surgeons when he was readmitted to the hospital on June 11 because of post-surgical complications. Subsequently, Mr. and Mrs. Perna filed suit for malpractice against all three doctors, alleging four deviations from standard medical procedure concerning the diagnosis, treatment, and surgery performed by the defendants. They further alleged that there was a failure to obtain Mr. Perna’s informed consent to the operation performed by Dr. Del Gaizo. That is, plaintiffs claimed that Mr. Perna’s consent to the operation was conditioned upon his belief that Dr. Pirozzi would be the surgeon.

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The failure of a surgeon to perform a medical procedure after soliciting a patient’s consent, like the failure to operate on the appropriate part of a patient’s body, is a deviation from standard medical care. It is malpractice whether the right surgeon operates on the wrong part or the wrong surgeon operates on the right part of the patient. In each instance, the surgeon has breached his duty to care for the patient. Where damages are the proximate result of a deviation from standard medical care, a patient has a cause of action for malpractice.

Although an alternative cause of action could be framed as a breach of the contract between the surgeon and the patient, generally the more appropriate characterization of the cause will be for breach of the duty of care owed by the doctor to the patient. The absence of damages may render any action deficient, but the doctor who, without the consent of the patient, permits another surgeon to operate violates not only a fundamental tenet of the medical profession but also a legal obligation.

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The patient was given a cause of action for battery against the surgeon who actually performed the operation. Thus, the patient could recover for all injuries resulting from the mere performance of the operation, even if the operation had been properly performed. Absent emergency, patients have the right to determine not only
whether surgery is performed but also
who performs the surgical procedure.

Few decisions bespeak greater trust and confidence than the decision of a patient to proceed with surgery. Implicit in that decision is a willingness of the patient to put his or her life in the hands of a known and trusted medical doctor. Sometimes circumstances will arise in which, because of an emergency, the limited capacity of the patient, or some other valid reason, the doctor cannot obtain the express consent of the patient to a surrogate surgeon. Other times, doctors who practice in a medical group may explain to a patient that any one of them may perform a medical procedure. In that situation, the patient may accept any or all the members of the group as his surgeon. In still other instances, the patient may consent to an operation.

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Freedom

You can only protect your liberties in this world by protecting the other man’s freedom. You can only be free if I am free.

—Dorothy Thompson

Freedom is the quality of being free to make choices for oneself within the boundaries of law (

FIGURE 1-2

). Freedoms enjoyed by citizens of the United States include the freedom of speech, freedom of religion, freedom from want, and freedom from physical aggression. In health care, the freedom to consent to a medical procedure or refuse treatment is an unequivocal right of a competent patient who is capable to choose or assign a surrogate to choose for him.

Freedom of choice is not always recognized as a given. For example, “If you can afford health insurance but choose not to buy it, you may pay a fee called
the individual shared responsibility payment. (The fee is sometimes called the ‘penalty,’ ‘fine,’ or ‘individual mandate.’).”

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The “Freedom of Choice in Health Care Act” Section 2 provides:

The people have the right to enter into private contracts with health care providers for health care services and to purchase private health care coverage. The legislature may not require any person to participate in any health care system or plan, nor may it impose a penalty or fine, of any type, for choosing to obtain or decline health care coverage or for participation in any particular health care system or plan.

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And so goes the battle as it rages on, and the right to choose is not necessarily absolute.

Honesty/Trustworthiness/Truth Telling

A lie can travel halfway around the world while the truth is still putting on its shoes.

—Mark Twain (American humorist, writer, and lecturer, 1835–1910)

Honesty and trust involve confidence that a person will act with the right motives. It is the assured reliance on the character, ability, strength, or truth of someone or something. To tell the truth, to have integrity, and to be honest are most honorable virtues.
Veracity is devotion to and conformity with what is truthful. It involves an obligation to be truthful.

Truth telling involves providing enough information so that a patient can make an informed decision about his or her health care. Intentionally misleading a patient to believe something that the caregiver knows to be untrue may give the patient false hopes. There is always apprehension when one must share bad news; the temptation is to play down the truth for fear of being the bearer of bad news. To lessen the pain and the hurt is only human, but in the end, truth must win over fear.

Speaking the truth in times of universal deceit is a revolutionary act.

—George Orwell

Physicians often find it difficult to disclose medical errors to their patients. Generally, they are often fearful that errors can lead to malpractice suits. Even so, it the responsibility of physicians to disclose medical errors involving their patient’s care. The
Journal of the American Medical Association, in its February 26, 2003, issue, addresses the importance of encouraging physicians to disclose medical errors and the need to support them in their struggles to comply with policies requiring the disclosure of errors to their patients.

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By not disclosing a medical error, the doctor conspicuously places his own interests above that of the patient to the detriment of the patient, thereby violating a patient-centered ethic. Moral courage is therefore needed if doctors are to do the right thing when medical errors occur. This moral courage can be facilitated by institutions having policies and guidelines on disclosure of errors in place, training doctors and other hospital staff on how to disclose medical errors and providing emotional support for doctors who make mistakes in their efforts to treat patients and save lives.

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Physicians who fail to discuss medical errors with their patients are more likely to face lawsuits than those who disclose and discuss their errors with patients. “Disclosing medical errors respects patient autonomy and truth-telling, is desired by patients, and has been endorsed by multiple ethicists and professional organizations. In addition, hospital accreditation standards and some state laws now require that patients be informed about ‘unanticipated outcomes’ in their care.”

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Although physicians are reluctant at times to speak up and admit to medical errors, there are those who do as noted in the following news clipping.

Medical Errors Are Hard for Doctors to Admit

In 2007, I published a story in my local paper in which I confessed to having made a medical error years earlier. I’d mistakenly prescribed an antibiotic for a patient whose chart indicated an allergy to the drug.

Thankfully, the story had a happy ending. My patient recovered and took no legal action after I explained to her what had happened. I ended my article vowing to take greater care to prevent errors and urging doctors to take responsibility for their mistakes, even when a patient hasn’t been harmed.

—Manoj Jain, Health and Science,
The Washington Post, May 27, 2013

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36,000 Feet Over Texas

A few weeks before Frank was to travel to Dodge City, Texas, for a work assignment involving the survey of a hospital for accreditation purposes, he received a call from Dr. Layblame.

“Hi, Frank. This is Dr. Layblame. Can you be ready for an early afternoon departure from Dodge City on Friday?”

Frank replied, “Well, you know, we have been instructed not to leave early, and I can book a flight to leave Saturday morning.”

Dr. Layblame emphatically replied, “Well, I was assigned as the team leader on a multiple-hospital tour here in Texas, and the rest of the team and I are planning an early start, as we have to drive to our next assignment. You were an add-on for this particular survey, and it’s my decision to make. The team wants to get to the next location, settle in to our next hotel, and have time to enjoy an evening meal together. So you should be prepared for an early exit by preparing your report Thursday evening before the exit conference on Friday. You can book to fly out late Friday afternoon.”

Frank booked the last flight out of Dodge City, with a 15-minute ride from the hospital to the airport. The flight left at 4:30 PM. On hearing Frank’s schedule, Dr. Layblame observed, “Well, it’s only an hour early. If you write most of your report the night before and during lunch on Friday, we should be able to finish up work by 2:30 PM. The airport is small and close to the hospital. I am the tour leader, so it should not be a problem.”

While Frank was on a flight to Washington, DC, following his work assignment, Ronald, Frank’s supervisor, was dictating a voicemail message to him. When Frank returned home at about 10:30 that evening, he retrieved his voicemail messages. Ronald had left Frank a message at 4:30 PM earlier that day asking Frank, “Call me as soon as you get this message. I will be in my office until about 5:30 PM. If you miss me, you can reach me over the weekend. My cell phone number is 888-888-8888.”

Frank called Ronald that evening and the next morning; however, Ronald never answered, nor did he return his call. Frank called Ronald Monday morning. As luck would have it, Ronald was out of the office for the day. Frank called Ronald again on Tuesday morning and Ronald answered. Frank asked, “Ronald, you called?” He replied, “Yes, I did. How were you able to get to the airport on Friday and catch a 4:30 PM flight without leaving your job early? I had your flight schedule and you left the survey early. You could not possibly have traveled to the airport in time to catch your flight without leaving early.”

Frank replied, “I did not schedule the exit time from the survey. The physician team leader determined the time of the exit. He said that he was conducting a system tour and would like to get the exit briefing started as soon as possible. He asked for everybody to be ready to exit by having draft reports ready the night before.” Ronald replied, “Dr. Layblame told me the team had to exit early because you scheduled an early flight.”

Frank asked, “Just one question, Ronald. Why would you leave a message for me at 4:30 PM to call you by 5:30 PM when you knew I was 36,000 feet high in the sky? And why didn’t you call the team leader at the beginning of the assignment and not after it was completed? Since you know flight schedules, why would you wait until the assignment was completed to raise this issue? Sounds a bit peculiar, don’t you think? Sort of like observing a protocol not being followed in the OR and then chastising the OR team after the surgery is completed for not following protocol. This is a serious business we are in. You need to ask yourself why you would allow an event to occur if you believed it to be wrong.”

—Anonymous

Discussion

Discuss the ethical issues involved in this case.

Discuss what you would do if you found yourself in Frank’s situation.

What should Frank have said if his manager said, “You should have reported Dr. Layblame”?

How would you describe Ronald’s management style?

Declining Trust in the Healthcare System

The declining trust in the nation’s ability to deliver high-quality health care is evidenced by a system caught up in the quagmire of managed care companies, which have in some instances inappropriately devised ways to deny healthcare benefits to their constituency. In addition, the continuing reporting of numerous medical errors serves only to escalate distrust in the nation’s political leadership and the providers of health care.

Physicians find themselves vulnerable to lawsuits, often because of misdiagnosis. As a result, patients are passed from specialist to specialist in an effort to leave no stone unturned. Fearful to step outside the boundaries of their own specialties, physicians escalate the problem by ineffectively communicating with the primary care physician responsible for managing the patient’s overall healthcare needs. This can also be problematic if no one physician has taken overall responsibility to coordinate and manage a patient’s care.

Cancer Doctor Allegedly Prescribed $35 Million Worth of Totally Unnecessary Chemotherapy

A Michigan oncologist has been charged with giving $35 million in needless chemotherapy to patients—some of whom didn’t even have cancer,
The Today Show reported.

Popular physician Farid Fata, who had more than 1,000 patients, allegedly misdiagnosed people with cancer just so he could bill Medicare.

He’s also accused of giving chemo to “end-of-life” patients who wouldn’t benefit and had to endure the treatment’s nasty side effects during their final days.

—Christina Sterbenz,
Business Insider, August 15, 2013

Politics and Distrust

Lies or the appearance of lies are not what the writers of our Constitution intended for our country—it’s not the America we salute every Fourth of July, it’s not the America we learned about in school, and it is not the America represented in the flag that rises above our land.

—Anonymous

Truthfulness is just one measure of one’s moral character. Unfortunately, politicians do not always set good examples for the people they serve. The following news clipping is an example of how political decisions can lead to distrust in government.

Cheney’s Staff Cut Testimony on Warming

In a letter to Sen. Barbara Boxer (D-Calif.), former EPA deputy associate administrator Jason K. Burnett said an official from [Vice President Dick] Cheney’s office ordered last October that six pages be edited out of the testimony of Julie L. Gerberding, director of the Centers for Disease Control and Prevention. Gerberding had planned to say that the “CDC considers climate change a serious public health concern.”

—Juliet Eilperin,
The Washington Post, July 9, 2008

Discussion

Discuss how headlines such as this affect your opinion of politicians.

Assuming a cover-up, discuss how the principles of beneficence and nonmaleficence apply.

At the end of our days, the most basic principles of life—trust and survival—are on trial. What is your verdict, if indeed there was a cover-up?

Integrity

Nearly all men can stand adversity, but if you want to test a man’s character, give him power.

—Abraham Lincoln

Wrong-Operation Doctor

Hospitals find it hard to protect patients from wrong-site surgery

Last year a jury returned a $20 million negligence verdict against Arkansas Children’s Hospital for surgery on the wrong side of the brain of a 15-year-old boy who was left psychotic and severely brain damaged. Testimony showed that the error was not disclosed to his parents for more than a year. The hospital issued a statement saying it deeply regretted the error and had “redoubled our efforts to prevent” a recurrence.

“Healthcare has far too little accountability for results. … All the pressures are on the side of production; that’s how you get paid,” said Peter Pronovost, a prominent safety expert and medical director of the Johns Hopkins Center for Innovation in Quality Patient Care, who added that increased pressure to turn over operating rooms quickly has trumped patient safety, increasing the chance of error.

—Sandra G. Boodman, Kaiser Health News,
The Washington Post, June 20, 2011

Discussion

Discuss the issues of integrity in this case.

Should criminal charges be a consideration in this case, if accurately reported? Discuss your answer.

Integrity involves a steadfast adherence to a strict moral or ethical code and a commitment not to compromise this code.

There are many ways integrity is defined. Most of us have heard integrity defined as what you do when nobody else is around, or what you do and how you do it on a daily basis. Integrity is a concept that includes consistency in actions, expectations, measures, methods, outcomes, principles, and
values. Integrity means our actions are honest and trustworthy.

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A person with integrity has a staunch belief in and faithfulness to, for example, his or her religious beliefs. Patients and professionals alike often make healthcare decisions based on their integrity and their strict moral beliefs. For example, Jehovah’s Witnesses generally refuse blood transfusions because it is contrary to their religious beliefs, even if such refusal may result in death. A provider of health care may refuse to participate in an abortion because it is against the provider’s moral beliefs. A person without personal integrity lacks sincerity and moral conviction and may fail to act on professed moral beliefs.

Having integrity means doing the right thing in a reliable way. It’s a personality trait that we admire, since it means a person has a moral compass that doesn’t waver. It literally means having “wholeness” of character, just as an integer is a “whole number” with no fractions.

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Integrity begins at the top of an organization with the governing body to select a leader who exhibits the virtue of integrity. The success of the right choice is described in a quote by Bessie Anderson Stanley (see the opening quote in the Front Matter).

The career of a successful CEO is described in the following
Reality Check.

Man of Integrity

How we want to be remembered by all throughout our career:

June 1978: Congratulations and good wishes on your appointment as administrator. This is a great responsibility, but you are young and capable and it should be an interesting challenge. Most people of all stations working in the hospital are behind you and you certainly have the backing of the medical staff. This is a very good start. We will work 100% with you so please feel that you have our sincere backing. Once again, congratulations, good luck and good management.

—Bob

July 1978: Following our conversation yesterday, and for whatever it’s worth, I’d just like to tell you that I think you’re doing a terrific job! I like your administrative style and feel comfortable already. I’m very happy to be working with you. Have a good day!

—Yvonne

September 1998: Good luck in all your endeavors. It was my good fortune to be associated with you. People who are people-oriented should do well in any career path they choose. Happiness and good health.

—Natalie

November 2008: Daniel, before we talk about anything else, I want to first of all thank you for your approach to our staff. I want you to know I was happy to have had the pleasure to work with you. You had a wonderful way to put people at ease and glean information from them. You were able to determine from your questions the quality of care we offer here at Hennepin. When I think of the book, ‘If Disney ran your hospital’ and the fact that you went over and beyond what the book teaches … I saw that in you. I have a report somewhere here on my desk as to staff feedback and how well you related to them … You should see it. I am off to a meeting right now but I will share it with you.

—Jeanette

The integrity of the numbers of an employee satisfaction survey that were presented to employees during an annual educational conference is highlighted in the
Reality Check presented here.

Employee Satisfaction Survey

The human resources department manager was reporting on an employee satisfaction survey at a leadership roundtable session with the organization’s employees. To maintain employee confidentiality, a third-party consulting firm had conducted the survey. Approximately 49% of employees had responded to the survey, compared with 47% 3 years earlier. The HR manager commented that it is was the first satisfaction survey conducted in 3 years and that the results were excellent, with a 4.2% rise in overall employee satisfaction. Management was all smiles as they sat listening to the report. The HR manager had actually briefed the organization’s leadership prior to the roundtable session. Following the
report, she asked if there were any questions. The silence was deadly—no one responded. Finally, one employee, Richard, placed his hands on the table to stand up, but he felt a nudge on his right shoulder from Phil, a physician friend. Phil whispered, “Richard, are you sure you want to ask any questions? There is nothing to gain here.” Richard, looking down with a smile, said, “I agree, but I can’t help myself.” Richard then stood up and asked the HR manager, “Do you know what the employee turnover rate has been during the past 3 years?” She responded, “Well, ugh, yes, it was about 30%.” Richard replied, “So, then, does this report reflect that we have had a 30% turnover?” The manager replied, “Good point, I will have to get back to you on that.” When he returned to his seat, Phil said, “Do you really think you will ever hear back an answer to your question?” Richard smiled and replied, “Not really.” Richard was right; she never did get back to him.

Discussion

Discuss why employees are often reluctant to ask questions when their questions are solicited by leadership.

Knowing that the HR manager never followed up with Richard, should he have followed up with the manager as to the validity of the survey data? Explain your answer.

Was integrity at issue in this Reality Check? Discuss your answer.

The integrity of hospital staff not only involves the care for patients in the hospitals but extends to those outside accrediting agencies and their employees responsible for identifying problems associated with the delivery of quality patient care in the hospital, as noted in the following
Reality Check
.

Behind the Smiles

Jeff well remembers what happened after Bill left the hospital boardroom. He remembers more clearly how Bill, a consultant, was treated while he was in the room after presenting his organizational improvement report to the hospital’s leadership. Bill was treated with kindness and assurances as to how well he took an educational approach to his audit findings with the staff and how employees appreciated his suggestions for improvement.

Prior to exiting the conference room, Bill asked whether there were any questions about his report. No questions, just smiles, accolades, and goodbyes. Jeff thought to himself,
Wow, it is good to see good people take suggestions and be so willing to make the changes that Bill suggested.

Oops, hold on—it turns out Bill wasn’t as wonderful as the leadership described. The organization’s leadership was now disgruntled about Bill’s report. Now that Bill was gone, he was being vilified. Jeff, a consultant not scheduled to finish his assignment for another 2 weeks, asked, “Why didn’t you ask questions while Bill was here?”

Carol, the finance director replied, “I spent 2 weeks with Bill. He just made up his mind. There was just no changing his mind.”

Jeff said, “Are you saying that you disagree with Bill’s report?”

Carol replied, “Yes, I do disagree with it.”

Jeff continued, “But you did not say that while he was here. You told him you liked his suggestions and that you were already in the process of implementing them.”

Carol replied, “That’s true, but since we made the suggested changes while he was here, he did not have to include them in his written report.”

Jeff replied, “It speaks well of leadership that you have done the work; however, it’s the hospital board that asked for the audit. We must report what we found.” Carol, disgruntled, remained silent. Jeff thought to himself,
integrity includes being honest and truthful and surely not criticizing a person after leaving the conference room.

—Anonymous

Discussion

Should Bill have left his findings off the report? Explain your answer.

Discuss why Bill’s integrity in reporting the deficiencies he found and reported were important to both ABC consulting and the hospital board, which had contracted with ABC to conduct the audit.

Medical Integrity and Patient Autonomy

For many medical providers, the relationship between medical ethics and professionalism may be what they consider to be integrity. Medical providers are asked to do what is right while using professional judgment. With professionalism comes an expectation of expertise, in a responsible and reliable manner.

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The integrity of the medical profession is not threatened by allowing competent patients to decide for themselves whether a particular medical treatment is in their best interests. Patient autonomy sets the foundation of one’s right to bodily integrity, including the right to accept or refuse treatment. Those rights are superior to the institutional considerations of hospitals and their medical staffs. A state’s interest in maintaining the ethical integrity of a profession does not outweigh, for example, a patient’s right to refuse blood transfusions.

Kindness

When you carry out acts of kindness, you get a wonderful feeling inside. It is as though something inside your body responds and says, yes, this is how I ought to feel.

—Harold Kushner

Kindness involves the quality of being considerate and sympathetic to another’s needs. Some people are takers, and others are givers. If you go through life giving without the anticipation of receiving, you will be a kinder and happier person.

Kindness is not Always Returned

The widely known saying “actions speak louder than words” is well demonstrated in this Reality Check. Joe was a healthcare consultant. He had collected thousands of documents of helpful information to share with healthcare organizations with which he had worked. His thinking was this: Why should hospitals have to reinvent the wheel? If organizations are willing to share with others, why not disseminate such information for the benefit of other hospitals? His hopes were that larger trade organizations would eventually collect the information and freely share with their constituents. After all, the goal was better care for all wherever they lived. Joe would provide copies of his CD to fellow consultants and encourage them to share the information with others. One day upon arriving at work he noticed that one of the consultants to whom he had given a copy of the CD had four or five newspaper clippings about hospitals spread out on a conference room table. Joe thought they looked interesting and asked, “Could I have a copy of your clippings?” The consultant said, “No, these are proprietary information.”

On another occasion, after sharing his CD with an organization, he asked, “Would you be willing to share your 12 Step Addiction Program with other healthcare organizations?” A representative from the organization said, “We will share it with you but not others.” Joe kindly said, “That’s okay. I can accept only what you are willing to share with others.”

—Anonymous

Discussion

Should Joe have asked for his CD back from the consultant and organization? Discuss your answer.

Discuss why an organization might not be willing to share program information.

Respect

Respect for ourselves guides our morals; respect for others guides our manners.

—Laurence Sterne

Respect is an attitude of admiration or esteem. Kant was the first major Western philosopher to put respect for persons, including oneself as a person, at the center of moral theory. He believed that persons are ends in themselves with an absolute dignity, which must always be respected. In contemporary thinking, respect has become a core ideal extending moral respect to things other than persons, including all things in nature.

Caregivers who demonstrate respect for one another and their patients will be more effective in helping them cope with the anxiety of their illness. Respect helps to develop trust between the patient and caregiver and improve healing processes. If caregivers respect the family of a patient, cooperation and understanding will be the positive result, encouraging a team effort to improve patient care.

Hopefulness

Hope is the last thing that dies in man; and though it be exceedingly deceitful, yet it is of this good use to us, that while we are traveling through life, it conducts us in an easier and more pleasant way to our journey’s end.

—Francois De La Rochefoucauld

Brooke Greenberg: 20-Year-Old “Toddler’s” Legacy of Hope and Love

The baffling case of Brooke Greenberg, a 20-year-old who never developed beyond the toddler stage, may provide clues to help scientists unlock the secrets of longevity and fight age-related disorders, such as Alzheimer’s, Parkinson’s, and heart disease. Brooke, who passed away last Thursday, had the body and cognitive function of a 1-year-old. She didn’t grow after the age of five—and basically, she stopped
aging entirely until her death at the chronological age of 20.

Brooke may have been the only person in the world suffering from a mysterious genetic disease that her doctors called Syndrome X. “Finding out that her DNA makeup is completely different than anyone else brought to our attention that we could help,” her father, Howard Greenberg, told Yahoo Shine in a previous interview. “So eventually, at the end of the rainbow, there will be something that comes out of all this. I believe everyone is here for a reason.”

—Sarah B. Weir,
Healthy Living, October 29, 2013

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Hopefulness in the patient care setting involves looking forward to something with the confidence of success. Caregivers have a responsibility to balance truthfulness while promoting hope. The caregiver must be sensitive to each patient’s needs and provide hope. As noted by Brooke’s father in the following news clipping, we can pass on hope and love to others.

Tolerance

There is a criterion by which you can judge whether the thoughts you are thinking and the things you are doing are right for you. The criterion is: Have they brought you inner peace? If they have not, there is something wrong with them—so keep seeking! If what you do has brought you inner peace, stay with what you believe is right.

—Peace Pilgrim

Tolerance can be viewed in two ways: positive or negative.
Positive tolerance implies that a person accepts differences in others and that one does not expect others to believe, think, speak, or act as he or she does. Tolerant people are generally free of prejudice and discrimination. Recognizing this fact, Thomas Jefferson incorporated theories of tolerance into the U.S. Constitution.
Negative tolerance implies that one will reluctantly put up with another’s beliefs. In other words, he or she merely tolerates the views of others.

Although tolerance can be viewed as a virtue, not all tolerance is virtuous nor is all intolerance necessarily wrong. An exaggerated tolerance may amount to a vice, whereas intolerance may sometimes be a virtue. For example, tolerating everything regardless of its repugnance (e.g., continuously and knowingly failing to follow required hand washing policies prior to surgical procedures).

Cooperation and Teamwork

If we do not hang together, we will all hang separately.

—Benjamin Franklin (1706–1790)

Cooperation is the process of working with others. In the healthcare setting, caregivers must work together to improve patient outcomes. The healthcare worker today works in an environment where change is the norm. Those unwilling to accept change and work in unity will eventually be working alone. Change is the only constant in today’s workplace and society in general. Technological change is occurring at a pace faster than the human mind can absorb, thus requiring teamwork between individuals with a wide variety of skill sets. Congress, as noted in the preceding news clipping, is an example of how little can be accomplished when its members are dysfunctional and unwilling to cooperate and work together toward common goals.

Congress Gets Stuck Again—Over FAA

Parties Blame Each Other in Funding Dispute and Partial Shutdown

A dispute over funding for the Federal Aviation Administration has left an estimated 74,000 people out of work for a dozen days and tossed Congress into the throes of yet another interparty battle.

Now, with lawmakers leaving town or already on recess, there seems to be little hope of a resolution on the horizon.

—Ashley Halsey III,
The Washington Post, August 4, 2011

Failure to cooperate has a rippling effect in any setting. The failure of Congress to cooperate and resolve funding issues for the Federal Aviation Administration (FAA) before taking its summer recess in 2011 left 74,000 people out of work, costing the nation nearly a billion dollars for the month of August. Failure of the few to cooperate and act responsibly not only affected employees placed on a leave of absence but also placed a financial hardship on their families, not to mention the effect it has had on the communities where they live. In addition, passenger safety on airline flights was placed in jeopardy. If hospitals operated in this manner, there would be even more recorded bad outcomes. Teamwork is effective only as long as each member of the team cooperates and fulfills the duties assigned. High-quality patient care is more likely to be better in those organizations where respect and cooperation abound.

Tying together the Patient Protection and Affordable Care Act, commonly referred to as Obamacare, as a prerequisite to approving the national budget has merely resulted in name-calling by government
officials, which has stirred bitterness between citizens of varying beliefs. Pundits and politicians alike fill the airways with contemptuous remarks that stoke the flames of division. The need to win one’s point of view has selfishly become the norm and more important than the nation itself. Pride and self-appointed power brokers are the hallmarks of those responsible for crisis after crisis. Change comes when the players learn to cooperate for the common good.

Forgiveness

Forgiveness is a virtue of the brave.

—Indira Gandhi

Forbearing one another, and forgiving one another, if any man have a quarrel against any: even as Christ forgave you, so also do ye.

—Colossians 3:13 KJV

Forgiveness is a virtue and a value. It is the willingness to pardon someone who has wronged you in some way. It is also a form of mercy. Forgiveness is to forgive and let loose the bonds of blame. It is a form of cleansing souls of both those who forgive and those who accept the forgiveness offered.

The following
Reality Check is an excerpt of a Facebook discussion between two friends involving courage and forgiveness by two very special people.

Courage and Forgiveness

7:38 AM

Scotty: Did you see this link [
http://www.josieking.org/page.cfm?pageID=10] on the internet?

7:38 AM

Diane: Reading it now

[Josie was 18 months old. … In January of 2001 Josie was admitted … after suffering first and second degree burns from climbing into a hot bath. She healed well and within weeks was scheduled for release. Two days before she was to return home she died of severe dehydration and misused narcotics …

Josie spent 10 days in the PICU. I [Josie’s mother] was by her side every day and night. I paid attention to every minute detail of the doctors’ and nurses’ care, and I was quick to ask questions. I bonded with them and was in constant awe of the medical attention she received. … She was sent down to the intermediate care floor with expectations of being sent home in a few days. Her three older siblings prepared for her welcome home celebration …

The following week her central line had been taken out. I began noticing that every time she saw a drink she would scream for it, and I thought this was strange. I was told not to let her drink. While a nurse and I gave her a bath, she sucked furiously on a washcloth. As I put her to bed, I noticed that her eyes were rolling back in her head. Although I asked the nurse to call the doctor, she reassured me that oftentimes children did this, and her vitals were fine. I told her Josie had never done this and perhaps another nurse could look at her. After yet another reassurance from another nurse that everything was fine, I was told that it was okay for me to sleep at home. I called to check in two times during the night and returned to the hospital at 5:30 am. I took one look at Josie and demanded that a doctor come at once. She was not fine. Josie’s medical team arrived and administered two shots of Narcan. I asked if she could have something to drink. The request was approved, and Josie gulped down nearly a liter of juice. Verbal orders were issued for there to be no narcotics given. As I sat with Josie, I noticed that the nurse on morning duty was acting very strangely. She seemed nervous, overly demonstrative and in a hurry. Uneasy, I asked the other nurses about her and they said she had been a nurse for a long time. Still worried, I expressed my concern to one of the doctors, and he agreed that she was acting a bit odd. Meanwhile, Josie started perking up. She was more alert and had kept all liquids down. I was still scared and asked her doctors to stay close by. At 1:00 the nurse walked over with a syringe of methadone. Alarmed, I told her that there had been an order for no narcotics. She said the orders had been changed and administered the drug.

Josie’s heart stopped as I was rubbing her feet. Her eyes were fixed, and I screamed for help. I stood helpless as a crowd of doctors and nurses came running into her room. I was ushered into a small room with a chaplain.

The next time I saw Josie she had been moved back up to the PICU. Doctors and nurses were standing around her bed. No one seemed to want to look at me. She was hooked up to many machines, and her leg was black and blue. I looked into their faces, and said to them, “You did this to her now YOU must fix her.” I was told to pray. Two days later Jack, Relly and Eva were brought to the hospital to kiss their beloved Josie goodbye. Josie was taken off of life support. She died in our arms on a snowy night in what’s considered to be one of the best hospitals in the world. Our lives were shattered and changed forever.

Josie died from severe dehydration and misused narcotics. Careless human errors. On top of our overwhelming sorrow and intense grief we were consumed by anger. They say anger can do one of two things to you. It can cause you to rot away or it can propel you forward. There were days when all I wanted was to destroy the hospital and then put an
end to my own pain. My three remaining children were my only reason for getting out of bed and functioning. One day I will tell them how they saved my life. My husband Tony and I decided that we had to let the anger move us forward. We would do something good that would help prevent this from ever happening to a child again.]

7:43 AM

Diane: I’ve experience firsthand human error in the hospital. I was told by my Dr. it could have been critical and I would have died.

7:45 AM

Diane: The nurses don’t like him, and he told me to write a letter to file a complaint, but the thing is, the nursing staff was so good to me before and after that incident. Evidently when it was happening he yelled at the staff without me knowing. I had no clue what had happened till days later the nurse involved apologized to me profusely.

7:46 AM

Diane: But I was so ill I didn’t give it much thought you ever heard of TPN [total parenteral nutrition]? It’s a sugar mixture via IV because I couldn’t eat. Supposedly it was supposed to be infused in me I think over a 12 hr period?

7:47 AM

Diane: But the nurse put it for 4 hrs. I could have gone into diabetic shock. I do remember trying to wake up but I couldn’t open my eyes and I heard a lot of movement in my room with the nurses. I yelled out. I can’t open my eyes and I’m drenched in sweat. I had no idea what was happening. I was then put on insulin.

7:50 AM

Scotty: I must say you are an amazing young lady.

—Anonymous Patient

Discussion

This young lady forgave the nurse and suggested that when the nurse was setting the timing for the TPN, she may have distracted the nurse, and she blamed herself for the wrong setting. Discuss how courage and forgiveness were displayed in this case.

Discuss the similarities in values that Josie’s mother and the young lady on the Internet have in common.

Discuss your thoughts as to how human errors can be prevented, including what roles patients, families, caregivers, hospitals, and regulatory agencies should play in preventing similar errors.

RELIGIOUS ETHICS

The Great Physician: Dear Lord, You are the great physician. I turn to you in my sickness, asking you for help. I place myself under Your loving care, praying that I may know Your healing grace and wholeness. Help me to find love in this strange world and to feel your presence by my bed both day and night. Give my doctors and nurses wisdom, that they may understand my illness. Steady and guide them with your strong hand. Reach out Your hand to me and touch my life with Your peace. Amen.

—University of Pennsylvania Health System

Religious ethics serve a moral purpose by providing codes of conduct for appropriate behavior through revelations from a divine source (

FIGURE 1-3

). These codes of conduct are enforced through fear of pain and suffering in the next life and/or reward in the next life for adhering to religious codes and beliefs. The prospect of divine justice helps us to tolerate the injustices in this life, where goodness is no guarantee of peace, happiness, wellness, or prosperity.

Many Think God’s Intervention Can Revive the Dying

When it comes to saving lives, God trumps doctors for many Americans. An eye-opening survey reveals widespread belief that divine intervention can revive dying patients. And, researchers said, doctors “need to be prepared to deal with families who are waiting for a miracle.”

—Lindsey Tanner,
USA Today, August 18, 2008

Religion should be a component of the education, policy development, and consultative functions of ethics committees. There is a need to know, for example, how to respond to Jehovah’s Witnesses who refuse blood transfusions. Some hospitals provide staff with materials that describe various religious beliefs and
how those beliefs might affect the patient’s course of care while in the hospital.

Religion is often used as a reason to justify what otherwise could be considered unjustifiable behavior. Political leaders often use religion to legitimize and consolidate their power. Leaders in democratic societies speak of the necessity to respect the right to “freedom of religion.”

Political leaders often use religion to further their political aspirations. They have often used religion to justify their actions. Religious persecution has plagued humanity from the beginning of time.

Syrian Rebels Combat al-Qaeda Force

The ISIS extremists “have not the support of the people because they treated them badly. They were cutting off people’s heads all of the time to scare them in the name of religion,” said Col. Qassim Saadeddine, spokesman for the Revolutionary Front.

—Liz Sly,
The Washington Post, January 6, 2013

The world today, with the aid of the news media, is able to see firsthand the results of what can happen to innocent people in the name of religion. The atrocities of evil people strapping bombs to the mentally deficient with the purpose of blowing them up in public places, killing and maiming men, women, and children, are but a few of the numerous atrocities of what has occurred throughout the ages.

Spirituality implies that there is purpose and meaning to life; spirituality generally refers to faith in a higher being. For a patient, injury and sickness are frightening experiences. This fear is often heightened when the patient is admitted to a hospital or nursing facility. Healthcare organizations can help reduce patient fears by making available to them appropriate emotional and spiritual support and coping resources. It is a well-proven fact that patients who are able to draw on their spirituality and religious beliefs tend to have a more comfortable and often improved healing experience. To assist both patients and caregivers in addressing spiritual needs, patients should be provided with information as to how their spiritual needs can be addressed.

Surgeon Uses Ministry in Medical Practice

At 83, Carl Smith found himself facing quadruple bypass surgery and the real possibility that he may not survive.

Within hours on this spring morning, Dr. Daniel Pool would temporarily bring Smith’s heart to a stop in an attempt to circumvent its blocked passages.

And to help his patient confront the uncertainty, Pool did something unusual in his profession: He prayed with him.

The power of healing: Medicine and religion have had their day, and they haven’t always been able to coexist. But as today’s medical treatment becomes more holistic, doctors are increasingly taking spirituality into account.

—Marc Ramirez,
Altoona Mirror, August 9, 2013

Discussion

Discuss the pressure, if any, placed on the patient in responding to the suggestion of prayer prior to surgery.

Describe how you, as the surgeon, would address a patient’s religious or spiritual needs if the risks of a complex surgical procedure appear to be threatening.

Difficult questions regarding a patient’s spiritual needs and how to meet those needs are best addressed on admission by first collecting information about the patient’s religious or spiritual preferences. Caregivers often find it difficult to discuss spiritual issues for fear of offending a patient who may have beliefs different from their own. If caregivers know from admission records a patient’s religious beliefs, the caregiver can share with the patient those religious and spiritual resources available in the hospital and community. Staff education is often provided to hospital staff and spiritual resources are generally available in patient handbooks that are provided to patients at the time of admission to the hospital.

A variety of religions are described next for the purpose of understanding some of the basic tenets of these religions. They are presented here to note the
importance of better understanding why patients differ in decision-making processes and how religion affects their beliefs and to encourage further study of how each religion affects the decision-making process. Hospitals should maintain a directory of the various religions that includes contacts for referral and consultation purposes.

Northside Hospital describes in part on its website how it addresses the spiritual needs of patients.

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Spiritual Health

Spiritual Health & Education

Healing takes place in all dimensions—physical, mental, emotional, and spiritual.

The Spiritual Health and Education Department at Northside provides spiritual care that is sensitive to each person’s need to find personal truth and meaning in his or her own experience. Our chaplains are partners in healing with patients, families and staff, responding to spiritual distress, providing access to religious resources, facilitating communication with faith representatives or clergypersons outside of the hospital and responding and providing religious rituals.

They are available 24 hours a day, 7 days a week at each of Northside’s three hospital campuses.

Patient Care

As members of your healthcare team, Northside Hospital’s chaplains visit patients and their families to offer support as they make meaning of their healthcare journeys at Northside.

They respect diverse faith traditions and cultural backgrounds, seeking to support patients in drawing on the resources that are most meaningful to them during their hospitalization.

Our chaplains are glad to assist patients in contacting and utilizing the services of their own spiritual care provider (e.g., pastor, rabbi, priest, imam, or designated lay visitors).

Sacred Space for Prayer and Reflection

Each Northside Hospital campus has an easily accessible chapel, open at all times to persons of all faiths for prayer, meditation and reflection, as well as for religious services coordinated by chaplaincy staff.

Multi-faith Services

At Northside, we respect the right of individuals to hold and express their own spiritual beliefs. Our chaplains provide spiritual health support to patients across the spectrum of beliefs and maintain relationships with skilled volunteers and local clergy to offer referral support by patient request.

Additionally, we facilitate weekly multi-faith chapel services at Northside Hospital’s Atlanta campus and oversee sacred inclusive chapel spaces at Northside Hospital’s Forsyth and Cherokee Campuses.

For those in need, we offer spiritual health support services to patients or their loved ones nearing or at the end-of-life. Community memorial services and times of remembrance are also conducted by our chaplains.

Numerous resources for caregivers and patients are available on the web.

HealthCare Chaplaincy Network™ (HCCN), founded in 1961, is a global healthcare nonprofit organization that offers spiritual care-related information and resources, and professional chaplaincy services in hospitals, other healthcare settings, and online. Its mission is to advance the integration of spiritual care in health care through clinical practice, research, and education in order to improve patient experience and satisfaction and to help people faced with illness and grief find comfort and meaning—whoever they are, whatever they believe, wherever they are.

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Judaism

Jewish Law refers to the unchangeable 613 mitzvot (commandments) that God gave to the Jews. Halakhah (Jewish Law) comes from three sources: (1) the Torah (the first five books of the Bible); (2) laws instituted by the rabbis; and (3) longstanding customs. The Jewish People is another name for the Children of Israel, referring to the Jews as a nation in the classical sense, meaning a group of people with a shared history and a sense of a group identity rather than a specific place or political persuasion.

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Judaism is a monotheistic religion based on principles and ethics embodied in the Hebrew Bible (Old Testament). The notion of right and wrong is not so much an object of philosophical inquiry as an acceptance of divine revelation. Moses, for example, received a list of 10 laws directly from God. These laws were known as the 10 Commandments. Some of the 10 Commandments are related to the basic principles of justice that have been adhered to by society since they were first proclaimed and published. For some societies, the 10 Commandments were a turning point, where essential commands such as “thou
shalt not kill” or “thou shalt not commit adultery” were accepted as law. The 10 Commandments (King James Version of the Bible) are as follows:

Thou shalt have no other gods before me.

Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.

Thou shalt not bow down thyself to them, nor serve them. Thou shalt not take the name of the Lord thy God in vain.

Remember the Sabbath day, to keep it holy.

Honor thy father and thy mother: that thy days may be long upon the land which the Lord thy God giveth thee.

Thou shalt not kill.

Thou shalt not commit adultery.

Thou shalt not steal.

Thou shalt not bear false witness against thy neighbor.

Thou shalt not covet thy neighbor’s house, thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor anything that is thy neighbor’s.

When caring for the dying, family members will normally want to be present and prayers spoken. If a rabbi is requested, the patient’s own rabbi should be contacted first.

Hinduism

Hinduism is a polytheistic religion with many gods and goddesses. Hindus believe that God is everything and is infinite. The earliest known Hindu scriptures were recorded around 1200 BC. Hindus believe in reincarnation and that one’s present condition is a reflection of one’s virtuous behavior or lack thereof in a previous lifetime.

When caring for the dying, relatives may wish to perform rituals at this time. In death, jewelry, sacred threads, or other religious objects should not be removed from the body. Washing the body is part of the funeral rites and should be carried out by the relatives.

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Buddhism

Buddhism is a religion and philosophy encompassing a variety of traditions, beliefs, and practices, based largely on teachings attributed to Prince Siddhartha Gautama (563–483 BC), son of King Suddhodana and Queen Mayadevi, who lived in the present-day border area between India and Nepal. He had gone on a spiritual quest and eventually became enlightened at the age of 35, and from then on, he took the name Buddha. Simply defined, Buddhism is a religion to some and a philosophy to others that encourages one “to do good, avoid evil, and purify the mind.”

When caring for the dying, Buddhists like to be informed about their health status in order to prepare themselves spiritually. A side room with privacy is preferred.

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Falun Gong

Falun Gong, also referred to as
Falun Dafa, is a traditional Chinese spiritual discipline belonging to the Buddhist school of thought. It consists of moral teachings, a meditation, and four exercises that resemble tai chi and are known in Chinese culture as
qigong. Falun Gong does not involve physical places of worship, formal hierarchies, rituals, or membership and is taught without charge. The three principles practiced by the followers are truthfulness, compassion, and forbearance/tolerance toward others. The followers of Falun Gong claim a following in 100 countries.

Zen

Zen evolved from Buddhism in Tibet. It emphasizes dharma practice (from the master to the disciple) and experiential wisdom based on learning through the reflection on doing, going beyond scriptural readings. In Zen Buddhism, learning comes through a form of seated meditation known as
zazen, where practitioners perform meditation to calm the body and the mind and experience insight into the nature of existence and thereby gain enlightenment.

Taoism

Taoists believe that ultimate reality is unknowable and unperceivable. The founder of Taoism is believed to be Lao Tzu (6 BC). Taoist doctrine includes the belief that the proper way of living involves being in tune with nature. Everything is ultimately interblended and interacts. Taoist ethics include compassion, frugality, and humility. They emphasize the importance of meditation in daily life, which can be a challenge in the hospital setting.

Christianity

Christianity is based on the Bible’s New Testament teachings. Christians accept both the Old and New Testament as being the word of God. The New Testament describes Jesus as being God, taking the form of man. He was born of the Virgin Mary, sacrificed
his life by suffering crucifixion, and after being raised from the dead on the third day, he ascended into Heaven from which he will return to raise the dead, at which time the spiritual body will be united with the physical body. His death, burial, and resurrection provide a way of salvation through belief in Him for the forgiveness of sin. God is believed to be manifest in three persons: the Father, Son, and Holy Spirit.

The primary and final authority for Christian ethics is found in the life, teachings, ministry, death, and resurrection of Jesus Christ. He clarified the ethical demands of a God-centered life by applying the obedient love that was required of Peter. The 10 Commandments are accepted and practiced by both Christians and Jews.

Christians, when determining what is the right thing to do, often refer to the Golden Rule, which teaches us to “do unto others as you would have them do unto you,” a common principle in many moral codes and religions.

There have been and continue to be numerous interpretations of the meaning of the scriptures and their different passages by Christians over the centuries. This has resulted in a plethora of churches with varying beliefs. As noted later, such beliefs can affect a patient’s wishes for health care. However, the heart of Christian beliefs is found in the book of John:

For God so loved the world, that he gave his only begotten Son, that whoever believeth in him should not perish, but have everlasting life.

—John 3:16 (King James Version)

The Apostle Paul proclaimed that salvation cannot be gained through good works but through faith in Jesus Christ as savior. He recognized the importance of faith in Christ over good works in the pursuit of salvation.

That if thou shalt confess with thy mouth the Lord Jesus, and shalt believe in thine heart that God hath raised him from the dead, thou shalt be saved.

—Romans 10:9 (King James Version)

The Apostle Paul, however, did not dismiss the importance of good works. Works are the fruit of one’s faith. In other words, good works follow faith.

Anointing of the Sick

When caring for the dying, services of the in-house chaplain and/or one’s religious minister should be offered to the patient. A Catholic priest should be offered when Last Rites need to be administered to those of the Catholic faith.

Islam

The Islamic religion believes there is one God: Allah. Muhammad (AD 570–632) is considered to be a prophet/messenger of God. He is believed to have received revelations from God. These revelations were recorded in the Qur’an, the Muslim Holy Book. Muslims accept Moses and Jesus as prophets of God. The Qur’an is believed to supersede the Torah and the Bible. Muslims believe that there is no need for God’s grace and that their own actions can merit God’s mercy and goodness. Humans are believed to have a moral responsibility to submit to God’s will and to follow Islam as demonstrated in the Qur’an. The five pillars of the practice of Islam are believing the creed, performing five prayers daily, giving alms, fasting during Ramadan, and making a pilgrimage to Mecca at least once in a lifetime.

When caring for the dying, patients may want to be with relatives and die facing Mecca (in the United States, that means the patient should be oriented toward the southeast). In death, many Muslims follow strict rules in respect for the body after death.

Religious Beliefs and Duty Conflict

Religious beliefs and codes of conduct sometimes conflict with the ethical duty of caregivers to save lives. For example, Jehovah’s Witnesses believe that it is a sin to accept a blood transfusion because the Bible states that we must “abstain from blood” (Acts 15:29). A principal tenet of the Jehovah’s Witness faith is the belief that receiving blood or blood products into one’s body precludes resurrection and everlasting life after death. Current Jehovah’s Witness doctrine, in part, states that blood must not be transfused. In order to respect this belief, bloodless surgery is available in a number of hospitals to patients who find it against their religious beliefs to receive a blood transfusion.

Every attempt should be made to resolve blood transfusion issues prior to any elective surgery. The transfusion of blood to an emergent unconscious patient may be necessary to save the patient’s life. Because some Jehovah’s Witnesses would accept blood in such situations, most courts would most likely find such a transfusion acceptable. When transfusion of a minor becomes necessary and parental consent is refused, it may be necessary to seek a court order to allow for such transfusions. Because time is of the essence in many cases, it is important for hospitals to work out such issues in advance with legislative bodies and the judicial system in order to provide legal protection for caregivers who find it necessary to transfuse blood in order to save a life. In those instances where the patient has a right to refuse a blood transfusion, the hospital should seek a formal signed release from the patient.

SECULAR ETHICS

Unlike religious ethics,
secular ethics is based on codes developed by societies that have relied on customs to formulate their codes. The Code of Hammurabi, for example, carved on an 8-foot black stone column, now located in the Louvre in Paris, depicts a mythical Babylonian sun god presenting a code of laws to Hammurabi, a great military leader and ruler of Babylon (1795–1750 BC). Hammurabi’s code of laws is an early example of a ruler proclaiming to his people an entire body of laws. The following excerpts are from the Code of Hammurabi.

Code of Hammurabi

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If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge’s bench, and never again shall he sit there to render judgment.

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If a man give his child to a nurse and the child die in her hands, but the nurse unbeknown to the father and mother nurse another child, then they shall convict her of having nursed another child without the knowledge of the father and mother and her breasts shall be cut off.

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If a physician make a large incision with an operating knife and cure it, or if he open a tumor (over the eye) with an operating knife, and saves the eye, he shall receive ten shekels in money.

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If he be the slave of some one, his owner shall give the physician two shekels.

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If a physician make a large incision with the operating knife, and kill him, or open a tumor with the operating knife, and cut out the eye, his hands shall be cut off.

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If a physician make a large incision in the slave of a freed man, and kill him, he shall replace the slave with another slave.

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If a physician heal the broken bone or diseased soft part of a man, the patient shall pay the physician five shekels in money.

ATHEISM

Atheism is the rejection of belief in any god, generally because atheists believe there is no scientific evidence that can prove God exists. They argue that there is no objective moral standard for right and wrong and that ethics and morality are the products of culture and politics, subject to individual convictions.

Those of various religious faiths, however, believe there is overwhelming evidence that there is reason to believe that God does exist and that the evidence through historical documents, archaeological finds, and the vastness of space and time clearly supports and confirms the existence of God. Christians often refer to the Old Testament and cite the book of Isaiah:

It is He that sitteth upon the circle of the earth …

—Isaiah 40:22 (King James Version)

Christians argue when citing this verse that Isaiah could not possibly know that the earth is the shape of a circle. He presents no magical formula or scientific argument in his writings as to why the earth is round. Furthermore, Isaiah does not belabor the fact that the earth is round. The argument continues in the book of Job:

He stretcheth out the north over the empty place, and hangeth the earth upon nothing.

—Job 26:7 (King James Version)

The obvious question then arises, how did Job know, 3,000 years before it became a scientific, verifiable fact, the earth hangs upon nothing?

SITUATIONAL ETHICS

Be careful how you judge others. … As Scottish author J.M. Barrie said, “Never ascribe to an opponent motives meaner than your own.” We tend to judge others based on their behavior, and ours based on our intent. In almost all situations, we would do well to recognize the possibility—even probability—of good intent in others … sometimes despite their observable behavior.

—Stephen M. R. Covey,
The Speed of Trust (Free Press)

Situational ethics is concerned with the outcome or consequences of an action in which the ends can justify the means. It refers to those times when a person’s beliefs and values can change as circumstances
change. Why do good people behave differently in similar situations? Why do good people sometimes do bad things? The answer is fairly simple: One’s moral character can sometimes change as circumstances change; thus the term situational ethics. A person, therefore, may contradict what he believes is the right thing to do and do what he morally considers wrong. For example, a decision not to use extraordinary means to sustain the life of an unknown 84-year-old may result in a different decision if the 84-year-old is one’s mother.

The news clipping that follows illustrates how far society can regress when there are no common rules, values, or boundaries to guide us.

Viet Cong Execution

“And out of nowhere came this guy who we didn’t know.” Gen. Nguyen Ngoc Loan, chief of South Viet Nam’s national police, walked up and shot the prisoner in the head. His reason: The prisoner, a Viet Cong lieutenant, had just murdered a South Vietnamese colonel, his wife, and their six children.

The peace movement adopted the photo as a symbol of the war’s brutality. But Adams, who stayed in touch with Loan, said the photo wrongly stereotyped the man. “If you’re this general and you caught this guy after he killed some of your people … how do you know you wouldn’t have pulled that trigger yourself? You have to put yourself in that situation. … It’s a war.”

—1969 Spot News, Newseum, Washington, DC

Have we lost our way? Have we lost our sense as to what is right and what is wrong? We say we have become a melting pot with some common themes but uncommon beliefs. In religion, there are those who sometimes seek a place of worship not always because one seeks what is right but because unconsciously it supports an individual’s beliefs of what is right and wrong. Sometimes one’s ever-changing choice of lifestyle contradicts earlier beliefs and can often result in a change in place of worship.

The values held so strongly in one situation may conflict with the same values given a different fact pattern. To better understand the concept of situational ethics, consider the desire to live and the extreme measures one will take in order to do so, remembering that ethical decision making is the process of determining the right thing to do when faced with moral dilemmas.

Consider the account of the plane crash on October 13, 1972, high in the Andes Mountains. The survivors of the crash, until the day they were rescued, were faced with difficult decisions in order to survive. Of the original 40 passengers and 5 crewmembers, 16 emerged alive 72 days later to tell the story of the difficult ethical dilemmas and survival decisions they had to make.

Those who wished to survive had to eat the flesh of those who did not. They realized that to survive, they would have to deviate from their beliefs that teach it is morally wrong to eat the flesh of another human being. Given a different fact pattern, where there would have been an abundance of food at the site of the plane crash, the survivors would have found it reprehensible to eat human flesh. This is a gruesome story indeed, but it illustrates how there are no effective hard and fast rules or guidelines to govern ethical behavior when faced with life-or-death decisions. The reader here should consider how one’s beliefs, decisions, and/or actions can change as circumstances change. Such is the case in the patient care setting where individual differences emerge based on needs, beliefs, and values.

REASONING AND THE DECISION-MAKING PROCESS

Reason guides our attempt to understand the world about us. Both reason and compassion guide our efforts to apply that knowledge ethically, to understand other people, and have ethical relationships with other people.

—Molleen Matsumura

Reasoning is the process of forming conclusions, judgments, or inferences based on one’s interpretation of facts or premises that help support a conclusion.
Reasoning includes the capacity for logical inference and the ability to conduct inquiry, solve problems, evaluate, criticize, and deliberate about how we should act and to reach an understanding of other people, the world, and ourselves.

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Partial reasoning involves bias for or against a person based on one’s relationship with that person.
Circular reasoning describes a person who has already made up his/her mind on a particular issue and sees no need for deliberation (i.e., “Don’t confuse me with the facts”). For example, consider the following statement by Mr. X: “John Smith has lived a good life. It’s time to pull the plug. He is over 65 and, therefore, should not have any rights to a recently available kidney for transplant. Regardless of Mr. Smith’s need for a kidney transplant, all donated organs should be given to those under 65.” Here, Mr. X outright rejects any consideration to donating an organ to Mr. Smith regardless of any argument presented by Ms. Y as to why Smith should be considered for a kidney transplant. This conversation is circular reasoning because Mr. X has closed his mind to any argument by Ms. Y. His only discussion will be his attempt to refute any arguments presented by Ms. Y. The rightness or wrongness of this statement is a moral issue and should be open for discussion, fact-finding, evaluation, reasoning, and consensus decision making and not be closed to discussion by one party’s total rejection of an opposing argument.

Ethical dilemmas often arise when ethical theories, principles, and values conflict. Healthcare dilemmas occur when there are alternative choices, limited resources, and differing values among patients, family members, and caregivers. Ethical dilemma arises when, for example, the principles of autonomy and beneficence conflict with one another. Coming to an agreement may mean sacrificing one’s personal wishes and following the road where there is consensus.
Consensus building during the decision-making process will occur when the parties involved can sit and reason together. The process of identifying the various alternatives to an ethical dilemma, determining the pros and cons of each choice, and making informed decisions requires a clear, unbiased willingness to listen, learn, and, in the end, make an informed decision. The application of the theories, principles, and values discussed in this chapter will assist caregivers and patients in making better decisions when facing ethical dilemmas in the healthcare setting.

The resolution of patient care dilemmas without personal biases will result in better decisions. For example, Martha, at 95 years of age, has a “living will that provides that all measures are to be taken to prolong her life in the event she lapses into a coma and is unable to make her own decisions.” Martha later changes her will to read: “extraordinary means to maintain her life such as assisted breathing devices are not to be used.” One member of the family, aware of the written changes to Martha’s living will, decides not to share the latest changes with family members or caregivers. As a result, a wrong decision is reached for Martha in honoring her end-of-life wishes.
Knowledge and
information of Martha’s wishes must be shared so that the
analysis of the dilemma leads to a
decision made based on Martha’s end-of-life wishes. Such is the case in all scenarios where care dilemmas and conflicting issues of right and wrong, good and bad arise and difficult decisions must be made.

ABSENCE OF A MORAL COMPASS

The world is a dangerous place. Not because of the people who are evil; but because of the people who don’t do anything about it.

—Albert Einstein

The nation’s healthcare system is off course as noted by the absence of a moral compass. Trust in the healthcare system continues to decline when those who are entrusted with providing health care prescribe unnecessary procedures (e.g., cardiac catheterizations, hysterectomies, tonsillectomies), molest our children, secretly record photographic pictures of patients while they are receiving physical examinations, engage in fraudulent billing scams costing the nation billions of dollars annually, tamper with chemotherapy agents by diluting them (unbeknown to patients who trust they are being treated by caregivers with integrity), perform unwarranted high-risk lifesaving treatment delays for our veterans
and falsification of records, and the list of unethical behavior continues to grow, seemingly unabated. The government and those in leadership roles have failed to reset the nation’s moral compass. The present path to better health care for all continues on an unacceptable course of corruption and is increasingly becoming a disturbing public concern.

Political corruption, antisocial behavior, declining civility, and rampant unethical conduct have heightened discussions over the nation’s moral decline and decaying value systems in the delivery of health care. The numerous instances of questionable political decisions and numbers-cooking executives with exorbitant salaries, including healthcare executives working for both profit and nonprofit organizations, have all contributed to the nation’s moral decline.

The continuing trend of consumer awareness of declining value systems mandates that the readers of this book understand ethics and the law and how they intertwine. Applying the generally accepted ethical principles (e.g., do good and not harm) and the moral values (e.g., respect, trust, integrity, compassion) described in this chapter will help set a better course for those who are guided by a moral compass. It is the responsibility of every person to participate in resetting the moral compass, in our nation and in the world at large.

CREATING A CULTURE OF ETHICS

There is no lack of articles and books that describe the importance of and how to create a culture of ethics in healthcare organizations. Creating a culture of ethics begins with the governing body. The CEO must take a leadership role in creating and maintaining a culture of ethics. “Employees listen to their leadership’s messages and observe their behavior; therefore, it is incumbent on any healthcare board to define, both in word and deed, ethical conduct and to determine the degree to which ethics are a part of the organization’s culture.”

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One of the premiere descriptions outlining the importance of the CEO’s obligation to take a leadership role in creating a culture of ethics is presented here with permission by the American College of Healthcare Executives.

Creating an Ethical Culture Within the Healthcare Organization

Statement of the Issue

The number and significance of challenges facing healthcare organizations are unprecedented. Growing financial pressures, rising public and payor expectations, consolidations and mergers, patient safety and quality improvement issues and healthcare reform have placed healthcare organizations under great stress—thus potentially intensifying ethics concerns and conflicts.

Healthcare organizations must be led and managed with integrity and consistent adherence to organizational values, professional and ethical standards. The executive, in partnership with the board, must act with other responsible parties such as ethics committees, to serve as a role model, fostering and supporting a culture that not only provides high-quality, value-driven healthcare but promotes the ethical behavior and practices of individuals throughout the organization.

Recognizing the significance of ethics to the organization’s mission and fulfillment of its responsibilities, healthcare executives must demonstrate the importance of ethics in their own actions and seek various ways to integrate ethical practices and reflection into the organization’s culture. To create an ethical culture, healthcare executives should: 1) support the development and implementation of ethical standards of behavior including ethical clinical, management, research and quality-improvement practices; 2) ensure effective and comprehensive ethics resources, including an ethics committee, exist and are available to develop, propagate and clarify such standards of behavior when there is ethical uncertainty; and 3) support and implement a systematic and organization-wide approach to ethics training and corporate compliance.

The ability of an organization to achieve its full potential as an ethically aligned organization will remain dependent upon the motivation, knowledge, skills and practices of each individual within the organization. Thus, the executive has an obligation to accomplish the organization’s mission in a manner that respects the values of individuals and maximizes their contributions.

Policy Position

The American College of Healthcare Executives believes all healthcare executives have a professional obligation to create an ethical culture. To this end, healthcare executives should lead these efforts by:

Demonstrating and modeling the importance of and commitment to ethics through decisions, practices and behaviors;

Promulgating an organizational code of ethics that includes ethical standards of behavior and guidelines;

Reviewing the principles and ideals expressed in vision, mission and value statements, personnel policies, annual reports, orientation materials and other documents to ensure congruence;

Supporting policies and behaviors that reflect those ethics is essential to achieving the organization’s mission;

Using regular communications to help foster an understanding of the organization’s commitment to ethics;

Communicating expectations that behaviors and actions are based on the organization’s code of ethics, values and ethical standards of practice. Such expectations also should be included in orientations and position descriptions where relevant;

Ensuring individuals throughout the organization are respected and expected to behave in an ethical manner;

Fostering an environment where the free expression of ethical concerns is encouraged and supported without retribution;

Ensuring effective ethics resources—such as an ethics committee—are available for discussing, researching, and addressing clinical, organizational and ethical concerns;

Establishing a mechanism that safeguards individuals who wish to raise ethical concerns;

Seeking to ensure that individuals are free from all harassment, coercion and discrimination;

Providing an effective and timely process to facilitate dispute resolution;

Using each individual’s knowledge, skills and abilities appropriately; and

Ensuring a safe work environment exists.

These responsibilities can best be implemented in an environment in which each individual within the organization is encouraged and supported in adhering to the highest standards of ethics. This should be done with attention to the organization’s values, code of ethics and appropriate professional codes, particularly those that stress the moral character and behavior of the executive and the organization itself.

To ensure the creation of an ethically grounded culture, leaders should regularly assess their organization’s culture using such approaches as employee surveys (internal town hall forums), informal job shadowing and focus groups. Executives in collaboration with clinical and administrative leaders need to recognize any barriers to maintaining an ethical culture. It is the responsibility of healthcare executives, leaders and all staff to take immediate and definite action when addressing ethical barriers. The ethical foundation of the organization depends on whether or not the leadership, and all associated individuals, are fulfilling its mission and values.

Approved by the Board of Governors of the American College of Healthcare Executives on November 9, 2015.

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SUMMARY THOUGHTS

Be careful of your thoughts, for your thoughts inspire your words. Be careful of your words, for your words precede your actions. Be careful of your actions, for your actions become your habits. Be careful of your habits, for your habits build your character. Be careful of your character, for your character decides your destiny.

—Chinese Proverb

Although you cannot control the amount of time you have in this lifetime, you can control your behavior by adopting the virtues and values that will define who you are and what you will become and how you will be remembered or forgotten.

Become who you want to be and behave how you want to be remembered. The formula is easy and well described previously in what has been claimed to be a Chinese proverb. Read it. Reread it. Write it. Memorize it. Display it in your home, at work, and in your car, and most of all, practice it, always remembering that it all begins with thoughts.

Control your thoughts, and do not let them control you. As to words, they are the tools of thought. They can be sharper than any double-edged sword and hurt, or they can do good and heal.

It is never too late to change your thoughts, as long as you have air to breathe. Your legacy may be short, but it can be powerful. Remember the Gettysburg address. In the final analysis:

People are often unreasonable, illogical and self-centered; forgive them anyway. If you are kind, people may accuse you of selfish, ulterior motives; be kind anyway. If you are successful, you will win some false friends and some true enemies; succeed anyway. What you spend years building, someone may destroy overnight; build anyway. The good you do today, people will often forget tomorrow; do good anyway. Give the world the best you have, and it may never be enough; give the world the best you have anyway. You see, in the final analysis, it is between you and God; It was never between you and them anyway.

—Author Unknown

CHAPTER REVIEW

Ethics is the branch of philosophy that seeks to understand the nature, purposes, justification, and founding principles of moral rules and the systems they compose.

Microethics involves an individual’s view of what is right and wrong based on his or her life experiences.

Macroethics involves a more generalized view of right and wrong.

Bioethics addresses such difficult issues as the nature of life, the nature of death, what sort of life is worth living, what constitutes murder, how we should treat people who are especially vulnerable, and the responsibilities we have to other human beings.

We study ethics to aid us in making sound judgments, good decisions, and right choices.

Ethics signifies a general pattern or way of life, such as religious ethics; a set of rules of conduct or “moral code,” which involves professional ethics; or philosophical ethics, which involves inquiry about ways of life and rules of conduct.

Morality is a code of conduct. It is a guide to behavior that all rational persons would put forward for governing the behavior of all moral agents.

There is no “universal morality.” Whatever guide to behavior that an individual regards as overriding and wants to be universally adopted is considered that individual’s morality.

Moral judgments are those judgments concerned with what an individual or group believes to be the right or proper behavior in a given situation.

Morality is often legislated when differences cannot be resolved because of conflicting moral codes with varying opinions as to what is right and what is wrong (e.g., abortion). Laws are created to set boundaries for societal behavior, and they are enforced to ensure that the expected behavior is followed.

Ethical theories and principles introduce order into the way people think about life.
Metaethics seeks to understand ethical terms and theories and their application. The following are ethical theories:

Normative ethics is the attempt to determine what moral standards should be followed so that human behavior and conduct may be morally right.

Descriptive ethics, also known as comparative ethics, deals with what people believe to be right and wrong.

Applied ethics is the application of normative theories to practical moral problems. It is the attempt to explain and justify specific moral problems such as abortion, euthanasia, and assisted suicide.

The
consequential theory emphasizes that the morally right action is whatever action leads to the maximum balance of good over evil. The consequential theory is based on the view that the value of an action derives solely from the value of its consequences.

Utilitarian ethics involves the concept that the moral worth of an action is determined solely by its contribution to overall utility, that is, its contribution to happiness or pleasure as summed among all persons.

Deontological ethics focuses on one’s duties to others. It includes telling the truth and keeping your promises. Deontology is an ethical analysis according to a moral code or rules.

The
nonconsequential ethical theory denies that the consequences of an action or rule are the only criteria for determining the morality of an action or rule.

Ethical relativism is the theory that holds that morality is relative to the norms of one’s culture.

Common principles of ethics include:

Autonomy involves recognizing the right of a person to make his or her own decisions.

Beneficence describes the principle of doing good, demonstrating kindness, showing compassion, and helping others.

Paternalism is a form of beneficence. It may involve withholding information from a person because of the belief that doing so is in the best interest of that person.

Medical paternalism involves making choices for (or forcing choices on) patients who are capable of choosing for themselves. It directly violates patient autonomy.

Nonmaleficence is an ethical principle that requires caregivers to avoid causing harm to patients.

Justice is the obligation to be fair in the distribution of benefits and risks.

Distributive justice is a principle that requires treatment of all persons equally and fairly.

Virtue ethics and values

Virtue is normally defined as some sort of moral excellence or beneficial quality. In traditional ethics, virtues are characteristics that differentiate good people from bad people.

Virtue ethics focuses on the inherent character of a person rather than on the specific actions he or she performs.

Value is something that has worth. Values are used for judging the goodness or badness of some action.

Ethical values imply standards of worth.

Intrinsic value is something that has value in and of itself.

Instrumental value is something that helps to give value to something else (e.g., money is valuable for what it can buy).

Values may change as needs change.

Religious ethics serves a moral purpose by providing codes of conduct for appropriate behavior through revelations from a divine source.

Secular ethics is based on codes developed by societies that have relied on customs to formulate their codes.

Situational ethics describes how a particular situation may influence how one’s reaction and values may change in order to cope with changing circumstances.

Reasoning includes the capacity for logical inference and the ability to conduct inquiry, solve problems, evaluate, criticize, and deliberate about how we should act and to reach an understanding of other people, the world, and ourselves.

The acceptance, understanding, and application of the ethical and moral concepts learned in this chapter will provide a moral compass to guide the reader through life’s journey.

TEST YOUR UNDERSTANDING

Terminology

applied ethics

autonomy

beneficence

bioethics

code of ethics

commitment

compassion

conscientiousness

consequential theory

cooperation

courage

deontological ethics

descriptive ethics

detachment

distributive justice

discernment

employment-related paternalism

ethical principles

ethical relativism

ethical theories

ethics

fairness

fidelity

freedom

honesty

hopefulness

instrumental value

integrity

intrinsic value

justice

kindness

macroethics

medical paternalism

metaethics

microethics

moral dilemmas

moral judgments

moral values

morality

nonconsequential ethics

nonmaleficence

normative ethics

paternalism

religious ethics

respect

secular ethics

situational ethics

spirituality

tolerance

truth telling

values

veracity

virtue ethics

virtues

REVIEW QUESTIONS

What is ethics?

Why should one study ethics?

What is morality?

Describe the ethical theories presented in this chapter.

What is ethical relativism? What is the relevance of this concept to individuals of various cultures living in the same society?

Describe the various ethical principles reviewed and how they might be helpful in resolving healthcare ethical dilemmas.

Describe virtue ethics and values. How do virtues and values differ?

Discuss why “courage” could be considered as the greatest of all virtues.

Discuss how religion can affect one’s character.

Describe the principle of justice and how it can affect the decision-making process.

Explain how you would allocate scarce resources in the provision of health care?

What is “situational ethics”? Why do people behave differently in different situations?

What role do religious beliefs play in a healthcare setting?

Describe how legal principles can conflict with religious beliefs in the hospital setting.

NOTES

1. “Cultural Relativism Morals Ethics Ruth Benedict Anarchy De Facto,” Pitlane Magazine.
http://www.pitlanemagazine.com/cultures/cultural-relativism-morals-ethics-ruth-benedict-anarchy-de-facto.html (accessed August 8, 2018).

2. Wikipedia, s.v. “code of conduct.”
https://en.wikipedia.org/wiki/Code_of_conduct (June 28, 2018; accessed July 5, 2018).

3. A. J. Ayer, “A Critique of Ethics,” in
Language, Truth and Logic (London: Gollanz, 1946), 102–114.

4. Larry N. Gowdy, “Meta-Ethics.”
http://www.ethicsmorals.com/metaethics.html (October 15, 2013; accessed July 5, 2018).

5. Ibid.

6. National Institute on Aging, “Providing Comfort at the End of Life.”
https://www.nia.nih.gov/health/providing-comfort-end-life (May 17, 2017; accessed July 5, 2018).

7. Oregon Health Authority, “Death with Dignity Act.”
http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/index.aspx (accessed July 5, 2018).

8. Austin Cline, “Ethics: Descriptive, Normative, and Analytic.” ThoughtCo.
https://www.thoughtco.com/ethics-descriptive-normative-and-analytic-4037543 (accessed July 5, 2018).

9. Larry N. Gowdy, “Applied Ethics.”
http://www.ethicsmorals.com/ethicsapplied.html (October 16, 2013; accessed July 5, 2018).

10. Jason Gillikin, “Workplace Example of Duty Based Ethics.” Chron.
http://smallbusiness.chron.com/workplace-example-duty-based-ethics-11972.html (accessed July 5, 2018).

11.
Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914).

12. American Medical Association, AMA Principles of Medical Ethics.
https://www.ama-assn.org/delivering-care/ama-principles-medical-ethics (accessed July 5, 2018).

13.
The Stamford Hospital v. Nelly E. Vega, 236 Conn. 646 (1996).

14. Vega, 236 Conn. at 667.

15. Centers for Medicare & Medicaid Services, “Memorandum [October 18, 2013]: Cardiopulmonary Resuscitation (CPR) in Nursing Homes,” Ref: S&C: 14-01-NH REVISED 01.23.15.
https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-14-01 (accessed July 5, 2018).

16. David S. Brody, “The Patient’s Role in Clinical Decision-Making,” Annals of Internal Medicine 93 (November 1980): 718–722.

17. Craig R. Senn, “Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law,”
UCLA Law Review 58 (2011): 947–1024.
http://uclalawreview.org/?p=1679 (accessed July 5, 2018).

18.
In re Conroy, 464 A.2d 303, 314 N.J. Super. Ct. App. Div. (1983).

19. Joshua Melvin, “Peninsula child Psychiatrist William Ayres Sentenced to Eight Years for Molesting Patients,” The Mercury News (August 26, 2013).
http://www.mercurynews.com/san-mateo-county-times/ci_23948856/peninsula-child-psychiatrist-william-ayres-sentenced-eight-years?source=rss&cid=dlvr.it (accessed July 5, 2018).

20. Edward M. Kennedy, “Remarks on Health Care, John F. Kennedy Presidential Library and Museum, April 28, 2002.”
https://www.jfklibrary.org/Research/Research-Aids/Ready-Reference/EMK-Speeches/Remarks-of-Senator-Edward-M-Kennedy-on-Health-Care.aspx (accessed July 5, 2018).

21. CNN, “Transcript: Edward Kennedy’s DNC Speech” (August 25, 2008).
http://www.cnn.com/2008/POLITICS/08/25/kennedy.dnc.transcript/index.html (accessed July 5, 2018).

22. Dan Munro, “U.S. Healthcare Spending on Track to Hit $10,000 per Person This Year,” Forbes (January 5, 2015).
https://www.forbes.com/sites/danmunro/2015/01/04/u-s-healthcare-spending-on-track-to-hit-10000-per-person-this-year/#4c140c936dea (accessed July 5, 2018).

23. Ricardo Alonso-Zalivar, “$10,345 per Person: U.S. Health Care Spending Reaches New Peak,” Associated Press (July 13, 2016).
https://www.pbs.org/newshour/health/new-peak-us-health-care-spending-10345-per-person (accessed July 5, 2018).

24. Kimberly Amadeo, “Current U.S. Federal Budget Deficit: Four Reasons the U.S. Deficit Is Out of Control,” The Balance (blog), May 30, 2018.
https://www.thebalance.com/current-u-s-federal-budget-deficit-3305783.

25. Michael De Dora, “On Utilitarianism and Consequentialism,” Rationally Speaking (blog), November 18, 2010,
http://rationallyspeaking.blogspot.com/2010/11/on-utilitarianism-and-consequentialism.html.

26. Sara Austin, “Think You’re Covered? Think Again,” Self (May 15, 2006).
https://www.self.com/story/health-insurance-crisis (accessed July 5, 2018).

27. Liz Hamel, Mira Norton, Karen Pollitz, Larry Levitt, Gary Claxton, and Mollyann Brodie, “The Burden of Medical Debt: Results from the Kaiser Family Foundation/New York Times Medical Bills Survey,”
kff.org (January 5, 2016).
https://www.kff.org/report-section/the-burden-of-medical-debt-introduction/ (accessed July 5, 2018).

28. David U. Himmelstein, Deborah Thorne, Elizabeth Warren, and Steffie Woolhander, “Medical Bankruptcy in the United States, 2007: Results of a National Study,” Journal of the American Medical Association 122 (August 2009): 741–746.
http://www.amjmed.com/article/S0002-9343(09)00404-5/fulltext.

29. Ayla Ellison, “22 Bankruptcies So Far in 2017,” Becker’s Hospital CFO Report (September 15, 2017).
https://www.beckershospitalreview.com/finance/20-healthcare-bankruptcies-so-far-in-2017-091517.html (accessed July 5, 2018).

30. Avery Comarow, “Under the Knife in Bangalore,” U.S. News & World Report 144 (May 2008): 42, 45, 47–50.

31. Beth Braverman, “1.4 Million Americans Will Go Abroad for Medical Care This Year. Should You?” The Fiscal Times (August 17, 2016).
http://www.thefiscaltimes.com/2016/08/17/14-Million-Americans-Will-Go-Abroad-Medical-Care-Year-Should-You (accessed July 5, 2018).

32. U.S. Department of Health and Human Services, Revisiting and Updating the Multicultural Principles for Head Start Programs Serving Ages Birth to Five.
https://eclkc.ohs.acf.hhs.gov/sites/default/files/pdf/principles-01-10-revisiting-multicultural-principles-hs-english_0 (accessed August 8, 2018).

33. 146th U.S. Congress. “Important Issue Facing House–Senate Conference on Health Care Reform,” Congressional Record – House, March 18, 2000, pp. H1465–H1466.
https://www.gpo.gov/fdsys/pkg/CREC-2000-03-28/pdf/CREC-2000-03-28-pt1-PgH1465 (accessed July 5, 2018).

34. Matt Zarrell, “Murder Charge Filed After Nurses Caught Laughing at WWII Vet Gasping for Breath,” New York Daily News (February 22, 2018).
http://www.nydailynews.com/news/crime/murder-charge-filed-nurses-laugh-dying-wwii-vet-article-1.3835593 (accessed July 5, 2018).

35. “WWII Veteran Calls for Help and Dies as Nurses Laugh, Video Shows.”
http://www.foxnews.com/us/2017/11/18/wwii-veteran-calls-for-help-and-dies-as-nurses-laugh-video-shows.html (accessed July 5, 2018).

36. Nathan Thornburgh, “Teaching Doctors to Care,” Time (May 29, 2006): 58–59.

37.

Merriam-Webster’s Collegiate Dictionary, 11th ed., s.v. “empathy.”

38. Jodi Halpern, “Empathy and Patient–Physician Conflicts,” Journal of General Internal Medicine 22 (2007): 696–700.
https://doi.org/10.1007/s11606-006-0102-3.

39. Rick Blizzard, “The Fear Factor and Patient Satisfaction.” Gallup (November 26, 2002).
http://www.gallup.com/poll/7288/Fear-Factor-Patient-Satisfaction.aspx (accessed July 5, 2018).

40. Tony Padilla, “Kindness: At the Center of Patient Experience Strategies,” American College of Healthcare Executives 62 (July/August 2017): 232–233.

41. Sandhya Somashekhar and Ariana Eunjung Cha, “Insurers Restricting Choice of Doctors and Hospitals to Keep Costs Down,” The Washington Post (November 20, 2013).
https://www.washingtonpost.com/national/health-science/insurers-restricting-choice-of-doctors-and-hospitals-to-keep-costs-down/2013/11/20/98c84e20-4bb4-11e3-ac54-aa84301ced81_story.html.

42.
Perna v. Pirozzi, 92 N.J. 446 (1983).

43.
Ibid. at 453.

44.
Ibid. at 466.

45.
Ibid. at 465.

46.
Healthcare.gov, “No Health Insurance? How Much You’ll Pay.”
https://www.healthcare.gov/fees/fee-for-not-being-covered/ (accessed July 5, 2018).

47. American Legislative Exchange Council, “Freedom of Choice in Health Care Act.”
https://www.alec.org/model-policy/freedom-of-choice-in-health-care-act/ (accessed July 5, 2018).

48. Thomas H. Gallagher, Amy D. Waterman, and Alison G. Ebers, “Patients’ and Physicians’ Attitudes Regarding the Disclosure of Medical Errors,” Journal of the American Medical Association 289 (February 26, 2003): 1001–1007.
https://jamanetwork.com/journals/jama/fullarticle/196045 (accessed July 5, 2018).

49. A.K. Edwin, “Non-Disclosure of Medical Errors an Egregious Violation of Ethical Principles,” Ghana Medical Journal 43 (Mar 2009): 34–39.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2709172/ (accessed July 5, 2018).

50. Gallagher, Waterman, and Ebers. “Patients’ and Physicians’ Attitudes.”

51. Manoj Jain, “Medical Errors Are Hard for Doctors to Admit, But It’s Wise to Apologize to Patients,” The Washington Post (May 27, 2013).
https://www.washingtonpost.com/national/health-science/medical-errors-are-hard-for-doctors-to-admit-but-its-wise-to-apologize-to-patients/2013/05/24/95e21a2a-915f-11e2-9abd-e4c5c9dc5e90_story.html (accessed July 5, 2018).

52. “Integrity: More than Just a Piece of the Healthcare Compliance Puzzle.” Healthcare Compliance Pros (blog).
http://www.healthcarecompliancepros.com/blog/integrity-more-than-just-a-piece-of-the-healthcare-compliance-puzzle-2/ (accessed July 5, 2018).

53.
Vocabulary.com, s.v. “integrity.”
https://www.vocabulary.com/dictionary/integrity (accessed July 5, 2018).

54. “Integrity: More than Just a Piece of the Healthcare Compliance Puzzle.”

55. Sarah B. Weir, “Brooke Greenberg: 20-Year-Old ‘Toddler’s’ Legacy of Hope and Love,” Yahoo Shine.
http://shine.yahoo.com/healthy-living/brooke-greenberg-20-old-8220-toddler-8217-8221-185100345.html.

56. Northside Hospital, “Spiritual Health and Education.”
https://www.northside.com/spiritual-health-education (accessed July 5, 2018).

57. Healthcare Chaplaincy Network, “About Us.”
https://www.healthcarechaplaincy.org/about-us.html (accessed July 5, 2018).

58. Tracey R. Rich, “Halakhah: Jewish Law,”
http://www.jewfaq.org/halakhah.htm (accessed October 13, 2010).

59.
Ibid.

60.
Ibid.

61. George Lakoff and Mark Johnson,
Philosophy in the Flesh (New York: Basic Books, 1999), 3–4.

62. P. Michael Peterson, “Ethics, Culture and the Hospital Board,” Prescriptions for Excellence in Health Care (Summer 2009): 2.
http://jdc.jefferson.edu/cgi/viewcontent.cgi?article=1044&context=pehc.

63. American College of Healthcare Executives, “Creating an Ethical Culture Within the Healthcare Organization.”
https://www.ache.org/policy/environ.cfm (accessed July 5, 2018).

CHAPTER 2

Contemporary Ethical Dilemmas

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestioned authority of law.

—
Union Pac. Ry. Co. v. Botsford

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Describe various historical events that have had an impact on the resolution of ethical dilemmas.

Describe common ethical dilemmas and the various ethical issues that have in many instances divided many segments of the population. Topics include abortion; sterilization; artificial insemination; surrogacy; organ donations; research, experimentation, and clinical trials; human genetics, stem cell research; and AIDS.

INTRODUCTION

An
ethical dilemma arises in situations where a choice must be made between unpleasant alternatives. It can occur whenever a choice involves giving up something good and suffering something bad, no matter what course of action is taken. Ethical dilemmas often require caregivers to make decisions that may break some ethical norm or contradict some ethical value. For example, should I choose to continue a pregnancy knowing that an unborn child will be born with severe disabilities, or should I choose abortion with the goal of preventing pain for both parent and child? Should I adhere to my spouse’s wishes not to be placed on a respirator, or should I choose life support technology, disregarding her wishes and right to self-determination? Should I encourage my daughter—the victim of a gang rape—to have an abortion, or should I advocate that she do no harm to the unborn child? Such dilemmas give rise to conflicting answers.

There is a wide range of ethical and legal issues impacting the healthcare system. This chapter focuses on some of the more common ethical and legal dilemmas facing the providers of health care. In reviewing this chapter, the reader should apply court decisions and the ethical theories, principles, and values previously discussed.

NOTEWORTHY HISTORICAL EVENTS

I was created at the end of the Renaissance, watched pirates rule the oceans as Ivan the Terrible ruled Russia, and witnessed the arrest of Galileo for believing the earth revolved around the sun.

—I Am History

The historical events presented in this section describe some of the many milestones that have had a significant impact on healthcare ethics.

68,000–58,000 BC

Neanderthal Burial Sites

Evidence of belief in an afterlife was found in Neanderthal burial sites, where various implements and supplies were buried with the deceased.

According to anthropologist F. Clark Howell the flexed position of the body, and discoveries of other sites where stone slabs were placed over the Neanderthal graves, along with food and tools, suggests that Neanderthal man believed in life after death. Their concept of the afterlife must not have been that much different than the life they experienced on earth; they provided the dead with food, tools, and other everyday items, much like the Egyptians did for their journey to the next life.

1

AD 1932–1972

Tuskegee Study of Syphilis

The Tuskegee Study of Syphilis, involving African American men, was designed to analyze the natural progression of untreated syphilis. The study was conducted from 1932 through the early 1970s. The participants were not told during the study that there was a cure for syphilis at the time of the study. It is reported that some of the participants in the study had syphilis and others were intentionally given syphilis during the study. The participants believed that they were receiving adequate care and unknowingly suffered unnecessarily. The Tuskegee syphilis study used disadvantaged black men to investigate the untreated course of a disease, one that is by no means confined to that population. We know now that the selection of research subjects must be closely monitored to ensure that specific classes of individuals (e.g., terminally ill patients, welfare patients, racial and ethnic minorities, or persons confined to institutions) are not selected for research studies because of their easy availability, compromised position, or manipulability. Rather, they must be selected for reasons directly related to the research being conducted.

1933–1945

The Holocaust

The Holocaust was one of the most violent events in human history. Over 6 million Jews were murdered as well as millions of people from other cultural groups, including Slavs, homosexuals, and Gypsies.

Doctors have always been thought of as the saviors of mankind, the healers, and caretakers of our utter existence. Even ancient civilizations revered the medicine men as having special power to protect life. The trust of a physician is sacred. This is why the practice of medicine by the doctors of the Third Reich is egregious, outrageous, and shocking. The Nazi doctors violated the trust placed in them by humanity. The most painful truth is for the most part the doctors escaped their crimes against Humanity and lived a life, unlike their victims.

2

1946

Military Tribunal for War Crimes

In 1946, the Military Tribunal for War Crimes began criminal proceedings against 23 German physicians and administrators for war crimes and crimes against humanity. As a direct result of these proceedings, the Nuremberg Code was established, which made it clear that the voluntary and informed consent of human subjects is essential to research and that benefits of research must outweigh risks to human subjects involved.

3

1949

WMA International Code of Medical Ethics

The World Medical Association International Code of Medical Ethics was adopted in October 1949 after it was learned that the Nazis conducted numerous inhumane experiments on prisoners in concentration camps. Prisoners were exposed to cholera, diphtheria, malaria, mustard gas, yellow fever, and typhus and forced to participate in other horrendous experiments, ultimately claiming thousands of lives. This exploitation of unwilling prisoners as research subjects was condemned as a particularly flagrant injustice. The code has been amended several times since its initial adoption—first in August 1968, then in October 1983, and most recently in October 2006 at the 57th WMA General Assembly, Pilanesberg, South Africa.

4

1954

Guidelines on Human Experimentation

The National Institutes of Health published guidelines on human experimentation following the first kidney transplant

5
conducted in 1954. The transplantation of human organs has generated numerous ethical issues (e.g., the harvesting and selling of organs, who should have first access to freely donated human organs, how death is defined).

1960s

Cardiopulmonary Resuscitation Raises Ethical Dilemmas

Cardiopulmonary resuscitation was developed, leading to numerous ongoing ethical dilemmas because it involves the prolonging of life beyond what would reasonably be expected. Should limited resources, for example, be spent on those who have been determined to be in a comatose vegetative state without hope of recovery? Or, should limited resources be spent on preventative medicine, aimed at improving the quality of life?

1964

WMA Guidelines for Conducting Biomedical Research

The World Medical Association established guidelines for medical doctors conducting biomedical research involving human subjects.

6
The WMA’s Declaration of Helsinki laid the foundation for advanced clinical practices today.

7

1968

Harvard Ad Hoc Committee on Brain Death

The Harvard Ad Hoc Committee on Brain Death published the following criteria to aid in determining a permanently nonfunctioning brain, a condition it referred to as “irreversible coma,” now known as brain death:

Patient shows total unawareness to external stimuli and unresponsiveness to painful stimuli.

No movements or breathing; all spontaneous muscular movement, spontaneous respiration, and response to stimuli are absent.

No reflexes; fixed, dilated pupils; no eye movement even when hit or turned, or when ice water is placed in the ear; no response to noxious stimuli; no tendon reflexes.

In addition to these criteria, the report recommended adding the presence of a flat electroencephalogram.

8

1970

Patient as a Person

The Patient as a Person by Paul Ramsey discusses the question of
paternalism. As physicians are faced with many options for saving lives, transplanting organs, and furthering research, they also must wrestle with new and troubling choices, for example, who should receive scarce resources (e.g.., organ transplants), how to determine when life ends, and what limits should be placed on care for the dying.

1971

Kennedy Institute of Ethics

The Joseph P. and Rose F. Kennedy Institute of Ethics was established at Georgetown University in 1971 by a generous grant from the Joseph P. Kennedy Jr. Foundation. Today it is the world’s oldest and most
comprehensive academic bioethics center. The institute and its library serve as an unequaled resource for those who research and study ethics, as well as those who debate and make public policy. The Kennedy Institute is home to scholars who engage in research, teaching, and public service on issues that include protection of research subjects, reproductive and feminist bioethics, end-of-life care, healthcare justice, intellectual disability, cloning, gene therapy, eugenics, and other major bioethical issues. Institute scholars figure prominently among the pioneers of the discipline. They are extending the boundaries of the field to incorporate emerging issues of racial and gender equality, international justice and peace, and other policies affecting the world’s most vulnerable populations.

9

1972

Informed Consent

Informed consent in the
Canterbury v. Spence

10
case set the
reasonable man standard, requiring informed consent for treatment. Patients must be informed of the risks, benefits, and alternatives associated with recommended treatments. The court found that Dr. Spence negligently failed to disclose a risk of serious disability inherent in the operation and that the Washington Hospital Center provided negligent postoperative care.

11
The U.S. Court of Appeals Justice Spottswood W. Robinson III described what led up to the Court’s decision remanding the case to the District Court, which had previously ruled in favor of the appellees:

The record we review tells a depressing tale. A youth troubled only by back pain submitted to an operation without being informed of a risk of paralysis incidental thereto. A day after the operation he fell from his hospital bed after having been left without assistance while voiding. A few hours after the fall, the lower half of his body was paralyzed, and he had to be operated on again. Despite extensive medical care, he has never been what he was before. Instead of the back pain, even years later, he hobbled about on crutches, a victim of paralysis of the bowels and urinary incontinence. In a very real sense, this lawsuit is an understandable search for reasons.

12
… In the case before us, appellant’s evidentiary presentation on negligence survived the claims of legal insufficiency, and appellees should have been put to their proof.

1973

Women’s Right to Abortion

The
Roe v. Wade

13
abortion case gave strength to a woman’s right to privacy in the context of matters relating to her own body, including how a pregnancy would end.

1974

National Research Act (NRA) of 1974

Because of publicity from the Tuskegee Syphilis Study, the National Research Act (NRA) of 1974 was passed. The NRA created the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. One of the commission’s charges was to identify the basic ethical principles that should underlie the conduct of biomedical and behavioral research involving human subjects and to develop guidelines to ensure that such research is conducted in accordance with those principles.

14

The commission was directed to consider the following:

15

The boundaries between biomedical and behavioral research and the accepted and routine practice of medicine

The role of assessment of risk-benefit criteria in determining the appropriateness of research involving human subjects

Appropriate guidelines for the selection of human subjects for participation in such research

The nature and definition of informed consent in various research settings

1976

Substituted Judgment—Karen Ann Quinlan

The New Jersey Supreme Court in the
Matter of Karen Ann Quinlan

16
rendered a unanimous decision providing for the appointment of Joseph Quinlan as personal guardian of his daughter, Karen Ann Quinlan, a young woman in a persistent vegetative state who was being kept alive on a respirator against her parents’ wishes. A conflict arose when hospital officials refused to remove the respirator, concerned that they would be charged with homicide if they complied. The record was remanded to the trial court to implement without further testimonial hearing:

To appoint Joseph Quinlan as guardian of the person of Karen Quinlan with full power to
make decisions with regard to the identity of her treating physicians.

We repeat for the sake of emphasis and clarity that upon the concurrence of the guardian and family of Karen, should the responsible attending physicians conclude that there is no reasonable possibility of Karen’s ever emerging from her present comatose condition to a cognitive, sapient state and that the life-support apparatus now being administered to Karen should be discontinued, they shall consult with the hospital “Ethics Committee” or like body of the institution in which Karen is then hospitalized. If that consultative body agrees that there is no reasonable possibility of Karen’s ever emerging from her present comatose condition to a cognitive, sapient state, the present life-support system may be withdrawn and said action shall be without any civil or criminal liability therefor, on the part of any participant, whether guardian, physician, hospital or others.

By the above ruling we do not intend to be understood as implying that a proceeding for judicial declaratory relief is necessarily required for the implementation of comparable decisions in the field of medical practice.

First Living Will Legislation Enacted

In California, the first living will legislation was enacted, permitting a person to sign a declaration stating that if there is no hope of recovery, no heroic measures need to be taken to prolong life. This provision is now available in every state.

1978

Commission for the Study of Ethical Problems

The President’s Commission for the Study of Ethical Problems in Medicine includes studies regarding the ethical and legal issues of informed consent for research participants; the matter of defining death, including the advisability of developing a uniform definition of death; the voluntary testing, counseling, and information and education programs with respect to genetic diseases and conditions, taking into account the essential equality of all human beings, born and unborn; the differences in the availability of health services, as determined by the income or residence of the persons receiving the services; current procedures and mechanisms designed to safeguard the privacy of human subjects of behavioral and biomedical research, to ensure the confidentiality of individually identifiable patient records and to ensure appropriate access of patients to information; and such other matters relating to medicine or biomedical or behavioral research as the president may designate for study by the commission.

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1980

Hemlock Society

The Hemlock Society was an organization formed to advocate for physician-assisted dying for the terminally ill, mentally competent patient suffering with incurable illnesses.

Controversial in death as in life, the Hemlock Society USA as a name died suddenly on June 13, 2003, in a boardroom in Denver, Colorado. It was 23 years old. Public relations experts and political strategists—leaning heavily on focus groups—were on hand to usher in the death knell. Months of agonizing debate had preceded the decision because no one could think of a better name!

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1983

First Durable Power of Attorney Legislation

California enacted the first durable power of attorney legislation permitting an advance directive to be made describing the kind of health care that one would desire when facing death by designating an agent to act on the patient’s behalf. Currently, the California Advance Health Care Directive Form reads in part:

You have the right to give instructions about your own health care. You also have the right to name someone else to make health care decisions for you. This form lets you do either or both of these things. It also lets you express your wishes regarding donation of organs and the designation of your primary physician. If you use this form, you may complete or modify all or any part of it. You are free to use a different form.

19

Compassion and Choices

The Hemlock Society evolved into “End-of-Life Choices,” which in 2005 merged with “Compassion in Dying” to form “Compassion & Choices.”

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Despite sophisticated medical advances—and sometimes because of them—too many people suffer painful, drawn-out deaths against their wishes. At Compassion & Choices, we are fighting to broaden end-of-life options and place control back in the hands of people. We have advocated the right to refuse unwanted medical treatment … legitimized the use of advance directives … and secured people’s right to receive the full measure of pain medication needed for relief.

Beginning with Oregon’s Death with Dignity Act in 1997, we have been instrumental to the passage of every medical aid-in-dying law in the nation. These laws allow terminally ill adults to request medication to die gently if they choose.

21

1987

Unethical Experiments on Children

The Willowbrook State School on Staten Island, New York, was a state institution for children with intellectual disability from 1947 until 1987. Infectious disease expert Paul Offit, in his history of the work of vaccine pioneer Maurice Hilleman, recounted how the school’s residents were abused in the name of research:

In an effort to control outbreaks of hepatitis, the medical staff at Willowbrook consulted Saul Krugman [an award-winning U.S. pediatrician whose studies of hepatitis, rubella, and measles resulted in the development of vaccinations for these debilitating diseases]. … One of his studies involved feeding live hepatitis virus to sixty healthy children. Krugman watched as their skin and eyes turned yellow and their livers got bigger. He watched them vomit and refuse to eat. All the children fed hepatitis virus became ill, some severely. Krugman reasoned that it was justifiable to inoculate retarded children at Willowbrook with hepatitis virus because most of them [90%] would get hepatitis anyway. But by purposefully giving the children hepatitis, Krugman increased that chance to 100 percent.

22

Offit calls the Willowbrook studies “the most unethical medical experiments ever performed on children in the United States”

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—a far more damning assessment than the contemporaneous judgment of medical ethicist Henry Beecher, who in a 1966
New England Journal of Medicine article cited Willowbrook as being merely “ethically dubious.”

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The Willowbrook studies represented a shift in how experimentation on children and individuals not capable of informed consent was perceived.

25

1990

Patient Self-Determination Act

The Patient Self-Determination Act of 1990

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was enacted to ensure that patients are informed of their rights to execute advance directives and accept or refuse medical care. The act was intended to reinforce a person’s constitutional right to make his or her own healthcare decisions. The act requires that federally funded healthcare organizations explain to patients their right to complete an advance directive.

Nancy Cruzan Feeding Tube Removed

The Supreme Court ruled that the parents of Nancy Cruzan, a 32-year old woman who had been unconscious since a 1983 car accident, could have her feeding tube removed.

27
The court determined the Missouri Department of Health was permitted to require clear and convincing evidence of the wishes of a patient regarding provision of artificial nutrition and hydration.

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Thus affirming the right of Americans to refuse unwanted medical treatment and their right to appoint a healthcare proxy.

Kevorkian Illegally Assists Terminally Ill Patients in Suicide

Dr. Jack Kevorkian assisted terminally ill patients in suicide outside the boundaries of law. He used a suicide machine to assist Janet Adkins, a 54-year-old woman with Alzheimer’s disease, in ending her life at her request.

29

Timothy Quill and Prescription for Death

Timothy Quill, a primary care physician, published an article describing how he had prescribed a lethal dose of sedatives to end the life of a young woman whose suffering from leukemia had become unbearable.

30

Final Exit and Freedom of Speech

Derek Humphry’s popular text
Final Exit: The Practicalities of Self-Deliverance and Assisted Suicide for the Dying was published. Although there were calls for it to be banned, it was not possible under the First Amendment to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

31

Radiation Experiments: Human Subjects Unaware

From the 1930s until as recently as the 1990s, the United States government conducted human radiation experiments on uninformed and unconsenting individuals, including pregnant women, school-age children, disabled children, and a range of other individuals. In all of these cases, the
subjects had no knowledge of what was going on and did not consent. Some of the victims were actively deceived by the research program’s staff (over 800 pregnant women were told they were ingesting “vitamin cocktails”). The government covered up most of these radiation mishaps until 1993, when President Bill Clinton ordered a change of policy. The president’s Advisory Committee on Human Radiation Experiments investigated and issued a controversial 1995 report that stated that “wrongs were committed” but held no one accountable.

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1993

Patient’s Wishes Honored

In the case of
DeGrella v. Elston, the Kentucky Supreme Court ruled on an incompetent’s right to die. The decision determined that a patient’s wishes will be honored if the attending physician, the hospital, or nursing home ethics committee where a patient resides and the legal guardian or next of kin all agree upon and document the patient’s wishes and the patient’s condition. If no one disputes their decision, no court order is required to proceed to carry out the patient’s wishes. Future criminal sanctions or civil liability turn not on the existence or absence of a court order, but on the facts of the case. No liability attaches to a decision to refuse or withdraw treatment if the necessary facts are established and carefully documented by the parties involved. In contrast, the court cannot absolve the parties from liability where the facts do not exist to support the action taken.

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1994

Oregon—Physician Assisted Suicide Legal

Oregon’s Death with Dignity Act,

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involving physician-assisted suicide, became a legal medical option for terminally ill patients in Oregon. The Oregon Death with Dignity Act allows terminally ill Oregon residents to obtain from their physicians and use prescriptions for self-administered, lethal medications.

Michigan—Physician Assisted Suicide Illegal

The Supreme Court of Michigan ruled on December 13, 1994, that assisted suicide is illegal in the state of Michigan.

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The ruling overturned several lower court decisions. The court determined that there is no constitutional right to aid in carrying out a suicide in Michigan. Jack Kevorkian, a physician, assisted terminally ill patients in suicide outside the boundaries of the law. He claims to have assisted 130 patients.

1996

Health Insurance Portability and Accountability Act

The Health Insurance Portability and Accountability Act (Public Law 104191) was enacted to protect the privacy, confidentiality, and security of patient information.

Dolly the Sheep Cloned

Ian Wilmut, Keith Campbell, and colleagues at the Roslin Institute, University of Edinburgh, and the biotechnology company PPL Therapeutics near Edinburgh in Scotland successfully cloned Dolly the sheep.

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Several clones had been produced in the lab before Dolly, including frogs, mice, and cows, which had all been cloned from the DNA from embryos. Dolly was remarkable in being the first mammal to be cloned from an adult cell. This was a major scientific achievement as it demonstrated that the DNA from adult cells, despite having specialised as one particular type of cell, can be used to create an entire organism.

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Fourteenth Amendment and Terminally Ill

The Second and Ninth U.S. Circuit Courts of Appeals ruled that there is a constitutional right under the Fourteenth Amendment for a terminally ill person to receive help from a physician when dying.

1997

Physician-Assisted Suicide

Physician-assisted suicide, through referendum, became a legal medical option within narrowly prescribed circumstances for terminally ill Oregon residents.

Kevorkian Charged with Murder

Kevorkian was charged with murder in five cases of physician-assisted suicide and was acquitted.

Supreme Court—States May Enact Assisted Suicide Laws

The Supreme Court ruled that it is up to the individual states to enact laws regarding medically assisted death.

1998

Oregon Voters Reaffirm Death with Dignity Act

Oregon voters reaffirm their support for the Death with Dignity Act by a 60% majority.

Kevorkian Administers Lethal Injection

Kevorkian administered a lethal injection to Thomas Youk, a 52-year-old man with Lou Gehrig’s disease, on national television.

Ballot Physician-Assisted Suicide Defeated

Michigan voters defeated a ballot measure that would legalize physician-assisted suicide.

1999

Kevorkian Convicted of Second-Degree Murder

Kevorkian was convicted of second-degree murder for Youk’s death and sentenced 10 to 20 years in prison.

Patients Receive Lethal Doses of Medication

Twenty-three terminally ill patients were reported as having received lethal doses of medication since passage of Oregon’s Death with Dignity Act.

2000

Seven Myths About End-of-Life Care

Legal myths about end-of-life care may prevent doctors and patients and families from providing adequate comfort measures to dying patients, according to an article published in the November 15, 2000, issue of the
Journal of the American Medical Association.

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2001

President’s Council on Bioethics

President George W. Bush created the President’s Council on Bioethics. The council was charged with advising the president on bioethical issues that may emerge as a consequence of advances in biomedical science and technology.

Assisted Suicide Act Challenged

U.S. Attorney General John Ashcroft abrogated former Attorney General Janet Reno’s mandate allowing physician-assisted suicide. Instead, he decided that physician-assisted suicide was a violation of the federal Controlled Substance Act.

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In
State of Oregon v. Ashcroft, CV01-1647 (D-Oregon), the judge allowed Oregon’s law to remain in effect.

Oregon: Assisted Suicide Cases

Since 1991, the number of physician-assisted suicide cases totaled 129. On April 17, U.S. District Court Judge Robert Jones upheld Oregon’s Death with Dignity Act.

2002

Attorney General Appeals District Court’s Ruling

Attorney General John Ashcroft filed an appeal, asking the Ninth U.S. Circuit Court of Appeals to lift the District Court’s ruling.

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2003

Human Genome System Fully Sequenced

The human genome system became fully sequenced, allowing molecular genetics and medical research to accelerate at an unprecedented rate. The ethical implications of human genome research are as immense as the undertaking of the totality of the research that was conducted to map the human genome system (e.g., cloning of humans).

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Oregon: Assisted Suicide Cases

Forty-two residents of the state of Oregon ingested medications under provisions of the Death with Dignity Act.

2004

Death with Dignity Act Upheld

The Ninth U.S. Circuit Court of Appeals upheld Oregon’s Death with Dignity Act, blocking the attempt by the U.S. Justice Department, under Attorney General Ashcroft, to use the federal Controlled Substances Act to prevent doctors in the state from prescribing drugs to assist the suicide of their patients. The Ashcroft directive interfered with Oregon’s authority to regulate medical care within its borders and therefore altered the usual constitutional balance between the state and federal governments.

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2005

The United Nations Educational, Scientific, and Cultural Organization released the second edition to the 2005
Human Cloning, Ethical Issues publication.

43

Hospital Allowed to Remove Life Support Contrary to Wishes of the Legal Guardian

A Texas hospital was allowed to remove life support contrary to the requests of the mother. The patient was eventually accepted at a nursing facility, where he died of natural causes.

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In Houston, Texas, in 2004, Wanda Hudson gave birth to a son with a fatal form of congenital dwarfism. The father was unknown. Ms. Hudson had been informed the infant was most likely unable to survive and should have his breathing tube removed pursuant to Chapter 166 of the Texas Health & Safety Code, the Advance Directives Act. Under this act, a doctor’s recommendations to withdraw medical treatment can be followed, after they have been reviewed by the hospital’s ethics committee and after 10 days’ notice is given to the patient or guardian. Hudson was given 10 days from written notice to find a new facility to accommodate the infant, but was unable to do so.

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Legal delays prevented the removal of the breathing tube, which would have occurred on November 28, 2004, but a judge ruled that the removal of the tube did not require Hudson’s agreement. On March 15, 2005, Texas Children’s Hospital personnel removed the breathing tube. Official reports state that he was sedated and asphyxiated in under a minute. Hudson disputed this and told reporters, who were not permitted entrance, ‘I wanted y’all to see my son for yourself, so you could see he was actually moving around. He was conscious.’”

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2006

U.S. Supreme Court Upholds Death with Dignity Act

On January 17, 2006, the U.S. Supreme Court voted six to three to uphold an Oregon physician-assisted suicide law in the case
Gonzales v. Oregon,

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ruling that former Attorney General John Ashcroft overstepped his authority in seeking to punish doctors who prescribed drugs to help terminally ill patients end their lives. In the decision, the Supreme Court said that the Oregon law supersedes federal authority to regulate physicians and that the Bush administration improperly attempted to use the Controlled Substances Act to prosecute Oregon physicians who assist in patient suicides.

Supreme Court Blocks Bush’s Attempt to Punish Doctors

The Supreme Court blocked the Bush administration’s attempt to punish doctors who help terminally ill patients die, protecting Oregon’s one-of-a-kind assisted-suicide law.

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Morning-after Pill

The Food and Drug Administration approved the morning-after pill to prevent contraception for use without a prescription. This decision added another dimension to the ongoing controversy between right-to-life and pro-choice advocates. Opponents claimed that it was just another way to end human life.

2009

Right to Know End-of-Life Options

On January 1, the Terminal Patients’ Right to Know End-of-Life Options Act, AB 2747, went into effect in California.

2010

California—Living Donor Registry

Legislation was introduced in California that would make it the first state in the country to build a living donor registry. Under Senate Bill 1395, people could declare their wishes regarding organ donation by checking a box when obtaining or renewing their driver’s license.

2013

Information and Referral Service for Kidney Donors

California launched a state-authorized information and referral service to inspire and inform people to be altruistic living kidney donors. Through its website,
www.LivingDonationCalifornia.org, the free service provides information about living kidney donation and refers potentially eligible individuals for evaluation at a transplant center.

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2017

UK Supreme Court Denies Right to Treatment

The parents of Charlie Gard, a 10-month-old British boy with mitochondrial DNA depletion disease, wanted to travel to the United States for an experimental therapy that may have provided some temporary benefit but likely would not have improved his neurological condition. Alternatively, they wanted the hospital to continue to provide advanced life support and palliative care for their son—respiration, nutrition, hydration—or to send him home on life support to eventually die. The hospital argued that removing life support was in the child’s best interest. After a contentious court battle that generated international attention, the parents’ requests were denied and the child’s life support was turned off. He died in the hospital.

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2018

Six States Have a Death with Dignity Act

Death with Dignity Acts have been passed into law in Washington, D.C. and six states: California, Colorado, Hawaii (in effect on January 1, 2019), Oregon, Vermont, and Washington.

States with Death with Dignity Legal by Court Decision

In Montana, legal physician-assisted suicide was established by a court decision in the 2009 case
Baxter v. Montana, and efforts to pass laws forbidding it have failed in the legislature thus far.

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ABORTION

We shall have to fight the politician, who remembers only that the unborn have no votes and that since posterity has done nothing for us we need do nothing for posterity.

—William Ralph Inge (1860–1954)

An
abortion is the termination of pregnancy by removal or expulsion from the uterus of a fetus or embryo before it is viable. The question of viability has been strongly debated between advocates for the pro-life position (advocating that the fetus has a right to life) and the pro-choice position (advocating that the mother has the right to choose to terminate a pregnancy). An abortion can be spontaneous, often referred to as a miscarriage, or it can be an elective, meaning purposely induced; it is the latter that continues to be a hotly debated, controversial issue nationwide. The controversy in its simplest form involves the question of the rights of the fetus to be born versus the rights of the mother to make decisions regarding her body.

A consensus as to when human life begins has not been reached. There has been no final determination as to the proper interplay among a mother’s liberty, the interests of an unborn child, and the state’s interests in protecting human life. In abortion cases, the law presupposes a theory of ethics and morality, which in turn presupposes deeply personal ideas about being and existence. Answers to questions about when human life begins define ethical beliefs, and these ethical beliefs should determine how we govern ourselves. Abortion in this context is less a question about constitutional law and more about who we are as a people. This is a decision the Supreme Court cannot make. Taking these issues out of the public discourse threatens to foment hostility, stifle the search for answers, distance people from the Constitution, and undermine the credibility of that document.

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With 44,498,750 reported abortions in the United States between 1970 and 2014,

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it is certain that the conflict between pro-choice and pro-life advocates will continue to pervade America’s landscape. The issues are numerous, and emotions run high. Common ethical dilemmas include:

When does human life begin?

Who decides?

Who protects the unborn fetus?

What are the rights of an unborn child when a woman has been raped?

What are the rights of the spouse?

What are the rights of the father of an unwed child or woman?

What are the rights of society and the state to interfere with another’s rights?

Should the principles of autonomy and right to self-determination prevail?

Should an abortion be considered murder?

Can the use of contraception be considered a form of killing by preventing a birth that might have otherwise occurred?

What are the religious implications for a woman who is Catholic, for example, who chooses to undergo an abortion?

Is it morally acceptable to save the life of the mother by aborting the fetus?

Is an abortion for mere convenience morally wrong?

What role should education play in the woman’s decision to undergo an abortion?

What alternatives should the woman be educated about (e.g., the choice of adoption) before undergoing an abortion?

At what age is a girl or woman sufficiently mature to make an informed decision about abortion?

Should a woman considering abortion be offered counseling and cautions about the negative emotional consequences (e.g., guilt and regret) of her decision?

Should rape victims receive counseling for emotional consequences (e.g., anger and resentment) of a decision to continue a rape-related pregnancy?

When does control over one’s body begin, and when does it end?

These are but a few of the many questions that need to be addressed in the pursuit of doing the right thing. As the following pages point out, for each new issue decided in the courts, new issues arise, all of which seem to involve both legal and moral questions as to what constitutes acceptable behavior. In addition to having substantial ethical, moral, and religious implications, abortion has proven to be a major political issue and will continue as such in the future. As the following court decisions illustrate, new laws will be enacted by the various states and challenged, often winding their way up to the Supreme Court for decision.

Right to Abortion

The
Roe v. Wade 1973 landmark case gave strength to a woman’s right to privacy in the context of matters relating to her own body, including how a pregnancy would end.

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The U.S. Supreme Court has also recognized the interest of the states in protecting potential life and has attempted to spell out the extent to which the states may regulate and even prohibit abortions. The Supreme Court in this case found the Texas penal abortion law unconstitutional, stating, “State criminal abortion statutes … that except from criminality only a lifesaving procedure on behalf of the mother, without regard to the stage of her pregnancy and other interests involved, is violating the Due Process Clause of the Fourteenth Amendment.”

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The court then went on to delineate what regulatory measures a state lawfully may enact during the three stages of pregnancy.

First Trimester

During the first trimester of pregnancy, the decision to undergo an abortion procedure is between the woman and her physician. A state may require that abortions be performed by a licensed physician pursuant to law; however, a woman’s right to an abortion is not unqualified because the decision to perform the procedure must be left to the medical judgment of her attending physician. “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.”

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Second Trimester

In
Roe v. Wade, the Supreme Court stated, “For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.”

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Thus, during approximately the fourth to sixth months of pregnancy, the state may regulate the medical conditions under which the procedure is performed. The constitutional test of any legislation concerning abortion during this period would be its relevance to the objective of protecting maternal health.

Third Trimester

The Supreme Court reasoned that by the time the final stage of pregnancy has been reached the state has acquired a compelling interest in the product of conception, which would override the woman’s right to privacy and justify stringent regulation even to the extent of prohibiting abortions. In the
Roe v. Wade case, the court formulated its ruling as to the last trimester in the following words: “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

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Thus, during the final stage of pregnancy, a state may prohibit all abortions except those deemed necessary to protect maternal life or health. The state’s legislative powers over the performance of abortions increase as the pregnancy progresses toward term.

Abortion Restrictions

The following cases illustrate a variety of abortion issues that the various states continue to address. The flow of cases both as they wind their way through both state and federal courts continue to arise with no end in sight.

Abortion Committee Review

In a 1973 companion decision, the U.S. Supreme Court ruled in
Doe v. Bolton,

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that Georgia’s abortion statute requiring residency requirements for women seeking an abortion and calling for the procedure to be performed in a hospital accredited by the Joint Commission is constitutionally invalid. Further, the court found there was no constitutionally justifiable rationale for a statutory requirement necessitating advance approval by the abortion committee of the hospital’s medical staff prior to abortion. The court ruled that “interposition of the hospital abortion committee is unduly restrictive of the patient’s rights and needs that … have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State.”

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Insofar as statutory consultation requirements are concerned, the court reasoned that the acquiescence of two co-practitioners has no rational connection with a patient’s needs and, further, unduly infringes on the physician’s right to practice.

Abortion Counseling

Abortion counseling continues to be an emotionally charged debate that involves a woman’s right to choose and the right to life. The arguments are both compelling, and the division between opposing viewpoints appears to have no end. Case law continues to develop and expand as new legislation is enacted by the various states and federal courts issue new rulings.

The U.S. Supreme Court in 1983 in
City of Akron v. Akron Center for Reproductive Health

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decided that the different states cannot (1) mandate what information physicians give abortion patients or (2) require that abortions for women more than 3 months pregnant be performed in a hospital. With respect to a requirement that the attending physician must inform the woman of specified information concerning her proposed abortion, it was found unreasonable for a state to insist that only a physician is competent to provide information and counseling relative to informed consent. A state may not adopt regulations to influence a woman’s informed choice between abortion and childbirth.

With regard to a second-trimester hospital requirement, this could significantly limit a woman’s ability to obtain an abortion. This is especially so in view of the evidence that a second-trimester abortion may cost more than twice as much in a hospital as in a clinic.

Undue Burden Rule

In
Planned Parenthood v. Casey,

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the U.S. Supreme Court ruling, as enunciated in
Roe v. Wade, reaffirmed:

The constitutional right of women to have an abortion before viability of the fetus, as first enunciated in
Roe v. Wade

The state’s power to restrict abortions after fetal viability, so long as the law contains exceptions for pregnancies that endanger a woman’s life or health

The principle that the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus

The U.S. Supreme Court rejected the trimester approach in
Roe v. Wade, which limited the regulations states could issue on abortion depending on the development stage of the fetus. In place of the trimester approach, the court will evaluate the permissibility of state abortion rules based on whether they unduly burden a woman’s ability to obtain an abortion. A rule is an “
undue burden” if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. The Supreme Court ruled that it is “not an undue burden” to require that a woman be informed of the nature of the abortion procedure and the risks involved, be offered information on the fetus and alternatives to abortion, and be given informed consent before the abortion procedure. In addition, it is not an undue burden to require parental consent for a minor seeking an abortion, providing for a judicial bypass option if a minor does not wish to or cannot obtain parental consent, and requiring a 24-hour waiting period before any abortion can be performed.

Funding

Some states have placed an indirect restriction on abortion through the elimination of funding. Under the Hyde Amendment, the U.S. Congress, through appropriations legislation, has limited the types of medically necessary abortions for which federal funds may be spent under the Medicaid program. Although the Hyde Amendment does not prohibit states from funding nontherapeutic abortions, this action by the federal government opened the door to state statutory provisions limiting the funding of abortions.

Denial of Financial Assistance for Elective Abortions

In
Beal v. Doe

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in 1977, the Pennsylvania Medicaid plan was challenged based on denial of financial assistance for nontherapeutic abortions. The U.S. Supreme Court held that Title XIX of the Social Security Act (the Medicaid program) does not require the funding of nontherapeutic abortions as a condition of state participation in the program. The state has a strong interest in encouraging normal childbirth, and nothing in
Title XIX suggests that it is unreasonable for the state to further that interest. The court ruled that it is not inconsistent with the Medicaid portion of the Social Security Act to refuse to fund unnecessary (although perhaps desirable) medical services.

Also in 1977, in
Maher v. Roe,

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the U.S. Supreme Court considered the Connecticut statute that denied Medicaid benefits for first-trimester abortions that were not medically necessary. The court rejected the argument that the state’s subsidy of medical expenses incident to pregnancy and childbirth created an obligation on the part of the state to subsidize the expenses incident to nontherapeutic abortions. The Supreme Court voted six to three that states may refuse to spend public funds to provide nontherapeutic abortions for women.

Funding Not Required for Therapeutic Abortions

In the 1980
Harris v. McRae decision,

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the U.S. Supreme Court upheld the Hyde Amendment in a five-to-four vote, which restricts the use of federal funds for Medicaid abortions. Under this case, the different states are not compelled to fund Medicaid recipients’ medically necessary abortions for which federal reimbursement is unavailable, but they may choose to do so.

Funding Bans Unconstitutional in California

The California Supreme Court in 1981 held that funding bans were unconstitutional; the court asked rhetorically:

If the state cannot directly prohibit a woman’s right to obtain an abortion, may the state by discriminatory financing indirectly nullify that constitutional right? Can the state tell an indigent person that the state will provide him with welfare benefits only upon the condition that he join a designated political party or subscribe to a particular newspaper that is favored by the government? Can the state tell a poor woman that it will pay for her needed medical care but only if she gives up her constitutional right to choose whether or not to have a child?

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Funding Discrimination Prohibited in Arizona

In 2002, the Arizona Supreme Court found in
Simat Corp. v. Arizona Health Care Cost Containment Sys.

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that the state’s constitution does not permit the state and the Arizona Health Care Cost Containment System (AHCCCS) to refuse to fund medically necessary abortion procedures for pregnant women suffering from serious illness while funding such procedures for victims of rape or incest or when the abortion was necessary to save the woman’s life (A.R.S. § 35-196.02. AHCCCS). After the state has chosen to fund abortions for one group of indigent, pregnant women for whom abortions are medically necessary to save their lives, the state may not deny the same option to another group of women for whom the procedure is also medically necessary to save their health. An example is cancer, for which chemotherapy or radiation therapy ordinarily cannot be provided without harming the fetus, making an abortion necessary before proceeding with the recognized medical treatment. Other therapy regimens that must at times be suspended during pregnancy include those for heart disease, diabetes, kidney disease, liver disease, chronic renal failure, inflammatory bowel disease, and lupus. In many of the women suffering from these diseases, suspension of recognized therapy during pregnancy will have serious and permanent adverse effects on their health and lessen their life span. In such a situation, the state is not simply influencing a woman’s choice but is actually conferring the privilege of treatment on one economic class and withholding it from another.

A woman’s right to choose preservation and protection of her health, and therefore in many cases her life, is at least as compelling as the state’s interest in promoting childbirth. The court’s protection of the fetus and promotion of childbirth cannot be considered so compelling as to outweigh a woman’s fundamental right to choose and the state’s obligation to be evenhanded in the design and application of its healthcare policies. The majority of states that have examined similar Medicaid funding restrictions have determined that their state statutes or constitutions offer broader protection of individual rights than does the U.S. Constitution, and they have found that medically necessary abortions should be funded if the state also funds medically necessary expenses related to childbirth. The case was remanded to the trial court for further proceedings consistent with this opinion.

Refusal to Fund Abortion Counseling Not Unconstitutional

Federal regulations that prohibit abortion counseling and referral by family planning clinics that receive funds under Title X of the Public Health Service Act were found not to violate the constitutional rights of pregnant women or Title X grantees in a five-to-four decision by the Supreme Court in
Rust v. Sullivan.

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Proponents of abortion counseling argued that (1) the regulations impermissibly burden a woman’s privacy right to abortion, and (2) by prohibiting the delivery of abortion information, even as to where such information could be obtained, the regulations deny a woman her constitutionally protected right to choose under the First Amendment. The question arises: How can a woman make an informed choice between two options when she cannot obtain information as to one of them? The plaintiff had argued that the government may not condition receipt of a benefit on the relinquishment of constitutional rights. In
Sullivan, however, the Supreme Court found that there was no violation of a woman’s or provider’s First Amendment rights to freedom of speech. The court extended the doctrine that government need not subsidize the exercise of the fundamental rights to free speech.

Spousal Consent

The following cases describe a variety of issues where the husband’s desires conflict with those of the spouse.

Husband’s Interest Insufficient

Provisions of the Florida Therapeutic Abortion Act, which required a married woman to obtain the husband’s consent before abortion, were found to be unconstitutional in
Poe v. Gerstein.

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The state’s interest was found not to be sufficiently compelling to limit a woman’s right to abortion. The husband’s interest in the baby was held to be insufficient to force his wife to face the mental and physical risks of pregnancy and childbirth.

Husband’s Required Consent Unconstitutional

In
Doe v. Zimmerman (1975),

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the court declared unconstitutional the provisions of the Pennsylvania Abortion Control Act, which required that the written consent of the husband of a married woman be secured before performing an abortion. The court found that these provisions impermissibly allowed the husband to withhold his consent either because of his interest in the potential life of the fetus or for capricious reasons. The natural father of an unborn fetus in
Doe v. Smith (1988)

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was not entitled to an injunction to prevent the mother from obtaining an abortion. Although the father’s interest in the fetus was legitimate, it did not outweigh the constitutionally protected right of the mother to an abortion, particularly in light of evidence that the mother and father had never married.

In the 1992 decision of
Planned Parenthood v. Casey, the Supreme Court ruled that spousal consent would be an undue burden on the woman.

Parental Consent

A majority of states require parental consent for minors seeking an abortion. Notification of one parent is generally required 24 to 48 hours prior to the abortion. The following cases present a variety of cases demonstrating how the Supreme Court has ruled as the circumstances vary.

Competent Persons Under 18

The U.S. Supreme Court ruled in 1973 in
Danforth v. Planned Parenthood

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that it is unconstitutional to require all women younger than the age of 18 years to obtain parental consent in writing prior to obtaining an abortion. The court, however, failed to provide any definitive guidelines as to when and how parental consent may be required if the minor is too immature to comprehend fully the nature of the procedure.

The U.S. Supreme Court in
Bellotti v. Baird

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ruled eight to one in 1979 that a Massachusetts statute requiring parental consent before an abortion for an unmarried woman younger than the age of 18 years was unconstitutional. Justice John P. Stevens, joined by Justices William J. Brennan, Jr., Thurgood Marshall, and Harry Blackmun, concluded that the Massachusetts statute was unconstitutional because under that statute, as written and construed by the Massachusetts Supreme Judicial Court, no minor, no matter how mature and capable of informed decision making, could receive an abortion without the consent of either both parents or a Superior Court judge, thus making the minor’s abortion subject in every instance to an absolute third-party veto.

Incompetent Person

Abortion was found to be proper by a family court in
In re Doe (1987)

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for a woman who had become pregnant during her residence in a group home as a result of a sexual assault by an unknown person. The record had supported a finding that if the woman had been able to do so, she would have requested the abortion. The court properly chose welfare agencies and the woman’s guardian
ad litem (a guardian appointed to prosecute or defend a suit on behalf of a party incapacitated by infancy, mental incompetence, etc.) as the surrogate decision makers.

In selecting the surrogate decision maker, the trial justice was correct in determining that
the mother’s contact with the child over the years of her placement with DCF was of such slight and sporadic quality as to disqualify her from making decisions on behalf of the child. The state agencies, as assisted by the guardian
ad litem, acted in good faith and in the best interests of the incompetent person who had been placed in the custody of DCF and were properly considered by the court as the appropriate surrogates in attempting to exercise substituted judgment in respect to Jane Doe.

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Parental Notification Permitted

The U.S. Supreme Court in 1981 in
H. L. v. Matheson,

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by a six-to-three vote, upheld a Utah statute that required a physician to “notify, if possible” the parents or guardian of a minor on whom an abortion is to be performed. In this case, the physician advised the patient that an abortion would be in her best medical interest but, because of the statute, refused to perform the abortion without notifying her parents. The Supreme Court ruled that although a state may not constitutionally legislate a blanket, unreviewable power of parents to veto their daughter’s abortion, a statute setting out a mere requirement of parental notice when possible does not violate the constitutional rights of an immature, dependent minor.

Emancipated Minor

An Alabama trial court in the 1987 case
In re Anonymous

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was found to have abused its discretion when it refused a minor’s request for waiver of parental consent to obtain an abortion. The record indicated that the minor lived alone, was within 1 month of her 18th birthday, lived by herself most of the time, and was employed full time.

Parental Notification Not Required

The issue in 2000 in
Planned Parenthood v. Owens

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was whether the Colorado Parental Notification Act,

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which requires a physician to notify the parents of a minor prior to performing an abortion upon her, violates the minor’s rights as protected by the U.S. Constitution. The act, a citizen-initiated measure, was approved at Colorado’s general election. The act generally prohibited physicians from performing abortions on an unemancipated minor until at least 48 hours after written notice has been delivered to the minor’s parent, guardian, or foster parent.

The U.S. District Court decided that the act violated the rights of minor women protected by the Fourteenth Amendment. The Supreme Court, for more than a quarter of a century, has required that any abortion regulation make an exception for an abortion that is medically necessary for the preservation of the mother’s health. The Colorado act failed to provide such a health exception.

Informed Consent

The Fifth U.S. Circuit Court of Appeals determined that a Texas law requiring a pregnant mother to undergo an ultrasound prior to abortion is constitutional. Although a pregnant woman cannot be compelled to view the ultrasound image, the physician is required to describe what the image shows. The pregnant woman, however, has a concomitant right to refuse to listen to any detailed explanation. Chapter 171 of the Texas Health and Safety Code requires the following as prerequisites for a woman’s informed and voluntary consent to an abortion:

(1) the physician who is to perform the abortion, or a certified sonographer agent thereof, must perform a sonogram on the pregnant woman;

(2) the physician must display the sonogram images “in a quality consistent with current medical practice” such that the pregnant woman may view them;

(3) the physician must provide, “in a manner understandable to a layperson,” a verbal explanation of the results of the sonogram images, including a variety of detailed descriptions of the fetus or embryo; and

(4) the physician or certified sonographer agent must “make … audible the heart auscultation for the pregnant woman to hear, if present, in a quality consistent with current medical practice and provide …, in a manner understandable to a layperson, a simultaneous verbal explanation of the heart auscultation,” …

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States May Protect Fetus

The U.S. Supreme Court in 1979 in
Colautti v. Franklin

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voted six to three that states can seek to protect a fetus that a physician has determined could survive outside the womb. Determination of whether a particular fetus is viable is, and must be, a matter for judgment of the responsible attending physician. State abortion regulations that impinge on this
determination, if they are to be constitutional, must allow the attending physician the room that he or she needs to make the best medical judgment.

Abortion Rights Narrowed

Webster v. Reproductive Health Services

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began the U.S. Supreme Court’s narrowing of abortion rights by upholding a Missouri statute providing that no public facilities or employees should be used to perform abortions and physicians should conduct viability tests before performing abortions. The Court stated the statute did not prevent women from obtaining abortion services from private healthcare providers.

The Court also upheld Missouri Revised Statutes section 188.029 requiring physicians to conduct viability tests before performing abortions, when there was reason to believe the fetus had reached at least 20 weeks of gestational age.

Partial Birth Abortion

In 1998, the Supreme Court ruled on the case
Women’s Medical Professional Corp. v. Voinovich,

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which involved an Ohio statute that banned the use of the intact dilation and extraction (D&X) procedure in the performance of any previability or postviability abortion. (The D&X procedure, also referred to colloquially as
partial birth abortion, is a late-term abortion involving artificial ripening and dilation of the cervix prior to abortion of the fetus so that the aborted fetus may be delivered via the birth canal.) The Sixth Circuit Court of Appeals held that the statute banning any use of the D&X procedure was unconstitutionally vague. It is likely that a properly drafted statute will eventually be judged constitutionally sound.

Partial Birth Abortion Ban Struck Down

On June 28, 2002, the U.S. Supreme Court struck down a Nebraska ban on “partial-birth abortion,” finding it an unconstitutional violation of
Roe v. Wade.

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The court found these types of bans to be extreme descriptive attempts to outlaw abortion—even early in pregnancy—that jeopardizes women’s health.

Partial-Birth Abortion Ban Unconstitutional

The Partial-Birth Abortion Ban Act, 18 U.S.C. Section 1531, in
National Abortion Fed’n v. Gonzages,

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was found to be unconstitutional because it lacked any exception to preserve the health of the mother, where such exception was constitutionally required. Also, the act was unconstitutional because it imposed an undue burden on a woman’s right to choose previability abortion and was constitutionally vague.

Texas Restrictions on Women’s Rights

The U.S. Supreme Court reviewed both the admitting privileges and Ambulatory Surgery Center requirements in Texas Health Bill House Bill 2.

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The first provision of HB 2 required:

[a] physician performing or inducing an abortion … must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that … is located not further than 30 miles from the location at which the abortion is performed or induced.

Previously, Texas law required abortion facilities to maintain a written protocol “for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital.”

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The second provision of HB 2, referred to as the “surgical center requirement,” required:

… the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.

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Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually. The record contained nothing to suggest that HB 2 would be more effective than pre-existing Texas law at deterring wrongdoers.

The United States Supreme Court struck down Texas’s restrictions on a woman’s right to choose to have an abortion on June 27, 2016. The Court determined that the two provisions of Texas’s HB 2 violated the U.S. Constitution. The provisions of HB 2 did not offer medical benefits sufficient to justify the burdens placed upon women seeking a previability abortion.

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State Abortion Statutes

The effect of the Supreme Court’s 1973 decisions in
Roe v. Wade and
Doe v. Smith was to invalidate all or part of almost every state abortion statute then in force. The responses of state legislatures to these decisions were varied, but it is clear that many state laws had been enacted to restrict the performance of abortions as much as possible. Although
Planned Parenthood v. Casey was expected to clear up some issues, it
is evident that the states have been given more power to regulate the performance of abortions.

24-Hour Waiting Period Not Burdensome

In 1992, the U.S. Supreme Court in
Planned Parenthood v. Casey

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determined that in asserting an interest in protecting fetal life, a state may place some restrictions on previability abortions, so long as those restrictions do not impose an “undue burden” on the woman’s right to an abortion. The court determined that the 24-hour waiting period, the informed consent requirement, and the medical emergency definitions did not unduly burden the right to an abortion and were therefore constitutional.

The 1993 Utah Abortion Act Revision, Senate Bill 60, provides for informed consent by requiring that certain information be given to the pregnant woman at least 24 hours before performing an abortion. The law allows for exceptions to this requirement in the event of a medical emergency. The Utah Women’s Clinic, in
Utah Women’s Clinic, Inc. v. Leavitt,

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filed a 106-page complaint challenging the constitutionality of the new Utah law. It was determined that the 24-hour waiting period did not impose an undue burden on the right to an abortion. On appeal, a U.S. District Court held that the Utah abortion statute’s 24-hour waiting period and informed consent requirements do not render the statute unconstitutionally vague.

Abortions After 20 Weeks Prohibited

Governor Nikki Haley signed bill A183, R196, H3114 into law, prohibiting abortions 20 or more weeks post-fertilization, thus amending the code of laws of South Carolina by adding Article 5 to Chapter 41, Title 44, enacting the “South Carolina Pain-Capable Unborn Child Protection Act.” The South Carolina bill has no provisions for rape or incest. South Carolina is the 13th state to enforce such a ban, along with Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Nebraska, North Dakota, Oklahoma, Texas, West Virginia, and Wisconsin. The act provides in part:

Section 44-41-440. Except in the case of a medical emergency or fetal anomaly, no abortion must be performed or induced or be attempted to be performed or induced unless the physician performing or inducing it has first made a determination of the probable post-fertilization age of the unborn child or relied upon such a determination made by another physician. In making such a determination, the physician shall make such inquiries of the woman and perform or cause to be performed such medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to perform in making an accurate diagnosis with respect to post-fertilization age.

Section 44-41-450. (A) No person shall perform or induce or attempt to perform or induce an abortion upon a woman when it has been determined, by the physician performing or inducing or attempting to perform or induce the abortion or by another physician upon whose determination that physician relies, that the probable post-fertilization age of the woman’s unborn child is twenty or more weeks, except in the case of fetal anomaly, or in reasonable medical judgment, she has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No such greater risk must be considered to exist if it is based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

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Abortions in South Carolina may be performed after 20 weeks only if the mother’s life is in jeopardy. However, there are no exceptions for rape or incest. Physicians who perform illegal abortions can face a $10,000 fine and up to three years in prison.

Law and Morality of Abortion—Conflicting Beliefs

The abortion issue is obviously one that invokes strong feelings on both sides. Individuals are free to urge support for their cause through debate, advocacy, and participation in the political process. The subject also might be addressed in the courts so long as there are valid legal issues in dispute. Where, however, a case presents no legitimate legal arguments, the courthouse
is not the proper forum. Litigation, or the threat of litigation, should not be used as economic blackmail to strengthen one’s hand in the political battle.

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The morality of abortion involves philosophy, ethics, and theology. It is a subject wherein reasonable people adhere to vastly divergent convictions and principles. The obligation of society is to define the liberties of all and not to mandate one’s own moral code.

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Two or more ethical principles in conflict with one another are considered “ethical dilemmas,” such as in the case of abortion. Further complication of ethical dilemmas occurs when laws and regulations affect the decision-making process and, further, when the courts enter the melting pot by interpreting laws and regulations while recognizing the rights of individuals as provided under the U.S. Constitution.

Pro-life advocates argue on constitutional, ethical, and religious grounds that the unborn child has a right to life, and that right must be protected. Pro-choice advocates argue that a woman has a right to choose preservation and protection of her health, and therefore, in many cases, her life is at least as compelling as the state’s interest in promoting childbirth. These pose two viewpoints, as different as day and night, involving opposite opinions surrounded by highly charged emotional and religious beliefs as to what is right and what is wrong. Each side has drawn large numbers of supporters, but the law has continued to favor pro-choice.

Dr. Gosnell, a Philadelphia physician, was found guilty of murder in some instances by severing the spinal cord of a fetus during late-term abortions. As noted in part in the
Report of the Grand Jury:

This case is about a doctor who killed babies and endangered women. What we mean is that he regularly and illegally delivered live, viable, babies in the third trimester of pregnancy—and then murdered these newborns by severing their spinal cords with scissors. The medical practice by which he carried out this business was a filthy fraud in which he overdosed his patients with dangerous drugs, spread venereal disease among them with infected instruments, perforated their wombs and bowels—and on, at least two occasions, caused their deaths. Over the years, many people came to know that something was going on here. But no one put a stop to it.

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As noted in the Gosnell
Report of the Grand Jury, opposing viewpoints stoke the flames of the ongoing abortion controversy in the news media.

Philadelphia Abortion Doctor Guilty of Murder in Late-Term Procedures

While abortion rights groups argued that Dr. Gosnell operated far outside the legalities and norms of women’s health care, abortion opponents seized on the case to raise questions about the ethics of late-term abortions. Put simply, they asked why a procedure done to a living baby outside the womb is murder, but destroying a fetus of similar gestation before delivery can be legal.

—John Hurdle and Trip Gabriel,
The New York Times, May 13, 2013

Pa. Abortion Provider Convicted of Murder

… “Some abortionists may have cleaner sheets than Gosnell, and better sterilized equipment and better trained accomplices, but what they do—what Gosnell did—kill babies and hurt women is the same,” Rep. Christopher H. Smith (R-NJ) said in a statement.

Meanwhile, abortion-rights groups insisted that Gosnell’s crimes are an anomaly and that the abysmal conditions inside his clinic persisted only because numerous regulators ignored red flags for years.

—Brady Dennis,
The Washington Post, May 14, 2013

To make the right choices in the resolution of ethical dilemmas, it is often necessary to value one ethical principle more than another. The difficulty in the abortion dilemma arises because beliefs, religion, culture, education, and life experiences can differ from person to person. Good people cannot be considered bad people merely because their beliefs differ from another’s beliefs. Values differ, and, therefore, determining what is morally right or wrong can differ from person to person. It is certain that the controversies and ethical dilemmas surrounding abortion will continue for many years to come. Preferably common ground can be the beginning point for resolving this emotionally charged dilemma.

The landscape of political contention and differing religious beliefs and values of the human race will forever be a dark side in human history, making these natural phenomena of creation forever debated and written as a black mark in the annals of history. Rather in the
prevention of conception or the abortion of the fetus/unborn child depending on your beliefs will continue to be forever a contentious topic in the world order.

Moral Persuasion on Abortion

If you wish to persuade someone to adopt your viewpoint on any issue, it is usually counter-productive to begin by insulting that person. The reason is simple: Your target is likely to want to defend himself or herself from the insult, and consequently will not be in a position to hear your argument.

—Joseph B. Kadane,
Huffington Post, September 27, 2013

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STERILIZATION

Sterilization is the termination of the ability to produce offspring. Sterilization often is accomplished by either a
vasectomy for men or a tubal ligation for women. A vasectomy is a surgical procedure in which the vas deferens is severed and tied to prevent the flow of the seminal fluid into the urinary canal. A
tubal ligation is a surgical procedure in which the fallopian tubes are cut and tied, preventing passage of the ovum from the ovary to the uterus. Sterilizations are often pursued for such reasons as:

Birth control

Economic necessity

Therapeutic necessity (e.g., prevent harm to a woman’s health)

Genetic concerns (e.g., prevent birth defects)

Elective Sterilization

Voluntary or
elective sterilizations on competent individuals present few legal problems, so long as proper consent has been obtained from the patient and the procedure is performed properly. Civil liability for performing a sterilization of convenience may be imposed if the procedure is performed in a negligent manner. Like abortion, voluntary sterilization is the subject of a variety of debates concerning its moral and ethical propriety.

Therapeutic Sterilization

If the life or health of a woman may be jeopardized by pregnancy, the danger may be avoided by terminating: (1) her ability to conceive or (2) her husband’s ability to impregnate. Such an operation is a
therapeutic sterilization—one performed to preserve life or health. The medical necessity for sterilization renders the procedure therapeutic. Sometimes a diseased reproductive organ has to be removed to preserve the life or health of the individual. The operation results in sterility, although this was not the primary reason for the procedure. Such an operation technically should not be classified as sterilization because it is incidental to the medical purpose.

Eugenic Sterilization

The term
eugenic sterilization refers to the involuntary sterilization of certain categories of persons described in statutes, without the need for consent by, or on behalf of, those subject to the procedures. Persons classified as mentally deficient, “feebleminded,” and, in some instances, epileptic have been included within the scope of such statutes. Several states also have included certain sexual deviants and persons classified as habitual criminals. Such statutes ordinarily are designed to prevent the transmission of hereditary defects to succeeding generations, but several statutes also have recognized the purpose of preventing procreation by individuals who would not be able to care for their offspring.

Although there have been judicial decisions to the contrary, the United States Supreme Court in
Buck v. Bell

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specifically upheld the validity of such eugenic sterilization statutes, provided that certain procedural safeguards are observed. The U.S. Supreme Court determined:

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.
Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.

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Several states have laws authorizing eugenic sterilization. The decision in
Wade v. Bethesda Hospital

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strongly suggests that in the absence of statutory authority the state cannot order sterilization for eugenic purposes. Eugenic sterilization statutes provide the following: a grant of authority to public officials supervising state institutions for the mentally ill or prisons and to certain public health officials to conduct sterilizations; a requirement of personal notice to the person subject to sterilization and, if that person is unable to comprehend what is involved, notice to the person’s
legal representative, guardian, or nearest relative; a hearing by the board designated in the particular statute to determine the propriety of the prospective sterilization; at the hearing, evidence that may be presented, and the patient, who must be present or represented by counsel or the nearest relative or guardian; and an opportunity to appeal the board’s ruling to a court.

The procedural safeguards of notice, hearing, and the right to appeal must be present in sterilization statutes to fulfill the minimum constitutional requirements of due process. An Arkansas statute was found to be unconstitutional in that it did not provide for notice to the incompetent patient and opportunity to be heard or for the patient’s entitlement to legal counsel.

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Case Studies

Negligent Sterilization

Dr. Kenneth Chaffee performed a partial salpingectomy on Heather Seslar. The purpose of the procedure was to sterilize Seslar, who had already borne four children, so that she could not become pregnant again. After undergoing the surgery, however, Seslar conceived and delivered a healthy baby. Seslar sued Chaffee.

The Court of Appeals held in
Chaffee v. Seslar that damages for the alleged negligent sterilization procedure could not include the costs of raising a normal healthy child. Although raising an unplanned child is costly, all human life is presumptively invaluable. A child, regardless of the circumstances of birth, does not constitute harm to the parents so as to permit recovery for the costs associated with raising and educating the child. As with a majority of jurisdictions, the court held that the value of a child’s life to the parents outweighs the associated pecuniary burdens as a matter of law. Recoverable damages may include pregnancy and childbearing expenses but not the ordinary costs of raising and educating a normal, healthy child conceived after an allegedly negligent sterilization procedure.

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Ethical and Legal Issues

Do you agree with the court’s decision?

Under what circumstances would you not agree with the court’s decision?

Describe the ethical issues in this case.

WRONGFUL BIRTH, LIFE, AND CONCEPTION

The improper performance of sterilization can result in lawsuits based on such theories as
wrongful birth,
wrongful life, and
wrongful conception. Wrongful life suits are generally unsuccessful, primarily because of the court’s unwillingness, for public policy reasons, to permit financial recovery for the “injury” of being born into the world.

Some success, however, has been achieved in litigation by the patient (and his or her spouse) who allegedly was sterilized and subsequently proved fertile. Damages have been awarded for the cost of the unsuccessful procedure; pain and suffering as a result of the pregnancy; the medical expense of the pregnancy; and the loss of comfort, companionship services, and consortium of the spouse. Again, as a matter of public policy, the courts have indicated that the joys and benefits of having the child outweigh the cost incurred in the rearing process.

There have been many cases in recent years involving actions for wrongful birth, wrongful life, and wrongful conception. Litigation originated with the California case in which a court found that a genetic testing laboratory could be held liable for damages from incorrectly reporting genetic tests, leading to the birth of a child with defects.

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Injury caused by birth had not been previously actionable by law. The court of appeals held that medical laboratories engaged in genetic testing owe a duty to parents and their unborn child to use ordinary care in administering available tests for the purpose of providing information concerning potential genetic defects in the unborn. Damages in this case were awarded on the basis of the child’s shortened life span.

Wrongful Birth

In a wrongful birth action
, the plaintiffs claim that but for a breach of duty by the defendant(s) (e.g., improper sterilization), the child would not have been born. A wrongful birth claim can be brought by the parent(s) of a child born with genetic defects against a physician who or a laboratory that negligently fails to inform them, in a timely fashion, of an increased possibility that the mother will give birth to such a child, therefore precluding an informed decision as to whether to have the child.

In a New Jersey case,
Canesi ex rel. Canesi v. Wilson,

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the New Jersey Supreme Court reviewed the dismissal of an action for wrongful birth on the claim of the parents that had the mother been informed of the risk that a drug, Provera, which she had been taking before she learned that she was pregnant, might cause the fetus to be born with congenital anomalies such as limb reduction, she would have decided to abort the fetus. It was alleged that the physicians failed to disclose the risks associated with the drug. The physicians argued that the informed consent doctrine requires that the plaintiffs establish that the drug in fact caused the birth anomalies. The court rejected the argument and distinguished the wrongful birth action from one based on informed consent:

In sum, the informed consent and wrongful birth causes of action are similar in that both require the physician to disclose those medically accepted risks that a reasonably prudent patient in the plaintiff’s position would deem material to her decision. What is or is not a medically acceptable risk is informed by what the physician knows or ought to know of the patient’s history and condition. These causes of action, however, have important differences. They encompass different compensable harms and measures of damages. In both causes of action, the plaintiff must prove not only that a reasonably prudent patient in her position, if apprised of all material risks, would have elected a different course of treatment or care. In an informed consent case, the plaintiff must additionally meet a two-pronged test for proximate causation: She must prove that the undisclosed risk actually materialized and that it was medically caused by the treatment. In a wrongful birth case, on the other hand, a plaintiff need not prove that the doctor’s negligence was the medical cause of her child’s birth defect. Rather, the test of proximate causation is satisfied by showing that an undisclosed fetal risk was material to a woman in her position; the risk materialized was reasonably foreseeable and not remote in relation to the doctor’s negligence; and had plaintiff known of that risk, she would have terminated her pregnancy. The emotional distress and economic loss resulting from this lost opportunity to decide for herself whether or not to terminate the pregnancy constitute plaintiff’s damages.

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With the increasing consolidation of hospital services and physician practices, a case could be made for finding a hospital liable for the physician’s failure to obtain informed consent where the hospital actually owns or controls the physician’s practice or where both the hospital and the physician’s practice are owned or controlled by another corporation that sets policy for both the hospital and the physician’s practice.

Wrongful Life

Wrongful life claims are initiated by the parent(s) or child based on harm suffered as a result of being born. The plaintiffs generally contend that the physician or laboratory negligently failed to inform the child’s parents of the risk of bearing a genetically defective infant and hence prevented the parents’ right to choose to avoid the birth.

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Because there is no recognized legal right not to be born, wrongful life cases are generally not successful.

[L]egal recognition that a disabled life is an injury would harm the interests of those most directly concerned, the handicapped. Disabled persons face obvious physical difficulties in conducting their lives. They also face subtle yet equally devastating handicaps in the attitudes and behavior of society, the law, and their own families and friends. Furthermore, society often views disabled persons as burdensome misfits. Recent legislation concerning employment, education, and building access reflects a slow change in these attitudes. This change evidences a growing public awareness that the handicapped can be valuable and productive members of society. To characterize the life of a disabled person as an injury would denigrate both this new awareness and the handicapped themselves.

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A cause of action for wrongful life was not cognizable under Kansas law in
Bruggeman v. Schimke.

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Human life is valuable, precious, and worthy of protection. An evaluation that says it is more worthwhile to not be born rather than to be alive with deformities cannot be recognized. The Kansas Supreme Court held that there was no recognized cause for wrongful life.

In
Kassama v. Magat,

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Millicent Kassama alleged that Dr. Aaron Magat failed to advise her of the results of an alpha-fetoprotein blood test that indicated a heightened possibility that her child, Ibrion, might be afflicted with Down syndrome. Had she received that information, Kassama contends, she would have undergone amniocentesis, which would have confirmed that prospect. Kassama claims that if that had
occurred she would have chosen to terminate the pregnancy through an abortion.

The Supreme Court of Maryland decided that for purposes of tort law, an impaired life was not worse than nonlife, and, for that reason, life itself was not and could not be considered an injury. There was no evidence that Ibrion was not deeply loved and cared for by her parents, nor that she did not return that love. Studies have shown that people afflicted with Down syndrome can lead productive and meaningful lives. They can be educated and employed, form friendships, and get along in society. Allowing a recovery of extraordinary life expenses on some theory of fairness—that the physician or his or her insurance company should pay not because the physician was negligent causing the injury or impairment but because the child was born—ignores that fundamental issue.

Wrongful birth is based on the premise that being born and having to live with the affliction are disadvantages and thus cognizable injuries. The injury sued upon was the fact that Ibrion was born; she bears the disability and will bear the expenses only because, due to the alleged negligence of Magat, her mother was unable to terminate the pregnancy and avert her birth. The issue here is whether Maryland law is prepared to recognize that kind of injury—the injury of life itself.

The child has not suffered any damage cognizable at law by being brought into existence. One of the most deeply held beliefs of our society is that life, whether experienced with or without a major physical handicap, is more precious than nonlife. No one is perfect, and each person suffers from some ailments or defects (whether major or minor) that make impossible participation in all of the activities life has to offer. Our lives are not thereby rendered less precious than those of others whose defects are less pervasive or less severe. Despite their handicaps, Down syndrome children are able to love and be loved and to experience happiness and pleasure—emotions that are truly the essence of life and that are far more valuable than the suffering that may be endured.

The right to life and the principle that all are equal under the law are basic to our constitutional order. To presume to decide that a child’s life is not worth living would be to forsake these ideals. To characterize the life of a disabled person as an injury would denigrate the handicapped themselves. Measuring the value of an impaired life as compared with nonexistence is a task that is beyond mortals.

Unless a judgment can be made on the basis of reason rather than the emotion of any given case, that nonlife is preferable to impaired life—that the child–plaintiff would, in fact, have been better off had he or she never been born—there can be no injury, and if there can be no injury, whether damages can or cannot be calculated becomes irrelevant.

The crucial question, a value judgment about life itself, is too deeply immersed in each person’s own individual philosophy or theology to be subject to a reasoned and consistent community response in the form of a jury verdict.

Wrongful Conception

Wrongful conception refers to a claim for damages sustained by the parents of an unexpected child based on an allegation that conception of the child resulted from negligent sterilization procedures or a defective contraceptive device.

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Damages sought for a negligently performed sterilization might include:

Pain and suffering associated with pregnancy and birth

Expenses of delivery

Lost wages

Father’s loss of consortium

Damages for emotional or psychological pain

Suffering resulting from the presence of an additional family member in the household

The cost and pain and suffering of a subsequent sterilization

Damages suffered by a child born with genetic defects

The most controversial item of damages claimed is that of raising a normal healthy child to adulthood. The mother in
Hartke v. McKelway

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had undergone sterilization for therapeutic reasons to avoid endangering her health from pregnancy. The woman became pregnant as a result of a failed sterilization. She delivered a healthy child without injury to herself. It was determined that “the jury could not rationally have found that the birth of this child was an injury to this plaintiff. Awarding child-rearing expense would only give Hartke a windfall.”

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The cost of raising a healthy newborn child to adulthood was recoverable by the parents of the child conceived as a result of an unsuccessful sterilization by a physician employee at Lovelace Medical Center. The physician in
Lovelace Medical Center v. Mendez

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found and ligated only one of the patient’s two fallopian tubes and then failed to inform the patient of the unsuccessful operation. The court held that:

… the Mendezes’ interest in the financial security of their family was a legally protected interest which was invaded by Lovelace’s negligent failure properly to perform
Maria’s sterilization operation (if proved at trial), and that this invasion was an injury entitling them to recover damages in the form of the reasonable expenses to raise Joseph to maturity.

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Some states bar damage claims for emotional distress and the costs associated with the raising of healthy children but will permit recovery for damages related to negligent sterilizations. In
Butler v. Rolling Hill Hospital,

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the Pennsylvania Superior Court held that the patient stated a cause of action for the negligent performance of a laparoscopic tubal ligation. The patient was not, however, entitled to compensation for the costs of raising a normal, healthy child. “In light of this Commonwealth’s public policy, which recognizes the paramount importance of the family to society, we conclude that the benefits of joy, companionship, and affection which a normal, healthy child can provide must be deemed as a matter of law to outweigh the costs of raising that child.”

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As the Court of Common Pleas of Lycoming County, Pennsylvania, in
Shaheen v. Knight, stated:

Many people would be willing to support this child were they given the right of custody and adoption, but according to plaintiff’s statement, plaintiff does not want such. He wants to have the child and wants the doctor to support it. In our opinion, to allow such damages would be against public policy.

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ARTIFICIAL INSEMINATION

Artificial insemination is the process by which sperm is placed into the reproductive tract of a female, for the purpose of impregnating the female by using means other than sexual intercourse. There are two sources of the sperm for impregnation of a female: homologous artificial insemination involves the use of the husband’s semen to impregnate the female; and heterologous artificial insemination (HAI) involves the use of semen from a donor other than a woman’s husband. The absence of answers to many questions concerning HAI may discourage couples from seeking to use the procedure and physicians from performing it. Some of the questions concern the procedure itself; others concern the status of the offspring, the effect of the procedure on the marital relationship, and the risk of multiple births that can be financially challenging.

Further worrying is the potential for legal actions for multiple births, which even led to the loss of a physician’s license to practice medicine when the Medical Board of California revoked Dr. Michael Kamrava’s medical license after he transplanted multiple embryos, resulting in the birth of octuplets. The Medical Board determined that Dr. Kamrava had acted beyond the reasonable judgment of a physician by implanting a number of embryos that exceeded existing guidelines:

The Board subsequently found Kamrava guilty of gross negligence, repeated negligent acts, and inadequate medical records in the first case. In the additional two cases, Kamrava was found guilty of gross negligence and repeated negligent acts in one case and guilty of repeated negligent acts in the other case.

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Consent

The Oklahoma HAI statute specifies that husband and wife must consent to the procedure.

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It is clear that the wife’s consent must be obtained; without it, the touching involved in the artificial insemination would constitute a battery. Besides the wife’s consent, it is important to obtain the husband’s consent to ensure against liability accruing if a court adopted the view that without the consent of the husband, HAI was a wrong to the husband’s interest, for which he could sustain a suit for damages.

The Oklahoma statute also deals with establishing proof of consent. It requires the consent to be in writing, and it must be executed and acknowledged by the physician performing the procedure and by the local judge who has jurisdiction over the adoption of children, as well as by the husband and wife.

In states without specific statutory requirements, medical personnel should attempt to avoid such potential liability by establishing the practice of obtaining the written consent of the couple requesting the HAI procedure. The hospital’s legal counsel should be consulted with in order to ensure that hospital policy is in compliance with statutory requirements.

Confidentiality

Another problem that directly concerns medical personnel involved in heterologous artificial insemination birth is preserving confidentiality. This problem is met in the Oklahoma HAI statute, which requires that the original copy of the consent be filed pursuant to the rules for filing adoption papers and is not to be made a matter of public record.

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SURROGACY

Surrogacy is a method of reproduction whereby a woman agrees to give birth to a child she will not raise but hand over to a contracted party, who is often unable to conceive a natural child of her or his own. A surrogate “may be the child’s genetic mother (the more traditional form of surrogacy), or she may as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases, surrogacy is the only available option for parents who wish to have a child that is biologically related to them.”

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Surrogacy raises a variety of ethical and legal issues that should be considered before searching for a surrogate mother. For example, is it ethical to enter a contract with a woman by offering her money in exchange for bearing a child and then transferring all parental rights and physical custody of the child to the “commissioning couple”? Although the long-term effects of surrogacy contracts are not known, the adverse psychological impact could be detrimental to the child who learns that he or she is the offspring of someone who gave birth only to obtain money. Would the child want to search for his or her gestational mother? Should records be kept, and should the child have access to the records? After the child is taken, the surrogate mother may be negatively affected as her feeling of isolation is felt along with the reality of the sale of her body.

Some believe that the surrogacy contract is based on principles that are contrary to the objectives of our laws. The surrogate contract is perceived to be illegal when a fee is involved because it is compared with baby selling, which is illegal in all states. Court decisions and legislation in the United States have historically been split on how they address surrogacy contracts. In the District of Columbia, as of April 7, 2017, surrogacy contracts are legal and enforceable. The law offered guidelines for parents and surrogates entering into surrogacy contracts and established how the intended parents should legally assert their parental rights.

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A BILL 21-16

ENGROSSED ORIGINAL

IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

To amend Chapter 4 of Title 16 of the District of Columbia Official Code to permit collaborative reproduction and surrogacy agreements, establish requirements for surrogates, intended parents, and the contents of surrogacy agreements, establish parentage of a child, provide for court orders of parentage, and establish the effect of a subsequent marriage or domestic partnership, dissolution of a marriage or domestic partnership, death of an intended parent, and withdrawal of consent.

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Although there are arguments offered for and against surrogacy contracts, there are many parents who have experienced the joy of raising happy, psychologically well-balanced, and career-successful surrogate children. Those who have done their research and understand the issues live as happy together as those in any other family relationship.

ORGAN DONATIONS

Becoming a Donor

Organ and tissue donation and transplantation provide a second chance at life for thousands of people each year. You have the opportunity to be one of the individuals who make these miracles happen.

By deciding to be a donor, you give the gift of hope … hope for the thousands of individuals awaiting organ transplants and hope for the millions of individuals whose lives could be enhanced through tissue transplants. [
organdonor.gov.]

—U.S. Department of Health and Human Services

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There were approximately 114,895 people as of April 8, 2018, on the the Organ Procurement Transplant Network waiting for an organ transplant. Only 5,448 organ transplantations from 2,677 donors had been performed as of this same date.

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To help resolve the shortage of donors, every eligible adult is encouraged to register in their state as a donor.

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Federal regulations require that hospitals have and implement written protocols regarding their organ procurement responsibilities. The regulations impose specific notification duties, as well as other requirements concerning informing families of potential donors. It encourages discretion and sensitivity in dealing with the families and in educating hospital staff on a variety of issues involved with donation matters in order to facilitate timely donation and transplantation.

Organ transplantations are performed to treat patients with end-stage organ disease who face organ failure. Developments in medical science have enabled physicians to take tissue from persons immediately after death for use in replacing or rehabilitating diseased or damaged organs or other parts of living
persons. Interest in organ transplantation increased in 1954 when the Herrick twins became the first successful kidney transplant.

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The success rates of organ transplants have improved because of advances in the patient selection process, improved clinical and operative management and skills, and immunosuppressant drugs that aid in decreasing the incidence of tissue rejection (e.g., cyclosporin A, which acts to suppress the production of antibodies that attack transplanted tissue); nevertheless, this progress has created the problem of obtaining a sufficient supply of replacement body parts. There is a corresponding cry for more organs as the success rate in organ transplantation increases. Because of the fear of people buying and selling organs, the National Organ Procurement Act was enacted in 1984, making it illegal to buy or sell organs. Throughout the country, there are tissue banks and other facilities that store and preserve organs and tissue that can be used for transplantation and other therapeutic services.

The ever-increasing success of organ transplants and the demand for organ tissue require the close scrutiny of each case, to make sure that established procedures have been followed in the care and disposal of all body parts. Section 1138, Title XI, of the Omnibus Budget Reconciliation Act of 1986 requires hospitals to establish organ procurement protocols or face a loss of Medicare and Medicaid funding. Physicians, nurses, and other paramedical personnel assigned this responsibility often are confronted with several legal issues. Liability can be limited by complying with applicable regulations. Organs and tissues to be stored and preserved for future use must be removed almost immediately after death; therefore, it is imperative that an agreement or arrangement for obtaining organs and tissue from a body be completed before death, or very soon after death, to enable physicians to remove and store the tissue promptly. Mark Zuckerberg, chairman and CEO of Facebook, launched an organ donation campaign in 2012 encouraging its users to help spread awareness of the need for organ donations.

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Some people may wish to make arrangements for the use of their bodies after death for such purposes. A surviving spouse may, however, object to such disposition. In such cases, the interest of the surviving spouse or other family member could supersede that of the deceased.

Who Lives? Who Dies? Who Decides?

Who lives? Who dies? Who decides? These are but a few of the ethical questions that arise when deciding to whom an organ shall be given. The answers are not easy. The decision makers, even with guidelines to follow, often become the judge and jury and often find that the answers to questions such as who lives and dies are not always easy decisions to make. If there were unlimited sources of organs, there would be no supply-and-demand issues. Because supply is limited, numerous ethical principles come into play. In the case of a 70-year-old patient with multiple life-threatening health problems, the patient may not be considered a suitable candidate for a transplant, whereas a 15-year-old patient with few health issues would be considered a more appropriate candidate.

Uniform Anatomical Gift Act

The American Bar Association endorsed a
Uniform Anatomical Gift Act drafted by the Commission on Uniform State Laws. This statute has been enacted by all 50 states and has many detailed provisions that apply to the wide variety of issues raised in connection with the making, acceptance, and use of anatomical gifts. The act allows a person to make a decision to donate organs at the time of death and allows potential donors to carry an anatomical donor card. State statutes regarding donation usually permit the donor to execute the gift during his or her lifetime.

The right to privacy of the donor and his or her family must be respected. Information should not be publicized regarding transplant procedures as well as the names of the donor or donee without consent.

States have enacted legislation to facilitate donation of bodies and body parts for medical uses. Virtually all of the states have based their enactments on the Uniform Anatomical Gift Act, but it should be recognized that in some states there are deviations from this act or additional laws dealing with donation.

Individuals who are of sound mind and 18 years of age or older are permitted to dispose of their own bodies or body parts by will or other written instrument for medical or dental education, research, advancement of medical or dental science, therapy, or transplantation. Among those eligible to receive such donations are any licensed, accredited, or approved hospitals; accredited medical or dental schools; surgeons or physicians; tissue banks; or specified individuals who need the donation for therapy or transplantation. The statute provides that when only a part of the body is donated, custody of the remaining parts of the body shall be transferred to the next of kin promptly after removal of the donated part.

A donation by will becomes effective immediately on the death of the testator, without probate, and the gift is valid and effective to the extent that it has been acted on in good faith. This is true even if the will is not probated or is declared invalid for testimonial purposes.

Failure to Obtain Consent

Although failure to obtain consent for removal of body tissue can give rise to a lawsuit, not all such claims are successful. In
Nicoletta v. Rochester Eye & Human Parts Bank,

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emotional injuries resulted from the removal of the eyes of Nicoletta’s son for donation after a fatal motorcycle accident. The hospital was immune from liability under the provisions of the Uniform Anatomical Gift Act because the hospital had neither actual nor constructive knowledge that the woman who had authorized the donation was not the decedent’s wife. The hospital was entitled to the immunity afforded by the “good faith” provisions of Section 4306(3) of the act, under which its agents had made reasonable inquiry as to the status of the purported wife, who had resided with the decedent for 10 years and was the mother of their two children. The hospital had no reason to believe that any irregularity existed. The father, who was present at the time his son was brought to the emergency department, failed to object to any organ donation and failed to challenge the authority of the purported wife to sign the emergency department authorization.

There are several methods by which an organ or tissue donation authorization may be revoked. If the document has been delivered to a named receiving agency (such as a hospital or a surgeon expected to perform the extraction of donated tissues), it may be revoked by:

A written revocation signed by the donor and delivered to the receiving agency

An oral revocation witnessed by two persons and communicated to the receiving agency

A statement to the attending physician during a terminal illness that has been communicated to the receiving agency

A written statement that has been signed and is on the donor’s person or in the donor’s immediate effects

If the written instrument of donation has not been delivered to the receiving agency, the tissue donation may be revoked by destruction, cancellation, or mutilation of the instrument. If the donation is made by a will, it may be revoked in the manner provided for revocation or amendment of wills. Any person acting in good-faith reliance on the terms of an instrument of donation will not be subject to civil or criminal liability unless there is actual notice of the revocation of the donation.

Altruism vs. Sale of Organs

The shortage of organs has led to organs “being trafficked, sometimes with, and sometimes without, the consent of those to whom they belong. People have been directly, or indirectly, being forced to sell their own organs for a low price, often to middlemen, who make thousands of Euros from poor vulnerable persons.”

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Iran addressed by legislation the shortage of organs in 1988 by allowing Iranians to sell a kidney with what has been described as a successful government decision.

In the 1980s, Iran had both a shortage of legally donated kidneys and subpar dialysis equipment to treat the growing segment of the population with end-stage renal disease (ESRD). It
did have highly trained surgeons capable of performing organ transplants, though. So in 1988, the nation decided on a bold (and somewhat controversial) new strategy to eliminate the dangers that come with procuring or receiving an organ illegally: they made it legal for a living person to sell their kidney.

Nearly three decades later, Iran is one of the few nations without an organ shortage—every Iranian who needs a kidney can receive one. Should other nations follow suit?

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The attempt to encourage people to voluntarily be placed on donor lists for organ transplantations has proven to be of limited success. The number of people waiting for an organ and waiting times indicate the need to provide other options such as the approach Iran, for example, has taken.

Because the organ shortage has become more severe worldwide, some from the transplant community believe that altruism alone is not enough to satisfy the needs of the thousands of patients who are on renal transplant waiting lists and that providing some financial incentives or social benefits is necessary to increase the number of deceased or living organ donations.

As mentioned, there is no role for a broker or an agency in this transplantation program. The association for patients with ESRD [end-stage renal disease] is a charitable organization and receives no incentives from donors or recipients. The government pays for all hospital expenses of renal transplantation. The medical and surgical fees for transplantation are greatly lower compared with the fees for similar services.

All transplant candidates who are poor receive renal transplantation. The elimination of renal transplant waiting lists means that
all patients with ESRD, either rich or poor, have equal access to renal transplant facilities; otherwise, many poor patients would remain on the renal transplant waiting list. The main reason for this equal access is the active role of charitable organizations that pay for many expenses of renal transplantation that the poor patients cannot afford.

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Altruism, which entails the unselfish regard or devotion for the welfare of others, has not generated sufficient public interest in helping others in the time of crisis. This may be due to the fear of being transported to an emergency department and being hastily declared not able to survive the injuries sustained, and therefore the organs are harvested for others on the donor list. Although there are safeguards to help prevent this from happening, there is always a risk, however remote, that the interest in declaring the patient unable to survive may have been for some cruel or selfish reason. Failure to obtain a sufficient number of organs may also be due to complacency and lack of knowledge. Whether by greed or financial crisis, donors who sell their organs are solving the problem in Iran. Therefore, it can be argued that more consideration should be given to enacting legislation allowing for each individual to pursue the option of selling his organ(s).

RESEARCH, EXPERIMENTATION, AND CLINICAL TRIALS

Medical progress and improved patient care are dependent on advances in medicine made through research. Research studies are designed to answer specific questions, including a drug’s or device’s safety and effectiveness. Ethical considerations, to name but a few, that should be addressed when conducting research on human subjects include honesty, integrity, autonomy; self-determination; the Hippocratic maxim of do no harm; the application of justice; and how to fairly conduct blind trials. The basic principle of research is honesty, which must be ensured through institutional protocols. Honesty and integrity must govern all stages of research.

Federal regulations control federal grants that apply to experiments involving new drugs, new medical devices, or new medical procedures. Generally, a combination of federal and state guidelines and regulations ensures proper supervision and control over experimentation that involves human subjects. For example, federal regulations require hospital-based researchers to obtain the approval of an
institutional review board.

The science of medicine, which by its very nature studies the human body, is prevented from making progress through direct experimentation. A necessary part of research is to conduct laboratory tests on animals and observe their effects prior to testing them on humans. Advances in research occur by observation and study of how a normal, healthy body functions and when the body malfunctions, studying the cause of those changes that occur and finding a way to slow and possibly reverse the progression of a disease.

Right to Try Experimental Drugs

The U.S. Senate unanimously passed the “Right to Try Bill” in August 2017 that would allow terminally ill patients the right to access experimental treatments without oversight by the Food and Drug Administration. The House of Representatives, on March 21, 2018, passed a bill allowing patients the right to try experimental drugs prior to FDA approval.

House Passes Bill That Would Give Patients Access to Experimental Drugs

WASHINGTON—The House, spurred on by President Trump, passed a bill on Wednesday that would give patients with terminal illnesses a right to try unproven experimental treatments.

The measure, which was approved by a vote of 267 to 149, appears to have a good chance of becoming law. The Senate approved a similar proposal last year.

Supporters said the bill would give dying patients a chance to obtain potentially helpful prescription drugs without waiting for the completion of clinical trials or going through a process established by the Food and Drug Administration to allow the use of “investigational drugs” outside clinical trials.

—Robert Pear
, The New York Times, March 21, 2018

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The contents of that bill are provided in part here.

This Act may be cited as the “Right to Try Act of 2017’’.

SEC. 2. USE OF UNAPPROVED MEDICAL PRODUCTS BY PATIENTS DIAGNOSED WITH A TERMINAL ILLNESS.

(a) In General.—Notwithstanding the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301
et seq.), the Controlled Substances Act (21 U.S.C. 801 et seq.), and any other provision of Federal law, the Federal Government shall not take any action to prohibit or restrict—

(1) the production, manufacture, distribution, prescribing, or dispensing of an experimental drug, biological product, or device that—

(A) is intended to treat a patient who has been diagnosed with a terminal illness; and

(B) is authorized by, and in accordance with, State law; and

(2) the possession or use of an experimental drug, biological product, or device—

(A) that is described in subparagraphs (A) and (B) of paragraph (1); and

(B) for which the patient has received a certification from a physician, who is in good standing with the physician’s certifying organization or board, that the patient has exhausted, or otherwise does not meet qualifying criteria to receive, any other available treatment options.

(b) No Liability or Use of Outcomes.—

(1) No liability.—Notwithstanding any other provision of law, no liability shall lie against a producer, manufacturer, distributor, prescriber, dispenser, possessor, or user of an experimental drug, biological product, or device for the production, manufacture, distribution, prescribing, dispensing, possession, or use of an experimental drug, biological product, or device that is in compliance with subsection (a).

(2) No use of outcomes.—Notwithstanding any other provision of law, the outcome of any production, manufacture, distribution, prescribing, dispensing, possession, or use of an experimental drug, biological product, or device that was done in compliance with subsection (a) shall not be used by a Federal agency reviewing the experimental drug, biological product, or device to delay or otherwise adversely impact review or approval of such experimental drug, biological product, or device.

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Approval by the Senate of this bill was pending at the time of this writing. At the state level, 38 states have passed similar laws.

Office of Research Integrity

The Office of Research Integrity (ORI) oversees and directs Public Health Service (PHS) research integrity activities on behalf of the Secretary of Health and Human Services with the exception of the research integrity activities of the Food and Drug Administration. The ORI carries out its responsibility by developing policies, procedures, and regulations related to the detection, investigation, and prevention of research misconduct and the responsible conduct of research. The ORI is responsible for implementing activities and programs to teach the responsible conduct of research, promote research integrity, prevent research misconduct, and improve the handling of allegations of research misconduct. The ORI administers programs for: maintaining institutional assurances, responding to allegations of retaliation against whistleblowers, approving intramural and extramural policies and procedures, and responding to Freedom of Information Act and Privacy Act requests.

Food and Drug Administration

The Food and Drug Administration (FDA) regulates the conduct of clinical trials. A variety of regulations that describe good clinical practices for studies with both human and nonhuman animal subjects are listed next. More detail on these and other research-related regulations can be found at the FDA website:

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Electronic records

Protection of human subjects

Informed consent elements

Financial disclosure by investigators

Institutional review boards

Investigational drug new application

Investigational device exemptions

Good laboratory practice for nonclinical laboratory studies

Expanded access to investigational drugs for treatment

The FDA—after much criticism over the years because of the red tape involved in the approval of new drugs—issued new rules to speed up the approval process. The rules permit the use of experimental drugs outside a controlled clinical trial if the drugs are used to treat a life-threatening condition. In
Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, the U.S. Court of Appeals for the District of Columbia ruled that terminally ill patients have a “fundamental right” protected by the U.S. Constitution to access experimental drugs that have not yet been fully approved by the FDA. The appeals court ruled that
once the FDA has determined, after Phase I trials, that a potentially lifesaving new drug is sufficiently safe for expanded human trials, terminally ill patients have a constitutional right to seek treatment with the drug if no other FDA-approved drugs are available. The court said that if the FDA wishes to prevent such patients from gaining access to investigational drugs that have completed Phase I trials, it bears the burden of demonstrating that its restrictions are “narrowly tailored” to serve a compelling governmental interest.

Patients participating in research studies should fully understand the implications of their participation. Healthcare organizations involved in research studies should have appropriate protocols in place that protect the rights of patients. Consent forms should describe both the risks and benefits involved in the research activity.

Institutional Review Board

Healthcare organizations conducting medical research must have a mechanism in place for approving and overseeing the use of investigational protocols. This is accomplished through the establishment of an institutional review board (IRB). An IRB is a committee designated by organizations (e.g., hospitals) conducting clinical trials to provide initial approval and periodic monitoring of biomedical research studies. The primary responsibilities of an IRB include:

Protecting the rights and welfare of human subjects

Ensuring protocols are presented by the sponsor(s)

Ensuring sponsor(s) of a protocol discloses

Areas of concern that might give the impression of a conflict of interest in the outcome of the clinical research

Financial interests that might occur should the clinical trials prove to be successful or give the impression of success, including stock options and cash payouts

Reviewing, monitoring, and approving clinical protocols for investigations of drugs and medical devices involving human subjects

Ensuring that the rights, including the privacy and confidentiality, of each individual are protected

Ensuring that all research is conducted within appropriate state and federal guidelines (e.g., FDA guidelines)

Under FDA regulations, an IRB is an appropriately constituted group that has been formally designated to review and monitor biomedical research involving human subjects. In accordance with FDA regulations, an IRB has the authority to approve, require modifications in (to secure approval), or disapprove research. This group review serves an important role in the protection of the rights and welfare of human research subjects.

The purpose of IRB review is to assure, both in advance and by periodic review, that appropriate steps are taken to protect the rights and welfare of humans participating as subjects in the research. To accomplish this purpose, IRBs use a group process to review research protocols and related materials (e.g., informed consent documents and investigator brochures) to ensure protection of the rights and welfare of human subjects of research.

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Informed Consent

Patients Involved in Clinical Trial Understand Risks

My husband … participated in a clinical trial involving both an autologous (self) and allogeneic (donor) transplant for a hopeful cure of the disease. We both understood the risks involved and the no-promise guarantee, as such is the nature of a clinical trial. The ultimate responsibility for whatever the outcome rested with us, as we were the ones who voluntarily entered into the program. Three years later, we have just learned of the disease’s progression, but we continue to look forward, remain optimistic, and support those who dedicate their lives for the betterment of those afflicted with these cursed cancers.

The reality is that someday, probably sooner than later, my husband will lose the battle with this tenacious enemy, but we are still thankful for the compassionate and learned members of the Fred Hutchinson Cancer Research Center who helped and are still helping us to navigate a most challenging road.

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—Mary Ellen Stokes and Bill Stokes, “Relentless Assault on a Research Hospital,”
Wall Street Journal, March 15, 2004

Healthcare organizations involved in research studies should have appropriate protocols in place that protect the rights of patients. Patients participating in research studies should fully understand the implications of their participation. Physicians have a clear duty to warn patients as to the risks, benefits, and alternatives of an experimental procedure. Written consent should be obtained from each patient who participates in a clinical trial. The consent form must not contain any coercive or exculpatory language through which the patient is forced to waive his or her legal rights,
including the release of the investigator, sponsor, or organization from liability for negligent conduct.

Organizations conducting clinical trials on human subjects, at the very least, must:

Fully disclose to the patient the inherent risks, benefits, and treatment alternatives to the proposed research protocol(s)

Determine the competency of the patient to consent

Obtain written consent from the patient

Educate the staff as to the potential side effects, implementation of, and ongoing monitoring of protocols

Require financial disclosure issues associated with the protocols

Promote awareness of ethical issues

Promote education in regard to ethical decision making

Increase nurse participation in ethical decision making

Have ongoing monitoring of approved protocols

The Centers for Medicare and Medicaid Services (CMS) accreditation survey process for nursing facilities includes a review of the rights of nursing facility residents participating in experimental research. Surveyors will review the records of residents identified as participating in a clinical research study. They will determine whether informed consent forms have been executed properly. The form will be reviewed to determine whether all known risks have been identified. Appropriate questions may be directed to both the staff and residents or the residents’ guardians.

Possible questions to ask staff include:

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Is the facility participating in any experimental research?

If yes, what residents are involved? (Interview a sample of these residents.)

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Residents or guardians may be asked questions, such as:

Are you participating in the study?

Was this explained to you well enough so that you understand what the study is about and any risks that might be involved?

Experimental Subject’s Bill of Rights

The following is a bill of rights developed by the Veterans Administration system for patients involved in research studies. Human subjects have the following rights. These rights include, but are not limited to, the subject’s right to:

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Be informed of the nature and purpose of the experiment

Be given an explanation of the procedures to be followed in the medical experiment and any drug or device to be used

Be given a description of any attendant discomforts and risks reasonably to be expected

Be given an explanation of any benefits to the subject reasonably to be expected, if applicable

Be given a disclosure of any appropriate alternatives, drugs, or devices that might be advantageous to the subject, their relative risks, and benefits

Be informed of the avenues of medical treatment, if any, available to the subject after the experiment if complications should arise

Be given an opportunity to ask questions concerning the experiment or the procedures involved

Be instructed that consent to participate in the medical experiment may be withdrawn at any time and the subject may discontinue participation without prejudice

Be given a copy of the signed and dated consent form

Be given the opportunity to decide to consent or not to consent to a medical experiment without the intervention of any element of force, fraud, deceit, duress, coercion, or undue influence on the subject’s decision

Case Studies

Medical Research and Duty to Warn

About 5,000 patients at Michael Reese Hospital and Medical Center, located in Chicago, Illinois, were treated with X-ray therapy for some benign conditions of the head and neck from 1930 to 1960. Among them was Joel Blaz, now a resident of Florida, who received this treatment for infected tonsils and adenoids while a child in Illinois from 1947 through 1948. He has suffered various tumors, which he now attributes to this treatment. Blaz was diagnosed with a neural tumor in 1987.

In 1974, Michael Reese set up the Thyroid Follow-Up Project to gather data and conduct research among the people who had been subjected to the X-ray therapy. In 1975, the program notified Blaz by mail that he was at increased risk of developing thyroid tumors because of the treatment. In 1976, someone associated with the program
gave him similar information by phone and invited him to return to Michael Reese for evaluation and treatment at his own expense, which he declined to do.

Dr. Arthur Schneider was placed in charge of the program in 1977. In 1979, Schneider and Michael Reese submitted a research proposal to the National Institutes of Health stating that a study based on the program showed “strong evidence” of a connection between X-ray treatments of the sort administered to Blaz and various sorts of tumors: thyroid, neural, and others. In 1981, Blaz received but did not complete or return a questionnaire attached to a letter from Schneider in connection with the program. The letter stated that the purpose of the questionnaire was to “investigate the long-term health implications” of childhood radiation treatments and to “determine the possible associated risks.” It did not say anything about “strong evidence” of a connection between the treatments and any tumors.

In 1996, after developing neural tumors, Blaz sued Michael Reese’s successor, Galen Hospital in Illinois, and Dr. Schneider, alleging, among other things, that they failed to notify and warn him of their findings that he might be at greater risk of neural tumors in a way that might have permitted their earlier detection and removal or other treatment. There is a clear duty to warn the subject of previously administered radiation treatments when there is a strong connection between those treatments and certain kinds of tumors. The harm alleged, neural and other tumors would here be reasonably foreseeable as a likely consequence of a failure to warn and was in fact foreseen by Schneider. A reasonable physician, indeed any reasonable person, could foresee that if someone were warned of “strong evidence” of a connection between treatments to which he had been subjected and tumors, he would probably seek diagnosis or treatment and perhaps avoid these tumors, and if he were not warned he probably would not seek diagnosis or treatment, increasing the likelihood that he would suffer from such tumors. Other things being equal, therefore, a reasonable physician would warn the subject of the treatments.

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Ethical and Legal Issues

Discuss the ethical and legal principles violated in this case.

What preventative measures should be taken to prevent recurrence of cases such as this?

Patient Responsibilities

Patients in National Institutes of Health (NIH) clinical trials have responsibilities, as well as rights. The following extract from the NIH Clinical Center Patient Handbook describes the responsibilities of NIH patients.

In the spirit of working together toward a common goal, our patients (and their parents, guardians, and surrogates) have responsibilities as partners in medical research and as patients at the Clinical Center.

You have the responsibility:

To provide, to the best of your knowledge, complete information about your current medical condition and past medical history, including current illness, prior hospitalizations, current medications, allergies, and all other health-related matters;

To discuss your protocol (study or treatment plan) with the research staff before indicating agreement to take part in it by signing a consent;

To inform the medical staff about your wishes regarding treatment plans. You may provide for a duly authorized family member or spokesperson to make medical decisions on your behalf in the event that you become unable to communicate;

To comply with your protocol, to cooperate with hospital staff, to ask questions if directions or procedures are not clear, and to participate in your health care decisions. You may withdraw from the study for any reason, but it is desirable to discuss your concerns with the attending physician before taking that action. Parents of pediatric patients have the responsibility to indicate if and how they want to be involved in their child’s plan of care;

To refrain from taking any medications, drugs, or alcoholic beverages while participating in the protocol, except those approved by an NIH physician;

To adhere to the no-smoking policy of the NIH;

To report on time for scheduled procedures and to keep all clinic appointments. If unable to do so, you have the
responsibility of notifying the protocol physician and canceling and rescheduling the appointment;

To report promptly to the medical or nursing staff any unexpected problems or changes in your medical condition;

To inform the appropriate staff or the patient representative of any concerns or problems with the care and treatment that you feel are not being adequately addressed;

To respect the property of the U.S. government, fellow patients, and others; to follow NIH rules and regulations affecting patient care and treatment; to respect the rights of other patients and hospital staff. This includes the responsibility of respecting the privacy of other patients and treating information concerning them as confidential;

To pay all medical or laboratory expenses incurred outside the Clinical Center, except when you have received written authorization on the appropriate NIH form to have such expenses billed to the NIH;

To obtain medical care and medications from your own health care provider for all conditions unrelated to the protocol in which you are participating, except while being treated as an inpatient at the Clinical Center;

To provide your own transportation to and from the Clinical Center and to pay living expenses except when all or part of these expenses are covered by the protocol or authorized by the responsible NIH physician; to advise accompanying escorts or others who travel to and remain in the Bethesda area that they must pay for their travel and living expenses except when designated by NIH as a guardian for you when your expenses are covered;

To provide complete information, so that contacts and communications to schedule visits and monitor health status can be maintained. This information should include (1) your current address and phone number; (2) the names, addresses, and phone numbers of next of kin or persons to be notified in the event of an emergency; and (3) the names, addresses, and phone numbers of physicians responsible for your ongoing care, including your family physician and the physician(s) who referred you to the NIH;

To return to the care of your own health-care provider when participation in the protocol is completed or stopped and your medical condition permits.

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If you have questions about your rights, you may contact the Clinical Center Patient Representative.

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Where Are the Cures? How Patent Gridlock Is Blocking the Development of Lifesaving Drugs

A curious thing happened on the way to the biotech revolution. While investment in biotech research and development has increased over the last three decades, new drugs that improve human health have not been forthcoming at the same rate.

What explains this drug discovery gap? Patent gridlock plays a large role. Since a 1980 Supreme Court decision allowing patents on living organisms, 40,000 DNA-related patents have been granted. Now picture a drug developer walking into an auditorium filled with dozens of owners of the biotech patents needed to create a potential lifesaving cure. Unless the drug maker can strike a deal with every person in the room, the new drug won’t be developed.

Peter Ringrose, former chief science officer at Bristol-Myers Squibb, told the
New York Times that the company would not investigate some 50 proteins that could be cancer-causing, because patent holders would either decline to cooperate or demand big royalties.

—Michael Heller,
Forbes, August 11, 2008

Discussion

Discuss the ethical principles (e.g., beneficence [doing good] and nonmaleficence [avoiding causing harm]) and issues of morality of a legal system that delays research because of the legal rights of patent holders.

Discuss what steps could be taken to right the wrongs of patents that delay and often discourage research.

The Cures Act

The
Cures Act, formally known as H.R. 34 or the 21st Century Cures Act, passed in the U.S. House of Representatives and Senate in the 114th Congress and was signed into law by President Barack Obama on December 13, 2016. It included important changes affecting the Food and Drug Administration and the
National Institutes of Health.

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The Cures Act established and appropriated funds “(1) for biomedical research, including high-risk, high-reward research and research conducted by early stage investigators; (2) to develop and implement a strategic plan for biomedical research; and (3) to carry out specified provisions of this Act.”

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HUMAN GENETICS

The most promising frontier of the future of medical practice is in the area of human genetics, which describes the study of inheritance as it occurs in human beings. It includes such areas as stem cell research, clinical genetics (e.g., genetic disease markers), and molecular genetics. Inevitably there will be ethical issues that will become manifest in these new areas. We have already had a preview of this in the controversy regarding the use of fetal stem cells versus adult stem cells for research and therapy.

The ethics of modern science is a challenging and evolving area, but it is nothing new. In ancient China, for instance, physician Sun Simiao (AD 580–682) had a difficult medical ethical dilemma. In his book
Qianjinfang (Prescriptions Worth a Thousand Pieces of Gold), he is credited with formulating the first ethical basis for the practice of medicine in China. The ethical conundrum he faced was the clash between Confucian and Buddhist ethics. The relatively new religion of Buddhism had taboos against using any animal-derived product for the treatment of disease, as this violated the principle of respect for all life. The more ancient Confucian idea of compassion and kindness could be interpreted to overrule this, however. Sun Simiao dealt with this conflict by prohibiting a “standard physician” from using any medication derived from an animal source. He then included many prescriptions in his book that did have animal-sourced remedies. In other words, he seems to have artfully navigated an ethical gray zone between the two philosophies but with a less than clear distinction between right and wrong. Now in modern times we are still faced with continuing and evolving issues of ethics in the practice of medicine.

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Genetic Markers

Genetic markers are genes or DNA sequences with a known location on a chromosome that can be used to identify specific cells and diseases, as well as individuals and species. They are often used to study the relationship between an inherited disease and its genetic cause in order to determine an individual’s predisposition/proclivity to a specific disease. Genetic markers show observable information in DNA sequence variation, which may arise as a result of mutation of a specific gene. There are companies that will evaluate a person’s DNA for these markers and provide a person with a report of his or her potential health risks. Health insurers, life insurers, employers, and others could potentially use this information to determine one’s insurance premiums and even one’s job future and so forth. There is going to be ethical issues that will arise. For instance, suppose a woman has a family history of breast cancer and has a genetic marker for it, but she is young (e.g., 30 years old) and free of any evidence of cancer. If a physician recommends prophylactic mastectomy or if the patient wants a prophylactic mastectomy, should this be covered by insurance? Should this same logic be extended to other body organs?

Genetic Information Nondiscrimination Act of 2008 (HR493)

On May 21, 2008, President George W. Bush signed into law the Genetic Information Nondiscrimination Act (GINA), which resulted largely from the efforts of Senator Ted Kennedy. The law prohibits discrimination on the basis of genetic information with respect to the availability of health insurance and employment. The GINA prohibits group health plans and insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic predisposition to developing a specific disease (e.g., cancer or heart disease) at some future time. The GINA also prohibits employers from using an individual’s genetic information when making hiring, firing, job placement, or promotion decisions.

The relatively recent mapping of the human genome and the likelihood of increasing clinical application of advances in genetic disease markers make this an issue of potential increasing importance in the practice of medicine. Most states also have legislation that addresses this issue. Unfortunately, there remains, no federal legislation that protects the individual from discrimination in the availability of life insurance, disability insurance coverage, or long-term care insurance. Because of this loophole, patients and their doctors need to consider the potential downside of ordering prognostic genetic tests.

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Stem Cell Research

Stem cell research involves the use of embryonic stem cells to create organs and various body tissues. It continues to be a highly controversial issue generally involving religious beliefs and fears as to how far scientists might go in their attempt to create, for example,
another human being. Researchers must be free to unlock the secrets that stem cells hold and learn from them with the hope to develop effective therapies.

Some opponents of stem cell research argue that this practice is a slippery slope to reproductive cloning and fundamentally devalues the worth of a human being. Contrarily, some medical researchers in the field argue that it is necessary to pursue embryonic stem cell research because the resultant technologies could have significant medical potential and that excess embryos created for in vitro fertilization could be donated with consent and used for the research. This, in turn, conflicts with opponents in the pro-life movement, who advocate for the protection of human embryos. The ensuing debate has prompted authorities around the world to seek regulatory frameworks and highlighted the fact that embryonic stem cell research represents a social and ethical challenge that includes concern for the natural order of the ecosystem and, ultimately, the survival of the human race.

Acquired Immune Deficiency Syndrome

WHO Issues New HIV Recommendations Calling for Earlier Treatment

GENEVA—New HIV treatment guidelines by WHO recommend offering antiretroviral therapy (ART) earlier. Recent evidence indicates that earlier ART will help people with HIV to live longer, healthier lives, and substantially reduce the risk of transmitting HIV to others. The move could avert an additional 3 million deaths and prevent 3.5 million more new HIV infections between now and 2025.

—World Health Organization,
News Release, June 30, 2013

The epidemic of
acquired immune deficiency syndrome (AIDS) is considered to be the deadliest epidemic in human history. The first case appeared in the literature in 1981.

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It has been estimated that more than 35 million people have died of AIDS.

Global situation and trends: Since the beginning of the epidemic, almost 70 million people have been infected with the HIV virus and about 35 million people have died of AIDS. Globally, 34.0 million (31.4–35.9 million) people were living with HIV at the end of 2011. An estimated 0.8% of adults aged 15–49 years worldwide are living with HIV, although the burden of the epidemic continues to vary considerably between countries and regions. Sub-Saharan Africa remains most severely affected, with nearly 1 in every 20 adults (4.9%) living with HIV and accounting for 69% of the people living with HIV worldwide.

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AIDS, generally, is accepted as a syndrome—a collection of specific, life-threatening, opportunistic infections and manifestations that are the result of an underlying immune deficiency. AIDS is caused by the human immunodeficiency virus (HIV) and is the most severe form of HIV, a highly contagious bloodborne virus. It is a fatal disease that destroys the body’s capacity to ward off bacteria and viruses that ordinarily would be fought off by a properly functioning immune system. Although there is no effective long-term treatment of the disease, indications are that proper management of the disease can improve the quality of life and delay progression of the disease. Internationally, AIDS is posing serious social, ethical, economic, and health problems.

Spread of AIDS

AIDS is spread by direct contact with infected blood or body fluids, such as vaginal secretions, semen, and breast milk. Currently, there is no evidence that the virus can be transmitted through food, water, or casual body contact. HIV does not survive well outside the body. Although there is currently no cure for AIDS, early diagnosis and treatment with new medications can help HIV-infected persons remain healthy for longer periods. High-risk groups include those who have had unprotected sexual encounters, intravenous drug users, and those who require transfusions of blood and blood products, such as hemophiliacs.

Blood Transfusions

The administration of blood is considered to be a medical procedure. It results from the exercise of professional medical judgment that is composed of two parts: (1) diagnosis, deciding the need for blood, and (2) therapy, the actual administration of blood.

Lawsuits often arise as a result of a person with AIDS claiming that he or she contracted the disease as a result of a transfusion of contaminated blood or blood products. In blood transfusion cases, the standards most commonly identified as having been violated concern blood testing and donor screening. An injured party generally must prove that a standard of
care existed, that the defendant’s conduct fell below the standard, and that this conduct was the proximate cause of the plaintiff’s injury.

The most common occurrences that lead to lawsuits in the administration of blood involve:

Transfusion of mismatched blood

Improper screening and transfusion of contaminated blood

Unnecessary administration of blood

Improper handling procedures (e.g., inadequate refrigeration and storage procedures)

The risk of HIV infection and AIDS through a blood transfusion has been reduced significantly through health history screening and blood donations testing. Since May 1985, all blood donated in the United States has been tested for HIV antibodies. Blood units that do test positive for HIV are removed from the blood transfusion pool.

Case Studies

Administration of the Wrong Blood

The patient-plaintiff in
Bordelon v. St. Francis Cabrini Hospital (1994)

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was admitted to the hospital to undergo a hysterectomy. Before surgery, she provided the hospital with her own blood in case it was needed during surgery. During surgery, the patient did indeed need blood, but was administered donor blood other than her own. The patient filed a lawsuit claiming that the hospital’s failure to provide her with her own blood resulted in her suffering mental distress.

The court of appeals held that the plaintiff stated a valid cause of action for mental distress. It is well established in law that a claim for negligent infliction of emotional distress unaccompanied by physical injury is a viable claim of action. It is indisputable that HIV can be transmitted through blood transfusions even when the standard procedure for screening for the virus is in place. The plaintiff’s fear was easily associated with receiving someone else’s blood and therefore a conceivable consequence of the defendant’s negligent act. The hospital had a “duty” to administer the plaintiff’s own blood. The hospital breached that duty by administering the wrong blood.

Ethical and Legal Issues

Do you agree with the court’s decision? Explain your answer.

In cases such as this, do you believe that financial awards are effective in preventing future incidents? Explain your answer.

Healthcare Workers

HIV Test Urged for 7,000 Oklahoma Dental Patients

Health officials are urging 7,000 patients of an Oklahoma dentist to be tested for potential exposure to HIV, hepatitis B and hepatitis C.

· · ·

Harrington, an oral surgeon who has been licensed since the 1970s, surrendered his credentials March 20 and discontinued his practice after investigators discovered alleged health and safety violations. Authorities say he is cooperating.

—Katharine Lackey and Michael Winter,
USA Today, March 28, 2013

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Although transmission of HIV from an infected dentist, physician, or other caregiver to his or her patient during invasive procedures is not a common occurrence, there is a foreseeable risk. Because of the potentially deadly consequence of such transmission, physicians should not engage in any activity that creates a risk of transmission.

The ever-increasing likelihood that healthcare workers will come into contact with persons carrying the AIDS virus demands that healthcare workers comply with approved safety procedures. This is especially important for those who come into contact with blood and body fluids of HIV-infected persons.

An AIDS-infected surgeon in New Jersey was unable to recover on a discrimination claim when the hospital restricted his surgical privileges. In
Estate of Behringer v. Medical Center at Princeton (1991),

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the New Jersey Superior Court held that the hospital acted properly in initially suspending a surgeon’s surgical privileges, thereafter imposing a requirement of informed consent and ultimately barring the surgeon from performing surgery. The court held that in the context of informed consent, the risk of a surgical accident involving an AIDS-positive surgeon and implications thereof would be a legitimate concern to a surgical patient that would warrant disclosure of the risk. “The ‘risk of harm’ to the patient includes not
only the actual transmission of HIV from the surgeon to patient but the risk of a surgical accident (e.g.., a scalpel cut or needle stick), which may subject the patient to post-surgery HIV testing.”

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Confidentiality

Guidelines drafted by the Centers for Disease Control and Prevention call on healthcare workers who perform “exposure-prone” procedures to undergo tests voluntarily to determine whether they are infected. The guidelines also recommend that patients be informed. Both healthcare workers and patients claim that mandatory HIV testing violates their Fourth Amendment right to privacy. The dilemma is how to balance these rights against the rights of the public in general to be protected from a deadly disease.

State laws have been developed that protect the confidentiality of HIV-related information. Some states have developed informational brochures and consent, release, and partner notification forms. The unauthorized disclosure of confidential HIV-related information can subject an individual to civil and/or criminal penalties. Information regarding a patient’s diagnosis as being HIV positive must be kept confidential and should be shared with other healthcare professionals only on a need-to-know basis. Each person has a right to privacy as to his or her personal affairs. The plaintiff surgeon in
Estate of Behringer v. Medical Center at Princeton (1991)

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was entitled to recover damages from the hospital and its laboratory director for the unauthorized disclosure of his condition during his stay at the hospital. The hospital and the director had breached their duty to maintain confidentiality of the surgeon’s medical records by allowing placement of the patient’s test results in his medical chart without limiting access to the chart, which they knew was available to the entire hospital community. “The medical center breached its duty of confidentiality to the plaintiff, as a patient, when it failed to take reasonable precautions regarding the plaintiff’s medical records to prevent the patient’s AIDS diagnosis from becoming a matter of public knowledge.”

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The hospital in
Tarrant County Hospital District v. Hughes (1987)

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was found to have properly disclosed the names and addresses of blood donors in a wrongful-death action alleging that a patient contracted AIDS from a blood transfusion administered in the hospital. The physician–patient privilege expressed in the Texas rules of evidence did not apply to preclude such disclosure because the record did not reflect that any such relationship had been established. The disclosure was not an impermissible violation of the donors’ right of privacy. The societal interest in maintaining an effective blood donor program did not override the plaintiff’s right to receive such information. The order prohibited disclosure of the donors’ names to third parties.

In
Doe v. University of Cincinnati (1988),

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a patient who was infected with HIV-contaminated blood during surgery brought an action against a hospital and a blood bank. The trial court granted the patient’s request to discover the identity of the blood donor, and the defendants appealed. The court of appeals held that the potential injury to a donor in revealing his identity outweighed the plaintiff’s modest interest in learning of the donor’s identity. A blood donor has a constitutional right to privacy not to be identified as a donor of blood that contains HIV. At the time of the plaintiff’s blood transfusion in July 1984, no test had been developed to determine the existence of AIDS antibodies. By May 27, 1986, all donors donating blood through the defendant blood bank were tested for the presence of HIV antibodies. Patients who had received blood from donors who tested positive were to be notified through their physicians. In this case, the plaintiff’s family was notified because of the plaintiff’s age and other disability.

HIV-related regulations must continue to address the rights and responsibilities of both patients and healthcare workers. Although this will always be a delicate balancing act, it must be handled with privacy, safety, and compassion in mind.

Case Studies

Disclosure of Physician’s HIV Status

The physician, Doe, was a resident in obstetrics and gynecology at a medical center. In 1991, he cut his hand with a scalpel while he was assisting another physician. Because of the uncertainty that blood had been transferred from Doe’s hand wound to the patient through an open surgical incision, he agreed to have a blood test for HIV. His blood tested positive for HIV, and he withdrew himself from participation in further surgical procedures. The medical center and Harrisburg Hospital, where Doe also participated in surgery, identified those patients who could be at risk. The medical center identified 279 patients, and Harrisburg identified 168 patients, who fell into this category. Because hospital records did not identify those surgeries in which physicians may have accidentally cut themselves, the hospitals filed
petitions in the Court of Common Pleas, alleging that there was, under the Confidentiality of HIV-Related Information Act [35 P.S. § 7608(a)(2)], a “compelling need” to disclose information regarding Doe’s condition to those patients who conceivably could have been exposed to HIV. Doe argued that there was no compelling need to disclose the information and that he was entitled to confidentiality under the act.

The Pennsylvania Supreme Court held that a compelling need existed for at least a partial disclosure of the physician’s HIV status.

The medical experts who testified agreed that there was some risk of exposure and that some form of notice should be given to the patients at risk. Even the expert witness presented by Doe agreed that there was at least some conceivable risk of exposure and that giving a very limited form of notice would not be unreasonable. Failure to notify the patients at risk could result in the spread of the disease to other noninfected individuals through sexual contact and through exposure to other body fluids. Doe’s name was not revealed to the patients, only the fact that a resident physician who had participated in their care had tested HIV positive. “No principle is more deeply embedded in the law than that expressed in the maxim
Salus populi suprema lex … (The welfare of the people is the supreme law), and a more compelling and consistent application of that principle than the one presented would be quite difficult to conceive.”

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Ethical and Legal Issues

Do you agree that there was a need for a partial disclosure of the physician’s HIV status?

If “the welfare of the people is the supreme law,” did the court fall short of its responsibility by not allowing disclosure of the physician’s name? Discuss your answer.

News Media and Confidentiality

The Pennsylvania Superior Court in
Stenger v. Lehigh Valley Hospital Center

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upheld the Court of Common Pleas’ order denying the petition of The Morning Call, Inc., which challenged a court order closing judicial proceedings to the press and public in a civil action against a hospital and physicians. A patient and her family had all contracted AIDS after the patient received a blood transfusion. The access of the media to pretrial discovery proceedings in a civil action is subject to reasonable control by the court in which the action is pending. The protective order limiting public access to pretrial discovery material did not violate the newspaper’s First Amendment rights. The discovery documents were not judicial records to which the newspaper had a common-law right of access. Good cause existed for nondisclosure of information about the intimate personal details of the plaintiffs’ lives, disclosure of which would cause undue humiliation.

Case Studies

HIV Autonomy and Confidentiality

Mr. Jones, a divorcee with two children, was sentenced to 10 years in prison for repeated robberies of three banks. He was in prison for 8 years. His wife, Nora, disappeared shortly after he was sentenced. Five of his close inmate friends at Sing Prison had tested positive for the HIV virus and had since passed away. Prison officials wanted to test Mr. Jones for the HIV virus. He objected and sought legal counsel. Local school officials were informed of the deaths of Mr. Jones’s friends and his refusal to be tested for the HIV virus. Strangely, the community at large became aware of Jones’s situation and the fact that his children were attending school with their children. The parents insisted that the Jones children be removed from school or else they would remove their children from class. Meanwhile, Nora showed up at a local Navy recruiting station posing as a single woman with no children. She admitted to being bisexual several years earlier but claimed that she was now straight. The Navy learned of this situation and required her to undergo HIV testing. She objected and sought legal counsel.

Ethical and Legal Issues

What are Mr. Jones’s rights?

What are the rights of other prisoners?

Is there a legitimate need for a physician to disclose otherwise confidential testing data to the spouse and other intimate sexual partners of an HIV-infected patient?

The Right to Treatment

A variety of healthcare organizations have included in their ethics statements that HIV-infected patients have a right not to be discriminated against in the provision of treatment. The Ethics Committee of the American Academy of Dermatology, for example, states “it is unethical for a physician to discriminate against a class or category of patients and to refuse the management of a patient because of medical risk, real or imagined.”

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Patients with HIV infection, therefore, should receive the same compassionate and competent care provided to other patients.

Basketball Camp’s Exclusion of HIV-Positive Boy Ruled Discrimination

An HIV-positive 10-year-old boy was discriminated against when he was denied admission to a New York basketball camp, a federal judge has ruled. Judge Donald C. Pogue granted a motion for declaratory relief, finding the camp had violated the Americans with Disabilities Act. “The court agrees that defendants were obligated to protect other campers from a very serious, life-threatening viral infection,” Pogue said. “But this obligation does not excuse defendants’ actions when based on unsubstantiated fears.”

—Mark Hamblet,
New York Law Journal, January 22, 2010

Case Studies

Discrimination in the Community

The plaintiff Adam Doe claimed that the defendants, Deer Mountain Day Camp, Inc. (DMDC) and Deer Mountain Basketball Academy (DMBA), discriminated against him by denying him admission to a basketball camp on the basis of his disability, an HIV infection, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-213 (2000) (ADA) and the New York State Human Rights Law (NYHRL), N.Y. Exec. Law §§ 290301 (2004) (NYHRL).

Adam had contracted HIV at birth due to a perinatal infection. He took antiretroviral medications to treat his condition, and his syndrome has been undetectable for years. On the advice of Dr. Neu, Adam’s HIV specialist, Adam and his mother had kept and continued to keep Adam’s HIV seropositivity confidential. Adam liked to play basketball, and in 2004, his HIV clinic recommended that he attend a basketball camp.

Mrs. Doe had been notified that the camp was unable to make reasonable accommodations for Adam and, as a consequence, they could not allow him to attend DMBA. According to Mrs. Doe, she was told that Adam could potentially transmit HIV through blood in his urine or in his stool. Mrs. Doe denied that Adam had problems with bloody stool or urine. Mrs. Doe, however, was told that DMBA could not accept Adam. She later received a refund of Adam’s admission fees.

The plaintiff brings this action for violations of Title III of the ADA and the NYHRL, arguing that the defendants unlawfully discriminated against him on the basis of his disability, e.g., his HIV-seropositivity, by excluding him from participation in the basketball camp. To redress his injuries, including emotional and psychological harm, Adam requested declaratory, compensatory, and injunctive relief, as well as attorney’s fees and costs.

Both parties made motions for summary judgment. The defendants failed to present any evidence of the objective reasonableness of their determination that the plaintiff’s condition posed a threat to other campers.

In their cross motions for summary judgment, the parties placed before the court the issues of whether HIV-seropositivity qualifies as a “disability” and whether defendants’ denial of admission constitutes discrimination “on the basis of” that disability. The plaintiff’s motion argued that the defendants conclusively qualify as “public accommodations,” thus prohibiting them from engaging in such discrimination.

The United States District Court, S.D. of New York, granted the plaintiff’s motion for Summary Judgment of ADA and NYHRL declaratory relief, as to DMDC’s discrimination “on the basis of” Adam’s disability, and denied the defendants’ motion for summary judgment in its entirety.

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Ethical and Legal Issues

Since Adam’s HIV syndrome has been undetectable for years, discuss why you agree or disagree with the basketball camp’s decision to revoke Adam’s registration.

Do you agree with the court’s ruling? Discuss your answer.

AIDS Education

The ever-increasing likelihood that healthcare workers will come into contact with persons carrying HIV demands continuing development of and compliance with approved safety procedures. This is especially important for those who come into contact with blood and body fluids of HIV-infected persons. The Centers for Disease Control and Prevention (CDC) expanded its infection control guidelines and has urged hospitals to adopt universal precautions to protect their workers from exposure to patients’ blood and other body fluids. Hospitals are following universal precautions in the handling of body fluids, which is the accepted standard for employee protection.

A wide variety of AIDS-related educational materials is available on the market. One of the most important sources of AIDS information is the CDC. The process of staff education in preparing to care for patients with AIDS is extremely important and must include a training program on prevention and transmission in the work setting. Educational requirements specified by the Occupational Safety and Health Administration (OSHA) for healthcare employees include epidemiology, modes of transmission, preventive practices, and universal precautions. See the following websites for some helpful information:
www.aids.gov. and
http://www.caps.ucsf.edu/.

CHAPTER REVIEW

Ethical dilemmas arise whenever a choice has to be made in which something good has to be given up or something bad has to be suffered no matter what is chosen.

Noteworthy historical events (see text at the beginning of the chapter).

Abortion is the premature termination of a pregnancy, either spontaneous or induced.

The morality of abortion is not a legal or constitutional issue; it is a matter of philosophy, ethics, and theology. It is a subject where reasonable people can and do adhere to vastly divergent convictions and principles.

Partial birth abortion is a late-term abortion that involves partial delivery of the baby prior to its being aborted.

Sterilization is defined as the termination of the ability to produce offspring.

Therapeutic sterilization is performed to preserve life or health.

Eugenic sterilization refers to the involuntary sterilization of certain categories of persons described in statutes, without the need for consent by, or on behalf of, those subject to the procedures.

Wrongful birth actions claim that, but for breach of duty by the defendant, a child would not have been born.

Wrongful life suits—those in which a parent or child claims to have suffered harm as a result of being born—are generally unsuccessful.

Wrongful conception/pregnancy actions claim that damages were sustained by the parents of an unexpected child based on the allegation that the child’s conception was the result of negligent sterilization procedures or a defective contraceptive device.

Artificial insemination most often takes the form of the injection of seminal fluid into a woman to induce pregnancy.

Homologous artificial insemination is when the husband’s semen is used in the procedure.

Heterologous artificial insemination is when the semen is from a donor other than the husband.

Surrogacy refers to a method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party.

Organ donations: Federal regulations require that hospitals have and implement written protocols regarding the organization’s organ procurement responsibilities.

Organ transplantation is the result of the need for treating patients with end-stage organ disease facing organ failure.

Uniform Anatomical Gift Act has many provisions that apply to the wide variety of issues raised in connection with the making, acceptance, and use of anatomical gifts.

Act allows a person to make a decision to donate organs at the time of death.

Allows potential donors to carry an anatomical donor card.

Research, experimentation, and clinical trials.

Ethical principles that are relevant to the ethics of research involving human subjects include respect for person, beneficence, and justice.

These principles cannot always be applied to resolve ethical problems beyond dispute.

The objective in applying ethical principles is to provide an analytical framework that will guide the resolution of ethical problems arising from research involving human subjects.

Human genetics describes the study of inheritance as it occurs in human beings.

The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination on the basis of genetic information with respect to the availability of health insurance and employment.

Stem cell research is being conducted to create tissues and organs that can be matched to patients for transplant.

Genetic markers are genes or DNA sequences that have a known location on chromosomes and can be associated with particular genes or traits.

Acquired immune deficiency syndrome (AIDS) is a fatal disease that destroys the body’s ability to fight bacteria and viruses.

Concerns involve the spread of AIDS, issues of confidentiality, discrimination, and AIDS education.

TEST YOUR UNDERSTANDING

Terminology

abortion

AIDS

artificial insemination

elective sterilization

ethical dilemma

eugenic sterilization

genetic marker

institutional review board

partial birth abortion

paternalism

reasonable man standard

Roe v. Wade

stem cell research

sterilization

surrogacy

therapeutic sterilization

undue burden

Uniform Anatomical Gift Act

wrongful birth

wrongful conception

wrongful life

REVIEW QUESTIONS

Discuss under what circumstances ethical dilemmas arise.

Discuss the controversy over the Supreme Court decision in
Roe v. Wade.

What ethical principles surround the abortion issue? Discuss these principles.

Do you agree that individual states should be able to impose reasonable restrictions or waiting periods on women seeking abortions? Who should determine what is reasonable?

Should a married woman be allowed to abort without her husband’s consent?

Discuss the arguments for and against partial birth abortions.

Why is the medical issue of abortion an example of legislating morality?

What is artificial insemination? What questions should be asked when considering artificial insemination?

Discuss the importance of organ donations.

Describe the ethical considerations that should be addressed before conducting research on human subjects.

Why is it important that written consent be obtained from each patient who participates in a clinical trial?

What is sterilization, as discussed in this chapter? Do you agree that eugenic sterilization should be allowed? Explain your answer.

Describe the distinctions among wrongful birth, wrongful life, and wrongful conception.

Discuss the moral dilemmas of these concepts.

Describe the controversy over surrogacy.

Discuss why there is controversy over genetic markers and stem cell research.

What is AIDS, and how is it spread?

Discuss the controversy that can occur when considering a patient’s right to know whether a caregiver has AIDS and the caregiver’s right to privacy and confidentiality.

NOTES

1. “Oldest Discovered Burial Site.” Gale Encyclopedia of the Unusual and Unexplained.
Encyclopedia.com.
http://www.encyclopedia.com/science/encyclopedias-almanacs-transcripts-and-maps/oldest-discovered-burial-site (accessed July 10, 2018).

2. “Medical Experiments of the Holocaust and Nazi Medicine,” Remember.org.
http://remember.org/educate/medexp (accessed July 10, 2018).

3.
United States Holocaust Memorial Museum. “International Military Tribunal at Nuremburg,” Holocaust Encyclopedia.
http://www.ushmm.org/wlc/en/article.php?ModuleId=10007069 (accessed July 10, 2018).

4. World Medical Association (WMA), WMA International Code of Medical Ethics.
https://www.wma.net/policies-post/wma-international-code-of-medical-ethics/ (accessed July 10, 2018).

5. “First Successful Kidney Transplant Performed,”
PBS.org.
http://www.pbs.org/wgbh/aso/databank/entries/dm54ki.html (accessed July 10, 2018).

6. W. Rudowski, “World Health Organisation biomedical research guidelines and the conduct of clinical trials.” Journal of Medical Ethics 6 (June 1980): 58–60.
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1154799/.

7. World Medical Association (WMA), WMA Declaration of Helsinki—Ethical Principles for Medical Research Involving Human Subjects.
https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/ (accessed July 10, 2018).

8. “A Definition of Irreversible Coma. Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death.” Journal of the American Medical Association 205 (August 5, 1968): 337–340.

9. The Kennedy Institute of Ethics. “About.”
https://kennedyinstitute.georgetown.edu/ (accessed July 10, 2018).

10.
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972).
https://law.justia.com/cases/federal/appellate-courts/F2/464/772/38141/ (accessed July 10, 2018).

11.
Ibid., at 777.

12.
Ibid., at 772, 776, 796.

13.
Roe v. Wade, 410 U.S. 113 (1973).
https://supreme.justia.com/cases/federal/us/410/113/ (accessed July 10, 2018).

14. National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research.
The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research. Bethesda, MD: Author, 1978.
http://www.hhs.gov/ohrp/humansubjects/guidance/belmont.html (accessed July 10, 2018).

15.
Ibid.

16.
In re Quinlan, 70 N.J.10, 355 A.2d 647 (N.J. 1976).
https://www.uta.edu/philosophy/faculty/burgess-jackson/In%20re%20Quinlan,%2070%20N.J.%2010,%20355%20A.2d%20647%20(1976) (accessed July 10, 2018).

17. United States Code, Title 42—The Public Health and Welfare, Chapter 6A—Public Health Service, Subchapter XVI—President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavior Research, Section 300v-1,
https://www.gpo.gov/fdsys/pkg/USCODE-2010-title42/html/USCODE-2010-title42-chap6A.htm (accessed July 10, 2018).

18. Derek Humphry, “Farewell to Hemlock: Killed by Its Name.”
http://assistedsuicide.org/farewell-to-hemlock.html (February 21, 2005; accessed July 10, 2018).

19. State of California Office of Justice, “Advance Health Care Directive (California Probate Section 4701).”
http://ag.ca.gov/consumers/pdf/ProbateCodeAdvancedHealthCareDirectiveForm-fillable (accessed July 10, 2018).

20. Compassion & Choices, “About Compassion & Choices [web page].”
https://www.compassionandchoices.org/who-we-are/ (accessed July 10, 2018).

21. Compassion & Choices, “About Compassion & Choices [PDF].”
https://www.compassionandchoices.org/wp-content/uploads/2018/01/About-Compassion-and-Choices-Booklet-FINAL-9.25.17-Approved-for-Public-Distribution (accessed August 8, 2018).

22. Paul A. Offit,
Vaccinated: One Man’s Quest to Defeat the World’s Deadliest Diseases, New York: Smithsonian Books/Collins, (2007): 27.

23.
Ibid.

24. Henry K. Beecher, “Ethics and Clinical Research,” The New England Journal of Medicine, 274 (1966): 1354–1360.

25. Offit,
Vaccinated, 27.

26. The Patient Self-Determination Act of 1990, 42 U.S.C. 1395cc(a)(1).

27. Cruzan v. Director of the Mo. Dep’t of Health, 497 U.S. 261 (1990).

28.
Ibid.

29. Jason Renaud, “Janet Adkins, Jack Kevorkian and the end of an era.” The Oregonian (June 7, 2011).
https://www.oregonlive.com/opinion/index.ssf/2011/06/janet_adkins_jack_kevorkian_an.html (accessed July 10, 2018).

30. Timothy E. Quill, “Death and Dignity—A Case of Individualized Decision Making,” The New England Journal of Medicine 324 (1991): 691–694.

31. [Amendment] U.S. Const. amend. XI. Sec. 2. [Article] U.S. Const. art. 2. sec. 3. cl. 1.
http://www.usconstitution.net/xconst_Am1.html (accessed July 10, 2018).

32.
Eileen Welsome,
The Plutonium Files: America’s Secret Medical Experiments in the Cold War. New York: Delta Books, 1999.

33.
DeGrella v. Elston, 858 S.W.2d 698 (1993).

34. Oregon Public Health Division. (2015). Oregon’s Death with Dignity Act—2014.
http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year17 (accessed July 10, 2018).

35.
Michigan v. Kevorkian, et al., 1994 WL 700448 (Mich.)

36. The Roslin Institute, “The Life of Dolly.”
http://dolly.roslin.ed.ac.uk/facts/the-life-of-dolly/index.html (accessed July 10, 2018).

37.
AnimalResearch.Info, “Cloning Dolly the Sheep.”
http://www.animalresearch.info/en/medical-advances/151/cloning-dolly-the-sheep/ (accessed July 10, 2018).

38. Alan Meisel, Lois Snyder, Timothy Quill, for the American College of Physicians-American Society of Internal Medicine End-of-Life Care Consensus Panel. “Seven Legal Barriers to End-of-Life Care: Myths, Realities, and Grains of Truth,” Journal of the American Medical Association, 284 (2000): 2495–2501.
http://jama.jamanetwork.com/article.aspx?articleid=193273 (accessed July 10, 2018).

39. Casey Kaufman, “
Oregon v. Ashcroft: The Attorney General’s Attempt to Override State Controlled Medical Practice,” University of San Francisco Law Review 37 (2003): 1065–1090.

40.
Ibid.

41. National Human Genome Research Institute, “International Consortium Completes Human Genome Project” [press release, April 14, 2003].
https://www.genome.gov/11006929/ (accessed July 10, 2018).

42.
State of Oregon v. Ashcroft, No. 02-35587 (C.A. 9, Ore. 2004).

43. UNESCO, Human Cloning: Ethical Issues.
http://unesdoc.unesco.org/images/0013/001359/135928e (accessed July 10, 2018).

44. Leigh Hopper, “Baby Dies After Hospital Removes Breathing Tube,” Houston Chronicle (March 16, 2005).
https://en.m.wikipedia.org/wiki/Sun_Hudson_case (accessed July 10, 2018).

45.
Ibid.

46.
Ibid.

47.
Gonzales v. Oregon (04-623) 546 U.S. 243 (2006) 368 F.3d 1118, affirmed.

48. Death with Dignity National Center, “Legal and Political Timeline in Oregon.”
http://www.deathwithdignity.org/in-oregon (accessed July 10, 2018).

49. Donate Life California Donor Registry [Home].
http://donatelifecalifornia.org/livingdonationcalifornia/ (accessed July 10, 2018).

50. Robert D. Truong, “The United Kingdom Sets Limits on Experimental Treatments: The Case of Charlie Gard,” Journal of the American Medical Association, 318 (2018): 1001–1002.

51. Death with Dignity, “Current Status: Montana.”
https://www.deathwithdignity.org/take-action/ (accessed July 10, 2018).

52.
Causeway Medical Suite v. Ieyoub, 109 F.3d 1096 (1997).

53. Guttmacher Institute,
Abortion Worldwide 2017: Uneven Progress and Unequal Access. New York: Guttmacher Institute, 2017.
https://www.guttmacher.org/report/abortion-worldwide-2017 (accessed July 10, 2018).

54.
Roe v. Wade, 410 U.S. 113 (1973).

55.
Ibid. at 164.

56.
Ibid.

57.
Ibid.

58.
Ibid.

59.
Doe v. Bolton, 410 U.S. 179 (1973).

60.
Ibid. at 198.

61.
City of Akron v. Akron Center for Reproductive Health, 103 S. Ct. 2481 (1983).

62.
Planned Parenthood v. Casey, 112 S. Ct. 2792 (1992).

63.
Beal v. Doe, 432 U.S. 438 (1977).

64.
Ibid. at 464.

65.
Harris v. McRae, 448 U.S. 297 (1980).

66.
Committee to Defend Reproductive Rights v. Myers, 625 P.2d 779, 798 (Cal. 1981).

67.
Simat Corp. v. Arizona Health Care Cost Containment Sys., 56 P.3d 28 (Ariz. 2002).

68.
Rust v. Sullivan, 111 S. Ct. 1759 (1991).

69.
Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975).

70.
Doe v. Zimmerman, 405 F. Supp. 534 (M.D. Pa. 1975).

71.
Doe v. Smith, 486 U.S. 1308 (1988).

72.
Danforth v. Planned Parenthood, 428 U.S. 52 (1976).

73.
Bellotti v. Baird, 443 U.S. 622 (1979).

74.
In re Doe, 533 A.2d 523 (R.I. 1987).

75.
Ibid. at 27.

76.
H. L. v. Matheson, 101 S. Ct. 1164 (1981).

77.
In re Anonymous, 515 So. 2d 1254 (Ala. Civ. App. 1987).

78.
Planned Parenthood v. Owens, 107 F. Supp. 1254 (Ala. Civ. App. 1987).

79. Colorado Revised Statute §§ 12-37.5-101, et seq. [1998]

80. H.B. 15, Sec. 2 (amending Tex. Health & Safety Code Ann. § 171.012)

81.

Colautti v. Franklin, 99 S. Ct. 675 (1979).

82.
Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

83.
Women’s Medical Professional Corp. v. Voinovich, 118 S. Ct. 1347 (1998).

84.
Stenberg v. Carhart, 192 F.3d 1142 (8th Cir. 1999), 120 S. Ct. 2597 (2000).

85.
National Abortion Fed’n v. Gonzages, 437 F.3d. 278 (C.A. N.Y. 2006).

86. Tex. Health & Safety Code Ann. §171.0031(a) (West Cum. Supp. 2015).

87. 38 Tex. Reg. 6546 (2013).

88. Tex. Health & Safety Code Ann. §245.010(a).

89.
Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (June 27, 2016).

90.
Planned Parenthood v. Casey 112 S. Ct. 2791 (1992).

91.
Utah Women’s Clinic, Inc. v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994).

92. South Carolina General Assembly, 121st Session, 2015–2016. An Act to Amend the Code of Laws of South Carolina, 1976, by Adding Article 5 to Chapter 41, Title 44 so as to Enact the “South Carolina Pain-Capable Unborn Child Protection Act.”
http://www.scstatehouse.gov/sess121_2015-2016/bills/3114.htm (accessed July 10, 2018).

93. 844 F. Supp. 1482 (D. Utah 1994) at 1494.

94.
American Acad. of Pediatrics v. Lungren, 940 P.2d 797 (1997).

95. First Judicial District of Pennsylvania, Criminal Trial Division. Report of the Grand Jury in re Misc. No. 0009901-2008.
https://priestsforlife.org/gosnell/GrandJuryWomensMedical (accessed July 10, 2018).

96. Joseph B. Kadane, “Moral Persuasion on Abortion [blog],” The Huffington Post (September 27, 2013).
http://www.huffingtonpost.com/joseph-b-kadane/moral-persuasion-on-abortion_b_4004735.html (accessed July 11, 2018).

97.
Buck v. Bell, 274 U.S. 200 (1927).

98.
Ibid. at 208.

99.
Wade v. Bethesda Hospital, 337 F. Supp. 671 (E.D. Ohio 1971).

100.
McKinney v. McKinney, 805 S.W.2d 66 (Ark. 1991).

101.
Chaffee v. Seslar, 786 N.E.2d 705 (2003).

102.
Curlender v. Bio-Science Laboratories, 165 Cal. Rptr. 477 (Cal. Ct. App. 1980).

103.
Canesi ex rel. Canesi v. Wilson, 730 A.2d 806 (N.J. 1999).

104.
Ibid. at 18.

105.
Smith v. Cote, 513 A.2d 344 (N.H. 1986).

106.
Ibid. at 353.

107.
Bruggeman v. Schimke, 79.718 P.2d 635 (Kan. 1986).

108.
Kassama v. Magat, 136 Md. App. 38 (2002).

109.
Cowe v. Forum Group, Inc., 575 N.E.2d 630, 631 (Ind. 1991).

110.
Hartke v. McKelway, 707 F.2d 1544 (D.C. Cir. 1983).

111.
Ibid. at 1557.

112.
Lovelace Medical Center v. Mendez, 805 P.2d 603 (N.M. 1991).

113.
Ibid. at 612.

114.
Butler v. Rolling Hill Hospital, 582 A.2d 1384 (Pa. Super. Ct. 1990).

115.
Ibid. at 1385.

116.
Shaheen v. Knight, 11 Pa. D. & C.2d 41, 46 (Lycoming Co. Ct. Com. Pl. 1957).

117. Medical Board of California, “Medical Board of California Accusation Leads to Surrender of Former Newport Beach Physician’s License” [news release].
http://www.mbc.ca.gov/About_Us/Media_Room/2011/news_releases_2011 (accessed July 11, 2018).

118. Okla. Stat. Ann. 10, §§ 551–553.

119.
Ibid.

120.
Ibid.

121. District of Columbia. B21-16 Collaborative Reproduction Amendment Act (2015).
https://legiscan.com/DC/text/B21-0016/2015 (accessed July 11, 2018).

122.
Ibid.

123. U.S. Department of Health and Human Services.
OrganDonor.gov [website].
http://www.organdonor.gov/register.html (accessed July 11, 2018).

124. Organ Procurement Transplant Network [website].
https://optn.transplant.hrsa.gov (accessed July 11, 2018).

125.
OrganDonor.gov, “Organ Donation Statistics.”
https://www.organdonor.gov/statistics-stories/statistics.html (accessed July 11, 2018).

126. “First Successful Kidney Transplant Performed 1954.”
PBS.org [online].
http://www.pbs.org/wgbh/aso/databank/entries/dm54ki.html (accessed July 11, 2018).

127. Nicola Leske, Jill Serjeant, and Patricia Reaney, “Facebook Launches Organ Donation Campaign,” Chicago Tribune (May 1, 2012).

128.
Nicoletta v. Rochester Eye & Human Parts Bank, 519 N.Y.S.2d 928 (N.Y. Sup. Ct. 1987).

129. United Nations Regional Information Centre for Western Europe, “Organs for Sale.”
http://www.unric.org/en/human-trafficking/27447-organs-for-sale (accessed July 11, 2018).

130.
Krisitin Houser, “Black Market Bodies: How Legalizing the Sale of Human Organs Could Save Lives,”
Futurism.com (November 6, 2013).
https://futurism.com/sale-human-organ/ (accessed July 11, 2018).

131. Ahad J. Ghods and Shekoufeh Savaj, “Iranian Model of Paid and Regulated Living-Unrelated Kidney Donation,” Clinical Journal of the American Society of Nephrology 1 (November 2006): 1136–1145.
http://cjasn.asnjournals.org/content/1/6/1136.full (accessed July 11, 2018).

132. Robert Pear, “House Passes Bill That Would Give Patients Access to Experimental Drugs,” New York Times (March 21, 2018).
https://www.nytimes.com/2018/03/21/us/politics/house-passes-right-to-try-bill.html (accessed July 11, 2018).

133. H.R.878—115th Congress (2017–2018). Right to Try Act of 2017.
https://www.congress.gov/bill/115th-congress/house-bill/878/text?format=txt (accessed July 11, 2018).

134. U.S. Food and Drug Administration, “Clinical Trials and Human Subjects Protection.”
https://www.fda.gov/ScienceResearch/SpecialTopics/default.htm (accessed July 11, 2018).

135.
https://www.fda.gov/RegulatoryInformation/Guidances/ucm126420.htm.

136. Mary Ellen Stokes and Bill Stokes, “Relentless Assault on a Research Hospital,” Wall Street Journal (March 15, 2004) at A17.

137. 2 C.F.R. § 488.115 (1989).

138.
Ibid.

139.
Ibid.

140.
Blaz v. Michael Reese Hosp. Found, 74 F. Supp. 2d 803 (D.C. Ill. 1999).

141.
http://www.cc.nih.gov/participate/patientinfo/legal/responsibilities.shtml.

142. National Institutes of Health (NIH), “Patient Responsibilities.”
https://clinicalcenter.nih.gov/participate/patientinfo/legal/responsibilities.html (accessed July 11, 2018).

143. Kathy L. Hudson and Francis S. Collins, “The 21st Century Cures Act—A View from the NIH,” New England Journal of Medicine 376 (2017): 111–113.
http://www.nejm.org/doi/full/10.1056/NEJMp1615745?query=TOC (accessed July 11, 2018).

144. 114th Congress (2015–2016). H.R.6—21st Century Cures Act.
https://www.congress.gov/bill/114th-congress/house-bill/6 (accessed July 11, 2018).

145. Yuanyi S. Chun, History of Medicine. Hubei Press of Science and Technology, Wuhan, China; 1988.

146. U.S. National Library of Medicine, “What is genetic discrimination?” Genetics Home Reference.

147. Alan Cantwell,
AIDS: The Mystery and the Solution (Los Angeles: Aries Rising Press, 1986), at 54.

148. World Health Organization (WHO), “Global Health Observatory (GHO) data: AIDS.”
http://www.who.int/gho/hiv/en/index.html (accessed July 11, 2018).

149.
Bordelon v. St. Francis Cabrini Hospital, 640 So. 2d 476 (La. App. 3d Cir. 1994).

150. Katherine Lackey and Michael Winter, “HIV test urged for 7,000 Oklahoma dental patients,” USA Today (March 28, 2013).
http://www.usatoday.com/story/news/nation/2013/03/28/hiv-oklahoma-dentist/2028865/ (accessed July 11, 2018).

151.
Estate of Behringer v. Medical Center at Princeton, 592 A.2d 1251 (N.J. Super. Ct. Law Div. 1991).

152.
Ibid. at 1255.

153.
Ibid. at 1251.

154.
Ibid. at 1255.

155.
Tarrant County Hospital District v. Hughes 734 S.W.2d 675 (Tex. Ct. App. 1987).

156.
Doe v. University of Cincinnati, 538 N.E.2d 419 (Ohio Ct. App. 1988).

157. Application of Milton S. Hershey Med. Ctr., 639 A.2d 159, 163 (Pa. 1993).

158.
Stenger v. Lehigh Valley Hospital Center 554 A.2d 954 (Pa. Super. Ct. 1989).

159. Ethics Committee of the American Academy of Dermatology,
Ethics in Medical Practice. Schaumburg, IL: AAD (1992), at 6.
https://www.aad.org/Forms/Policies/Uploads/AR/COE%20-%20Ethics%20in%20Medical%20Practice%20Booklet (accessed July 11, 2018).

160.
Doe v. Deer Mountain Day Camp, Inc.; Deer Mountain Basketball Academy 682 F. Supp. 2d 324 (2010).

CHAPTER 3

End-of-Life Dilemmas

When we finally know we are dying, and all other sentient beings are dying with us, we start to have a burning, almost heartbreaking sense of the fragility and preciousness of each moment and each being, and from this can grow a deep, clear, limitless compassion for all beings.

—Sogyal Rinpoche

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Describe the human struggle to survive.

Discuss end-of-life issues, including:

• Euthanasia

• Right to self-determination

• Defining death

Describe how patient autonomy has been impacted by case law and legislative enactments.

Discuss the issues that swirl around why states have been reluctant to legislate Assisted Suicide laws.

Explain the rights of patients as they apply to the Patient Self-Determination Act of 1990.

Introduce the reader to the various forms of Advance Directives.

Discuss what is meant by Futility of Treatment.

Explain the difference between Withholding and Withdrawal of Treatment.

INTRODUCTION

One of the hardest lessons in life is letting go. Whether it’s guilt, anger, love, loss or betrayal. Change is never easy. We fight to hold on and we fight to let go.

—Sherry Jones

The human struggle to survive and dreams of immortality have been instrumental throughout history in the search for ways to help alleviate pain and human suffering. As a result of the quest for a longer and happier life, the quality of life has been extended through numerous advances in the practice of medicine. Although the process of dying can be prolonged, there comes a point where the quality of living begins to decline, and the patient is ready to let go. This tipping point of “enough is enough” and when to say “it is okay to die” varies from patient to patient. The patient’s right to accept or decline treatment, appoint a surrogate decision maker, and be provided assistance in dying is reviewed in this chapter.

The struggle to survive and a family’s inability to let go are as real today as when Methuselah passed away at the age of 969 (Genesis 5:27). Jahi McMath had started coughing up blood following removal of her tonsils and adenoids. The nurses said this was normal and showed the mother how to suction blood from her daughter’s mouth. “Three hours later, at about 10 p.m., the blood filled a bucket. It covered Jahi’s clothes and bedsheets, her family recounted in a lawsuit. Despite repeated calls from her family for a doctor, a physician did not arrive until 12:30 a.m., when Jahi’s grandmother—a nurse—noticed her oxygen-saturation levels drop. At her bedside, Jahi’s family heard the doctor curse. ‘Her heart stopped.’”

1

As noted in the News Clipping, the family of 13-year-old Jahi McMath, who lapsed into a coma following a tonsillectomy and was determined to be brain dead by physicians, held on for 4.5 years, until Jahi’s death in June of 2018.

Jahi McMath, the Calif. Girl in Life-Support Controversy, is Now Dead

More than 4 years later, Jahi has now died, her family’s lawyer announced Thursday in a statement to
The Washington Post.

She died on June 22 in the New Jersey hospital alongside her mother, Nailah Winkfield, and her stepfather, Marvin. On a death certificate, a doctor in the New Jersey hospital listed Jahi’s preliminary cause of death as bleeding as a result of liver failure, the family’s lawyer, Chris Dolan, said.

—Samantha Schmidt,
The Washington Post, June 29, 2018

2

The McMath family filed a malpractice lawsuit in 2015 against Children’s Hospital Oakland and Dr. Frederick Rosen, the surgeon who performed Jahi’s surgery.

3

The lawsuit alleges that the surgeon noted an abnormal artery in McMath’s throat but did not notify the nurses that this placed the girl at increased risk for serious hemorrhaging. Additionally, the lawsuit alleges that McMath bled from approximately 7:30 p.m. to 12:35 a.m., that a doctor said “[expletive], her heart stopped” when he arrived hours after the family said they requested a doctor, and that the family was given conflicting information from nurses regarding how to care for McMath’s bleeding. The family also claims that the hospital pressured them to donate McMath’s organs.

4

After viewing over four dozen independent videos of McMath, Dr. Alan Shewmon, a UCLA pediatric neurologist, declared her technically alive in a June 29, 2017, court filing, stating that the girl follows movement commands and exhibits other proof of life. Children’s Hospital Oakland states that the original diagnosis of brain death was correct and that the videos do not meet the diagnostic criteria for brain death.

Ultimately, a California judge ruled that Jahi McMath may still be technically alive, thus allowing a malpractice lawsuit against the hospital to proceed.

5
Jahi ultimately died on June 22, 2018, nearly one year after the judge’s ruling.

Rather than watching hopelessly as a disease destroys a person or as a body part malfunctions, causing death to a patient, physicians now can implant artificial body organs. Exotic machines (e.g., ventilators) and antibiotics are weapons in a physician’s
arsenal to help extend a patient’s life. Such situations have generated vigorous debate.

The convergence of shifting payment models, an aging population, and the moral imperative to determine what matters most to patients at the end of life is affecting a sea of change among healthcare providers accustomed to practicing curative medicine. Medical technology, which has pushed the boundaries of what can be done to treat illness, turns out not to be the best guide because, given a choice, many patients do not want aggressive intervention. Healthcare leaders are being called on to guide their organizations in developing reliable systems to receive, record, and ultimately respect patients’ wishes for end-of-life care.

6

Many patients prefer to spend their last days at home and not in a sterile, uninviting hospital or nursing home room. “In California, for example, 70 percent of individuals surveyed said they wish to die at home, yet 68 percent do not. Instead, many of us die in hospitals, subject to overmedication and infection, often after receiving treatment that we do not want. Doctors know this, which may explain why 72 percent of them die at home.”

7

When death is near, and the loved one appears strong, hold them close and speak softly, saying, “I love you.” Remember, we are only human, and each day may bring a new fear to what we thought we had conquered even minutes or the day before, as noted below.

They want me to accept hospice care but I refused. I have to admit that I am a bit more fearful now.

—Anonymous

She wanted to pass on to the next world at home surrounded by her family and friends. She made her choice. God Bless Her.

Let your light shine so brightly that others can see their way out of the dark.

—Unknown

Where Do Americans Die?

According to Stanford School of Medicine’s Palliative Care:

Studies show that 80% of Americans would prefer to die at home, if possible.

Despite this, 60% of Americans die in acute care hospitals, 20% in nursing homes, and only 20% at home.

A minority of dying patients use hospice care, even those patients (who) are often referred to hospice, only in the last 3 to 4 years of life.

However, not every patient will want to die at home. Dying at home is not favored in certain cultures (due to cultural taboos) and some patients may wish to die at home, out of concern that they might be a burden to the family.

Still, it is clear that fewer patients are dying at home than want to do so.

8

Mom Wanted to Live on Her Own Forever

My mother’s words sounded harsh — “I never want to live with either one of my girls” — but I didn’t take offense. It was her way of saying she never wanted to be dependent on us, or anyone.

—Melanie P. Merriman,
The Washington Post, December 12, 2017

9

There comes a point in life where some patients wish to halt the aggressive approach to hold on to life when it appears futile. At that point in time, the physician may suggest palliative care in the home by family and/or hospice. Even as one nears the end of life, hospice care may even be rejected by the patient. This chapter reviews a variety of the issues that inevitably arise as one approaches the end of life.

End of Life or Beginning of Life?

My mother is 92 years old, and she is more active and is enjoying life more than when she was much younger. Her advanced age has actually proven to be something of an advantage, as it has given her the time and freedom to do some of the things she couldn’t do while she was raising a family. It has been a joy to me, as her son, and to the rest of the family to witness her joy and vigor. Even strangers have found her stamina to be an inspiration as to the value of the end years of life.

Three years ago, however, it wasn’t so. Mother was critically ill, comatose on a respirator in an intensive care unit. Survival was not considered likely. I am embarrassed to say that I was making arrangements for a funeral. I am even more embarrassed because I am a physician and did not see how she could survive for long except as a vegetable.

Then the unlikely occurred. She recovered! Her condition, including both physical and mental status, rapidly and surprisingly improved dramatically, and she promptly resumed a life even more active than before. It would have been a tragedy to deprive her of these joyous years of her life after she worked and sacrificed so much for others most of her life. I had thought it would be an act of mercy to disconnect the respirator when her condition had looked so hopeless. I was so wrong. I learned that we must not make life and death decisions casually. Life is a beautiful mystery with many wonderful surprises if we will let them happen.

Advances in medical technology have made it possible to survive to an older age. That longer survival inevitably involves considerable cost and can therefore be a substantial financial burden to the family and the government. Is it worth it? How do we make a judgment about quality of life? What is the financial value of another day, week, or year of life? Should we assume that younger years are better than older years? Although our bodies may physically decline over time, our treasure trove of life experiences accrues over time. Our knowledge and judgment may often be better than when we were younger. Furthermore, the aged may be a source of comfort and joy to their children, grandchildren, and even great-grandchildren. As long as we are alive, we have value.

—Physician

EUTHANASIA

There is nothing more sacred than life and there is nothing more natural in life to wish to cling on to it for those you love! And nothing more cruel than to play God by artificially holding onto that which God wants to bring home.

—Author Unknown

When patients and their families perceive a deterioration of the quality of life with no end in sight, conflict often arises within the hearts and minds of both healthcare professionals, who are trained to save lives, and patients and their families, who wish to hold on to their loved ones. This conflict centers on the concept of euthanasia and its place in the modern world. There seems to be an absence of controversy only when a patient who is kept alive by modern technology is still able to appreciate and maintain control over his or her life.

Any discussion of euthanasia obliges a person to confront humanity’s greatest fear—death. The courts and legislatures have faced it and have made advances in setting forth some guidelines to assist decision makers in this arena; however, much more must be accomplished. Society must be protected from the risks associated with permitting the removal of life-support systems. Society cannot allow the complex issues associated with this topic to be simplified to the point where it is accepted that life can be terminated based on subjective quality-of-life considerations. The legal system must ensure that the constitutional rights of the patient are maintained, while protecting society’s interests in preserving life, preventing suicide, and maintaining the integrity of the medical profession. For example, can competent adult patients who ask that no extraordinary lifesaving measures be taken recover damages for finding themselves alive after unwanted resuscitative measures? During a medical emergency, it seems unrealistic to ask a caregiver to first look in a patient’s medical record for an advance directive before tending to the immediate needs of the patient. In the final analysis, the boundaries of patients’ rights often remain uncertain.

From its inception, euthanasia has evolved into an issue with competing legal, medical, and moral implications that continues to generate debate, confusion, and conflict. Currently, there is a strong movement advocating death with dignity, which excludes machines, monitors, and tubes.

Even the connotation of the word “euthanasia” has changed with time depending on who is attempting to define it. Euthanasia originated from the Greek word
euthanatos, meaning
good death or
easy death, and was accepted in situations where people had what was considered to be incurable diseases.
Euthanasia is defined broadly as “the mercy killing of the hopelessly ill, injured, or incapacitated.”

10

In the Confucian philosophy and the Buddhist religion, suicide was an acceptable answer to unendurable pain and incurable disease.

11

,

12
The Celts went a step further, believing that those who chose to die of disease or senility, rather than committing suicide, would be condemned to Hell. Such acceptance began to change during the 1800s when Western physicians refused to lessen suffering by shortening a
dying patient’s life. Napoleon’s physician, for example, rejected Napoleon’s plea to kill plague-stricken soldiers, insisting that his obligation was to cure rather than kill people.

In the late 1870s, writings on euthanasia began to appear, mainly in England and the United States. Although such works were written, for the most part, by lay authors, the public and the medical community began to consider the issues raised by euthanasia. Then defined as “the act or practice of painlessly putting to death persons suffering from incurable conditions or diseases,” it was considered to be a merciful release from incurable suffering. By the beginning of the 20th century, however, there were still no clear answers or guidelines regarding the use of euthanasia. Unlike in prior centuries when society as a whole supported or rejected euthanasia, different segments of today’s society apply distinct connotations to the word, generating further confusion. Some believe euthanasia is meant to allow a painless death when one suffers from an incurable disease yet is not dying. Others, who remain in the majority, perceive euthanasia only as an instrument to aid dying people in ending their lives with as little suffering as possible.

It has been estimated that of the 2 million Americans who die each year, 80% die in hospitals or nursing homes, and 70% of those die after a decision to forgo life-sustaining treatment has been made. Although such decisions are personal in nature and based on individual moral values, they must comply with the laws applicable to the prolonging of the dying process. Courts have outlined the ways in which the government is allowed to participate in the decision-making process. Yet the misconceptions and lack of clear direction regarding the policies and procedures have resulted in wide disparity among jurisdictions, both in legislation and in judicial decisions. As a result, the American Medical Association, the American Bar Association, legislators, and judges are actively attempting to formulate and legislate clear guidelines in this sensitive, profound, and not yet fully understood area. To ensure compliance with the law while serving the needs of their patients, it is incumbent on healthcare providers to keep themselves informed of professional guidelines and regulatory requirements in this ever-changing field.

Active or Passive Euthanasia

Active euthanasia is commonly understood to be the intentional commission of an act, such as providing a patient a lethal dose of a medication that results in death. The act, if committed by the patient, is thought of as suicide. Moreover, because in most states the patient cannot take his or her own life, any person who assists in the causing of the death could be subject to criminal sanction for aiding and abetting suicide.

Passive euthanasia occurs when lifesaving treatment (such as a respirator) is withdrawn or withheld, allowing the terminally ill patient to die a natural death. Passive euthanasia is generally accepted pursuant to legislative acts and judicial decisions. These decisions, however, generally are based on the facts of a particular case.

The distinctions are important when considering the duty and liability of a physician who must decide whether to continue or initiate treatment of a comatose or terminally ill patient. Physicians are obligated to use reasonable care to preserve health and to save lives, and, thus, unless fully protected by the law, they will be reluctant, for example, to abide by a patient’s or family’s wishes to terminate life-support devices.

Although there may be a duty to provide life-sustaining equipment in the immediate aftermath of cardiopulmonary arrest, there is no duty to continue its use after it has become futile and ineffective to do so in the opinion of qualified medical personnel. An example is a patient who suffered severe brain damage, placing him in a comatose and vegetative state, from which, according to tests and examinations by other specialists, he was unlikely to recover. The patient, on the written request of his family, was taken off life-support equipment. The patient’s family (his wife and eight children) made the decision together after consultation with the physicians. Evidence had been presented that the patient, before his incapacitation, had expressed to his wife that he would not want to be kept alive by a machine. Decisions by family members are based on love and concern for the dignity of their loved one [
Barber v. Superior Court, 147 Cal. App. 3d 1006 (Cal. Ct. App. 1983)].

The controversy over euthanasia is a common issue throughout the world. Belgium, for example, legalized the practice of euthanasia for adults in 2002 and is at this writing considering legalizing euthanasia for children.

Voluntary or Involuntary Euthanasia

Both active and passive euthanasia may be either voluntary or involuntary.
Voluntary euthanasia occurs when a person suffering an incurable illness makes the decision to die. To be considered voluntary, the request or consent must be made by a legally competent adult and be based on material information concerning the possible ramifications and alternatives available.

Involuntary euthanasia, however, occurs when the decision to terminate the life of an incurable person
(e.g., an incompetent or nonconsenting competent person) is made by someone other than that incurable person.

A patient’s lack of consent can be due to mental impairment or a comatose state. Important value questions face courts struggling with the boundaries for making voluntary euthanasia decisions:

Who should decide to withhold or withdraw treatment?

On what factors should the decision be based?

Are there viable standards to guide the courts?

Should criminal sanctions be imposed on a person assisting in ending a life?

When does death occur?

RIGHT TO SELF-DETERMINATION

To analyze the important questions regarding whether life-support treatment can be withheld or withdrawn from an incompetent patient, it is necessary to consider first what rights a competent patient possesses. Both statutory law and case law have presented a diversity of policies and points of view. Some courts point to common law and the early case of
Schloendorff v. Society of New York Hospital

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to support their belief in a patient’s right to self-determination. The
Schloendorff court stated:

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Every human being of adult years has a right to determine what shall be done with his own body; and the surgeon who performs an operation without his patient’s consent commits an assault for which he is liable for damages.

This right of self-determination was emphasized in the case
In re Storar,

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when the court announced that every human being of adult years and sound mind has the right to determine what shall be done with his or her own body. The
Storar case was a departure from the New Jersey Supreme Court’s rationale in the case of
In re Quinlan.

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The
Quinlan case was the first to address significantly the issue of whether euthanasia should be permitted when a patient is terminally ill or incapable of living without extensive medical intervention. The
Quinlan court, relying on
Roe v.
Wade,

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announced that the constitutional right to privacy protects a patient’s right to self-determination. The court noted that the right to privacy “is broad enough to encompass a patient’s decision to decline medical treatment under certain circumstances, in much the same way as it is broad enough to encompass a woman’s decision to terminate pregnancy under certain conditions.”

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The
Quinlan court, in reaching its decision, applied a test balancing the state’s interest in preserving and maintaining the sanctity of human life against Karen Quinlan’s privacy interest. It decided that, especially in light of the prognosis (physicians determined that Quinlan was in an irreversible coma), the state’s interest did not justify interference with her right to refuse treatment. Thus, Karen Quinlan’s father was appointed her legal guardian, and her respirator was shut off.

In the same year as the
Quinlan decision, the case of
Superintendent of Belchertown State School v. Saikewicz

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was decided. Joseph Saikewicz was a 67-year-old intellectually disabled patient with leukemia. The court found from the evidence that the prognosis was dim, and even though a “normal” person would probably have chosen chemotherapy, it allowed Saikewicz to die without treatment to spare him the suffering. In this case, the court, using the balancing test enunciated in
Quinlan, approved the recommendation of a court-appointed guardian
ad litem that it would be in Saikewicz’s best interests to end chemotherapy treatment.

Although the court also followed the reasoning of the
Quinlan opinion in giving the right to an incompetent person to refuse treatment based on either the objective “best interests” test or the subjective “substituted judgment” test, which it favored because Saikewicz had always been incompetent, the court departed from
Quinlan in a major way. It rejected the
Quinlan approach of entrusting a decision concerning the continuance of artificial life support to the patient’s guardian, family, attending physicians, and a hospital ethics committee. The
Saikewicz court asserted that even though a judge might find the opinions of physicians, medical experts, or hospital ethics committees helpful in reaching a decision, there should be no requirement to seek out the advice. The court decided that questions of life and death with regard to an incompetent person should be the responsibility of the courts, which would conduct detached but passionate investigations. The court took a “dim view of any attempt to shift the ultimate decision-making responsibility away from duly established courts of proper jurisdiction to any committee, panel, or group, ad hoc or permanent.”

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This main point of difference between the
Saikewicz and
Quinlan cases marked the emergence of two different policies on the incompetent person’s right to refuse treatment. One line of cases has followed
Saikewicz and supports court approval before physicians are allowed to withhold or withdraw life
support. Advocates of this view argue that it makes more sense to leave the decision to an objective tribunal than to extend the right of a patient’s privacy to a number of interested parties, as was done in
Quinlan. They also attack the
Quinlan method as being a privacy decision effectuated by popular vote.

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Six months after
Saikewicz, the Massachusetts Appeals Court narrowed the need for court intervention in the case
In re Dinnerstein

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by finding that “no code” orders are valid to prevent the use of artificial resuscitative measures on incompetent, terminally ill patients. The court was faced with the case of a 67-year-old woman who was suffering from Alzheimer’s disease. It was determined that she was permanently comatose at the time of trial. Furthermore, the court decided that
Saikewicz-type judicial proceedings should take place only when medical treatment could offer a reasonable expectation of effecting a permanent or temporary cure of or relief from the illness.

The Massachusetts Supreme Judicial Court attempted to clarify its
Saikewicz opinion with regard to court orders in
In re Spring.

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The court here held that different factors such as the patient’s mental status and his or her medical prognosis with or without treatment must be considered before judicial approval is necessary to withdraw or withhold treatment from an incompetent patient. The problem in all three cases is that there is still no clear guidance as to exactly when the court’s approval of the removal of life-support systems would be necessary.
Saikewicz seemed to demand judicial approval in every case.
Spring, however, in partially retreating from that view, stated that it did not have to articulate what combination of the factors it discussed, thus making prior court approval necessary.

The inconsistencies presented by the Massachusetts cases led courts since 1977 to follow the parameters set by
Quinlan, requiring judicial intervention. In cases in which physicians have certified the irreversible nature of a patient’s loss of consciousness, an ethics committee (actually a neurologic team) could certify the patient’s hopeless neurologic condition. Then a guardian would be free to take the legal steps necessary to remove life-support systems. The main reason for the appointment of a guardian is to ensure that incompetent patients, like all other patients, maintain their right to refuse treatment. Most holdings indicate that because a patient has the constitutional right of self-determination, those acting on the patient’s behalf can exercise that right when rendering their best judgment concerning how the patient would assert the right. This substituted judgment doctrine could be argued on standing grounds, whereby a second party has the right to assert the constitutional rights of another when that second party’s intervention is necessary to protect the other’s constitutional rights. The guardian’s decision is sounder if it is based on the known desires of a patient who was competent immediately before becoming comatose.

An advance directive, such as a living will, is persuasive evidence of an incompetent person’s wishes. An incompetent patient can act as a guardian and in accordance with the terms of a living will. An agent can substitute his or her judgment for that of the patient.

A court may require the attending physician to certify that a patient is in a permanent vegetative state, with no reasonable chance for recovery, before a family member or guardian can request termination of extraordinary means of medical treatment.

The decision maker would attempt to ascertain the incompetent patient’s actual interests and preferences. A court can appoint a guardian if:

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Family members disagree as to the incompetent person’s wishes.

Physicians disagree on the prognosis.

The patient’s wishes cannot be known because he or she has always been incompetent.

Evidence exists of wrongful motives or malpractice.

No family member can serve as a guardian.

DEFINING DEATH

When is a patient considered to be legally dead, and what type of treatment can be withheld or withdrawn? Most cases dealing with euthanasia speak of the necessity for a physician to diagnose a patient as being either in a persistent vegetative state or terminally ill.

Traditionally, the definition of death adopted by the courts has been, according to
Black’s Law Dictionary, “cessation of respiration, heartbeat, and certain indications of central nervous system activity, such as respiration and pulsation.”

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Currently, however, modern science has the capacity to sustain vegetative functions of those in irreversible comas. Although life support equipment can sustain heartbeat and respiration, it is generally accepted that the irreversible cessation of brain function constitutes death.

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Ethicists who advocate the prohibition on taking action to shorten life agree “where death is imminent and inevitable, it is permissible to forgo treatments that would only provide a precarious and painful prolongation of life, as long as the normal care due to the sick person in similar cases is not interrupted.”

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Relying on the 1968 Harvard Criteria set forth by the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, the
American Medical Association in 1974 accepted that death occurs when there is “irreversible cessation of all brain functions including the brain stem.”

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Most states now recognize brain death by statute or judicial decision. New York, for example, in
People v. Eulo,

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in rejecting the traditional cardiopulmonary definition of death, announced that the determination of brain death can be made according to acceptable medical standards. The court also repeated its holding in
In re Storar

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that clear and convincing evidence of a person’s desire to decline extraordinary medical care may be honored and that a third person may not exercise this judgment on behalf of a person who has not expressed or cannot express the desire to decline treatment.

Some courts hold that artificial nutrition can be withheld from a patient who is unable to converse or feed oneself. Unequivocal proof of a patient’s wishes will suffice when the decision to terminate life support is at issue. Factors for determining the existence of clear and convincing evidence of a patient’s intention to reject the prolongation of life by artificial means include the:

Persistence of statements regarding an individual’s beliefs

Desirability of the commitment to those beliefs

Seriousness with which such statements were made

Inferences that may be drawn from the surrounding circumstances

The family of a patient who is in a persistent vegetative state cannot necessarily order physicians to remove artificial nutrition. In 1983, Nancy Cruzan sustained injuries in a car accident in which her car overturned, after which she was found face down in a ditch without respiratory or cardiac function. Although the patient was unconscious, her breathing and heartbeat were restored at the site of the accident. After examining her at the hospital, a neurosurgeon diagnosed her as having suffered cerebral contusions and anoxia. It was estimated that she had been deprived of oxygen for 12 to 14 minutes. After remaining in a coma for 3 weeks, Cruzan went into an unconscious state. At first, she was able to ingest some food orally. Thereafter, surgeons implanted a gastrostomy feeding and hydration tube, with the consent of her husband, to facilitate feeding her. She did not improve, and until December 1990, she lay in a Missouri state hospital in a persistent vegetative state that was determined to be irreversible, permanent, progressive, and ongoing. She was not dead, according to the accepted definition of death in Missouri, and physicians estimated that she could live in the vegetative state for an additional 30 years. Because of the prognosis, Cruzan’s parents asked the hospital staff to cease all artificial nutrition and hydration procedures. The staff refused to comply with their wishes without court approval. The state trial court granted authorization for termination, finding that Cruzan had a fundamental right—grounded in both the state and federal constitutions—to refuse or direct the withdrawal of death-prolonging procedures. Testimony at trial from a former roommate of Cruzan indicated to the court that she had stated that if she were ever sick or injured she would not want to live unless she could live halfway normally. The court interpreted that conversation, which had taken place when Cruzan was 25 years old, as meaning that she would not want to be forced to take nutrition and hydration while in a persistent vegetative state.

The case was appealed to the Missouri Supreme Court, which reversed the lower court decision. The court not only doubted that the doctrine of informed consent applied to the circumstances of the case, it moreover would not recognize a broad privacy right from the state constitution that would support the right of a person to refuse medical treatment in every circumstance. Because Missouri recognizes living wills, the court held that Cruzan’s parents were not entitled to order the termination of her treatment because “no person can assume that choice for an incompetent person in the absence of the formalities required under Missouri’s Living Will statutes or the clear and convincing, inherently reliable evidence absent here.”

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The court found that Cruzan’s statements to her roommate did not rise to the level of clear and convincing evidence of her desire to end nutrition and hydration.

In June 1990, the U.S. Supreme Court, after hearing oral arguments, held that:

32

The U.S. Constitution does not forbid Missouri from requiring that there be clear and convincing evidence of an incompetent person’s wishes as to the withdrawal of life-sustaining treatment.

The Missouri Supreme Court did not commit constitutional error in concluding that evidence adduced at trial did not amount to clear and convincing evidence of Cruzan’s desire to cease hydration and nutrition.

Due process did not require the state to accept the substituted judgment of close family members, absent substantial proof that their views reflected those of the patient.

In delivering the opinion of the court, Justice William Rehnquist noted that although most state courts have applied the common-law right to informed consent or a combination of that right and
a privacy right when allowing a right to refuse treatment, the Supreme Court analyzed the issues presented in the
Cruzan case in terms of a Fourteenth Amendment liberty interest. They found that a competent person has a constitutionally protected right grounded in the due process clause to refuse lifesaving hydration and nutrition. Missouri provided for the incompetent patient by allowing a surrogate to act for the patient in choosing to withdraw hydration and treatment. Moreover, it put into place procedures to ensure that the surrogate’s action conforms to the wishes expressed by the patient when he or she was competent. Although recognizing that Missouri had enacted a restrictive law, the Supreme Court held that right-to-die issues should be decided pursuant to state law, subject to a due process liberty interest, and in keeping with state constitutional law.

After the Supreme Court rendered its decision, the Cruzans returned to Missouri probate court, where, on November 14, 1990, Judge Charles Teel authorized physicians to remove the feeding tubes from Cruzan. The judge determined that testimony presented to him early in November demonstrated clear and convincing evidence that Nancy would not have wanted to live in a persistent vegetative state. Several of her coworkers had testified that she told them before her accident that she would not want to live “like a vegetable.” On December 26, 1990, 2 weeks after her feeding tubes were removed, Nancy Cruzan died.

LEGISLATIVE RESPONSE

After the
Cruzan decision, states began to draft new legislation in the areas of living wills, durable powers of attorney, healthcare proxies, and surrogate decision making. Pennsylvania and Florida were two of the first states to react to the
Cruzan decision. Pennsylvania law is applied to terminally ill or permanently unconscious patients. The statute, the Advance Directive for Health Care Act,

33
deals mainly with individuals who have prepared living wills. It includes in its definition of life-sustaining treatment the administration of hydration and nutrition by any means if it is stated in the individual’s living will. The statute mandates that a copy of the living will must be provided to the patient’s physician in order to be effective. Furthermore, the patient must be incompetent or permanently unconscious. If there is no evidence of the presence of a living will, the Pennsylvania probate codes allow an attorney-in-fact who is designated in a properly executed durable-power-of-attorney document to give permission for “medical and surgical procedures to be utilized on an incompetent patient.”

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States subsequently have been addressing the problem of surrogate decision making for those who are incompetent. Evidence of an incompetent person’s wishes that had been expressed when he or she was competent is required by the courts.

Unless there is some national uniformity in the legislation, some patients and their families will shop for states that will allow them to have medical treatment terminated or withdrawn with fewer legal hassles. For example, on January 18, 1991, a Missouri probate court judge authorized a father to take his 20-year-old brain-damaged daughter, Christine Busalacchi, from the Missouri Rehabilitation Center to Minnesota for testing by a pro-euthanasia physician, Dr. Ronald Cranford. Cranford, who practiced at the Hennepin County Medical Center, had been at the center of controversy in Minnesota. In January 1991, Pro Life Action Ministries demanded Cranford’s resignation, claiming that he “desires to make Minnesota the killing fields for the disabled.”

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He, however, viewed himself as an advocate of patients’ rights. It is clear that the main reason Busalacchi sought authorization to take his daughter to Minnesota is that he believed he would have to deal with fewer legal impediments there to allow his daughter to die.

Because of continuing litigation involving the right to die, it is clear that the public must be educated as to the importance of expressing their wishes concerning medical treatment while they are competent. Uniformity with regard to the legal instruments available for demonstrating what a patient wants should be a common goal of legislators, courts, and the medical profession. If living wills, surrogates, and durable powers of attorney were to be enacted pursuant to national rather than individual state guidelines, the process of resolving end-of-life issues might be less complicated. Some states have addressed the problem by statutorily providing for these instruments, thereby enabling individuals to have a say in the medical care they would like to receive should they become unable to speak for themselves.

Chief Justice Fred Dore of the Washington Supreme Court voiced his opinion that a legislative response to right-to-die issues could be better addressed by the legislature.

The United States Supreme Court, in
Cruzan, questioned whether a federally protected right to forgo nutrition and hydration existed. The
Cruzan Court confronted the same philosophical issues that we face today and wisely recognized and deferred to the Legislature’s superior policy-making abilities. As was the case in
Cruzan, our legislature is far better equipped to evaluate this complex issue and should not have its power usurped by this court.

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ASSISTED SUICIDE

Assisted suicide presents profound questions of ethics, religious beliefs, and public policy issues. These are precisely the kinds of issues in which public input is vital, and courts are simply not equipped to conduct the type of comprehensive review required. The legislative and executive branches of government are uniquely well equipped to pursue these issues. Courts have before them only the legal arguments and although questions of law are certainly part of the equation, the core issues presented are fundamentally grounded in questions of policy and how we view ourselves as a society. Those who must answer to the people for their policy product and not those who have no accountability to the people are best suited to answer these questions.

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Physician-Assisted Suicide

Doctor Says Insurers Push Suicide Over Medical Care

Brian Callister, associate professor of internal medicine at the University of Nevada, said he tried to transfer two patients to California and Oregon for procedures not performed at his hospital. Representatives from two different insurance companies denied those transfer requests by phone, he said.

“And in both cases, the insurance medical director said to me, ‘Brian, we’re not going to cover that procedure or the transfer, but would you consider assisted suicide?’”

—Bradford Richardson,
The Washington Times, June 1, 2017

Physician-assisted suicide is an action in which a physician voluntarily aids a patient in bringing about his or her death. Dr. Jack Kevorkian of Michigan announced in October 1989 that he had developed a device that would end one’s life quickly, painlessly, and humanely. He chose to assist a 54-year-old Alzheimer’s disease patient in committing suicide on June 4, 1990. In December 1990, he was charged with first-degree murder, but the charge was later dismissed because Michigan had no law against assisted suicide. He was, however, ordered to refrain from assisting in a patient’s suicide or giving advice about it. On February 6, 1991, he violated the court order by giving advice about the preparation of a drug to a terminally ill cancer patient.

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Additional murder charges were lodged against Kevorkian in October 1991, when he instructed two Michigan women how to use his “suicide machine.” In dismissing the charges against him, the circuit court judge stated, “Some people with intractable pain cannot benefit from treatment.” Although emphasizing that Michigan has no law against assisting suicide, the judge also expressed his belief that physician-assisted suicide remains an alternative for patients experiencing “unmanageable pain.”

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The Michigan House on November 22, 1992, approved legislation placing a temporary ban on assisted suicide. The Senate approved the temporary ban after Kevorkian helped a sixth terminally ill patient kill herself. On December 15, 1992, Michigan governor John Engler signed the law just hours after two more women committed suicide with Kevorkian’s aid.

The new law, which became effective on April 1, 1993, made assisting suicide a felony punishable by up to 4 years in prison and a $2,000 fine. Under the new law, assisted suicide was banned for 15 months. During this time, a special commission studied assisted suicide and submitted its recommendations to the Michigan legislature for review and action. The new law apparently raised constitutional questions and was challenged by the Civil Liberties Union of Michigan because of the claim that it failed to recognize that the terminally ill have the right to end their lives painlessly and with dignity.

Kevorkian faced prosecution for murdering two people and for assisting in the suicides of three others. As a result, he appealed a Michigan Supreme Court ruling that found there is no right to assisted suicide.

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The U.S. Supreme Court rejected his argument that assisted suicide is a constitutional right. The high court’s decision allowed the state of Michigan to move forward and prosecute Kevorkian on the pending charges. At the time of the high court’s ruling, Kevorkian had attended his 22nd suicide, involving a retired clergyman, less than a month after he was left facing murder charges in Michigan.

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As of March 1998, Kevorkian had aided in or witnessed 100 suicides. Kevorkian was eventually convicted of second-degree murder for physician-assisted suicide and sentenced to 10 to 25 years in prison. He was released on June 1, 2007, after serving eight years in prison.

Presently, California, Colorado, the District of Columbia, Montana, Oregon, Vermont, and Washington have legalized physician-assisted suicide. California statistics show that:

For the partial year ending December 31, 2016, 191 individuals received prescriptions under EOLA. 111 individuals died following their ingestion of the prescribed aid-in-dying drug(s). Of the 111 individuals, 87.4 percent were 60 years of age or older, 96.4 percent had health insurance, and 83.8 percent were receiving hospice and/or palliative care. As this report covers only six-months of data, caution should be exercised in drawing conclusions based on the numbers reported.

42

Vermont became the third state to legalize physician-assisted suicide when Governor Peter Shumlin signed into law a bill allowing physicians to legally prescribe lethal doses of medication for terminally ill patients.

43

The Montana Supreme Court ruled that state law protects physicians from prosecution for assisting terminally ill patients in committing suicide. The court, however, did not address whether assisted suicide was guaranteed under the state’s constitution.

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Montana Bill “HB 505 which would have explicitly prohibited doctor-prescribed suicide was introduced by Rep. Krayton Kerns. The bill passed in the House and was sent to the Senate, where it failed on April 15, 2013 in a 27–23 vote.”

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In 1967, the United States Supreme Court, in two unanimous and separate decisions, ruled that state laws prohibiting assisted suicide are constitutional; nevertheless, the U.S. Supreme Court ruled that states can allow physicians to assist in the suicide of terminally ill patients.

46

At the time of this writing, North Carolina is one of several states introducing legislation to legalize physician-assisted suicide. The North Carolina House Bill 789: “End of Life Option Act. 989” was introduced as “An Act Establishing an End of Life Option to Allow Qualified Patients Diagnosed with Terminal Disease to End Life in a Humane and Dignified Manner.”

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The physician-assisted suicide debate, as noted in the following news clippings, continues throughout the nation.

Assisted Suicide Once Again Pushed by New Jersey Lawmakers; Opponents Raise Fears

“I don’t want to have to take that drive to the hospital and walk down the halls knowing that I’m never going to go back again,” she said. “I want to die at home and I want to die peacefully.”

Lawmakers on the Assembly Judiciary Committee did advance that controversial bill Monday, reopening an emotional debate in New Jersey with its roots in the famous court case of Karen Ann Quinlan in the 1970s. The 5-2 vote followed more than 3 hours of testimony that alternated between fierce criticism and impassioned statements of support.

—Nicholas Pugliese,
Republican House Bureau, March 2, 2018

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Physician-Assisted Suicide Bill Dies in Massachusetts

Legislation to authorize physician-assisted suicide is dead in Massachusetts, after the proposal was sent to a study committee late last week, effectively ending the bill’s chance at enactment this session.

The aid-in-dying bills H1194 and S1225 would have given doctors the ability to prescribe life-ending drugs to terminally ill patients who wish to die and are given a prognosis of 6 months or less to live.

Matt Valliere, executive director of Patients Rights Action Fund, which opposes assisted suicide, said the Legislature listened to doctors, disability rights activists, and residents who came out against assisted suicide.

“Your voice was heard: Assisted suicide is not medical treatment,” Mr. Valliere said in a statement. “It is bad public policy that puts a great many at risk of deadly harm through mistakes, coercion, and abuse.”

—Bradford Richardson,
The Washington Times, March 27, 2018

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Assisted Suicide Versus Refusal or Withdrawal of Treatment

The Supreme Court in
Quill v. Vacco

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found that neither the assisted suicide ban nor the law permitting patients to refuse medical treatment treats anyone differently from anyone else or draws any distinctions between persons. There is a distinction between letting a patient die and making one die. Most legislatures have allowed the former but have prohibited the latter. The Supreme Court disagreed with the respondents’ claim that the distinction is arbitrary and irrational.

In its decision, the Supreme Court determined that New York had valid reasons for distinguishing between the refusal of treatment and assisting suicide. Those reasons included prohibiting intentional killing and preserving life, preventing suicide, maintaining the physician’s role as his or her patient’s healer, and protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives. All of those reasons, the court decided, constitute valid and important public interests fulfilling the constitutional requirement that a legislative classification bear a rational relation to a legitimate end.

In the Washington case,
Washington v. Glucksberg,

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the U.S. Supreme Court held that assisted suicide
is not a liberty protected by the Constitution’s due process clause. A majority of states now ban assisted suicide. These rulings, however, do not affect the right of patients to refuse treatment. It is clear that this emotionally charged issue is not settled. Legislative, judicial, and public debates continue to rage. Ultimately, the quality of a patient’s life must be improved so that physician-assisted suicide does not become the answer for those who are suffering. Society must learn to address more effectively end-of-life issues including pain management, fear of death, self-worth, and hopelessness. Thus far, progress is slow and inadequate.

Oregon’s Death with Dignity Act (1994)

On October 27, 1997, physician-assisted suicide became a legal medical option for the terminally ill residents of Oregon. The
Oregon Death with Dignity Act was the first law to legalize assisted suicide, allowing terminally ill Oregon residents to obtain prescriptions from their physician for self-administered, lethal doses of medications. The act legalizes physician-assisted suicide but specifically prohibits euthanasia, where a physician or other person directly administers a medication to end another’s life. The following are excerpts from the Oregon Death with Dignity Act:

Or. Rev. Stat. Sects. 127.800-.897 Section 1.01. Definitions …

(12) “Terminal disease” means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within (6) months…

Section 2.01. Who may initiate a written request for medication?

An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner.

Section 2.02. Form of the Written Request.

(1) A valid request for medication … shall be in substantially the form described in ORS 127.897, signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request …

Section 3.01. Attending physician responsibilities. The attending physician shall: and has made the request voluntarily.

(2) Inform the patient of:

His or her medical diagnosis;

His or her prognosis;

The potential risks associated with taking the medication to be prescribed;

The probable result of taking the medication to be prescribed; and

The feasible alternatives, including, but not limited to, comfort care, hospice care, and pain control.

(3) Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is capable and acting voluntarily …

Section 3.06. Written and oral requests.

In order to receive a prescription for medication to end his or her life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request to his or her attending physician no less than (15) days after making the initial oral request. At the time the qualified patient makes his or her second oral request, the attending physician shall offer the patient an opportunity to rescind the request.

Section 3.07. Right to rescind request. A patient may rescind his or her request at any time and in any manner without regard to his or her mental state. …

Section 3.08. Waiting periods.

No less than (15) days shall elapse between the patient’s initial oral request and the writing of a prescription. … No less than 48 hours shall elapse between the patient’s written request and the writing of a prescription. …

Section 6.01. Form of the request.

A request for a medication … shall be in substantially the following form.

FIGURE 3-1

.

PATIENT SELF-DETERMINATION ACT OF 1990

The
Patient Self-Determination Act of 1990

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provides that patients have a right to formulate advance directives and to make decisions regarding their health care. Self-determination includes the right to accept or refuse medical treatment. Healthcare providers (including hospitals, nursing homes, home health agencies, health maintenance organizations, and hospices) receiving federal funds under Medicare are required to comply with the new regulations. Providers are required to:

Provide individuals written information concerning their rights under state law (whether statutory or recognized by courts of the state) to make decisions including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives.

Document in the individual’s medical record whether the individual has executed an advance directive.

Not condition the provision of care or otherwise discriminate against an individual based on whether the individual has executed an advance directive.

Ensure compliance with requirements of state law (whether statutory or recognized by the courts of the state) regarding advance directives. The provider must inform individuals that complaints concerning the advance directive requirements may be filed with the state survey and certification agency.

Provide education for staff concerning its policies and procedures on advance directives.

Provide for community education regarding issues concerning advance directives by defining what constitutes an advance directive, emphasizing that an advance directive is designed to enhance an incapacitated individual’s control over medical treatment and describe applicable state law concerning advance directives. A provider must be able to document its community education efforts.

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Providers are not entitled to reimbursement under the Medicare program if they fail to meet Patient Self-Determination Act of 1990 requirements.

ADVANCE DIRECTIVES

Patients have a right to make decisions about their health care with their physician. They may agree to a proposed treatment, choose among alternative treatments, or refuse a treatment. Patients have this right even if they become incapacitated and are unable to make decisions regarding their health care. Because of the advances in modern medical technology, everyone should give serious consideration as to their healthcare wishes, to decide what they would want done should they become incapacitated, to execute advance directives and make their wishes known so that family and healthcare providers can respect their decision.

Advance directives, in the form of a “living will” or “durable power of attorney,” allow the patient to state in advance the kinds of medical care that he or she considers acceptable or not acceptable. The patient can appoint an agent, a
surrogate decision maker, to make those decisions on his or her behalf. A patient should be asked at the time of admission if he or she has an advance directive. If a patient does not have an advance directive, the healthcare facility should provide the patient with information about an advance directive and the opportunity to execute a directive. A patient should clearly understand that an advance directive is a guideline for caregivers describing his or her wishes for medical care—what he or she would and would not want—in the event of incapacitation and inability to make decisions. This interaction should be documented in the patient’s medical record. If the patient has an advance directive, a copy should be requested for insertion into the patient’s record. If the patient does not have a copy of the advance directive with him or her, the substance thereof should be documented and flagged in the patient’s medical record. Documentation should include the location of the advance directive, the name and telephone number of the designated healthcare agent, and any information that might be helpful in the immediate care situation (e.g., patient’s desire for food and hydration).

The patient can execute a new directive at any time if desired. Patient and family education should be provided regarding the existence of the directive and its contents. The patient should be periodically queried about whether he or she wishes to make any changes with regard to an advance directive.

Living Will

A
living will is the instrument or legal document that describes those treatments an individual wishes or does not wish to receive should he or she become incapacitated and unable to communicate treatment decisions. Typically, a living will enables a person, when competent, to inform caregivers in writing of his or her wishes with regard to withholding and withdrawing life-supporting treatment, including nutrition and hydration. The living will is helpful to healthcare professionals because it provides guidance about a patient’s wishes for treatment, provides legally valid instructions about treatment, and protects the patient’s rights and the provider who honors them.

The Supreme Court of Florida in
John F. Kennedy Memorial Hospital, Inc. v. Bludworth

54
upheld the validity of a living will. The Court determined that:

In the case of a comatose and terminally ill individual who has executed a so-called “living” or “mercy” will, is it necessary that a court appointed guardian of his person obtain the approval of a court of competent jurisdiction before terminating extraordinary life support systems in order for consenting family members, the attending physicians, and the hospital and its administrators to be relieved of civil and criminal liability?

We answer the certified question in the negative and hold that court approval to terminate extraordinary life support systems was not necessary in this type of case in order to relieve the consenting family members, the attending physicians, and the hospital and its administrators of civil and criminal liability.

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The Court went on to say: “This right of terminally ill patients should not be lost when they suffer irreversible brain damage, become comatose, and are no longer
able to personally express their wishes to discontinue the use of extraordinary artificial support systems.

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To be relieved of potential civil and criminal liability, guardians, consenting family members, physicians, hospitals, or their administrators need only act in good faith. For them to be held civilly or criminally liable, there must be a showing that their actions were not in good faith but were intended to harm the patient. Under the circumstances of this and similar cases, prior court approval is not required. The courts, however, are always open to hear these matters if request is made by the family, guardian, physician, or hospital. Disagreement among the physicians or family members or evidence of wrongful motives or malpractice may require judicial intervention upon the filing of an appropriate petition.

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In a 2014 case, Kentucky’s Living Will Directive Act was determined to be constitutional in
T. Bruce Simpson, Jr. v. Commonwealth of Kentucky and Cabinet for Human Resources, 142 S.W.3d 24 (Ky. 2004). The act allows a judicially appointed guardian or other designated surrogate to remove a ward’s life support. After suffering cardiac arrest, it was agreed that the patient, Matthew Woods, would never regain consciousness. After a recommendation of the hospital’s ethics committee, Woods’s guardian asked for the removal of Woods’s life support. If there was no legal guardian but the physicians, family, and ethics committee all agree with the surrogate’s decision—in this case, the state’s—there is no need for judicial approval. The Kentucky Supreme Court did determine that when there is disagreement in a particular case, withdrawal of life support would be prohibited absent clear and convincing evidence that the patient is permanently unconscious or in a persistent vegetative state and that withdrawal of life support was in the patient’s best interest. In support of its holding, the Kentucky Supreme Court cited the ethical standards of the National Center for State Courts, the Council on Ethical and Judicial Affairs of the American Medical Association, an Address to an International Congress of Anesthesiologists by Pope Pius XII, and the Declaration on Euthanasia by Pope John Paul II:

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In determining the patient’s best interests, courts may consider, but are not limited to considering: (1) the patient’s present level of physical, sensory, emotional, and cognitive functioning and possibility of improvement thereof; (2) any relevant statements or expressions made by the patient, when competent, as to his or her own wishes with a rebuttable presumption attaching to a valid living will or a designation of a health care surrogate; (3) to the extent known, the
patient’s own philosophical, religious, and moral views, life goals, values about the purpose of life and the way it should be lived, and attitudes toward sickness, medical procedures, suffering, and death; (4) the degree of physical pain caused by the patient’s condition, treatment, and termination of treatment; (5) the degree of humiliation, dependence, and loss of dignity probably resulting from the condition or treatment; (6) the life expectancy and prognosis for recovery with and without the treatment; (7) the various treatment options and their risks, benefits, and side effects; (8) whether any particular treatment would be proportionate or disproportionate in terms of the benefits gained; and (9) the impact on the patient’s family (the assumption being that the patient would be concerned about the well-being and happiness of his or her own family members).

The living will should be signed and dated by two witnesses who are not blood relatives or beneficiaries of the patient’s property. A living will should be discussed with the patient’s physician, and a signed copy should be placed in the patient’s medical record. A copy also should be provided to the individual designated to make decisions in the event the patient is unable to do so. A person who executes a living will when healthy and mentally competent cannot predict how he or she will feel at the time of a terminal illness; therefore, it should be updated regularly so that it accurately reflects a patient’s wishes. The written instructions become effective when a patient is either in a terminal condition, permanently unconscious, or suffering irreversible brain damage. An example of a living will is illustrated in

FIGURE 3-2

.

Right to Die Without a Living Will

In
San Juan-Torregosa v. Garcia,

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the evidence at trial established that Garcia suffered a cardiac arrest. Although she was later resuscitated, she suffered oxygen deprivation to her brain for more than 10 minutes and was in a chronic vegetative state. Medical opinion established that she was breathing reflexively, but there was no evidence that she would be able to recover “cortical functions.” Garcia also had metastatic breast cancer. Her treating physician,

Dr. Parrish, testified at trial that within a reasonable degree of medical certainty Garcia would not recover and that he had never seen anyone in her condition recover. He stated that Garcia was functioning on a low brain level, whereby the brainstem kept her blood circulating, maintained blood pressure, and maintained respiration, and that she was in a persistent vegetative state with zero chance of recovering any cortex activity. Parrish further stated that he discussed the discontinuation of artificial nutrition and hydration with the family and that they had ultimately decided to continue the fluids but stop the nutrition, which he felt was reasonable.

When asked why Garcia had been given life support in the first place, Parrish explained that although Garcia’s injury initially seemed very severe, he could not say from the beginning whether she would recover and wanted to give her every chance to improve if she could.

The trial court ruled that because Garcia, who was in a chronic vegetative state, had not executed a living will, the court had no authority to authorize discontinuance of artificial nutrition. On appeal, the appellants asserted that the trial court erred in refusing to allow Garcia’s family to terminate the artificial nutrition and hydration that was keeping her body alive, thereby failing to honor her wishes and denying her constitutional right to bodily integrity.

The appeals court concurred with the trial court’s fact-finding that evidence is clear and convincing that Garcia would not want to be kept alive by artificial means and that her wishes, expressed while she was competent, would be to have these services discontinued.

We concur with the Trial Court’s fact finding that evidence is clear and convincing that Ms. Garcia would not want to be kept alive by artificial means and that her wishes, expressed while she was competent, would be to have these services discontinued. Courts have the duty to protect and when necessary enable individuals to exercise his or her Constitutional Rights. We Order this matter remanded and direct the Chancellor appoint a conservator to carry out Ms. Garcia’s wishes, including the refusal for medical care. Tenn. Code Ann. § 34-3-104. The requisites for the appointment are established in this case, as there is clear and convincing evidence of Ms. Garcia’s incompetence, and the statute contains a priority list of persons to be considered for the appointment. Since Ms. Garcia had no written preference, her husband would be the first choice to act as her conservator and make medical decisions for her.
See Tenn. Code Ann. § 34-1-126 and § 34-3-103.

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Tennessee’s public policy on this issue is set forth in the “Legislative intent” section of the Tennessee Right to Natural Death Act, codified at Tenn. Code Ann. § 32-11-102. This statute reads:

The general assembly declares it to be the law of the state of Tennessee that every person has the fundamental and inherent right to die naturally with as much dignity as circumstances permit and to accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of the person’s own medical care, specifically including palliative care and the use of extraordinary procedures and treatment.

This statute and others like it applies to all individuals and does not distinguish between those who are competent and those who are not. Patients have a right to refuse treatment so long as they are mentally competent to make their own healthcare decisions. When an individual becomes clearly incompetent to make healthcare decisions, the state has a duty to help determine what the wishes of the patient would have been had he been conscious and competent to do so. The initial assumption is that an incompetent patient would prefer lifesaving treatment unless there is clear evidence that the patient would not want extraordinary care to save his life. It is clear from both state statutes and court decisions that artificial nutrition and hydration are to be included in the realm of medical treatment that a patient has a right to refuse.

The United States Supreme Court, in
Cruzan v. Director, Missouri Dept. of Health,

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recognized that a competent person had a constitutionally protected liberty interest in refusing unwanted medical treatment. The court stopped short of finding that an incompetent person would have the same right; however, the court said: “An incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment, or any other right. Such a ‘right’ must be exercised for her, if at all, by some sort of surrogate.”

The 2017 Florida Statute Title XXIX, Chapter 381.026 provides that “A patient has the right to refuse any treatment based on information required by this paragraph, except as otherwise provided by law. The responsible provider shall document any such refusal.”

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Durable Power of At torney

A
durable power of attorney is a legal device that permits one individual, known as the “principal,” to give to another person, called the “attorney-in-fact,” the authority to act on his or her behalf. The attorney-in-fact is authorized to handle banking and real estate affairs, incur expenses, pay bills, and handle a wide variety of legal affairs for a specified period of time. The power of attorney may continue indefinitely during the lifetime of the principal so long as that person is competent and capable of granting power of attorney. If the principal becomes comatose or mentally incompetent, the power of attorney automatically expires, just as it would if the principal dies.

Because a power of attorney is limited by the competency of the principal, some states have authorized a special legal device for the principal to express intent concerning the durability of the power of attorney, to allow it to survive disability or incompetency. The durable power of attorney is more general in scope and applies to a wider range of situations than those involving a patient in imminent danger of death, as is necessary for a living will to apply. Although it need not delineate desired medical treatment specifically, it must indicate the identity of the principal’s attorney-in-fact and that the principal has communicated his or her healthcare wishes to the attorney-in-fact. Although the laws vary from state to state, all 50 states and the District of Columbia have durable power of attorney statutes. This legal device is an important alternative to guardianship, conservatorship, or trusteeship. Because a durable power of attorney places a considerable amount of power in the hands of the attorney-in-fact, an attorney in the state where the client resides should draw up the power of attorney. In the healthcare setting, a
durable power of attorney for health care (e.g.,

FIGURE 3-3

) is a legal instrument that designates and grants authority to an agent to, for example, make healthcare decisions for another.

Surrogate Decision Making

A surrogate decision maker is an agent who acts on behalf of a patient who lacks the capacity to participate in a particular decision. A healthcare agent’s rights are no greater than those of a competent patient; however, the agent’s rights are limited to any specific instructions included in the proxy document. An agent’s decisions take priority over those of any other person except the patient. The agent has the right to consent or refuse to consent to any service or treatment, routine or otherwise, to refuse life-sustaining treatment, and to access all of the patient’s medical information to make informed decisions. The agent must make decisions based on the patient’s moral and religious beliefs. If a patient’s wishes are not known, decisions must be based on a good-faith judgment of what the patient would have wanted.

Substituted Judgment

Substituted judgment is a form of surrogate decision making where the surrogate attempts to establish what decision the patient would have made if that patient were competent to do so. This conclusion can be based on the patient’s preference expressed in previous statements or the surrogate’s knowledge of the patient’s beliefs (e.g., religious) and values.

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The Supreme Court of Rhode Island had a case,
In re Jane Doe,

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come before it pursuant to a motion filed on behalf of the mother of Jane Doe, following a determination by the Family Court authorizing termination of her daughter’s pregnancy due to a sexual assault by an unknown person during her residence at a group home. As a result of her pregnancy and overlapping medical concerns, permission was sought to terminate her pregnancy.

Evidence presented to the Family Court showed that Jane Doe would be unable to understand the pain and travail that would normally attend pregnancy and that it would be in her best interests to terminate the pregnancy without delay. One medical expert testified that the pregnancy would be traumatic and the attendant medical risks provided a compelling need in her best interests to discontinue the pregnancy. In addition, evidence revealed that the mother seldom visited her daughter. After considering all the evidence presented, the Family Court justice determined it was in the best interests of Jane Doe to terminate the pregnancy. The mother’s request for a stay of this order was denied and an appeal was filed with the state supreme court.

The state supreme court denied a stay of the trial justice’s order. The only question presented by this litigation was the determination of whether Jane Doe would have chosen an abortion if she were competent to exercise freedom of choice. In the case at bar, the trial justice, after careful consideration of the evidence presented, determined that this incompetent young woman, if she had been capable of doing so, would have exercised the option to terminate a pregnancy brought about by sexual assault, in light of her seizure disorder, cerebral palsy, and other underlying medical concerns.

The state supreme court determined that state agencies, as assisted by the guardian
ad litem, acted in good faith and in the best interests of the incompetent person and were properly considered by the court as the appropriate surrogates in attempting to exercise substituted judgment in respect to Jane Doe.

Case Studies

Spousal Rights in Decision Making

Mr. Martin sustained debilitating injuries as the result of an automobile accident. He suffered severe subcortical brain damage, significantly impairing his physical and cognitive functioning.

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His injuries left him totally paralyzed on the left side. He could not speak or eat and had no bladder or bowel control. Martin remained conscious and had some awareness of his surroundings. He could communicate to a very minimal degree through head nods.

The trial court determined that Martin did not have nor would he ever have the ability to have the requisite capacity to make decisions regarding the withdrawal of life-support equipment. The evidence demonstrated that Martin’s preference would have been to decline life-support equipment given his medical condition and prognosis. The trial court’s decision was based on the following
four-part test for determining whether a person has the requisite capacity to make a decision: Does the person have sufficient mind to reasonably understand the condition? Is the person capable of understanding the nature and effect of the treatment choices? Is the person aware of the consequences associated with those choices? Is the person able to make an informed choice that is voluntary and not coerced?

The trial court also determined that Mrs. Martin, the patient’s spouse, was a suitable guardian for him. She petitioned to withdraw her husband’s life support. Martin’s mother and sister counter petitioned to have Mrs. Martin removed as the patient’s guardian. The Michigan Court of Appeals held that the evidence was sufficient to support a finding that the patient lacked capacity to make decisions regarding the withholding or withdrawal of life-sustaining treatment. As to the patient’s desire not to be placed on life-support equipment, there was sufficient evidence to show that the patient had a medical preference to decline treatment under circumstances such as those that occurred. There was also sufficient evidence to show that the patient’s spouse was a suitable guardian.

The test for determining whether Martin had the requisite capacity to make a decision regarding the withholding or withdrawal of life-supporting medical treatment was clear and convincing—he did not have sufficient decision-making capacity. The evidence was just as clear that he never would regain sufficient decision-making capacity that would enable him to make such a decision. It was the general consensus of all of the experts that Martin’s condition and cognitive level of functioning would not improve in the future.

Testimony from two of Martin’s friends described statements made by him that he would never want to be maintained in a coma or in a vegetative state. In addition, Mrs. Martin described numerous statements made to her by Martin prior to the accident that he would not want to be maintained alive, given the circumstances described previously here. The trial court found that Mrs. Martin was credible. The court of appeals found no reason to dispute the trial court’s finding as to Mrs. Martin’s credibility.

In contrast to allegations made by the patient’s mother and sister, the evidence was clear that Mrs. Martin’s testimony was credible. There was no evidence that Mrs. Martin had anything but her husband’s best interest at heart. There were allegations, but no evidence, that financial considerations or pressure from another individual influenced Mrs. Martin’s testimony.

Ethical and Legal Issues

Knowing that the patient had some ability to interact with his environment, discuss the four-part test for determining the patient’s ability to make a decision.

Do you agree with the court’s decision? Explain.

Should the concern of the mother and sister have carried more weight in removing custody from Mrs. Martin?

What influence do you believe the mother and sister might have had on Mrs. Martin?

Guardianship

Guardianship is a legal mechanism by which the court declares a person incompetent and appoints a guardian. The court transfers the responsibility for managing financial affairs, living arrangements, and medical care decisions to the guardian. The right to refuse medical treatment on behalf of an incompetent person is not limited to legally appointed guardians but may be exercised by healthcare proxies or surrogates, such as close family members or friends. When a patient has not expressed instructions concerning his or her future health care in the event of later incapacity but has merely delegated full responsibility to a proxy, designation of a proxy must have been made in writing.

Healthcare Proxy

A
healthcare proxy allows a person to appoint a healthcare agent to make treatment decisions in the event he

or she becomes incompetent and is unable to make decisions for him- or herself. The agent must be made aware of the patient’s wishes regarding nutrition and hydration in order to be allowed to make a decision concerning withholding or withdrawing them. In contrast to a living will, a healthcare proxy does not require a person to know about and consider in advance all situations and decisions that could arise. Rather, the appointed agent would know about and interpret the expressed wishes of the patient and then make decisions about the medical care and treatment to be administered or refused. The
Cruzan decision indicates that the Supreme Court views advance directives as clear and convincing evidence of a patient’s wishes regarding life-sustaining treatment.

Although most statutes fail to cover incompetence, cases such as
Quinlan and
Saikewicz created a constitutionally protected obligation to terminate the incurable incompetent patient’s life when guardians use the doctrine of substituted judgment. Furthermore, some states provide for proxy consent in the form of durable power of attorney statutes. Generally, these involve designation of a proxy to speak on the incurable incompetent person’s behalf. They represent a combination of the intimate wishes of the patient and the medical recommendations of the physicians.

Oral declarations are accepted only after the patient has been declared terminally ill. Moreover, the declarant bears the responsibility of informing the physician to ensure that the document becomes a part of the medical record. The California statute provides that the document be re-executed after 5 years. Other statutes differ in the length of time of effectiveness. Most states allow the document to be effective until revoked by the individual. To revoke, the patient must sign and date a new writing, destroy the first document himself or herself, direct another to destroy the first document in his or her presence, or orally state to the physician an intent to revoke. The effect of the directive varies among jurisdictions; however, there is unanimity in the promulgation of regulations that specifically authorize healthcare personnel to honor the directives without fear of incurring liability. The highest court of New York in
In re Eichner

66
complied with the request of a guardian to withdraw life-support systems from an 83-year-old brain-damaged priest. The court reached its result by finding the patient’s previously expressed wishes to be determinative.

Before exercising an incompetent patient’s right to forgo medical treatment, the surrogate decision maker must satisfy the following conditions:

The surrogate must be satisfied that the patient executed a document (e.g., Durable Power of Attorney for Health Care and Health Care Proxy) knowingly, willingly, and without undue influence and that the evidence of the patient’s oral declaration is reliable.

The patient must not have reasonable probability of recovering competency so that the patient could exercise the right.

The surrogate must take care to ensure that any limitations or conditions expressed either orally or in written declarations have been considered carefully and satisfied.

FUTILITY OF TREATMENT

Futility of treatment, as it relates to medical care, occurs when the physician recognizes that the effect of treatment will be of no benefit to the patient. Morally, the physician has a duty to inform the patient when there is little likelihood of success. The determination as to futility of treatment is based on the physician’s assessment and medical judgment.

After a diagnosis has been made that a person is terminally ill with no hope of recovery and is in a chronic vegetative state with no possibility of attaining cognitive function, a state generally has no compelling interest in maintaining life. The decision to forgo or terminate life-support measures is, at this point, simply a decision that the dying process will not be artificially extended. Although the state has an interest in the prolongation of life, it has no interest in the prolongation of dying, and although there is a moral and ethical decision to be made to end the process, that decision can be made only by the surrogate. The decision whether to end the dying process is a personal decision for family members or those who bear a legal responsibility for the patient.

A determination as to the futility of medical care is a decision that must be made by a physician. Even if death is not imminent but a patient’s coma is irreversible beyond doubt and there are adequate safeguards to confirm the accuracy of the diagnosis with the concurrence of those responsible for the patient’s care, it is not unethical to discontinue all means of life-prolonging medical treatment.

WITHHOLDING AND WITHDRAWAL OF TREATMENT

Withholding of treatment is a decision not to initiate treatment or medical intervention for the patient. This is a decision often made when death is imminent and there is no hope of recovery.
Withdrawal of treatment is a decision to discontinue treatment or medical interventions for the patient when death is imminent and cannot be prevented by available
treatment. Withholding or withdrawing treatment should be considered when:

the patient is in a terminal condition and there is a reasonable expectation of imminent death of the patient;

the patient is in a noncognitive state with no reasonable possibility of regaining cognitive function; and/or

restoration of cardiac function will last for a brief period.

Theologians and ethicists have long recognized a distinction between ordinary and extraordinary medical care. The theological distinction is based on the belief that life is a gift from God that should not be destroyed deliberately by humans. Therefore, extraordinary therapies that extend life by imposing grave burdens on the patient and family are not required.

Although the courts have accepted decisions to withhold or withdraw extraordinary care, especially the respirator, from those who are comatose or in a persistent vegetative state with no possibility of emerging, they have been unwilling until recent years to discontinue feeding, which they have considered to be ordinary care. For example, the Illinois Supreme Court, in
In re Estate of Longeway,

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found that the authorized guardian of a terminally ill patient in an irreversible coma or persistent vegetative state has a common-law right to refuse artificial nutrition and hydration. The court found that there must be clear and convincing evidence that the refusal is consistent with the patient’s interest. The court also required the concurrence of the patient’s attending physician and two other physicians. Court intervention is also necessary to guard against the possibility that greed may taint the judgment of the surrogate decision maker. Although there may be a duty to provide life-sustaining equipment in the immediate aftermath of cardiopulmonary arrest, there is no duty to continue its use when it has become futile and ineffective to do so in the opinion of qualified medical personnel.

The Texas Natural Death Act provided immunity to caregivers in the following case for what the plaintiffs claimed was a failure of caregivers to withdraw lifesaving treatment.

Case Studies

Failure to Withdraw Lifesaving Treatment

In this medical malpractice suit, the Stolles (appellants) sought damages from physicians and hospitals (appellees) for disregard of their instructions not to use “heroic efforts” or artificial means to prolong the life of their child, Mariel, who was born with brain damage. The Stolles argued that such negligence resulted in further brain damage to Mariel, prolonged her life, and caused them extraordinary costs that will continue as long as the child lives.

The Stolles had executed a written “Directive to Physicians” on behalf of Mariel in which they made known their desire that Mariel’s life not be artificially prolonged under the circumstances provided in that directive.

Mariel suffered a medical episode after regurgitating her food. An unnamed, unidentified nurse–clinician administered chest compressions for 30 to 60 seconds, and Mariel survived.

The Stolles sued, alleging the following, among other things: Appropriate medical entries were not made in the medical record to reflect the Stolles’ wishes that caregivers refrain from “heroic” life-sustaining measures. Lifesaving measures were initiated in violation of the physician’s orders. The hospital did not follow the physician’s orders, which were in Mariel’s medical chart, when chest compressions and mechanically administered breathing to artificially prolong Mariel’s life were applied, and a bioethics committee meeting was not convened to consider the Stolles’ wishes and the necessity of a do-not-resuscitate (DNR) order.

The central issue in this case is whether appellees are immune from liability under the Texas Natural Death Act. Section 672.016(b) of the Texas Natural Death Act provides the following: “A physician, or a health professional acting under the direction of a physician, is not civilly or criminally liable for failing to effectuate a qualified patient’s directive” [Tex. Health & Safety Code Ann. A4 672.016(b) (Vernon 1992)]. A “qualified patient” is a “patient with a terminal condition that has been diagnosed and certified in writing by the attending physician and one other physician who have personally examined the patient.” A “terminal condition” is an “incurable condition caused by injury, disease, or illness that would produce death regardless of the application of life-sustaining procedures, according to reasonable medical judgment, and in which the application of life-sustaining procedures serves only to postpone the moment of the patient’s death.”

Mariel was not in a terminal condition, as appellees alleged. The Stolles failed to cite any authority that would have allowed the withdrawal of life-sustaining procedures in a lawful manner. The Texas Natural Death Act, therefore, provided immunity to the caregivers for their actions in the treatment and care of Mariel.

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Ethical and Legal Issues

Describe the ethical principles in conflict in this case.

Do you agree with the court’s decision? Explain your answer.

Patient Not in a Persistent Vegetative State

A guardian may direct the withdrawal of life-sustaining medical treatment, including nutrition and hydration,
only if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward.

In
Spahn v. Eisenberg, Betty Spahn, the court-appointed guardian for her sister Edna, sought permission to direct the withholding of Edna’s nutrition, claiming that her sister would not want to live in this condition; however, the only testimony presented at trial regarding Edna’s views on the use of life-sustaining medical treatment involved a statement made 30 years earlier. At that time, Betty and Edna were having a conversation about their mother, who was recovering from depression, and Betty’s mother-in-law, who was dying of cancer. Betty testified that during this conversation, Edna said to her that she would rather die of cancer than lose her mind. Betty further testified that this was the only time that she and Edna discussed the subject and that Edna never said anything specifically about withholding or withdrawing life-sustaining medical treatment.

The ethics committee at the nursing facility where Edna lived met to discuss the issue of withholding artificial nutrition from Edna. The committee approved withholding nutrition if no family member objected; however, one of Edna’s nieces refused to sign a statement approving the withdrawal of nutrition.

The record spoke very little to what Edna’s desires would be, and there was no clear statement of what her desires would be today under the current conditions. Her friends and family never had any conversations or discussions with her regarding her feelings or opinions about withdrawing nutrition or hydration, and she did not execute any advance directives expressing her wishes while she was competent.

Consequently, the court held that a guardian could only direct the withdrawal of life-sustaining medical treatment, including nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward. In this case, where the only indication of Edna’s desires was made at least 30 years earlier and under different circumstances, there was not a clear statement of intent such that Edna’s guardian might authorize the withholding of her nutrition.

The circuit judge concluded his own questioning of one member of the ethics committee, “The way I understand it, what you really have is a liability problem, and that’s why you want everybody to consent, is that correct?” Dr. Erickson answered, “That is correct.”

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Removal of Life-Support Equipment

Although there may be a duty to provide life-sustaining equipment in the immediate aftermath of cardiopulmonary arrest, there is no duty to continue its use after it has become futile and ineffective to do so in the opinion of qualified medical personnel. Two physicians in
Barber v. Superior Court

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were charged with the crimes of murder and conspiracy to commit murder. The charges were based on their acceding to requests of the patient’s family to discontinue life-support equipment and intravenous tubes. The patient had suffered a cardiopulmonary arrest in the recovery room after surgery. A team of physicians and nurses revived the patient and placed him on life-support equipment. The patient had suffered severe brain damage, placing him in a comatose and vegetative state from which, according to tests and examinations by other specialists, he was unlikely to recover. On the written request of the family, the patient was taken off life-support equipment. The family, his wife and eight children, made the decision together after consultation with the physicians. Evidence had been presented that the patient, before his incapacitation, had expressed to his wife that he would not want to be kept alive by a machine. There was no evidence indicating that the family was motivated in their decision by anything other than love and concern for the dignity of their loved one. The patient continued to breathe on his own. Because the patient showed no signs of improvement, the physicians again discussed the patient’s poor prognosis with the family. The intravenous lines were removed, and the patient died sometime thereafter.

A complaint then was filed against the two physicians. The magistrate who heard the evidence determined that the physicians did not kill the deceased because their conduct was not the proximate cause of the patient’s death. On motion of the prosecution, the superior court determined as a matter of law that the evidence required the magistrate to hold the physicians to answer and ordered the complaint reinstated. The physicians then filed a writ of prohibition with the court of appeals. The court of appeals held that the physicians’ omission to continue treatment, although intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty. The evidence amply supported the magistrate’s decision. The superior court erred in determining
that, as a matter of law, the evidence required the magistrate to hold the physicians to answer. The preemptory writ of prohibition to restrain the Superior Court of Los Angeles from taking any further action in this matter—other than to vacate its order reinstating the complaint and to enter a new and different order denying the People’s motion—was granted.

Feeding Tubes

The New Jersey Supreme Court in 1985 heard the case of
In re Claire C. Conroy.

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The case involved an 84-year-old nursing home patient whose nephew petitioned the court for authority to remove the nasogastric tube that was feeding her. The court overturned the appellate division decision and held that life-sustaining treatment, including nasogastric feeding, could be withheld or withdrawn from incompetent nursing home patients who will, according to physicians, die within 1 year, in three specific circumstances. These are as follows:

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When it is clear that the particular patient would have refused the treatment under the circumstances involved (the subjective test)

When there is some indication of the patient’s wishes (but he or she has not “unequivocally expressed” his or her desires before becoming incompetent) and the treatment “would only prolong suffering” (the limited objective test)

When there is no evidence at all of the patient’s wishes, but the treatment “clearly and markedly outweighs the benefits the patient derives from life” (the pure objective test, based on pain)

A procedure involving notification of the state Office of the Ombudsman is required before withdrawing or withholding treatment under any of the three tests. The ombudsman must make a separate recommendation.

The court also found tubal feeding to be a medical treatment, and as such, as intrusive as other life-sustaining measures. The court in its analysis emphasized duty, rather than causation, with the result that medical personnel acting in good faith will be protected from liability. If physicians follow the
Quinlan/Conroy standards and decide to end medical treatment of a patient, the duty to continue treatment ceases. Thus, the termination of treatment becomes a lawful act.

Although
Conroy presents case-specific guidelines, there is concern that the opinion will have far-reaching repercussions. There is fear that decisions to discontinue treatment will not be based on the “balancing of interests” test, but rather that a “quality-of-life” test will be used to end the lives of severely senile, old, and economically burdensome people.

Those quality-of-life judgments would be most dangerous for nursing home patients whose age would be a factor in the decision-making process. “Advocates of ‘the right to life’ fear that the ‘right to die’ for the elderly and handicapped will become a ‘duty to die.’”

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In both the
Saikewicz and
Spring cases, age was a determining factor weighing against life-sustaining treatment. Furthermore, in
In re Hier,

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the court found that Mrs. Hier’s age of 92 years made the “proposed gastrostomy substantially more onerous or burdensome … than it would be for a younger, healthier person.” Moreover, a New York Superior Court held that the burdens of an emergency amputation for an elderly patient outweighed the benefit of continued life.

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Finding that prolonging her life would be cruel, the court stated that life had no meaning for her. Although some courts have recognized the difference, other courts must still address the difference between
Quinlan-type patients and older, confined, and conscious patients who can interact but whose mental or physical functioning is impaired.

In a New Jersey case, however, the ombudsman denied a request to remove feeding tubes from a comatose nursing home patient.

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In applying the
Conroy tests, the ombudsman decided that Hilda Peterson might live more than 1 year, the period that
Conroy used as a criterion for determining whether life support can be removed.

To complicate this issue further, on March 17, 1986, the American Medical Association (AMA) changed its code of ethics on comas. Now physicians may ethically withhold food, water, and medical treatment from patients in irreversible comas or persistent vegetative states with no hope of recovery—even if death is not imminent.

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Although physicians can consider the wishes of the patient and family or the legal representatives, they cannot cause death intentionally. The wording is permissive, and, thus, those physicians who feel uncomfortable withdrawing food and water may refrain from doing so. The AMA’s decision does not comfort those who fear abuse or mistake in euthanasia decisions, nor does it have any legal value as such. There are physicians, nurses, and families who have their own, and not the patient’s, interests in mind. Even with the
Conroy decision and
the AMA’s code of ethics change, the feeding tube issue is not settled.

On April 23, 1986, the New Jersey Superior Court ruled that the husband of severely brain-damaged Nancy Jobes could order the removal of her life-sustaining feeding tube, which would ultimately cause the 31-year-old comatose patient, who had been in a vegetative state in a hospice for the past 6 years, to starve to death.

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Dr. Fred Plum created and defined the term “persistent vegetative state” as one in which:

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The body functions entirely in terms of its internal controls. It maintains temperature. It maintains digestive activity. It maintains heart beat and pulmonary ventilation. It maintains reflex activity of muscles and nerves for low-level conditioned responses. But there is no behavioral evidence of either self-awareness or awareness of the surroundings in a learned manner.

Medical experts testified that the patient could, under optimal conditions, live another 30 years. Relieving the nursing home officials from performing the act on one of its residents, the court ruled that the patient may be taken home to die (with the removal to be supervised by a physician and medical care to be provided to the patient at home).

The nursing home had petitioned the court for the appointment of a “life advocate” to fight for continuation of medical treatment for Jobes, which, it argued, would save her life. The court disallowed the appointment of a life advocate, holding that case law does not support requiring the continuation of life-support systems in all circumstances. Such a requirement, according to the court, would contradict the patient’s right of privacy.

The court’s decision applied “the principles enunciated in
Quinlan and …
Conroy” and the “ruling by the [American Medical Association’s] Council on Judicial Affairs that the provision of food and water is, under certain circumstances, a medical treatment like any other and may be discontinued when the physician and family of the patient feel it is no longer benefiting the patient.”

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An Illinois court found that the authorized guardian of a terminally ill patient in an irreversible coma or persistent vegetative state has a common law right to refuse artificial nutrition and hydration. The court found that there must be clear and convincing evidence that the refusal is consistent with the patient’s interest. The court also required the concurrence of the patient’s attending physician and two other physicians. “Court intervention is also necessary to guard against the remote, yet real possibility that greed may taint the judgment of the surrogate decision maker.”

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Dissenting, Judge Ward said, “The right to refuse treatment is rooted in and dependent on the patient’s capacity for informed decision, which an incompetent patient lacks.”

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Also, Elizabeth Bouvia, a mentally competent cerebral palsy victim, won her struggle to have feeding tubes removed even though she was not terminally ill.

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The California Court of Appeals announced on April 16, 1986, that she could go home to die. The court found that Bouvia’s decision to “let nature take its course” did not amount to a choice to commit suicide with people aiding and abetting it. The court stated that it is not “illegal or immoral to prefer a natural, albeit sooner, death than a drugged life attached to a mechanical device.”

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The court’s finding that it was a moral and philosophical question, not a legal or medical one, leaves one wondering whether the courts are opening the door to permitting “legal starvation” to be used by those who are not terminally ill but who do wish to commit suicide.

DO-NOT-RESUSCITATE ORDERS

Do-not-resuscitate orders (DNRs) are physician orders not to resuscitate a patient in the event of cardiac or respiratory arrest. Determination as to futility of medical care is a medical decision based on scientific evidence that further treatment is futile and one’s quality of life has been so diminished that “heroic” rescue methods are no longer in the patient’s best interests. DNR orders must be written, signed, and dated by the physician. Appropriate consents must be obtained either from the patient or his or her healthcare agent. Many states have acknowledged the validity of DNR orders in cases involving terminally ill patients in which the patients’ families make no objections to such orders. Such orders are generally written as the result of a patient’s wishes as a result of an advance directive (e.g., living will). If a patient lacks the ability to make a decision regarding a DNR order, the patient’s
legally appointed decision maker can make such decisions provided it can be demonstrated that the decision maker is following the patient’s wishes. Advance directives, such as living wills, are helpful in determining a patient’s wishes. DNR orders can also be made at the family’s request.

DNR orders must comply with statutory requirements, be of short duration, and be reviewed periodically to determine whether the patient’s condition or other circumstances (e.g., change of mind by the patient or family) surrounding the “no code” orders have changed. Currently, it is generally accepted that if a patient is competent, the DNR order is considered to be the same as other medical decisions in which a patient may choose to reject life-sustaining treatment. In the case of an incompetent patient, absent any advance written directives, the best interests of the patient would be considered.

Competent Patients Make Their Own Decisions

Should relatives of a patient agree to a no-code order when the patient is competent to make his or her own decision?

In
Payne v. Marion General Hospital,

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the Indiana Court of Appeals overturned a lower court decision in favor of the physician. The physician had issued a no-code status on patient David Payne despite evidence given by a nurse that Payne could communicate up to a few minutes before his death. The physician had determined that Payne was incompetent, thereby rendering him unable to give informed consent to treatment. Because Payne left no written directives, the physician relied on one of Payne’s relatives, who asked for the DNR order. The court found that there was evidence that Payne was not incompetent and should have been consulted before a DNR order was given.

Furthermore, the court reviewed testimony that one year earlier, Payne had suffered and recovered from the same type of symptoms, leading to the conclusion that there was a possibility that he could have survived if resuscitation had continued. There was no DNR policy in place at the hospital to assist the physician in making his decision. To avoid this type of problem, healthcare providers should adopt an appropriate process with respect to issuing no-code orders.

Help Me Bear the Pain

Some say, “Men don’t cry.” Not true! You may find yourself crying alone someday. But for now, you have to be strong for Sunshine. Sunshine was her name, as given to her by her grandmother. For purposes of this case, she remains Sunshine. Not Miss or Ms. or Mrs., for Sunshine is her name. If you were to ask Sunshine what she thought about her life, this is what she would tell you.

As a hard-charging former district attorney, Sunshine knows what it’s like to be under the constant threat of death. In the notorious 1990 “Angel Gabriel” case, a key witness to a cult leader’s rape spree was murdered. As a result, the district attorney ordered that a panic alarm be placed in Sunshine’s home.

Still, one enemy has done more damage than all of her former enemies combined. Sunshine has been battling systemic sclerosis for more than six years and has beaten the long-shot odds for survival.

Early on, she lost 20 pounds in three weeks. One by one, from her esophagus to her bottom, her internal organs came under painful attack. Her skin hardened in patches. Her fingers became discolored and swollen. Fingernails fell off. Calcification set in, and she nearly lost several digits. At the moment, she has a mysterious edema throughout her body.

Maintaining a full-time work schedule, she bounced from physician to physician for three years, seeking to find a reason for the sudden illness. The clues were finally put together, and her illness was diagnosed as systemic sclerosis—a degenerative connective tissue disease.

Most people don’t know she has an illness. She’s always in good spirits. She hides it well. Sunshine admits to putting a mask on in the morning. “When I cannot hide the pain, I disappear—go away or go home. I don’t want to be defined by my illness. You go through mourning and anger. You feel tethered by the disease. It’s a sadness you have to cope with.”

With her mask firmly in place, a smiling Sunshine says she is not bitter. “I had a great life. I had fun. If it ended, I had fun.”

Sunshine’s Prayer: Strength to Cope

O God, you know my feelings. You know that I want to feel better. I want to be better. I want to have my health restored. But the hours of testing, the days of diagnosis, and the question marks concerning my future seem nearly more than I can bear! Grant me, O God, the strength to face each hour of this and every day. In fact, when it seems that I cannot face even this hour, fill me with strength to face the next five minutes. Amen.

Wherever Sunshine goes, the sun always shines, for she, as always, recognizes the beauty of each day.

—Anonymous

A NEW BEGINNING AND A BETTER ENDING

The fears that arise at the end of life can be better handled if both the physician, patient, and family together make the choices and decisions early and then place them away and enjoy the life and the days given to each.

As physicians we can provide the foundation and the space for our patients to “die well.” We have a role in creating the conditions patients and families need in order to reach closure on important life issues—they need to say “goodbye,” “I love you,” “forgive me” and “I forgive you”. … Contemporary medical practice still has need for the physician to play this role as a true healer.

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The Conversation Project (TCP) “is dedicated to helping people talk about their wishes for end-of-life care.”

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TCP believes that the place to begin a discussion about end-of life decisions should begin figuratively at the kitchen table with family and the people we love and not in the intensive care unit of a hospital. TCP provides the Conversation Starter Kit at its website.

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The TCP does not promote any specific preference for end-of-life care but does encourage families to work together in making such difficult decisions.

The Institute for Healthcare Improvement (IHI) was founded in 1991. Its vision is for everyone to have the best care and health possible and its mission is to improve health and health care worldwide. The IHI supports the mission of the TCP, believing that the successful transformation of the healthcare system requires the engagement of patients, families, and the general public. End-of-life care is something every human will face.

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CHAPTER REVIEW

Euthanasia

Mercy killing of the hopelessly ill, injured, or incapacitated.

Debate over euthanasia is complex.

Legal system must maintain a balance between ensuring the patient’s constitutional rights are protected and protecting society’s interests in preserving life, preventing suicide, and maintaining the integrity of the medical profession.

When there is uncertainty regarding a patient’s wishes in an emergency

The situation should be resolved in a way that favors the preservation of life.

Protect the patient’s right to freedom of religion and self-determination.

Active euthanasia is the intentional commission of an act that will result in death.

Passive euthanasia is when a potentially lifesaving treatment is withdrawn or withheld.

Voluntary euthanasia

When a competent adult patient with an incurable condition who has been informed of the possible ramifications and alternatives available gives consent.

Involuntary euthanasia

When the decision to terminate the life of an incurable person is made by someone other than the incurable person.

Supreme Court ruled there is no constitutional right to assisted suicide.

Decision allowed the state of Michigan to prosecute Dr. Jack Kevorkian for assisting patients in committing suicide.

Right to self-determination

Assisted suicide

Oregon legislates physician-assisted suicide

Patient Self-Determination Act of 1990

Healthcare organizations have a responsibility to explain to patients, staff, and families that patients have legal rights to direct their medical and nursing care as it corresponds to existing state law.

Advance directives, in the form of a “living will” or “durable power of attorney,” allow the patient to make end-of-life choices.

Living will is the instrument or legal document that describes those treatments an individual wishes or does not wish to receive should he or she become incapacitated and unable to communicate treatment decisions.

Durable power of attorney is a legal device that permits one individual, known as the “principal,” to give to another person, called the “attorney-in-fact,” the authority to act on his or her behalf.

Guardians
hip is a legal mechanism by which the court declares a person incompetent and appoints a guardian. The court transfers the responsibility for managing financial affairs, living arrangements, and medical care decisions to the guardian.

Healthcare proxy allows a person to appoint a healthcare agent to make treatment decisions in the event that he or she becomes incompetent and is unable to make decisions for him- or herself.

Surrogate decision maker is an agent who acts on behalf of a patient who lacks the capacity to participate in a particular decision.

Substituted judgment is a form of surrogate decision making where the surrogate attempts to establish what decision the patient would have made if that patient were competent to do so.

Futility of treatment

When the physician recognizes further treatment will be of no benefit to the patient.

Morally, the physician has a duty to inform the patient when there is little likelihood of success of further treatment.

Determination as to futility of medical care is a medical decision based on scientific evidence.

Withholding or withdrawal of treatment

Withholding of treatment is a decision not to initiate treatment or medical intervention for the patient.

Withdrawal of treatment is a decision to discontinue treatment or medical interventions for the patient.

Do-not-resuscitate orders are physician orders not to resuscitate a patient in the event of a cardiac or respiratory arrest.

Generally written as the result of a patient’s wishes or at the family’s request

Orders must be in written form, signed and dated by the physician.

TEST YOUR UNDERSTANDING

Terminology

active euthanasia

advance directives

appointed decision makers

do-not-resuscitate (DNR) order

durable power of attorney

durable power of attorney for health care

euthanasia

futility of treatment

guardianship

healthcare proxy

involuntary euthanasia

living will

Oregon Death with Dignity Act

passive euthanasia

Patient Self-Determination Act

physician-assisted suicide

substituted judgment

surrogate decision maker

voluntary euthanasia

withdrawal of treatment

withholding of treatment

REVIEW QUESTIONS

Describe why there is such a struggle when addressing end-of-life issues.

Describe the difference between active and passive euthanasia.

Describe the difference between voluntary and involuntary euthanasia.

What are the differences between allowing a patient to die and physician-assisted suicide?

Constitutionally, what gives patients the right to self-determination?

Describe Oregon’s Death with Dignity Act.

What was the purpose of the Patient Self-Determination Act of 1990?

What are advance directives?

Describe how a living will differs from a durable power of attorney for health care.

NOTES

1.
Winkfield v. Rosen FAC, retrieved from
http://thaddeuspope.com/images/mcmath-complaint (accessed August 8, 2018).

2. amantha Smith, “Jahi McMath, the Calif. Girl in Life-Support Controversy, Is Now Dead,” The Washington Post (June 29, 2018).
https://www.washingtonpost.com/news/morning-mix/wp/2018/06/29/jahi-mcmath-the-calif-girl-declared-brain-dead-4-years-ago-is-taken-off-life-support/ (accessed August 8, 2018).

3. David Debolt, “Jahi McMath: Oakland Girl’s Family Sues Hospital, Surgeon,” The Mercury News (March 2, 2015).
https://www.mercurynews.com/2015/03/02/jahi-mcmath-oakland-girls-family-sues-hospital-surgeon/ (accessed July 13, 2018).

4.
Ibid.

5.
Associated Press, “Jahi McMath, girl declared brain dead three years ago, might still be technically alive, judge says,” The Los Angeles Times (September 7, 2017).
http://www.latimes.com/local/lanow/la-me-brain-dead-girl-20170907-story.html.

6. Institute for Healthcare Improvement, “Respecting End of Life Care Wishes,” Healthcare Executive (September/October 2017), at 68.

7. Andrew MacPherson and Ravi B. Parikh, “Where You Die Can Affect How You Die,” The Washington Post (December 12, 2017).

8. Stanford School of Medicine, “Palliative Care: Where Do Americans Die?”
https://palliative.stanford.edu/home-hospice-home-care-of-the-dying-patient/where-do-americans-die (accessed July 13, 2018).

9. Melanie P. Merriman, “My Aging Mom Didn’t Want to Be a Burden. And That Was a Burden.” The Washington Post (December 9, 2017).
https://www.washingtonpost.com/national/health-science/my-aging-mom-didnt-want-to-be-a-burden-and-that-was-a-burden/2017/12/08/c5bcb598-b446-11e7-a908-a3470754bbb9_story.html?utm_term=.c3973860f917 (accessed July 13, 2018).

10. J. Podgers, “Matters of Life and Death: Debate Grows Over Euthanasia,”
American Bar Association Journal (May 1992), at 60.

11. Ping-Cheung Lo, “Confucian Views on Suicide and Their Implications for Euthanasia,” in Confucian Bioethics, ed. Ruiping Fan (London, UK: Kluwer Academic Publishers, 1999).

12. Somparn Promta and Prakarn Thomyangkoon, “A Buddhist Perspective on Suicide: The Past, the Present, and the Future,” in
Oxford Textbook of Suicidology and Suicide Prevention, ed. Danuta Wasserman and Camilla Wasserman (Oxford, UK: Oxford University Press, 2009).

13.
Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914).

14.
Ibid. at 93.

15.
In re Storar, 438 N.Y.S.2d 266, 272 (N.Y. 1981).

16.
In re Quinlan, 355 A.2d 647 (N.J. 1976).

17. 410 U.S. 113 (1973).

18.
Quinlan, 355 A.2d at 663.

19.
Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977).

20.
Ibid. at 434.

21. Gregory Gelfand, “Euthanasia and the Terminally Ill Patient,” Nebraska Law Review 63 (1984): 741–778.
https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1948&context=nlr (accessed July 13, 2018).

22.
In re Dinnerstein, 380 N.E.2d 134 (Mass. 1978).

23.
In re Spring, 405 N.E.2d 115 (Mass. 1980).

24.
John F. Kennedy Mem’l Hosp. v. Bludworth, 452 So. 2d 921, 925 (Fla. 1984) (citing
In re Welfare of Colyer, 660 P.2d 738 [Wash. 1983], in which the court found prior court approval to be “unresponsive and cumbersome”).

25.
Schmitt v. Pierce, 344 S.W.2d 120 (Mo. 1961).

26. Ben Sarbey, “Definitions of Death: Brain Death and What Matters in a Person,” Journal of Law and the Biosciences 3 (December 2016): 743–752.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5570697/ (accessed July 13, 2018).

27. J. R. Connery, “Prolonging Life: The Duty and Its Limits, Moral Responsibility in Prolonging Life’s Decisions,” in
To Treat or Not to Treat: A Working Document for Making Critical Life Decisions, ed. J.S. Showalter and B.L. Andrew (St. Louis, MO: Catholic Health Association of the United States, 1984).

28. Statement of Medical Opinion Re: “Brain Death,” American Medical Association House of Delegates Res. (June 1974).

29.
People v. Eulo, 482 N.Y.S.2d 436 (1984).

30.
In re Storar.

31.
Ibid. at 425.

32.
Cruzan v. Director of the Mo. Dep’t of Health, 497 U.S. 261 (1990).

33. Pa. S.646, Amendment A3506, Printer’s No. 689, Oct. 1, 1990.

34. 20 Pa. Cons. Stat. Ann. § 5602(a)(9) (1988).

35. “Hospital Wants to Let Wife Die,” Newsday (January 11, 1991) at 13.

36.
Farnam v. Crista Ministries, 807 P.2d 830, 849 (Wash. 1991).

37.
Kevorkian v. Thompson, 947 F. Supp. 1152 (1997).

38. “Dr. Death at Work,”
Newsday, February 7, 1991, at 12.

39. “Kevorkian Charges Dropped,”
Newsday, July 22, 1992, at 4.

40.
Hobbins v. Attorney Gen. of Mich., No. 94–1473 (Mich. 1994); Kevorkian v. Michigan, No. 94–1490 (Mich. 1994).

41. “22nd Death for ‘Dr. Death,’”
USA Today, May 9, 1995, at 2A.

42.
California End of Life Option Act, 2016 Data Report, California Department of Health, 2016, pp. 2–3.
https://www.cdph.ca.gov/Programs/CHSI/CDPH%20Document%20Library/CDPH%20End%20of%20Life%20Option%20Act%20Report (accessed July 13, 2018).

43. Daniel Doherty, “Sigh: Vermont Legalizes Physician-Assisted Suicide,”

Townhall.com
(May 21, 2013).
http://townhall.com/tipsheet/danieldoherty/2013/05/21/sigh-vermont-legalizes-physicianassisted-suicide-n1602510 (accessed July 13, 2018).

44.
Baxter v. State, 354 Mont. 234, 224 P.3d 1211 (2009).

45.
Patients Rights Council. “Montana.”
http://www.patientsrightscouncil.org/site/montana/ (accessed July 13, 2018).

46.
USLegal.com, “Supreme Court Rulings.”
http://righttodie.uslegal.com/physician-assisted-suicide/supreme-court-rulings/ (accessed July 13, 2018).

47. General Assembly of North Carolina, “Session 2017: House Bill DRH10229-MG-122A (03/23): A Bill to Be Entitled an Act Establishing an End of Life Option Act to Allow Qualified Patients Diagnosed With a Terminal Disease to End Life in a Humane and Dignified Manner.”
https://www.ncleg.net/Sessions/2017/Bills/House/HTML/H789v0.html (accessed July 13, 2018).

48. Nicholas Pugliese, “Assisted Suicide Once Again Pushed by New Jersey Lawmakers; Opponents Raise Fears.”
NorthJersey.com (March 12, 2018).
https://www.northjersey.com/story/news/new-jersey/2018/03/12/right-die-assisted-suicide-once-again-pushed-nj-lawmakers-opponents-raise-fears/416405002/ (accessed August 8, 2018).

49. Bradford Richardson, “Physician-Assisted Suicide Bill Dies in Massachusetts,” The Washington Times (March 27, 2018).
https://www.washingtontimes.com/news/2018/mar/27/physician-assisted-suicide-bill-dies-in-massachuse/ (accessed August 8, 2018).

50.
Quill v. Vacco, 117 S. Ct. 2293 (1997).

51.
Washington v. Glucksberg, 117 S.Ct. 2258 (1997).

52.
Patient Self-Determination Act of 1990 42 U.S.C. 1395cc(a)(1).

53. Legal Information Institute, “42 CFR 489.102 – Requirements for Providers.”
https://www.law.cornell.edu/cfr/text/42/489.102 (accessed July 13, 2018).

54.
John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 432 So. 2d 611 (Fla. 4th DCA 1983).

55.
Ibid. at 620–621.

56.
Ibid. at 164.

57.
Ibid. at 927–928.

58.
http://www.euthanasia.com/vatican.html.

59.
San Juan-Torregosa v. Garcia, 80 S.W.3d 539 (2002).

60.
Ibid. at 546.

61.
Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 110 S. Ct. 2841 (1990).

62. Florida Title XXIX 381.026, Florida Patient’s Bill of Rights and Responsibilities.
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0381/Sections/0381.026.html (accessed July 13, 2018).

63. Alexia M. Torke, G. Caleb Alexander, and John Lantos, “Substituted Judgment: The Limits of Autonomy in Surrogate Decision Making,” Journal of General Internal Medicine 23 (2009): 1514–1517.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2518005/ (accessed July 13, 2018).

64.
In re Jane Doe, 533 A.2d 523 (1987).

65.
In re Martin, 517 N.W.2d 749 (Mich. Ct. App. 1994).

66.
In re Eichner, 420 N.E.2d 64 (N.Y. 1981).

67.
In re Estate of Longeway, 549 N.E.2d 292 (Ill. 1989).

68.
Stolle v. Baylor College of Medicine, 981 S.W.2d 709 (1998).

69.
Spahn v. Eisenberg, 563 N.W.2d 485 (1997).

70.
Barber v. Superior Court, 195 Cal. Rptr. 484 (Cal. Ct. App. 1983).

71.
In re Claire C. Conroy, 486 A.2d 1209 (N.J. Sup. Ct. 1985).

72.
Ibid.

73. U.S. Congress, Off. of Technology Assessment, Pub. No. OTA-BA-306, Life-Sustaining Technologies and the Elderly 48 (1987).

74.
In re Hier, 464 N.E.2d 959 (Mass. 1984).

75.
In re Beth Israel Med. Ctr., 519 N.Y.S.2d 511, 517 (N.Y. Sup. Ct. 1987).

76. Ronald Sullivan, “Ombudsman Bars Food Tube Removal,” New York Times (March 7, 1986), at 82.

77. “AMA Changes Code of Ethics on Comas,” Newsday, March 17, 1986, at 2.

78.
In re Jobes, 529 A.2d 434 (N.J. 1987).

79.
Ibid. at 438.

80. “Man Wins Right to Let Wife Die,”
Newsday, Apr. 24, 1986, at 3.

81.
Ibid. at 790.

82.
Ibid. at 793.

83.
Bouvia v. Superior Court (Glenchur), 225 Cal. Rptr. 297 (Cal. Ct. App. 1986).

84.
Ibid. at 306.

85.
Payne v. Marion General Hospital, 549 N.E.2d 1043 (Ind. Ct. App. 1990).

86. Richard Payne, “Dying Well in America: What Is Required of Physicians?” Virtual Mentor 8 (September 2008): 609–612.
http://virtualmentor.ama-assn.org/2006/09/msoc1-0609.html (accessed July 13, 2018).

87. The Conversation Project, “About Us.”
https://theconversationproject.org/about/ (accessed July 13, 2018).

88. The Conversation Project and the Institute for Healthcare Improvement, “Your Conversation Starter Kit.”
https://theconversationproject.org/wp-content/uploads/2017/02/ConversationProject-ConvoStarterKit-English (accessed July 13, 2018).

89. The Institute for Healthcare Improvement, “The Conversation Project: Overview.”
http://www.ihi.org/Engage/Initiatives/ConversationProject/Pages/default.aspx (accessed July 13, 2018).

CHAPTER 4

Healthcare Ethics Committee

Coming together is a beginning. Keeping together is progress. Working together is success.”

—Henry Ford

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Describe the function and purpose of ethics committees.

Describe the structure and goals of ethics committees.

Explain the consultation process of ethics committees.

Describe the expanding role of ethics committees.

Discuss why the resolution of ethical dilemmas is no easy task.

INTRODUCTION

A
healthcare ethics committee is an advisory body whose purpose is to facilitate discussion and consultation on ethical issues arising in the patient care setting. The goal of the ethics committee is to improve patient care and outcomes through recognition of the needs, interests, and rights of each patient and participants in the delivery of each patient’s care. Healthcare ethics committees address legal and ethical issues that arise during the course of a patient’s care and treatment. They serve as a resource for patients, families, and staff. They offer objective counsel when dealing with difficult healthcare issues. Ethics committees provide both educational and consultative services to patients, families, and caregivers. They enhance but do not replace important patient/family–physician relationships; nevertheless, they afford support for decisions made within those relationships. The numerous ethical questions facing health professionals involve the entire lifespan, from the right to be born to the right to die. Ethics committees concern themselves with issues of morality, patient autonomy, legislation, and states’ interests.

Although ethics committees first emerged in the 1960s in the United States, attention was focused on ethics committees as a result of the 1976 landmark
Quinlan case,

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in which the parents of Karen Ann Quinlan were granted permission by the New Jersey Supreme Court to remove Karen from a ventilator after she had been in a coma for a year. She died 10 years later at the age of 31, having been in a persistent vegetative state the entire time. The Quinlan court looked to a prognosis committee to verify Karen’s medical condition. It then factored in the committee’s opinion with all other evidence to reach the decision to allow withdrawing her life-support equipment. To date, ethics committees do not have sole surrogate decision-making authority; however, they play an ever-expanding role in the development of policy and procedural guidelines to assist in resolving ethical dilemmas.

An ethics committee is not a decision maker but a resource that provides advice to help guide others in making wiser decisions when there is no clear best choice. A unanimous opinion is not always possible when an ethics committee convenes to consider the issues of an ethical dilemma; however, consultative advice as to a course of action to follow in resolving the dilemma is a major role of the ethics committee. Any recommendations for issue resolution reached by the ethics committee need to be communicated to those most closely involved with the patient’s care. Being sensitive to each family member’s values and assisting them in coping with whatever consensus decision is reached are crucial to the success of the committee. Unresolved issues often need to be addressed and a course of action followed. Each new consultation presents new opportunities for learning and teaching others how to cope with similar issues. Guidelines for resolving ethical issues will always be in a state of flux. Each new case presents new challenges and learning opportunities.

Making a decision, suggesting a course of action, recommending a path to follow, and making a choice require accepting the fact that there will be elements of right and wrong in the final decision. The idea is to cause the least pain and provide the greatest benefit.

COMMITTEE STRUCTURE

A hospital-based ethics committee should be composed of a multidisciplinary group of individuals composed of representatives from the hospital (e.g., administrator, chaplain, nurse, physician, patient advocate) and community (e.g., clergy, legal counsel, ethicist). Members may also include those in positions of corporate and political stature, respect, and diversity. Appointment and rotation of new members to the ethics committee should be staggered in order to maintain continuity and stability.

Ethics committee members should be carefully vetted as to their skills in
conflict resolution. Members of the ethics committee should complete a mandatory orientation that includes training and coaching. They should participate in continuing education programs. Committee members are expected to be active participants in committee activities. Self-study interest in the law and ethics should prove helpful. Those members of the committee who participate in consultative services involving patient care dilemmas should have appropriate medical, legal, and ethics training.

COMMITTEE GOALS

The goals of ethics committees often include the following:

Provide a forum for review and discussion of ethical and moral issues relative to patient care.

Provide information to patients as to the functioning of the ethics committee and how to access the committee at the time of admission. This information is generally provided in patient handbooks and/or informational brochures. The electronic media available through patient room televisions is also helpful in
educating patients as to their rights and responsibilities including the process for requesting a consultation.

Serve as support and resource for hospital staff, families, and patients.

Provide consultation, as requested, when there are conflicts in care options.

Provide assistance in clarifying situations that are ethical, legal, or religious in nature that extend beyond the scope of daily practice.

Clarify issues and discuss alternatives to ethical dilemmas.

Promote patient rights.

Assist the patient and family in coming to consensus with the options that best meet the patient’s care needs.

Review cases for educational purposes.

Enhance the ethical tenor of both the hospital and healthcare professionals.

COMMITTEE FUNCTIONS

The functions of ethics committees are multifaceted and include development of policy and procedure guidelines to assist in resolving ethical dilemmas; staff and community education; conflict resolution; case reviews, support, and consultation; and political advocacy. The degree to which an ethics committee serves each of these functions varies in different healthcare organizations.

Policy and Procedure Development

The ethics committee is a valuable resource for assisting in the development of hospital policies and procedures pertinent to addressing ethical dilemmas (e.g., consultation procedures, confidentiality of information, staff and community education, annual review of the committee’s activities and effectiveness). The following box is an example of one hospital’s general policy statement, as it relates to
advance directives and referral to its ethics committee when issues arise as to compliance with advance directives.

Ethics Committee Policy Statement

Policy

Kennedy Health System ensures that all adult patients will be provided the opportunity to learn about and/or make a valid advance directive to indicate their decisions about life-prolonging treatment, and/or to appoint a proxy to speak for them, should they lose their decision-making capacity or the ability to communicate choices.

Advance directives can protect a patient’s rights and wishes in the event the patient becomes physically or mentally unable to make healthcare decisions. Providers honor a patient’s advance directive as long as it does not violate State and Federal laws. The existence or lack of an advance directive does not determine an individual’s access to care, treatment and services.

A valid advance directive is followed regardless of the patient’s race, religion, national origin, sex, sexual preferences, handicap, diagnosis, ability to pay and source of payment. No patient will be discriminated against with regard to the provision of care or based on whether the patient has executed an advance directive.

Information for patients, community and associates regarding their rights to make healthcare decisions, options and a summary of the hospital’s advance directive policy shall be provided by Kennedy Health System (Appendix A) in the KHS Patient Guide, and website.

The provisions of a valid advance directive (See Appendix B) will be followed.

If a healthcare professional, because of personal conviction, declines to participate in withholding or withdrawing of life sustaining treatments, as outlined in a patient’s advance directive, then Kennedy Health System’s “Exclusion from Patient Care Policy” (see Human Resource Manual) should be followed. If necessary, the provider must cooperate with appropriate and timely reassignment of care to a willing provider.

When conflicts about compliance with an advance directive arise, associates, physicians, and students are strongly encouraged to contact the system’s Medical Ethics Advisory Committee (M.E.A.C.) for further guidance.

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Note: Any printed copy of this policy is only as current as the date it was printed; it may not reflect subsequent revisions. Refer to the online version of the manual for the most current policy.

The following policies are a sampling of those often recommended by ethics committees.

Policy: Requests for Consultations

Ethics consultations are available to caregivers, patients, or family members who request an ethics consult. Ethics consultations are available 24 hours a day by calling the hospital ethics hotline. Consultations shall be requested on a form prepared by the ethics committee and reviewed and approved by the hospital’s administration, legal counsel, and board of directors.

Policy: Confidentiality of Information

Ethics committee information shall be considered confidential and shall not be used in any way except as provided by hospital policy and required by law. Any information or case study developed for use by the committee shall not be required to become part of a patient’s medical record. Committee members shall not make entries in a patient’s medical record unless required by law and/or hospital policy.

Policy: Annual Review of Ethics Committee Activities

An overall review of the ethics committee’s activities will be conducted on an annual basis to determine the effectiveness of the committee and if it is accomplishing its stated goals. This review may take the form of a self-study or external review, preferably by a qualified ethicist.

Policy: Education

The ethics committee typically provides education on current ethical concepts and issues to committee members, staff, and the community at large. Some community hospitals provide ethics education to the staff at ambulatory care facilities, home health agencies, long-term care facilities, and physicians’ offices. Such education helps reduce the need for emergent end-of-life consultations in acute-care settings.

The ethics committee provides resources for educational purposes to support staff in the development of the appropriate competencies for addressing ethical, legal, and spiritual issues, for example, those common to end-of-life issues (e.g., surrogate decision making, the patient’s refusal to accept recommended medical treatment, family conflict). Educational programs on ethical issues are developed for ethics committee members and staff on such topics as moral theories and principles, as well as common ethical dilemmas that occur as they relate to such services common to emergency departments and critical care units. Community education often includes such topics as how to prepare and execute an advance directive.

Policy: Consultation and Conflict Resolution

Ethics consultations are helpful in resolving uncertainty and disagreements over healthcare dilemmas. Ethics committees often provide consultation services for patients, families, and caregivers struggling with difficult treatment decisions and end-of-life dilemmas. Always mindful of its basic orientation toward the patient’s best interests, the committee provides options and suggestions for resolution of conflict in actual cases. Consultation with an ethics committee is not mandatory but is conducted at the request of a physician, patient, family member, or other caregiver.

The ethics committee strives to provide viable alternatives that will lead to the optimal resolution of dilemmas confronting the continuing care of the patient. It is important to remember that an ethics committee functions in an advisory capacity and should not be considered a substitute proxy for the patient.

A representative of the ethics committee is often able to intervene, when requested, in resolving ethical dilemmas. On occasion it may be necessary to request the assistance of one or more additional members of the ethics committee. An on-call roster is generally helpful when a consultation is necessary during evening, night, and weekend hours. Ethics committee members of the hospital staff generally provide on-call services.

Requests for Committee Consultations

Requests for ethics consultations often involve clarification of issues regarding decision-making capacity, informed consent, advance directives, and withdrawal of treatment. Consultations should be conducted in a timely manner considering the following information:

Who requested the consultation?

What are the issues?

Is there is a problem that needs referral to another service?

What specifically is being requested of the ethics committee (e.g., clarification of the problem or mediation)?

When conducting a consultation, all patient records must be reviewed and discussed with the attending physician, family members, and other caregivers involved in the patient’s treatment. If an issue can be resolved easily, a designated member of the ethics committee should be able to consult on the case without the need for a full committee meeting. If the problem is unusual, problematic, or delicate, or has important legal ramifications, a full committee meeting may be necessary. Others who can be invited to an ethics committee case review, as appropriate, include the patient, if competent; relatives; agent or surrogate decision maker; and caregivers. Evaluation of a case consultation should take the following into consideration:

Patient’s current medical and mental status, diagnosis, and prognosis

Patient’s mental status and ability to make decisions, understand the information that is necessary to make a decision, and clearly understand the consequences of his or her choice

Benefits and burdens of recommended treatment, or alternative treatments

Life expectancy, treated and untreated

Views of caregivers and consultants

Pain and suffering

Quality-of-life issues

Financial burden on family (e.g., if the patient is in a comatose state with no hope of recovery, should the spouse deplete his or her finances to maintain the spouse on a respirator?)

Decisions concerning patient care must take into consideration the patient’s:

Personal assessment of the quality of life

Current expressed choices

Advance directives

Competency to make decisions

Ability to process information rationally to compare risks, benefits, and alternatives to treatment

Ability to articulate major factors in decisions and reasons for them and ability to communicate

The patient must have all the information necessary to allow a reasonable person to make a prudent decision on his or her own behalf. The patient’s choice must be voluntary and free from coercion by family, physicians, or others.

Family members must be identified, and the following questions considered when making decisions:

Do family members understand the patient’s wishes?

Is the family in agreement with the patient’s wishes?

Does the patient have an advance directive?

Has the patient appointed an agent?

Are there any religious proscriptions?

Are there any financial concerns?

Are there any legal concerns that need to be addressed (applicable state statutes and case law)?

When an ethics committee is engaged in the consulting process, its recommendations should be offered as suggestions, imposing no obligation for acceptance on the part of the patient, family, surrogate decision maker, organization, its governing body, medical staff, attending physicians, or other persons.

FIGURE 4-1

presents an ethics consultation form for documenting an ethics committee consultation.

When conducting a formal consultation, ethics committees should:

Identify the ethical dilemma (e.g., reasons why the consult was requested)

Be sure that the appropriate “Consultation Request” form has been completed

Identify relevant facts:

Diagnosis and prognosis

Patient goals and wishes

Regulatory and legal issues

Professional standards and codes of ethics

Institutional policies and values

Identify stakeholders

Identify moral issues

Human dignity

Common good

Justice

Beneficence

Respect for autonomy

Informed consent

Medical futility

Identify legal issues

Consider alternative options

Conduct consultation

Review, discuss, and provide reasoning for recommendations made

Review and follow up

Ensure committee discussion includes family members

Query family members as to their hopes and expectations

Document consultations

Case Studies

Ethics Committee Serves as Guardian

The Kentucky Supreme Court ruled in
Woods v. Commonwealth

3
that Kentucky’s Living Will Directive, which allows a court-appointed guardian or other designated surrogate to remove a patient’s life support systems, is constitutional. The patient in this case, Matthew Woods, had been placed on a ventilator after having a heart attack. It was generally agreed that he would never regain consciousness and would die in 2 to 10 years. After a recommendation of the hospital ethics committee, Woods’s guardian at the time asked for approval to remove Woods’s life support. The Kentucky Supreme Court affirmed an appeals court decision, holding that: (1) “If there is no guardian,” but the family, physicians, and ethics committee all agree with the surrogate, there is no need to appoint a guardian; (2) “If there is a guardian” and all parties agree, there is no need for judicial approval; (3) “If there is disagreement,” the parties may petition the courts.

Withdrawal of life support from a patient is prohibited absent clear and convincing evidence that the patient is permanently unconscious or in a persistent vegetative state and that withdrawing life support is in the patient’s best interest.

Ethical and Legal Issues

Discuss the ethical issues of this case.

Discuss under what circumstances an ethics committee should serve as a legal guardian.

Discuss the pros and cons of an ethics committee serving as a patient’s guardian.

EXPANDING ROLE OF THE ETHICS COMMITTEE

Typically, hospital ethics committees concern themselves with biomedical issues as they relate to end-of-life issues; unfortunately, they often fail to address external decisions that affect internal operations. The role of an organization’s ethics committee is evolving into more than a group of individuals who periodically gather together to meet a regulatory requirement and address advance directives and end-of-life issues. The organizational ethics committee has an ever-expanding role. This expanded role involves addressing external issues that affect internal operations (e.g., managed care, malpractice insurance, and complicated Health Insurance Portability and Accountability Act regulations that often increase legal and other financial costs). Ethics committees need to review their functions periodically and redefine themselves.

The ethics committee is health care’s sleeping giant. Because of its potential to bring about change, its mission must not be limited to end-of-life issues. Its vision must not be restricted to issues internal to the organization but must include external matters that affect internal operations.

Failure to increase the good of others when one is knowingly in a position to do so is morally wrong. Preventative medicine and active public health interventions exemplify this conviction. After methods of treating yellow fever and smallpox were discovered, for example, it was universally agreed that positive steps ought to be taken to establish programs to protect public health.

The wide variety of ethical issues in which an ethics committee can be involved is somewhat formidable. Although an ethics committee cannot address every issue that one could conceivably imagine, the ethics committee should periodically reevaluate its scope of activities and effectiveness in addressing ethical issues. Some of the internal and external issues facing an organization’s ethics committee are listed here.

Internal Ethical Issues

Ethics committees face a variety of internal issues, including:

Dilemma of blind trials: Who gets the placebo when the investigational drug looks very promising?

Informed consent: Are patients adequately informed as to risks, benefits, and alternative procedures that may be equally effective, knowing that one procedure may have greater risk or be more damaging than another (e.g., lumpectomy versus a radical mastectomy)?

What is the physician’s responsibility for informing the patient of his or her education, training, qualifications, and skill in treating a medical condition or performing an invasive procedure?

What is the role of the ethics committee when the medical staff is reluctant or fails to take timely action, knowing that one of its members practices questionable medicine?

Should a hospital’s medical staff practice evidence-based medicine or follow its own best judgment?

To what extent should the organization participate in and/or support genetic research?

How should the ethics committee address confidentiality issues?

To what extent should medical information be shared with the patient’s family?

To what extent should the organization’s leadership control the scope of issues that the ethics committee addresses?

What are the demarcation lines as to what information should or should not be provided to the patient when mistakes are made relative to his or her care?

External Ethical Issues

Among the external issues the committee may look at are questions such as:

Does the ethics committee have a role in addressing questionable reimbursement schemes?

Should an ethics committee have its own letterhead? What value would this serve?

What role, if any, should an ethics committee play in the following scenario?

Autonomy and the Law Collide

Advance directive statutes can impede the purpose and effective functioning of hospital ethics committees. For example, as described below, the
Texas Advance Directives Act places the ethics committee in an untenable position: on the one hand, it is designed to assist patients in making end-of-life decisions, while at the same time, if the ethics committee disagrees with the patient-family decision for continuation of life support systems, it can supersede and overrule their decision, effectively trampling on the patient’s rights. The decision to remove life support here is effectively based on quality of life and financial considerations. In effect, it would seem the
law, here as described, changes the function of the ethics committee from one of consultative support for patients to that of enforcer of state statutes.

Sec. 166.052(a). STATEMENTS EXPLAINING PATIENT’S RIGHT TO TRANSFER.

When There Is A Disagreement About Medical Treatment: The Physician Recommends Against Certain Life-Sustaining Treatment That You Wish To Continue

You have been given this information because you have requested life-sustaining treatment* for yourself as the patient or on behalf of the patient, as applicable, which the attending physician believes is not medically appropriate. This information is being provided to help you understand state law, your rights, and the resources available to you in such circumstances. It outlines the process for resolving disagreements about treatment among patients, families, and physicians. It is based upon Section 166.046 of the Texas Advance Directives Act, codified in Chapter 166, Texas Health and Safety Code.

When an attending physician refuses to comply with an advance directive or other request for life-sustaining treatment because of the physician’s judgment that the treatment would be medically inappropriate, the case will be reviewed by an ethics or medical committee. Life-sustaining treatment will be provided through the review.

You will receive notification of this review at least 48 hours before a meeting of the committee related to your case. You are entitled to attend the meeting. With your agreement, the meeting may be held sooner than 48 hours, if possible.

You are entitled to receive a written explanation of the decision reached during the review process.

If after this review process both the attending physician and the ethics or medical committee conclude that life-sustaining treatment is medically inappropriate and yet you continue to request such treatment, then the following procedure will occur:

The physician, with the help of the healthcare facility, will assist you in trying to find a physician and facility willing to provide the requested treatment.

You are being given a list of healthcare providers, licensed physicians, healthcare facilities, and referral groups that have volunteered their readiness to consider accepting transfer, or to assist in locating a provider willing to accept transfer, maintained by the Department of State Health Services. You may wish to contact providers, facilities, or referral groups on the list or others of your choice to get help in arranging a transfer.

The patient will continue to be given life-sustaining treatment until the patient can be transferred to a willing provider for up to 10 days from the time you were given both the committee’s written decision that life-sustaining treatment is not appropriate and the patient’s medical record. The patient will continue to be given after the 10-day period treatment to enhance pain management and reduce suffering, including artificially administered nutrition and hydration, unless, based on reasonable medical judgment, providing artificially administered nutrition and hydration would hasten the patient’s death, be medically contraindicated such that the provision of the treatment seriously exacerbates life-threatening medical problems not outweighed by the benefit of the provision of the treatment, result in substantial irremediable physical pain not outweighed by the benefit of the provision of the treatment, be medically ineffective in prolonging life, or be contrary to the patient’s or surrogate’s clearly documented desires.

If a transfer can be arranged, the patient will be responsible for the costs of the transfer.

If a provider cannot be found willing to give the requested treatment within 10 days, life-sustaining treatment may be withdrawn unless a court of law has granted an extension.

You may ask the appropriate district or county court to extend the 10-day period if the court finds that there is a reasonable expectation that you may find a physician or healthcare facility willing to provide life-sustaining treatment if the extension is granted. Patient medical records will be provided to the patient or surrogate in accordance with Section 241.154, Texas Health and Safety Code.

*“Life-sustaining treatment” means treatment that, based on reasonable medical
judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificially administered nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain.

4

In summary, the Texas law appears to take the ethics committee to a new level from a consultative-advisory role by requiring it to be the final arbiter between life and death, thus
expanding the role of the ethics committee from playing a consultative role when addressing end-of life decisions to that of the ultimate decision maker.

Case Studies

Choosing the Right Hospital

Emergency services ambulance personnel regularly transport suspected stroke patients to Hospital A. This hospital has no neurologists or neurosurgeons on its medical staff but does provide coffee and donuts to transport personnel. Ambulance personnel have an option to take the suspected stroke victim to Hospital B, which is within five blocks of Hospital A. Hospital B has a well-trained stroke team with staff neurologists and neurosurgeons readily available.

Ethical and Legal Issues

Describe the ethical issues in this case.

Describe the organizational politics that might come into play.

Discuss how organizational politics may prevent an ethics committee from becoming involved in many of the issues just described.

Although an ethics committee’s serves in an advisory capacity, its value to an organization has yet to be fully realized.

RESOLUTION OF ETHICAL DILEMMAS

The difference between moral dilemmas and ethical ones, philosophers say, is that in moral issues the choice is between right and wrong. In ethics, the choice is between two rights.

—Pamela Warrick

The resolution of ethical dilemmas is a perplexing task at best, especially when two opposite answers both have elements of right and wrong—good and bad, regardless of the ultimate decision made. Finding compromise is no easy task when ethical principles, values, and morals are in conflict and vary from individual to individual. This is no easy task for members of an ethics committee, especially when the mix of opinions of caregivers, family members, and the healthcare entity’s mission of healing collide. Although decision making can be much easier when the patient has executed end-of-life directives, ethics committees often do not have this luxury, thus creating a need for ethics committees to help guide others in making difficult care decisions. With outcomes that often result in the decision maker reflecting back and doubting his or her own decisions, it is important that each committee member reflect on the following thoughts prior to participating in an ethics consultation:

I will accept the patient’s wishes, if known.

I will accept the dialogue of committee members with varying beliefs, expectations, and values, knowing some will undoubtedly challenge my own sense of right and wrong.

I will help the ethics committee seek a morally acceptable resolution to an ethical dilemma.

I will not be too fearful to seek clarification of issues and ask questions.

I will contribute to making consultations meaningful and not argumentative.

My compassion will outweigh my need to be right.

The ultimate decision is not mine to make.

I will provide guidance, consultation, and education.

An ethical dilemma can arise when, for example, the principles of autonomy and beneficence conflict with one another. The following cases illustrate how one’s right to make his or her decisions can conflict with the principle of doing good and not harm.

Case Studies

Patient Refuses Blood

Mrs. Jones has gangrene of her left leg. Her hemoglobin slipped to 6.4 g/dL. She has a major infection and is diabetic. She has no spouse and no living will but has two adult children. The patient has decided that she does not want to be resuscitated if she should go into cardiopulmonary arrest. She may need surgery. She has agreed to surgery but refuses a blood transfusion, even though she is not a Jehovah’s Witness. The surgeon will not perform the surgery, which is urgent, without Jones agreeing to accept a blood transfusion if it becomes necessary. The attending physician questions the patient’s capacity to make decisions. Her children have donated blood. She says she is not afraid to die.

Ethical and Legal Issues

Should the physician refuse to treat this patient? Explain your answer.

Should the family have a right to override the patient’s decision to refuse blood? Explain your answer.

Case Studies

A Son’s Guilt, a Father’s Wishes

Following a massive stroke, Mr. Smith was transported from the Rope Nursing Facility to a local hospital by ambulance on July 4, 2004. Smith, 94 years of age, had been a resident at the Rope Nursing Facility for the past 12 years. Before being placed in Rope, Smith had been living with Mr. Curry, a close friend, for the previous 8 years. He had an advance directive indicating that he would never want to be placed on a respirator.

Smith’s son and only child, Barry, who now lives in Los Angeles and had been estranged from his father for more than 20 years, was notified by Curry that his father had been admitted to the hospital in a terminal condition. Smith had mistakenly been placed on a respirator by hospital staff contrary to the directions in his advance directive, which had been placed on the front cover of Smith’s medical chart. Curry, who was legally appointed by Smith to act as his healthcare surrogate decision maker, called Barry and explained that, according to his father’s wishes and advance directives, he was planning to ask hospital staff to have the respirator removed. Barry asked Curry to wait until he flew in from California to see his dad. Curry agreed to wait for Barry’s arrival the following day. After arriving at the hospital, Barry told Curry that he would take responsibility for his father’s care and that Curry’s services would no longer be needed. Barry told hospital staff that he objected to the hospital’s plan to remove his father from the respirator. He said that he needed time to say goodbye to his dad, which he did by whispering his message in his father’s ears. Smith, however, did not respond. Barry demanded that the hospital do everything that it could to save his father’s life, saying, “I don’t know if Dad heard me. We have to wait until he wakes up so that I can tell him how sorry I am for not having stayed in touch with him over the years.” Smith’s physicians explained to Barry that there was no chance Smith would ever awaken out of his coma. Barry threatened legal action if the hospital did not do everything it could to keep his father alive. Smith’s physician again spoke to Barry about the futility of maintaining his father on a respirator. Barry remained uncooperative. The hospital chaplain was called to speak to Barry but had little success. Finally, hospital staff requested an ethics consult.

Ethical and Legal Issues

Discuss the ethical dilemmas in this case.

Discuss the issues and the role of the ethics committee in this case.

MAKING BETTER DECISIONS

The study of the ethical and legal issues that arise in a wide variety of patient care settings can be somewhat challenging. However, the rewards in the study of ethics and the law will help the caregiver make
better decisions regardless of the setting in which patient care is rendered. The following are some helpful guidelines to follow when faced with ethical dilemmas:

Be aware of how everyday life is full of ethical decisions and that numerous ethical issues can arise when caring for patients.

Help guide others to make choices.

Ask your patient how you might help him or her.

Be aware of why you think the way you do. Do not impose your beliefs on others.

Ask yourself whether you agree with the things you do. If the answer is no, ask yourself how you should change.

When you are not sure what to do, the wise thing to do is to talk it over with another person, someone whose opinion you trust.

Do not sacrifice happiness for devotion to others.

Do not lie to avoid hurting someone’s feelings.

CHAPTER REVIEW

Ethics committee serves as a resource for patients, families, and staff, offering an objective counsel when dealing with difficult healthcare dilemmas.

Ethics committee should be structured to include a wide range of community leaders in positions of political stature, respect, and diversity.

The goals of the ethics committee are to:

Promote the rights of patients.

Promote shared decision making between patients and clinicians.

Assist the patient and family in coming to consensus when faced with ethical dilemmas.

The functions of ethics committees are multifaceted and include:

Policy and procedure development.

Staff and community education.

Consultation and conflict resolution.

A resource tool in resolving ethical dilemmas.

Patients and family should be encouraged to participate in addressing ethical dilemmas.

Decision making is difficult when there are:

A variety of value beliefs held by patients, family members, and caregivers.

Alternative choices that offer both good and bad outcomes.

Limited resources.

The resolution of ethical dilemmas is a perplexing task. Ethics committee members must be prepared to understand the challenge by actively participating in the decision-making process without bias.

TEST YOUR UNDERSTANDING

Terminology

advance directives

conflict resolution

ethical decision making

healthcare ethics committee

ethics consultation

REVIEW QUESTIONS

What is the purpose of an ethics committee?

Discuss the functions of an ethics committee.

Explain the consultative role of the ethics committee.

Discuss the educational role of the ethics committee.

Discuss the ever-expanding role of ethics committees, including internal operational issues and external influences that affect internal operations.

Discuss what ethics members should take into consideration when addressing ethical dilemmas.

NOTES

1.
In re Quinlan, 355 A.2d 647 (N.J. 1976).

2. Kennedy Health System, “A106 Advance Directive Policy.”
https://www.kennedyhealth.org/sites/default/files/advancedirectivepolicya106 (accessed July 14, 2018).

3.
Woods v. Commonwealth, 1999-SSC0773 (August 24, 2004).

4. State of Texas Health and Safety Code, Title 2. Health, Subtitle H. Public Health Provisions, Chapter 166. Advance Directives, Subchapter A. General Provisions, Sec. 166.001.
http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.166.htm (accessed July 14, 2018).

CHAPTER 5

Development of Law

Laws are the very bulwarks of liberty; they define every man’s rights, and defend the individual liberties of all men.

—J. G. Holland (1819–1881)

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Understand the development and sources of law.

Describe how the government is organized through the three branches of government.

Explain the principle of
separation of powers.

Describe what is meant by
conflict of laws.

Describe the functions of the Department of Health and Human Resources and its various operating divisions.

INTRODUCTION

In law a man is guilty when he violates the rights of others. In ethics he is guilty if he only thinks of doing so.

—Immanuel Kant

It is appropriate here to provide the reader with a background regarding the law, as it is the law that enables society to uphold what is right and punish those who transgress its intent—to protect the moral fiber upon which this nation was founded. This chapter introduces the reader to the development of American law, the functioning of the legal system, and the roles of the three branches of government in creating, administering, and enforcing the law in the United States. It is important to understand the foundation of the legal system before one can appreciate or comprehend the specific laws and principles relating to health care.

The law is rooted in tradition, culture, customs, and beliefs (e.g., religious influence—the Mosaic law). Laws constantly grow and change to meet the needs of the American culture, which is a mixture of many cultures. Familiarity with the vocabulary enables one to understand the ideas, concepts, and structure of the law. Laws continually evolve because of the ever-changing political, social, religious, and personal values of society, which is composed of many cultures that become more intertwined with each new generation.

Supreme Court Justice Oliver Wendell Holmes said that the law “is a magic mirror, wherein we see reflected not only our own lives but also the lives of those who went before us.”

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One hundred years before Holmes served on the Supreme Court, the court decided
Marbury v. Madison in a decision that declared, “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested right.”

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Most definitions of law define it as a system of principles and processes by which people in a society deal with their disputes and problems, seeking to solve or settle them without resorting to force. Laws are general rules of conduct that are enforced by government, which imposes penalties when prescribed laws are violated. Laws govern the relationships between private individuals and organizations and between both of these parties and government.

Public Law

Public law is the term used to describe the “laws that cover administration, constitutional and criminal acts. It controls the actions between the citizens of the state and the state itself. It deals with the government’s operation and structure.”

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One important segment of public law is criminal law, which prohibits conduct deemed injurious to public order and provides for punishment of those proven to have engaged in such conduct. Public law also consists of countless regulations designed to advance societal objectives by requiring private individuals and organizations to adopt a specified course of action in their activities and undertakings. Public law includes constitutional law, administrative law, and criminal law.

Constitutional law “deals with the fundamental principles by which the government exercises its authority. In some instances, these principles grant specific powers to the government, such as the power to tax and spend for the welfare of the population. Other times, constitutional principles act to place limits on what the government can do, such as prohibiting the arrest of an individual without sufficient cause.”

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Administrative law deals with “the organization, powers, duties, and functions of public authorities of all kinds engaged in administration; their relations with one another and with citizens and nongovernmental bodies; legal methods of controlling public administration; and the rights and liabilities of officials. … One of the principal objects of administrative law is to ensure efficient, economical, and just administration.”

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Criminal law is concerned with maintaining justice and public order. This is accomplished through sanctions that are imposed on individuals and public entities that break the law. The penalties for breaking the law can vary based on the crime committed and the individual(s) affected. Sanctions include fines, restitution for the wrongs committed, and incarceration for the crimes committed.

Private Law

Private law, also referred to as civil law, is concerned with the recognition and enforcement of the rights and duties of and between private individuals and organizations.
Tort and
contract actions are two basic types of private law. In a tort action, one party asserts that the wrongful conduct of another has caused harm, and the injured party seeks compensation for the harm suffered. Generally, a contract action involves a claim by one party that another party has breached an agreement by failing to fulfill an obligation. Either remuneration or specific performance of the obligation may be sought as a remedy.

It is clear that without an organized, clear system of laws that regulate society, anarchy would be the result. The goal of this chapter is to help caregivers
better understand the law and how it affects the difficulties they face while trying to do the right thing by making healthcare decisions that are both morally and legally acceptable.

SOURCES OF LAW

The basic sources of law are: common law, which is derived from judicial decisions; statutory law, which emanates from the federal and state legislatures; and administrative law, prescribed by administrative agencies. In those instances in which written laws are silent, vague, or contradictory to other laws, the judicial system often is called on to resolve those disputes until such time as appropriate legislative action can be taken to clear up a particular legal issue. In the following sections, the sources of law that formed the foundation of our legal system are discussed.

Common Law

The term
common law refers to the body of principles that have evolved and expanded from judicial decisions. Many of the legal principles and rules applied today by courts in the United States have their origins in English common law. Common law has its roots in “reason and justice” for all.

The judicial system is necessary because it is impossible to have a law that covers every potential human conflict that might occur in society. It not only serves as a mechanism for reviewing legal disputes that arise in the written law, but it also serves as an effective review mechanism for those issues on which the written law is silent or, in instances of a mixture of issues, involving both written law and common-law decisions.

During the colonial period, English common law began to be applied in the colonies. According to John Dickinson, in his 1768
Letters from a Farmer in Pennsylvania,

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The common law of England is generally received … but our courts
exercise a sovereign authority, in determining what parts of the common and statute law ought to be extended: For it must be admitted, that the difference of circumstances necessarily requires us, in some cases to
reject the determination of both. … Some of the English rules are adopted, others rejected.

Joseph Story wrote in an 1829 U.S. Supreme Court decision, “The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright. But they brought with them and adopted only that portion which was applicable to their situation.”

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The size of the country and the abundance of its natural resources made impossible the importation of the common law exactly as it had been developed in England. Measured by English standards, America had superabundant land, timber, and mineral wealth. American law had to serve the primary need of the new society to master the vast land areas of the American continent. The decisive facts upon which the law had to be based were the seemingly limitless expanses of land and the wealth and variety of natural resources.

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After the American Revolution, each state, with the exception of Louisiana, adopted all or part of the existing English common law. Laws were added as needed. Louisiana civil law is based to a great extent on the French and Spanish laws and especially on the Napoleonic Code. As a result, there is no national system of common law in the United States, and common law on specific subjects may differ from state to state.

Case law—court decisions—did not easily pass from colony to colony. There were no printed reports to make transfer easy, though in the 18th century some manuscript materials did circulate among lawyers. These could hardly have been very influential. No doubt custom and case law slowly seeped from colony to colony. Travelers and word of mouth spread knowledge of living law. It is hard to say how much; thus it is hard to tell to what degree there was a common legal structure.

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Judicial review started to become part of the living law during the decade before the adoption of the federal Constitution. During that time American courts first began to assert the power to rule on the constitutionality of legislative acts and to hold unconstitutional statutes void.

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Cases are tried applying common-law principles unless a statute governs. Even though statutory law has affirmed many of the legal rules and principles initially established by the courts, new issues continue to arise, especially in private-law disputes that require decision making according to common-law principles. Common-law actions are initiated mainly to recover money damages and/or possession of real or personal property.

When a higher state court has enunciated a common-law principle, the lower courts within the state where the decision was rendered must follow that principle. A decision in a case that sets forth a new legal principle establishes a precedent. Trial courts or those on equal footing are not bound by the decisions of other trial courts. Also, a principle established in one state does not set precedent for another state. Rather, the rulings in one jurisdiction may be used by the courts of other jurisdictions as guides to the legal analysis of a particular legal problem. Decisions found to be reasonable will be followed.

The position of a court or agency, relative to other courts and agencies, determines the place assigned to its decision in the hierarchy of decisional law. The decisions of the Supreme Court of the United States are highest in the hierarchy of decisional law with respect to federal legal questions. Because of the parties or the legal question involved, most legal controversies do not fall within the scope of the Supreme Court’s decision-making responsibilities. On questions of purely state concern—such as the interpretation of a state statute that raises no issues under the U.S. Constitution or federal law—the highest court in the state has the final word on proper interpretation. The following are explanations of some of the more important common-law principles:

Precedent: A precedent is a judicial decision that can be used as a standard in subsequent similar cases. A precedent is set when a court decision is rendered that serves as a rule for future guidance when deciding similar cases.

Res judicata: In common law, the term
res judicata—which means “the thing is decided”—refers to that which has been previously acted on or decided by the courts. According to
Black’s Law Dictionary, it is a rule where “a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to subsequent action involving the same claim, demand, or cause of action.”

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Stare decisis: The common-law principle of
stare decisis (“let the decision stand”) provides that when a decision is rendered in a lawsuit involving a particular set of facts, another lawsuit involving an identical or substantially similar situation is to be resolved in the same manner as the first lawsuit. The resolution of future lawsuits is arrived at by applying the rules and principles of preceding cases. In this manner, courts arrive at comparable rulings. Sometimes, slight factual differences may provide a basis for recognizing distinctions between the precedent and the current case. In some cases, even when such differences are absent, a court may conclude that a particular common-law rule is no longer in accord with the needs of society and may depart from precedent. It should be understood that principles of law are subject to change, whether they originate in statutory or in common law. Common-law principles may be modified, overturned, abrogated, or created by new court decisions in a continuing process of growth and development to reflect changes in social attitudes, public needs, judicial prejudices, or contemporary political thinking.

Statutory Law

Statutory law is written law emanating from federal and state legislative bodies. Although a statute can abolish any rule of common law, it can do so only by stating it in specific words. State and local jurisdictions can enact and enforce only laws that do not conflict with federal law. Statutory laws may be declared void by a court; for example, a statute may be found unconstitutional because it does not comply with a state or federal constitution, is vague or ambiguous, or in the case of a state law, is in conflict with a federal law.

In many cases involving statutory law, the court is called on to interpret how a statute applies to a given set of facts. For example, a statute may state merely that no person may discriminate against another person because of race, creed, color, or gender. A court may then be called on to decide whether certain actions by a person are discriminatory and therefore violate the law.

Constitution of the United States

In civilized life, law floats on a sea of ethics.

—Supreme Court Chief Justice Earl Warren

The principles and rules of statutory law are set in hierarchical order. The
Constitution of the United States adopted at the Constitutional Convention in Philadelphia in 1787 is highest in the hierarchy of enacted law. Article VI of the Constitution declares:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

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The clear import of these words is that the U.S. Constitution, federal law, and federal treaties take precedence over the constitutions and laws of specific states and local jurisdictions. Statutory law may be amended, repealed, or expanded by action of the legislature.

Bill of Rights

The conventions of a number of the states, at the time of adopting the U.S. Constitution, expressed a desire to prevent the abuse of its powers. As a result of this concern, Congress ratified amendments to the Constitution of the United States. The
Bill of Rights, which includes the first 10 amendments to the Constitution, was added to protect the rights of citizens. The amendments included the rights to privacy, equal protection, and freedom of speech and religion.

Administrative Law

Administrative law is the extensive body of public law issued by administrative agencies to direct the enacted laws of the federal and state governments. It is the branch of law that controls the administrative operations of government. Congress and state legislative bodies realistically cannot oversee their many laws; therefore, they delegate implementation and administration of the law to an appropriate administrative agency. Healthcare organizations, in particular, are inundated with a proliferation of administrative rules and regulations affecting every aspect of their operations.

The Administrative Procedures Act

13
describes the different procedures under which federal administrative agencies

14
must operate. The act prescribes the procedural responsibilities and authority of administrative agencies and provides for legal remedies for those wronged by agency actions. The regulatory power exercised by administrative agencies includes power to license, power of rate setting (e.g., Centers for Medicare and Medicaid Services), and power over business practices (e.g., National Labor Relations Board).

The rules and regulations established by an agency must be administered within the scope of the authority delegated to the agency by Congress. Agency regulations and decisions can be subject to judicial review.

U.S. GOVERNMENT ORGANIZATION

The government of the United States is a national constitutional republic covering 50 states, the nation’s capital, and its territories (e.g., Puerto Rico, Guam). The federal government is organized into three branches. The legislative, executive, and judicial branches of government are illustrated in

FIGURE 5-1

. The powers and duties of the three branches of government are described in the U.S. Constitution.

Separation of Powers

A vital concept in the constitutional framework of government on both federal and state levels is the
separation of powers. Essentially, this principle provides that no single branch of government is clearly dominant over the other two; however, in the exercise of its functions, each may affect and limit the activities, functions, and powers of the others. The concept of
separation of powers—in effect, a system of checks and balances—is illustrated in the relationships among the branches of government with regard to legislation. On the federal level, when a bill creating a statute is enacted by Congress and signed by the president, it becomes law. If the president vetoes a bill, it takes a two-thirds vote of each house of Congress to override the veto. The president also can prevent a bill from becoming law by avoiding any action while Congress is in session. This procedure, known as a pocket veto, can temporarily stop a bill from becoming law and may permanently prevent it from becoming law if later sessions of Congress do not act on it favorably.

The Supreme Court may declare a bill that has become law invalid if the law violates the Constitution. As noted in
Marbury v. Madison, “It is also not entirely unworthy of observation, that in declaring what shall be the Supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.”

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Even though a Supreme Court decision is final regarding a specific controversy, Congress and the president may generate new, constitutionally sound legislation to replace a law that has been declared unconstitutional. The procedures for amending the Constitution are complex and often time consuming, but they can serve as a way to offset or override a Supreme Court decision.

Conflict of Laws

The various states and territories also have their own constitutions that must not be in conflict with the U.S. Constitution. When state and federal laws conflict, resolution can be sought in the appropriate federal court. The legal case
Dorsten v. Lapeer

County General Hospital

16
illustrates how federal and state laws can be in conflict. The plaintiff in this case brought an action against Lapeer County General Hospital and certain physicians on the medical board alleging wrongful denial of her application for medical staff privileges. The plaintiff asserted claims under the U.S. Code for sex discrimination, violations of the Sherman Antitrust Act, and the like. The plaintiff filed a motion to compel discovery of peer-review reports to support her case. The U.S. District Court held that the plaintiff was entitled to discovery of peer-review reports despite a Michigan state law purporting to establish an absolute privilege barring access to peer-review reports conducted by hospital review boards.

Legislative Branch

On the federal level, legislative powers are vested in the Congress of the United States, which consists of a Senate and a House of Representatives. The function of the legislative branch is to enact laws that may amend or repeal existing legislation and to create new legislation. It is the legislature’s responsibility to determine the nature and extent of the need for new laws and for changes in existing laws. The work of preparing federal legislation is the responsibility of the various committees of both houses of Congress. There are 16 standing committees in the Senate and 19 in the House of Representatives. “The membership of the standing committees of each house is chosen by a vote of the entire body; members of other committees are appointed under the provisions of the measure establishing them.”

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Legislative proposals are assigned or referred to an appropriate committee for study. The committees conduct investigations and hold hearings where interested persons may present their views regarding proposed legislation. These proceedings provide additional information to assist committee members in their consideration of proposed bills. A bill may be reported out of a committee in its original form or it may be reported out with recommended amendments, or the bill might be allowed to lie in the committee without action. Some bills eventually reach the full legislative body, where, after consideration and debate, they may be approved or rejected.

The U.S. Congress and all state legislatures are bicameral (consisting of two houses), except for the Nebraska legislature, which is unicameral. Both houses in a bicameral legislature must pass identical versions of a legislative proposal before the legislation can be brought to the chief executive.

Judicial Branch

As I have said in the past, when government bureaus and agencies go awry, which are adjuncts of the legislative or executive branches, the people flee to the third branch, their courts, for solace and justice.

—Justice J. Henderson, Supreme Court of South Dakota

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The function of the judicial branch of government is adjudication—resolving disputes in accordance with law. As a practical matter, most disputes or controversies that are covered by legal principles or rules are resolved without resort to the courts.

Alexis de Tocqueville, a foreign observer commenting on the primordial place of the law and the legal profession, stated, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”

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This principle was highlighted in the
Marbury v. Madison decision of the Supreme Court in 1803:

It is emphatically the province and duty of the judicial branch to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules govern the case. This is the very essence of judicial duty.

… [I]t is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take such an oath to support it?

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State Court System

Each state in the United States provides its own court system, which is created by the state’s constitution and/or statutes. The oldest court in the United States, established in 1692, is the Supreme Judicial Court of Massachusetts.

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Most of the nation’s judicial business is reviewed and acted on in state courts. Each state maintains a level of trial courts that have original jurisdiction. This jurisdiction may exclude cases involving claims with damages less than a specified minimum, probate matters (e.g., wills and
estates), and workers’ compensation. Different states have designated different names for trial courts (e.g., superior, district, circuit, or supreme courts). Also on the trial court level are minor courts such as city, small claims, and justice of the peace courts. States such as Massachusetts have consolidated their minor courts into a statewide court system.

There is at least one appellate court in each state. Many states have an intermediate appellate court between the trial courts and the court of last resort. Where this intermediate court is present, there is a provision for appeal to it, with further review in all but select cases. Because of this format, the highest appellate tribunal is seen as the final arbiter in cases that are important in themselves or for the particular state’s system of jurisprudence.

Federal Court System

The trial court of the federal system is the U.S. District Court. There are 89 district courts in the 50 states (the larger states having more than one district court) and one in the District of Columbia. The Commonwealth of Puerto Rico also has a district court with jurisdiction corresponding to that of district courts in the different states. Generally, only one judge is required to sit and decide a case, although certain cases require up to three judges. The federal district courts hear civil, criminal, admiralty, and bankruptcy cases. The Bankruptcy Amendments and Federal Judgeship Act of 1984

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provided that the bankruptcy judges for each judicial district shall constitute a unit of the district court to be known as the bankruptcy court.

The U.S. Courts of Appeals (formerly called Circuit Courts of Appeals) are appellate courts for the 11 judicial circuits. Their main purpose is to review cases tried in federal district courts within their respective circuits, but they also possess jurisdiction to review orders of designated administrative agencies and to issue original writs in appropriate cases. These intermediate appellate courts were created to relieve the U.S. Supreme Court of deciding all cases appealed from the federal trial courts.

The Supreme Court is the nation’s highest court. It is the only federal court created directly by the Constitution.

The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

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Eight associate justices and one chief justice sit on the Supreme Court. The court has limited original jurisdiction over the lower federal courts and the highest state courts. In a few situations, an appeal will go directly from a federal or state court to the Supreme Court, but in most cases today, review must be sought through the discretionary writ of certiorari, an appeal petition. In addition to the aforementioned courts, special federal courts have jurisdiction over particular subject matters. The U.S. Court of Claims has jurisdiction over certain claims against the government. The U.S. Court of Appeals for the Federal Circuit has appellate jurisdiction over certain customs and patent matters. The U.S. Customs Court reviews certain administrative decisions by customs officials. Also, there is a U.S. Tax Court and a U.S. Court of Military Appeals.

Executive Branch

The primary function of the executive branch of government on the federal and state levels is to administer and enforce the law. The chief executive, either the president of the United States or the governor of a state, also has a role in the creation of law through the power to approve or veto legislative proposals.

The U.S. Constitution provides that “the executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years … together with the Vice President, chosen for the same Term.”

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The president serves as the administrative head of the executive branch of the federal government, which includes 15 executive departments, as well as a variety of agencies, both temporary and permanent.

The Cabinet, a creation of custom and tradition dating back to George Washington’s administration, functions at the pleasure of the president. Its purpose is to advise the president on any subject on which he requests information (pursuant to Article II, section 2, of the Constitution).

The Cabinet is composed of the 15 executive departments.

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Each department is responsible for a different area of public affairs, and each enforces the law within its area of responsibility. For example, the Department of Health and Human Services (DHHS) administers much of the federal health law enacted by Congress. Most state executive branches also are organized on a departmental basis. These
departments administer and enforce state law concerning public affairs.

On a state level, the governor serves as the chief executive officer. The responsibilities of a state governor are provided for in the state’s constitution. The Massachusetts State Constitution, for example, describes the responsibilities of the governor as follows:

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To present an annual budget to the state legislature

To recommend new legislation

To veto legislation

To appoint and remove department heads

To appoint judicial officers

To act as commander-in-chief of the state’s military forces (the Massachusetts National Guard)

DEPARTMENT OF HEALTH AND HUMAN SERVICES

The Department of Health and Human Services was created on April 11, 1953, to strengthen “the public health and welfare of the American people by making affordable and quality health care and childcare accessible, ensuring the safety of food products, preparing for public health emergencies, and advancing the diagnosis, treatment, and curing of life threatening illnesses.”

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The Department of Health and Human Services (DHHS) is a cabinet-level department of the executive branch of the federal government (

FIGURE 5-2

)
responsible for developing and implementing appropriate administrative regulations for carrying out national health and human services policy objectives. It is also the main source of regulations affecting the healthcare industry. The secretary of the DHHS, serving as the department’s administrative head, advises the president with regard to health, welfare, and income security plans, policies, and programs. The DHHS also is responsible for the various health programs designed through its operating divisions and agencies to meet the health needs of the people.

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Administration on Aging

The Administration on Aging (AOA) is the principal agency designated to carry out the provisions of the Older Americans Act of 1965, which, as amended, focuses on improving the lives of senior citizens in areas of income, housing, health, employment, retirement, and community services. The AOA develops policies, plans, and programs designed to promote the welfare of the aging population. It promotes their needs by planning programs and developing policy, procedural direction, and technical assistance to states and Native American tribal governments.

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“The Act also empowers the federal government to distribute funds to the states for supportive services for individuals over the age of 60.”

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Chapter 35 of the U.S. Code “Programs for Older Americans” provides in part:

The Congress hereby finds and declares that, in keeping with the traditional American concept of the inherent dignity of the individual in our democratic society, the older people of our Nation are entitled to, and it is the joint and several duty and responsibility of the governments of the United States, of the several States and their political subdivisions, and of Indian tribes to assist our older people to secure equal opportunity to the full and free enjoyment of the following objectives:

(2) The best possible physical and mental health which science can make available and without regard to economic status.

(3) Obtaining and maintaining suitable housing, independently selected, designed and located with reference to special needs and available at costs which older citizens can afford.

(4) Full restoration services for those who require institutional care, and a comprehensive array of community-based, long-term care services adequate to appropriately sustain older people in their communities and in their homes, including support to family members and other persons providing voluntary care to older individuals needing long-term care services.

(5) Opportunity for employment with no discriminatory personnel practices because of age.

(6) Retirement in health, honor, dignity—after years of contribution to the economy.

(7) Participating in and contributing to meaningful activity within the widest range of civic, cultural, education and training and recreational opportunities. …

(9) Immediate benefit from proven research knowledge which can sustain and improve health and happiness.

(10) Freedom, independence, and the free exercise of individual initiative in planning and managing their own lives, full participation in the planning and operation of community-based services and programs provided for their benefit, and protection against abuse, neglect, and exploitation.

31

As the population of older Americans grows, discrimination, neglect, abuse, and exploitation of their vulnerabilities continue to increase; for instance, telemarketing aimed at scamming older Americans continues to flourish unabated by ineffective and inadequate laws, as well as poor enforcement of the laws that do exist. In one study focused on discrimination in healthcare settings, it was found that “[e]vidence-based care models that address the specialized needs of elderly patients exist, but nearly one third of survey respondents say they ‘frequently’ experience age-related discrimination from doctors or hospitals.”

32
Dr. Stephanie Rogers, MD, MPAS, MPH, a clinical geriatric fellow at the University of California San Francisco, stated she found that there doesn’t seem to be much interest in or respect for geriatrics, with only about 7,000 geriatricians in the United States. “‘Why would you want to specialize in older adults?’ other physicians would ask her.”

33
The following reality check illustrates how varying age groups differ in their opinions as to how scarce resources should be allocated to an aging population.

At Fifty, Have You Lived Your Life?

I recall teaching an ethics course to nurses in a master’s degree program in New York. As we were discussing care for the elderly, a young nurse, about 23 years of age, said, “I think we should not be providing expensive tests and treatments for patients over 50 years of age. People at that age have basically lived their lives.” Although most of the nurses in the class were in their late 40s and early 50s, there was silence across the room. My assumption is the nurse was unaware of the age group in the class, as she was the youngest nurse. As to the older nurses, I am not sure as to why they remained so silent. To my surprise, no one uttered a word and the class moved on as though nothing was said. I must say that I, being 33, was speechless.

—Anonymous

Discussion

Discuss the ethical issues here that concern you.

Describe how you might have responded if you were instructing the class.

Discuss how this student might have a difference in opinion once she reaches the age of her classmates.

Centers for Medicare and Medicaid Services

The Centers for Medicare and Medicaid Services (CMS), formerly the Health Care Financing Administration, was created to combine under one administration the oversight of the Medicare program, the federal portion of the Medicaid program, the State Children’s Health Insurance Program, and related quality-assurance activities.

Medicare is a federally sponsored health insurance program for persons older than 65 and certain disabled persons. It has two complementary parts: Medicare Part A helps cover the costs of inpatient hospital care and, with qualifying preadmission criteria, skilled nursing facility care, home health care, and hospice care. Medicare Part B helps pay for physicians’ services and outpatient hospital services. It is funded through Social Security contributions (Federal Insurance Contributions Act payroll taxes), premiums, and general revenue. The program is administered through private contractors, referred to as intermediaries, under Part A and carriers under Part B. The financing of the Medicare program has received much attention by Congress because of its rapidly rising costs.

Medicaid, Title XIX of the Social Security Act Amendments of 1965, is a government program administered by the states that provides medical services (both institutional and outpatient) to the medically needy. Federal grants, in the form of matching funds, are issued to those states with qualifying Medicaid programs. In other words, Medicaid is jointly sponsored and financed by the federal government and several states. Medical care for needy persons of all ages is provided under the definition of need established by each state. Each state has set its own criteria for determining eligibility for services under its Medicaid program.

Public Health Service

The Public Health Service (PHS) is responsible for the protection of the nation’s physical and mental health. The PHS accomplishes its mission by coordinating with the states in setting and implementing national health policy and pursuing effective intergovernmental relations; generating and upholding cooperative international health-related agreements, policies, and programs; conducting medical and biomedical research; sponsoring and administering programs for the development of health resources, the prevention and control of diseases, and alcohol and drug abuse; providing resources and expertise to the states and other public and private institutions in the planning, direction, and delivery of physical and mental healthcare services; and enforcing laws to ensure drug safety and protection from impure and unsafe foods, cosmetics, medical devices, and radiation-producing objects. Within the PHS are smaller agencies that are responsible for carrying out the purpose of the division and DHHS. The PHS is composed of the offices and agencies described next.

National Institutes of Health

The National Institutes of Health (NIH) is the principal federal biomedical research agency. It is responsible for conducting, supporting, and promoting biomedical research. The mission of the NIH is to seek fundamental knowledge about the nature and behavior of living systems and the application of that knowledge
to enhance health, lengthen life, and reduce illness and disability. It is responsible for conducting, supporting, and promoting biomedical research. The goals of the agency are to:

foster fundamental creative discoveries, innovative research strategies, and their applications as a basis for ultimately protecting and improving health;

develop, maintain, and renew scientific human and physical resources that will ensure the Nation’s capability to prevent disease;

expand the knowledge base in medical and associated sciences in order to enhance the Nation’s economic well-being and ensure a continued high return on the public investment in research; and

exemplify and promote the highest level of scientific integrity, public accountability, and social responsibility in the conduct of science.

34

Centers for Disease Control and Prevention

The Centers for Disease Control and Prevention (CDC) is recognized as the lead federal agency for protecting the health and safety of people at home and abroad, providing credible information to enhance health decisions, and promoting health. The CDC serves as the national focus for developing and applying disease prevention and control, environmental health, and health promotion and education activities. To accomplish its mission, “CDC conducts critical science and provides health information that protects our nation against expensive and dangerous health threats, and responds when these arise.”

35

Food and Drug Administration

The Food and Drug Administration (FDA) is responsible for “protecting the public health by assuring the safety, effectiveness, quality, and security of human and veterinary drugs, vaccines and other biological products, and medical devices. The FDA is also responsible for the safety and security of most of our nation’s food supply, all cosmetics, dietary supplements and products that give off radiation.”

36

Although the intention of the FDA is to do good, as noted in the following news clipping, ethical conflicts can arise and be detrimental to the good intent of the agency.

Long Waits for Generics

Brand-name drug makers already pay hefty user fees to help speed their applications through the FDA. That money is expected to provide about a third of the agency’s budget this year.

In general, we oppose user fees that allow a regulated industry to fund the regulators. A government agency can become dependent on the companies it’s supposed to objectively regulate, which can influence decisions. In a 2006 survey … many FDA employees said they felt pressured to hastily and perhaps improperly approve user-fee drugs. And at least one felt the agency viewed industry, not the American public, as its client.

—Jim Guest,
Consumer Reports, November 2010

Discussion

Identify and describe the ethical issues of the FDA’s funding practice.

Do you see any conflict in allowing private for-profit and not-for-profit hospital accreditation programs to accredit hospitals on behalf of Medicare, noting that the hospitals pay the accrediting organization to conduct such surveys? Discuss your answer.

Substance Abuse and Mental Health Services Administration

The agency’s mission is to reduce the impact of substance abuse and mental illness on America’s communities.

Health Resources and Services Administration

Health Resources and Services Administration (HRSA) is the primary federal agency for improving access to healthcare services for people who are uninsured, isolated, or medically vulnerable. Its mission is to improve health and achieve health equity through access to quality services, a skilled health workforce, and innovative programs. HRSA takes a comprehensive approach to addressing HIV/AIDS with activities taking place across multiple bureaus and offices designed to deliver care to people living with HIV, expand and strengthen the HIV care workforce, and improve access to and the quality of HIV care and treatment.

Agency for Healthcare Research and Quality

The Agency for Healthcare Research and Quality (AHRQ) provides evidence-based information on healthcare outcomes, quality, cost, use, and access. Information from AHRQ’s research helps people make more informed decisions and improve the quality of healthcare services.

Agency for Toxic Substances and Disease Registry

The mission of the Agency for Toxic Substances and Disease Registry (ATSDR) is to prevent or mitigate harmful exposures and related disease by applying science, taking responsive action, and providing trustworthy health information.

Indian Health Service

Indian Health Service provides a comprehensive health service delivery system for approximately 2 million American Indians and Alaska Natives (AI/AN) who belong to 566 federally recognized tribes in 35 states.

CHAPTER REVIEW

A law is a general rule of conduct that is enforced by the government. When a law is violated, the government imposes a penalty.

Public law deals with the relationships between individuals and the government. Criminal law is a segment of public law.

Private law deals with relationships among individuals. Two types of private laws are tort and contract actions.

Common law

U.S. common law has as its roots in the English common-law system.

The first English royal court was established in the year 1178. There were few written laws at the time, and a collection of principles evolved from the decisions of the court. These principles, known as
common law, were used to decide subsequent cases.

During the colonial period, the United States based its law on English common law, but states had the authority to modify their legal systems.

Lower courts must follow common-law principles established in a higher state court.

Trial courts or those otherwise on equal footing are not bound by the decisions of other trial courts.

A principle of law set in one state does not set precedent for another state.

Common-law principles can be modified, overturned, abrogated, or created by new court decisions.

Statutory law is written law that emanates from legislative bodies.

The Constitution is the highest level of enacted law.

Statutory law can be amended, repealed, or expanded by the legislature.

Administrative law

Public law is issued by administrative agencies to administer the enacted laws of the federal and state governments.

Administrative agencies implement and administer administrative law.

Rules and regulations established by an agency must be administered within the scope of the authority delegated by Congress.

Government organization

Three branches of government

Legislative branch, composed of the House of Representatives and the Senate, both enacts laws that can amend or repeal existing legislation and creates new legislation.

Judicial branch resolves disputes in accordance with the law.

Executive branch administers and enforces the law.

Separation of powers provides that no one branch of the government will be dominant over the other two.

States and local jurisdictions can enact and enforce only those laws that do not
conflict with federal laws.

When state and federal laws conflict, resolution can be sought in an appropriate federal court.

The DHHS develops and implements administrative regulations for carrying out national health and human services policy objectives.

DHSS is the main source of regulations that affect the healthcare industry. Operating divisions of DHHS include the:

Centers for Medicare and Medicaid Services

Public Health Service

National Institutes of Health

Centers for Disease Control and Prevention

Food and Drug Administration

Substance Abuse and Mental Health Services Administration

Health Resources and Services Administration

Agency for Healthcare Research and Quality

Agency for Toxic Substances and Disease Registry

Indian Health Service

TEST YOUR UNDERSTANDING

Terminology

administrative law

Bill of Rights

common law

Constitution of the United States

law

Medicare

precedent

private law

public law

res judicata

separation of powers

stare decisis

statutory law

REVIEW QUESTIONS

Define the term
law and describe the sources from which law is derived.

Describe and contrast the legal terms
res judicata and
stare decisis.

Describe the function of each branch of government.

What is the meaning of separation of powers?

What is the function of an administrative agency?

Describe the various operating divisions and agencies within the DHHS.

NOTES

1. Bernard Schwartz,
Law in America: A History (New York: McGraw-Hill, 1974).

2.
Marbury v. Madison, 5 U.S. (Cranch) 137, 163 (1803).

3. The Law Dictionary [online]. “What Is Public Law?”
http://thelawdictionary.org/public-law/ (accessed July 15, 2018).

4. HG Legal Resources [online]. “What Is Constitutional Law?”
https://www.hg.org/constitutional-law.html (accessed July 15, 2018).

5. William A. Robson and Edward C. Page, “Administrative Law,” Encyclopaedia Britannica [online].
https://www.britannica.com/topic/administrative-law (accessed July 15, 2018).

6. Schwartz,
Law in America, supra note 1, at 29.

7.
Van Ness v. Pacard, 27 U.S. 137 (1829), at 144.

8. Schwartz,
Law in America, supra note 1, at 30–31.

9. Lawrence M. Friedman,
A History of American Law, Revised Edition (New York: Simon & Schuster, 1985), p. 92.

10. Schwartz,
Law in America, supra note 1, at 51.

11.
Black’s Law Dictionary, 6th ed. (New York: Springer, 1990), p. 1305.

12. U.S. Const. art. VI, A4 1, cl. 2.

13. 5 U.S.C.S. A4A4 500–576 (Law. Co-op. 1989).

14. An “agency means each authority of the Government of the United States … but does not include (A) the Congress; the Courts of the United States …” 5 U.S.C.S. A4 551(1) (Law. Co-op. 1989).

15.
Marbury v. Madison, 5 U.S. (Cranch) 137, 180 (1803).

16.
Dorsten v. Lapeer County General Hospital, 88 F.R.D. 583 (E.D. Mich. 1980).

17. Office of the Federal Register, National Archives and Records Administration,
The United States Government Manual 2000/2001 (Washington, DC: U.S. Government Printing Office, 200029.

18.
Heritage of Yankton, Inc. v. South Dakota Dep’t of Health, 432 N.W.2d 68, 77 (S.D. 1988).

19. Alexis de Tocqueville, “Chapter XVI: Causes Which Mitigate the Tyranny of the Majority in the United States,” Democracy in America, Vol. I.
http://xroads.virginia.edu/~hyper/detoc/1_ch16.htm (accessed July 15, 2018).

20.
Marbury v. Madison at 177–180.

21. Mass.gov [state of Massachusetts website], “About the Supreme Judicial Court: History of the Court.”
https://www.mass.gov/service-details/about-the-supreme-judicial-court (accessed July 15, 2018).

22. 28 U.S.C. A4 151.

23. U.S. Const. art. III, A4 1.

24. U.S. Const. art. II, A41, cl. 1.

25. USA.gov [website], “Executive Departments.”
https://www.usa.gov/executive-departments (accessed July 15, 2018).

26. Donald Levitan, and Elwyn E. Mariner,
Your Massachusetts Government, 10th ed. (Newton Center, MA: Government Research Publications, 1984), p. 14.

27. “Executive Branch: Departments—Department of Health and Human Services,” in The United States Government Manual.
https://www.gpo.gov/fdsys/pkg/GOVMAN-2015-07-01/xml/GOVMAN-2015-07-01-117.xml (accessed July 15, 2018).

28.
HHS.gov, “About: HHS Agencies & Offices.”
http://www.hhs.gov/about/foa/opdivs/ (accessed July 15, 2018).

29. Administration for Community Living, “About the Administration on Aging (AoA).”
https://www.acl.gov/about-acl/administration-aging (accessed July 15, 2018).

30.
Ibid.

31. U.S. Code, Title 42 The Public Health and Welfare, Chapter 35 Programs for Older Americans, Subchapter 1 § 3001 Congressional declaration of objectives.
http://uscode.house.gov/view.xhtml?req=(title:42%20section:3001%20edition:prelim) (accessed July 15, 2018).

32. Alexandra Wilson Pecci, “1 in 5 Adults Report Age Discrimination in Healthcare Settings,”

HealthLeadersMedia.com
(April 10, 2015).
http://www.healthleadersmedia.com/quality/1-5-adults-report-age-discrimination-healthcare-settings# (accessed July 15, 2018).

33.
Ibid.

34. National Institutes of Health, “What We Do: Mission and Goals.”
https://www.nih.gov/about-nih/what-we-do/mission-goals (accessed July 15, 2018).

35. Centers for Disease Control and Prevention, “About CDC 24-7: CDC Organization.”
https://www.cdc.gov/about/organization/cio.htm (accessed July 16, 2018).

36. U.S. Food and Drug Administration, “About FDA: FDA Fundamentals.”
http://www.fda.gov/AboutFDA/Transparency/Basics/ucm192695.htm (accessed July 15, 2018).

CHAPTER 6

Introduction to Law

Every instance of a man’s suffering the penalty of the law, is an instance of the failure of that penalty in effecting its purpose, which is to deter from transgression.

—Whately

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Understand the meaning and objectives of tort law.

Describe the elements of negligence.

Explain how the commission and omission of an act differ.

Describe the importance of foreseeability in a negligence case.

Describe intentional torts and how they might occur in the healthcare setting.

Describe the various crimes and give examples of how they might occur in the healthcare setting.

Explain the various elements of a contract.

Describe pretrial and trial processes.

INTRODUCTION

Laws are enacted to regulate human behavior for the benefit of society. They are designed to prevent harm to others while protecting the rights of individuals. In the law we are taught that we have a duty to care and that if we breach that duty and someone is injured as a result of that breach, there will be a penalty to pay, which could be financial loss, loss of license, and/or jail time to be served. This chapter introduces the reader to tort law, criminal law, contract law, and trial procedures. These are the areas of law that most often affect providers and patients.

TORT LAW

A
tort is a civil wrong, other than a breach of contract, committed against a person or property (real or personal) for which a court provides a remedy in the form of an action for damages. Tort actions touch an individual on both a personal and a professional level, which is why those involved in the healthcare field should be armed with the knowledge necessary for them to be aware of their rights and responsibilities.

The objectives of tort law are as follows: preservation of peace (between individuals by providing a substitute for retaliation); culpability (to find fault for wrongdoing); deterrence (to discourage the wrongdoer [tort-feasor] from committing future torts, as well as dissuade others from committing wrongful acts); and compensation to indemnify the injured person(s) as a result of negligent conduct by the defendant(s).

Negligence

Negligence is a tort, a civil or personal wrong. It is the unintentional
commission or
omission of an act that a reasonably prudent person would or would not perform under given circumstances. Negligence is a form of conduct caused by heedlessness or carelessness that constitutes a departure from the standard of care generally imposed on reasonable members of society. It can occur where a person has considered the consequences of an act and has exercised his or her best possible judgment but fails to guard against a risk that should be appreciated, and engages in certain behavior expected to involve unreasonable danger to others.

Commission of an act includes, for example, the following acts:

administering the wrong medication

administering the wrong dosage of a medication

administering a medication to the wrong patient

performing a surgical procedure without patient consent

performing a surgical procedure on the wrong patient

surgically removing the wrong body part

failing to assess and reassess a patient’s nutritional needs

Omission of an act includes the following:

failure to administer medication(s)

failure to order required diagnostic tests per established hospital protocol for head trauma (e.g., CT scan)

failure to follow up on abnormal test results

failure to perform a “time-out” to ensure the correct surgical procedure is being conducted on the correct patient at the correct site

Malpractice is the negligence or carelessness of a professional person (e.g., a nurse, pharmacist, physician, or accountant). Criminal negligence is the reckless disregard for the safety of another (e.g., willful indifference to an injury that could follow an act).

Negligence generally involves one of the following acts:

Malfeasance (execution of an unlawful or improper act [e.g., performing an abortion in the third trimester when such is prohibited by state law]);

Misfeasance (improper performance of an act, resulting in injury to another [(e.g., removal of a healthy kidney instead of the diseased kidney,

1
removal of the healthy breast instead of the diseased breast,

2
removal of the wrong leg during surgery

3
); and

Nonfeasance (failure to act, when there is a duty to act as a reasonably prudent person would in similar circumstances [e.g., failing to order diagnostic tests or prescribe medications that should have been ordered or prescribed under the circumstances]).

Elements of Negligence

The four elements that must be present for a plaintiff to recover damages caused by negligence are (1) duty to care, (2) breach of duty, (3) injury, and (4) causation. All four elements must be present in order for a plaintiff to recover damages suffered as a result of a negligent act.

Duty to Care

1. The first requirement in establishing negligence is that the plaintiff must prove the existence of a legal relationship between himself or herself and the defendant.
Duty is defined as a
legal obligation of care, performance, or observance imposed on one to safeguard the rights of others. This duty may arise from a special relationship such as that between a physician and a patient. The existence of this relationship implies that a physician–patient relationship was in effect at the time an alleged injury occurred. The duty to care can arise from a simple telephone conversation or out of a physician’s voluntary act of assuming the care of a patient. Duty also can be established by statute or contract between the plaintiff and the defendant.

Duty to care is depicted in

FIGURE 6-1

, for example, where the pharmacy manager of General Hospital’s pharmacy, prior to leaving work for the day, assigns responsibility to a recently hired pharmacist behind the counter, telling her, “You’re in charge of the pharmacy, which includes the IV admixture room. Your duties and responsibilities are those as described in the pharmacy’s department policy and procedure manual. I will be leaving in an hour, so you should review the pharmacy’s policies and procedures before I leave. If you have any questions after I leave, you can reach me on my cell phone.”

This assignment established a duty on the part of the pharmacist to adhere to the policies and procedures in the department manual.

Standard of Care Expected

A duty of care carries with it a corresponding responsibility not only to provide care but also to provide it in an acceptable manner. Because of this obligation to conform to a recognized
standard of care, the plaintiff must show that the defendant failed to meet the required standard of care. The mere fact that an injury is suffered is not sufficient for imposing liability without proof that the defendant deviated from the practice of competent members of his or her profession.

The standard of care describes what conduct is expected of an individual in a given situation. The standard of care that must be exercised is that which a reasonably prudent person would adhere to when acting under the same or similar circumstances. A nurse, for example, who assumes the care of a patient, has the duty to exercise that degree of skill, care, and knowledge ordinarily possessed and exercised by other nurses. If a patient’s injury is the result of a negligent act of a physician, the standard of care required would be that degree of skill, care, and knowledge ordinarily possessed and exercised by other physicians. For an injury involving a specific specialty, the treating physician, nurse, pharmacist, etc., would be expected to treat the patient in that same manner as the specialist in the field in which the caregiver is practicing.

The
reasonably prudent person concept describes a nonexistent, hypothetical person who is put forward as the community ideal of what would be considered reasonable behavior. It is a measuring stick representing the conduct of the average person in the community under the circumstances facing the defendant at the time of the alleged negligence. The reasonableness of conduct is judged in light of the circumstances apparent at the time of injury and by reference to different characteristics of the actor (e.g., age, gender, physical condition, education, knowledge, training, and mental capacity).

The actual performance of an individual in a given situation will be measured against what a reasonably prudent person would or would not have done. Deviation from the standard of care will constitute negligence if there are resulting damages.

Ethicists and the Standard of Care

The standard of care required by a caregiver can in part be influenced by the principles of ethics that apply to the caregiver’s profession. For example, a decision concerning termination of resuscitation efforts is an area in which the standard of care includes an ethical component. Under these circumstances, it occasionally may be appropriate for a medical expert to testify about the ethical aspects underlying the professional standard of care. In
Neade v. Portes,

4
a physician expert was allowed to base an opinion on the breach of the standard of care based on violation of an ethical standard established by the American Medical Association.

Standard of Care Set by Statute

Some duties are created by statute, which occurs when a statute specifies a particular standard that must be met. Many such standards are created by administrative agencies under the provisions of a statute. State statutes can be
used in determining the standard of care required in a negligence case. California, for example, describes in part standards for registered nurses working in a hospital:

(a) … Only registered nurses shall be assigned to Intensive Care Newborn Nursery Service Units, which specifically require one registered nurse to two or fewer infants. In the Emergency Department, only registered nurses shall be assigned to triage patients and only registered nurses shall be assigned to critical trauma patients.

• • •

(1) The licensed nurse-to-patient ratio in a critical care unit shall be 1:2 or fewer at all times. “Critical care unit” means a nursing unit of a general acute care hospital which provides one of the following services: an intensive care service, a burn center, a coronary care service, an acute respiratory service, or an intensive care newborn nursery service. In the intensive care newborn nursery service, the ratio shall be 1 registered nurse: 2 or fewer patients at all times.

5

For liability to be established, based on a defendant’s failure to follow the standard of care outlined by statute, the following elements must be present:

The defendant must have been within the specified class of persons outlined in the statute.

The plaintiff must have been injured in a way that the statute was designed to prevent.

The plaintiff must show that the injury would not have occurred if the statute had not been violated.

Duty to Provide Timely Care

The surviving parents in
Hastings v. Baton Rouge Hospital

6
brought a medical malpractice action for the wrongful death of their 19-year-old son. The action was brought against the hospital; the emergency department (ED) physician, Dr. Gerdes; and the thoracic surgeon on call, Dr. McCool. The patient had been brought to the ED at 11:56 p.m. because of two stab wounds and weak vital signs. Gerdes decided that a thoracotomy (an incision into the pleural space of the chest) had to be performed. He was not qualified to perform the surgery and called McCool, who was on call that evening for thoracic surgery. Gerdes described the patient’s condition, indicating that he had been stabbed in a major blood vessel. At trial, McCool claimed that he did not recall Gerdes saying that a major blood vessel could be involved. McCool asked Gerdes to transfer the patient to the Earl K. Long Hospital. Gerdes said, “I can’t transfer this patient.” McCool replied, “No. Transfer him.” Kelly, an emergency department nurse on duty, was not comfortable with the decision to transfer the patient and offered to accompany him in the ambulance. Gerdes reexamined the patient, who exhibited marginal vital signs, was restless, and was draining blood from his chest.

The ambulance service was called at 1:03 a.m., and by 1:30 a.m. the patient had been placed in the ambulance for transfer. The patient began to fight wildly. The chest tube came out, and the bleeding increased. An attempt to revive him from a cardiac arrest was futile, and the patient died after having been moved back to the emergency department. The patient virtually bled to death.

The duty to care in this case cannot be reasonably disputed. Louisiana, by statute, imposes a duty on hospitals licensed in Louisiana to make emergency services available to all persons residing in the state regardless of insurance coverage or economic status. The hospital’s own bylaws provided that no patient should be transferred without due consideration for his or her condition. Hospitals are required to stabilize the patient prior to transfer. In this case, there was a surgeon who was available to treat this patient. McCool decided to practice telephone medicine and made the unfortunate decision to transfer the patient, which resulted in risking the life of an unstable patient, resulting in his death.

Duty to Hire Competent Staff

Texas courts recognize that an employer has a duty to hire competent employees, especially if they are engaged in an occupation that could be hazardous to life and limb and requires skilled or experienced persons. For example, the appellant in
Deerings West Nursing Center v. Scott

7
was found to have negligently hired an incompetent employee it knew, or should have known, was incompetent, thereby causing unreasonable risk of harm to others.

The employee, Ken Hopper, testified that he was hired sight unseen over the telephone by the Deerings director of nursing. Even though the following day he went to the nursing facility to complete an application, he still maintained that he was hired over the phone. In his application, he falsely stated that he was a licensed vocational nurse (LVN) in Texas. Additionally, he claimed that he had never been convicted of
a crime. In reality, he had been previously employed by a bar, was not an LVN, had committed more than 56 criminal offenses of theft, and was on probation at the time of his testimony.

The duty of care in this case is clear. The appellant violated the very purpose of Texas licensing statutes by failing to validate whether or not Hopper had a current LVN license. The appellant then placed him in a position of authority and not only allowed him to dispense drugs but also made him a shift supervisor. This negligence eventually resulted in an inexcusable assault on an older woman.

Breach of Duty

2. After a duty to care has been established, the plaintiff must demonstrate that the defendant breached that duty by failing to comply with the accepted standard of care required.
Breach of duty, the second element that must be present for a plaintiff to establish negligence, is the failure to conform to or the departure from a required obligation owed to a person. The obligation to perform according to a standard of care may encompass either performing or refraining from performing a particular act.

The court in
Hastings v. Baton Rouge Hospital,

8
discussed earlier, found a severe breach of duty. Hospital regulations provide that when a physician cannot be reached or refuses a call, the chief of service is to be notified so that another physician can be obtained. This was not done. It is not necessary to prove that a patient would have survived if proper treatment had been administered—only that the patient would have had a
chance of survival. As a result of Dr. Gerdes’s failure to make arrangements for another physician, and Dr. McCool’s failure to perform the necessary surgery, the patient had no chance of survival. The duty to provide for appropriate care under the circumstances was breached.

Breach of duty is illustrated in

FIGURE 6-2

, where the intravenous (IV) admixture room pharmacist checking the work of a pharmacy technician fails to follow up on his concern as to whether or not the medication in the IV bag had been diluted in the correct dosage. Failure to follow up established a breach of duty.

Injury/Actual Damages

3. A defendant may be negligent yet not incur liability if there is no injury or actual damages suffered by the plaintiff, the third element necessary to establish negligence.
Injury includes more than physical harm. Without harm or injury, there is no liability. Injury is not limited to physical harm but includes loss of income or reputation and compensation for pain and suffering. The mere occurrence of an injury does not necessarily establish negligence for which the law imposes liability, because the injury might be the result of an unavoidable accident or act of God, such as a lightning strike that is the direct cause of an injury.

The third element of negligence—injury—is portrayed in

FIGURE 6-3

, where the death of an infant in General Hospital’s nursery occurred 3 hours following administration of an improper dose of an IV medication.

In
Hastings, the patient’s death was a direct result of the breach of duty.

Causation/Proximate Cause

4.
Causation, the fourth element necessary to establish negligence, requires that there be a reasonable, close, and causal connection between the defendant’s negligent conduct and the resulting damages suffered by the plaintiff. In other words, the defendant’s negligence must be a substantial factor causing the injury.
Proximate cause is a term referring to the relationship between a breached duty and the injury. The breach of duty must be the proximate cause of the resulting injury.

The courts generally apply the
but-for rule to determine if the injury is the direct result of a defendant’s act or omission of an act. A finding that an injury would not have occurred
but for a defendant’s act establishes that the particular act or omission is the proximate cause of the harm. If an injury would have occurred regardless of a defendant’s negligent act, liability cannot be assigned to the defendant. “Thus, in a death case, if a defendant physician, by action or inaction, has destroyed any substantial possibility of the patient’s survival, such conduct becomes a proximate cause of the patient’s death. The law does not require the plaintiff to prove to a certainty that the patient would have lived had he received more prompt diagnosis and treatment for the condition causing the death.”

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FIGURE 6-4

portrays a defense attorney successfully arguing that the cause of death of an infant in General Hospital’s nursery was due to the failure of the pharmacist to properly verify that the IV medication had been properly diluted and labeled by the pharmacy technician in the hospital’s pharmacy. The IV solution, containing the medication, was delivered to the nursery, where the nurse checked the label, unaware that the medication left the pharmacy mislabeled and improperly diluted, administered it to the infant, who subsequently died. In this case, the nurse performed her duties according to standard practice in the administration of the medication unaware that it had been erroneously diluted in the pharmacy. The pharmacist’s failure to check the technician’s work was a break in protocol and the causal link between the technician’s negligence and the infant’s death.

Proximate cause means “legal cause,” or one that the law recognizes as the primary cause of the injury. It may not be the first event that set in motion a sequence of events that led to an injury, and it may not be the very last event before the injury occurs. Instead, it is an action that produced foreseeable consequences without intervention from anyone else. In other words, the plaintiff will have to show that the injuries were the natural and direct consequence of the proximate cause, without which the injuries would not have occurred.

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In this case there was an intervening cause where the defendant nurse could not have reasonably foreseen or been aware of the negligent preparation and mislabeling of the admixture in the pharmacy by the pharmacy technician and failure of the supervising pharmacist to check on the technician’s admixture prior to it leaving the pharmacy to the nursery where it was injected into the newborn. Thus, establishing the element of causation.

Causation in the
Hastings

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case was well established. In the ordinary course of events, a person does not bleed to death in a hospital emergency department over a 2-hour period without some surgical intervention to save the patient’s life.

Foreseeability and Anticipation of Harm

Foreseeability is the reasonable anticipation that harm or injury is likely to result from an act or an omission of an act. As an aspect of causation in a negligence case, the test for foreseeability is whether a person of ordinary prudence and intelligence should have anticipated the danger to others caused by his or her negligent act. “The test is not what the wrongdoer believed would occur; it is whether he or she ought reasonably to have foreseen that the event in question, or some similar event, would occur.”

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There is no expectation that a person can guard against events that cannot reasonably be foreseen. Foreseeability involves guarding against that which is probable and likely to happen, not against that which is only remotely and slightly possible. In
Hastings, it was highly probable that the patient would die if the bleeding was not stopped. “The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances.”

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Duty to care involves a responsibility to do the “right thing.” The right thing is based on an acceptable standard of care. If breaching the standard causes harm to the patient, not only is there a legal issue, there are ethical principles that have been violated. Nonmaleficence, for example, requires caregivers to avoid causing harm to patients.

Case Studies

Cursory Exams Are Risky

All of the elements necessary to establish negligence were well established in
Niles v. City of San Rafael.

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On June 26, 1973, at approximately 3:30 p.m., Kelly Niles, a young boy, got into an argument with another boy on the ball field. He was hit on the right side of his head. Kelly rode home on his bicycle and waited for his father, who was to pick him up for the weekend. At approximately 5:00 p.m., Kelly’s father arrived. By the time they arrived in San Francisco, Kelly appeared to be in a great deal of pain. His father then decided to take him to Mount Zion Hospital, which was a short distance away. He arrived at the hospital emergency department at approximately 5:45 p.m. On admission to the emergency department, Kelly was taken to a treatment room by a registered nurse. The nurse obtained a history of the injury and took Kelly’s pulse and blood pressure. During his stay in the emergency department, he was irritable, vomited several times, and complained that his head hurt. An intern who had seen Kelly wrote “pale, diaphoretic, and groggy” on Kelly’s chart. Skull X-rays were ordered and found to be negative except for soft tissue swelling that was not noted until later. The intern then decided to admit Kelly. A second-year resident was called, and he agreed with the intern’s decision. An admitting clerk called the intern and indicated that Kelly had to be admitted by an attending physician. The resident went as far as to write “admit” on the chart and later crossed it out. A pediatrician who was in the emergency department at the time was asked to look at Kelly. The pediatrician was also the paid director of the Mount Zion Pediatric Out-Patient Clinic. The pediatrician asked Kelly a few questions and then decided to send him home. The physician could not recall what instructions he gave Kelly’s father, but he did give the father his business card.

The pediatrician could not recall giving the father a copy of the emergency department’s
Head Injury Instructions, an information sheet that had been prepared for distribution to patients with head injuries. The sheet explained that patients should return to the emergency department should any of the following signs appear: a large, soft lump on the head, unusual drowsiness (cannot be awakened), forceful or repeated vomiting, a fit or convulsion (jerking or spells), clumsy walking, bad headache, and/or one pupil larger than the other.

Kelly was taken back to his father’s apartment at about 7:00 p.m. A psychiatrist friend stopped by and examined Kelly. He noted that one pupil was larger than the other. Kelly was taken back to the emergency department. A physician on duty noted an epidural hematoma during his examination and ordered that a neurosurgeon be called.

Today, Kelly can move only his eyes and neck. A lawsuit was brought against the hospital and pediatrician for $5 million. The city of San Rafael and its public school district were included in the lawsuit as defendants. Expert testimony by two neurosurgeons during the trial indicated that Kelly’s chances of recovery would have been very good if he had been admitted promptly. This testimony placed the proximate cause of the injury with the hospital. The final judgment was $4 million against the medical defendants, $2.5 million for compensatory damages, and another $1.5 million for pain and suffering.

Ethical and Legal Issues

The many lessons for discussion in
Niles v. City of San Rafael include the following:

An organization can improve the quality of patient care rendered in the facility by establishing and adhering to policies, procedures, and protocols that facilitate the delivery of high-quality care across all disciplines.

The provision of high-quality health care requires collaboration across disciplines.

A physician must conduct a thorough and responsible examination and order the appropriate tests for each patient, evaluating the results of those tests before discharging the patient.

A patient’s vital signs must be monitored closely and documented in the medical record. Corrective measures must be taken when a patient’s medical condition signals a medical problem.

A complete review of a patient’s medical record must be accomplished before discharging a patient.

Review of the record must include review of test results, nurses’ notes, residents’ and interns’ notes, and the notes of any other physician or consultant who may have attended the patient.

Failure to fully review a patient’s record can lead to an erroneous diagnosis, and the premature dismissal of a case can result in liability for both the organization and physician.

INTENTIONAL TORTS

An
intentional tort is one that is committed deliberately. Proof of intent is based on the premise that the defendant intended the harmful consequences of his or her behavior. An individual’s reason to cause harm is irrelevant and does not protect him or her from responsibility for the damages suffered as the result of an intentional act.

Assault and Battery

It has long been recognized by law that a person possesses a right to be free from aggression and the threat of actual aggression against one’s person. The right to expect others to respect the integrity of one’s body has roots in both common and statutory law. The distinguishing feature between assault and battery is that
assault effectuates an infringement on the mental security or tranquility of another, whereas
battery constitutes a violation of another’s physical integrity.

An assault is defined as the deliberate threat, coupled with the apparent present ability to do physical harm to another. No actual contact or damages are necessary. It is the deliberate threat or attempt to injure another or the attempt by one to make bodily contact with another without his or her consent. To commit the tort of assault, the following two conditions must be proven:

The person attempting to touch another unlawfully must possess the apparent present ability to commit the battery.

The person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it.

A
battery is the intentional touching of another’s person, in a socially impermissible manner, without that person’s consent. It is intentional conduct that violates the physical security of another. The receiver of the battery does not have to be aware that a battery has been committed (e.g., a patient who is unconscious and has surgery performed on him or her without consent, either expressed or implied, is the object of a battery). The unwanted touching may give rise to a cause of action for any injuries brought about by the touching. No actual damages need be shown to impose liability. The physician in
Schloendorff v. Society of New York

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removed a tumor from the abdomen of a patient who had consented only to a diagnostic procedure, not an invasive surgical procedure. Justice Cordoza of the Supreme Court of New York stated, “In the case at hand, the wrong complained of is not merely negligence. It is trespass. Every human being of adult years and sound mind has the right to determine what shall be done with his own body and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable for damages.” Generally, a suit based on a battery is actionable if a patient has not consented to a procedure. This is the case if the procedure is successful.

Ghost Surgery

Ghost surgery lawsuits occur when a substitute surgeon without the patient’s knowledge and permission performs a patient’s surgery. Ghost surgery has both ethical and legal implications. A patient has a right to expect that the surgeon who consents to perform the agreed procedure does not delegate that procedure to a substitute surgeon. Malice or intent to injure is not required to establish a battery. The New Jersey Supreme Court in
Perna v. Pirozzi “held that such a battery results when a medical procedure is performed by a ‘substitute’ doctor regardless of good intentions.”

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The Court here took notice of standards published by the Judicial Council of the American Medical Association, which read:

To have another physician operate on one’s patient without the patient’s knowledge and consent is a deceit. The patient is entitled to choose his own physician and he should be permitted to acquiesce in or refuse to accept the substitution. The surgeon’s obligation to the patient requires him to perform the surgical operation: (1) within the scope of authority granted by the consent to the operation; (2) in accordance with the terms of the contractual relationship; (3) with complete disclosure of all facts relevant to the need and the performance of the operation; and (4) to utilize his best skill in performing the operation. It should be noted that it is the operating surgeon to whom the patient grants consent to perform the operation. The patient is entitled to the services of the particular surgeon with whom he or she contracts. The surgeon, in accepting the patient, is obligated to utilize his personal talents in the performance of the operation to the extent required by the agreement creating the physician-patient relationship. He cannot properly delegate to another the duties which he is required to perform personally.

Under the normal and customary arrangement with private patients, and with reference to the usual form of consent to operation, the surgeon is obligated to perform the operation, and may use the services of assisting residents or other assisting surgeons to the extent that the operation reasonably requires the employment of such assistance.

If a resident or other physician is to perform the operation under the guidance of the surgeon, it is necessary to make a full disclosure of this fact to the patient, and this
should be evidenced by an appropriate statement contained in the consent. If the surgeon employed merely assists the resident or other physician in performing the operation, it is the resident or other physician who becomes the operating surgeon. If the patient is not informed as to the identity of the operating surgeon, the situation is “ghost surgery.”

Ghost surgery “remains a battery even if performed skillfully and to the benefit of the patient.”

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Physician Strikes Nurse

In
Peete v. Blackwell,

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punitive damages in the amount of $10,000 were awarded to a nurse in her action against a physician for assault and battery. Evidence showed that the physician struck the assisting nurse on the arm and cursed at her when he ordered her to turn on the suction. Dr. Peete appealed the trial court’s decision, asserting the evidence presented was insufficient to show the requisite “insult or other aggravating circumstances” required for an award of $10,000 in punitive damages. He contended that, even if sufficient evidence of aggravating circumstances were presented, the actual assessment of punitive damages was against the weight and preponderance of the evidence submitted. On appeal, the Supreme Court of Alabama upheld the judgment of the trial court.

False Imprisonment

False imprisonment is the unlawful restraint of an individual’s personal liberty or the unlawful restraining or confining of an individual. The personal right to move freely and without hindrance is basic to our legal system. Any intentional infringement on this right may constitute false imprisonment. Actual physical force is not necessary to constitute false imprisonment. All that is necessary is that an individual who is physically confined to a given area experience a reasonable fear that force, which may be implied by words, threats, or gestures, will be used to detain the individual or to intimidate him or her without legal justification. Excessive force used to restrain a patient may produce liability for both false imprisonment and battery.

Defamation of Character

Defamation of character involves communications to someone other than the person defamed that tends to hold that person’s reputation up to scorn and ridicule.

Slander is the oral form of defamation. For example, in
Eli v. Griggs County Hospital & Nursing Home,

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a nurse’s aide was terminated as the result of an incident in the hospital dining room in which the aide, in the presence of patients and visitors, cursed at her supervisor and complained that personnel were working short staffed. Given the nature of her employment, such behavior justified her termination on a charge of reported breach of patient- and facility-specific information. No defamation finding resulted from the entry of such charges in the aide’s personnel file—the reason behind the court case—because the record established that the charges were true.

Libel is the written form of defamation. Libel can be expressed in the form of signs, photographs, letters, cartoons, and various other forms of written communication. To be an actionable wrong, defamation must be communicated to a third person. Defamatory statements communicated only to the injured party are not grounds for an action. Truth of a statement is a complete defense.

Defamation on its face is actionable without proof of special damages. In certain cases, a court will presume that the words caused injury to the person’s reputation. There are four generally recognized exceptions whereby no proof of actual harm to reputation is required to recover damages:

Accusing someone of a crime

Accusing someone of having a loathsome disease

Using words that harm a person’s profession or business

Accusing someone of sexual misconduct

Invasion of Privacy

Invasion of privacy is a wrong that invades the right of a person to personal privacy. The idea of absolute privacy must be tempered with reality in the care of any patient, and the courts recognize this fact. Disregard for a patient’s right to privacy is legally actionable, particularly when patients are unable to protect themselves adequately because of unconsciousness or immobility.

The
right to privacy is implied in the Constitution. It is recognized as a right to be left alone—the right to be free from unwarranted publicity and exposure to public view, as well as the right to live one’s life without having one’s name, picture, or private affairs made public against one’s will. Healthcare organizations and professionals may become liable for invasion of privacy if, for example, they divulge information from a patient’s medical record to improper sources or if they commit unwarranted intrusions into a patient’s personal affairs.

Patients have a right to personal privacy and a right to the confidentiality of their personal and clinical records. The information in a patient’s medical
record is confidential and should not be disclosed without the patient’s permission. Those who come into possession of the most intimate personal information about patients have both a legal and an ethical duty not to reveal confidential communications. The legal duty arises because the law recognizes a right to privacy. An ethical duty is broader because it applies at all times. There are, however, occasions when there is a legal obligation or duty to disclose information. The law requires, for example, the reporting of communicable diseases, gunshot wounds, and the reasonable suspicion of patient abuse.

Case Studies

The Court Was Appalled

In
Tomcik v. Ohio Dep’t of Rehabilitation & Correction,

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the plaintiff, Janet Tomcik, was in the custody of the defendant, a penal institution. As part of the institution’s policy of medically evaluating all new inmates, on May 26, 1989, Dr. Evans gave Tomcik a medical examination. He testified that his physical evaluation included an examination of Tomcik’s breasts; however, he stated that his examination was very cursory.

The day after her examination, Tomcik examined her own breasts. At that time, she discovered a lump in her right breast, which she characterized as being about the size of a pea. She then sought an additional medical evaluation at the defendant’s medical clinic. Testimony indicated that fewer than half of the inmates who sign the clinic list are actually seen by medical personnel the next day. Also, inmates who are not examined on the day for which the list is signed are given no preference in being examined on the following day. In fact, their names are simply deleted from the daily list, and their only recourse is to continually sign the list until they are examined.

The evidence indicated that from May 27 on, Tomcik constantly signed the clinic list and provided the reason she was requesting medical care.

A nurse finally examined Tomcik on June 21. The nurse wrote in her nursing notes that Tomcik had a “moderate large mass in right breast.” The nurse recognized that the proper procedure was to measure such a mass, but she testified that this was impossible because no measuring device was available. The missing “measuring device” to which she alluded was a simple ruler. The nurse concluded that Evans, the original doctor who had examined Tomcik, should examine her again.

On June 28, Evans examined Tomcik again. He recorded in the progress notes that she had “a mass on her right wrist. Will send her to hospital and give her Benadryl for allergy she has.”

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Evans meant to write “breast,” not “wrist.” He again failed to measure the size of the mass on Tomcik’s breast.

Tomcik was transferred to the Franklin County Prerelease Center on September 28. On September 30, a nurse there examined Tomcik; the nurse recorded that she had a “golf ball–sized” lump in her right breast. Tomcik was transported to the hospital on October 27, where Dr. Walker treated her. A mammogram indicated that Tomcik’s tumor was probably malignant. This diagnosis was confirmed by a biopsy performed on November 9. Tomcik was released from confinement on November 13.

On November 16, Dr. Lidsky, a surgeon employed outside of the penal institution, examined Tomcik. Lidsky noted the existence of the lump in her breast and determined that the size of the mass was approximately 4 to 5 centimeters and somewhat fixed. He performed a modified radical mastectomy on the plaintiff’s right breast, removing nearly the entire breast.

Tomcik alleged that it was the delay in her examination that ultimately led to the removal of her right breast; had she been seen in a more timely manner, much of the breast could have been spared. The corrections department, in its defense, contended that even if its employees were negligent, Tomcik’s cancer was so advanced when discovered that it would nevertheless have required removal of her breast.

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The Ohio Court of Appeals held that the delay in providing treatment to Tomcik fell below the medically acceptable standard of care. The court was
appalled that the physician had characterized his evaluation as a medical examination and that what he described as a
cursory breast examination should be considered medically sufficient. It seemed incredible to the court that a physician would deliberately choose not to take the additional few minutes or seconds to palpate thoroughly the sides of the breasts, which is a standard minimally intrusive cancer detection technique.

Ethical and Legal Issues

Do you agree with the court’s decision? Discuss your answer.

Discuss why the court was appalled.

What ethical values were lacking by the caregivers?

Infliction of Mental Distress

The intentional or reckless
infliction of mental distress is characterized by conduct that is so outrageous
that it goes beyond the bounds tolerated by a decent society. It is a civil wrong for which a tort-feasor can be held liable for damages. Mental distress includes mental suffering resulting from painful emotions such as grief, public humiliation, despair, shame, and wounded pride. Liability for the wrongful infliction of mental distress may be based on either intentional or negligent misconduct. A plaintiff may recover damages if he or she can show that the defendant intended to inflict mental distress and knew or should have known that his or her actions would give rise to it. Recovery generally is permitted even in the absence of physical harm.

CRIMINAL LAW

Laws were made to restrain and punish the wicked; the wise and good do not need them as a guide, but only as a shield against rapine and oppression; they can live civilly and orderly, though there were no law in the world.

—Owen Feltham (1602–1668)

What Went Wrong?

The son of a prominent Boston doctor … was on his way to becoming a leading surgeon in his own right when a bizarre blunder interrupted his climb: he left his patient on the operating table so he could cash his paycheck. A series of arrests followed, exposing a life of arrogance, betrayal, and wasted promise …

—Reproduced from Neil Swidey, “What Went Wrong?”
The Boston Globe, March 21, 2004

Criminal law is society’s expression of the limits of acceptable human behavior. A crime is conduct that unjustifiably and inexcusability inflicts or threatens harm to individual(s) or public interests. The objectives of criminal law are to:

maintain public order and safety

protect the individual

use punishment as a deterrent to crime

rehabilitate the criminal for return to society

Crimes are generally classified as misdemeanors or felonies. The difference between a misdemeanor and a felony revolves around the severity of the crime committed and the punishment imposed. A
misdemeanor is an offense punishable by less than 1 year in jail and/or a fine (e.g., petty larceny). A
felony is a much more serious crime (e.g., rape, murder) and is generally punishable by imprisonment in a state or federal penitentiary for more than 1 year.

Peculiar to healthcare organizations is the fact that patients are often helpless and at the mercy of others. Healthcare facilities far too often are places where the morally weak and mentally deficient prey on the physically and sometimes mentally helpless. The very institutions designed to make the public well and feel safe can sometimes provide the setting for criminal conduct.

The topics in this section run counter to the ethics theory of
nonmaleficence—to do no harm—as well as to the codes of professional ethics. For example, as noted in the grand jury indictment in

FIGURE 6-5

, Dr. Gosnell snipped the spinal cords of infants delivered alive during abortion procedures. Crimes like his and others against society are not only legal wrongs, they are also ethically wrong.

The U.S. Department of Justice and state and local prosecutors are vigorously pursuing and prosecuting healthcare organizations and individuals for criminal conduct. Healthcare fraud, patient abuse, and other such crimes have caused law enforcement agencies to establish a zero-tolerance policy for such acts. This reality requires healthcare professionals to be observant in their environments and to report suspicious conduct, as appropriate.

Criminal Procedure

Criminal procedure deals with the set of rules governing the series of proceedings through which the government enforces criminal law as provided by municipalities, states, and the federal government, each of which has its own criminal codes that address and define conduct that constitutes crimes. The following sections provide an overview of criminal procedure and the process for the prosecution of misdemeanors and felonies.

Arrest

Prosecutions for crimes generally begin with the arrest of a defendant by a police officer or with the filing of a formal action in a court of law and the issuance of an arrest warrant or summons. On arrest, the defendant is taken to the appropriate law enforcement agency for processing, which includes paperwork and fingerprinting. The police also prepare accusatory statements, such as misdemeanor information and felony complaints. Detectives are assigned to cases when necessary to gather evidence, interview persons suspected of committing a crime and witnesses to a crime, and assist in preparing a case for possible trial. After processing has been completed, a person is either detained or released on bond.

Arraignment

The arraignment is a formal reading of the accusatory instrument and includes the setting of bail. The accused can appear with counsel or have counsel appointed by the court if he or she cannot afford his or her own. After the charges are read, the defendant pleads guilty or not guilty. A not guilty plea is normally offered on a felony. On a plea of not guilty, the defense attorney and prosecutor make arguments regarding bail. After arraignment of the defendant, the judge sets a date for the defendant to return to court. Between the time of arraignment and the next court date, the defense
attorney and the prosecutor confer about the charges and the evidence in the possession of the prosecutor. At that time, the defense will offer any mitigating circumstances that it believes will convince the prosecutor to lessen or drop the charges.

Indictment

A felony complaint or grand jury indictment commences a criminal proceeding. The accused can be tried for a felony after a
grand jury indictment (
Figure 6-5). The defendant can waive presentment to the grand jury and plead guilty by relinquishing his or her rights to a grand jury hearing and proceed to trial by jury. During a grand jury hearing, the prosecution presents evidence, which may lead to an indictment of the target if the grand jury finds reasonable cause to believe from the evidence presented that all the elements of a particular crime are present. The grand jury may request that witnesses be subpoenaed to testify. A defendant may choose to testify and offer information if he or she wishes. Actions of a grand jury are handed up to a judge, after which the defendant is then notified to appear to be arraigned for any crimes charged in the indictment.

Conference

If the defendant does not plead guilty, both felony and misdemeanor cases are taken to conference, and plea bargaining commences with the goal of an agreed-on disposition. If no disposition can be reached, the case is adjourned, motions are made, and further plea bargaining ensues. Generally, after several adjournments, a case is assigned to a trial court.

Prosecutor

The role of the prosecutor in the criminal justice system is well defined in
Berger v. United States:

23

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice will be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.

The potential of the prosecutor’s office is not always fully realized in many jurisdictions. In many cities, the combination of the prosecutor’s staggering caseload and small staff of assistants prevents sufficient attention being given to each case.

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Defense Counsel

The defense attorney generally sits in the proverbial hot seat, being perceived as the bad guy. Although everyone seems to understand the attorney’s function in protecting the rights of those represented, a criminal defense attorney is frequently not the most admired individual in the courtroom setting.

There is a substantial difference in the problem of representing the “run-of-the-mill” criminal defendant and one whose alleged crimes have aroused great public outcry. The difficulties in providing representation for the ordinary criminal defendant are simple compared with the difficulties of obtaining counsel for one who is charged with a crime which by its nature or circumstances incites strong public condemnation.

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Trial

Most of the processes of a criminal trial are similar to those of a civil trial. They include jury selection, opening statements, presentation of witnesses and other evidence, summations, instructions to the jury by the judge, jury deliberations, verdict, and opportunity for appeal to a higher court. In a criminal trial, the jury verdict must be unanimous, and the standard of proof is that guilt must be determined beyond a reasonable doubt, whereas in a civil trial the plaintiff need only prove a claim by a preponderance of the evidence.

Healthcare Fraud

Healthcare fraud involves an unlawful act, generally deception for personal financial gain. It “encompasses an array of irregularities and illegal acts characterized by intentional deception.”

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As shown in this section, every pillar of moral strength is shattered in an industry, rampant with fraudulent activities. Healthcare fraud costs the country billion of dollars annually. And it’s a rising threat, with national healthcare spending topping $2.7 trillion and expenses continuing to outpace inflation. As noted in the following news clipping,
medical professionals are more willing to risk patient harm in their schemes.

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National Health Care Fraud Takedown Results in Charges Against Over 412 Individuals Responsible for $1.3 Billion in Fraud Losses

Attorney General Jeff Sessions and Department of Health and Human Services (HHS) Secretary Tom Price, M.D., announced today the largest ever health care fraud enforcement action by the Medicare Fraud Strike Force, involving 412 charged defendants across 41 federal districts, including 115 doctors, nurses and other licensed medical professionals, for their alleged participation in health care fraud schemes involving approximately $1.3 billion in false billings. Of those charged, over 120 defendants, including doctors, were charged for their roles in prescribing and distributing opioids and other dangerous narcotics. Thirty state Medicaid Fraud Control Units also participated in today’s arrests. In addition, HHS has initiated suspension actions against 295 providers, including doctors, nurses and pharmacists.

—Department of Justice,
Justice News, July 13, 2017

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The primary agency for exposing and investigating healthcare fraud is the Federal Bureau of Investigation (FBI) with jurisdiction over both federal and private insurance programs.

The Bureau seeks to identify and pursue investigations against the most egregious offenders involved in health care fraud through investigative partnerships with other federal agencies, such as Health and Human Services-Office of Inspector General (HHS-OIG), Food and Drug Administration (FDA), Drug Enforcement Administration (DEA), Defense Criminal Investigative Service (DCIS), Office of Personnel Management-Office of Inspector General (OPM-OIG), and Internal Revenue Service-Criminal Investigation (IRS-CI), along with various state Medicaid Fraud Control Units and other state and local agencies.

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Moreover, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) provides for criminal and civil enforcement tools and funding dedicated to the fight against healthcare fraud. The Act requires the U.S. Attorney General and the U.S. Secretary of the Department of Health and Human Services (DHHS), acting through the Office of Inspector General (OIG), to establish a coordinated national healthcare fraud and abuse control program. The program provides a national framework for federal, state, and local law enforcement agencies; the private sector; and the public to fight healthcare fraud. Since its establishment in 1976, “OIG has been at the forefront of the Nation’s efforts to fight waste, fraud and abuse in Medicare, Medicaid and more than 100 other HHS programs. HHS OIG is the largest inspector general’s office in the Federal Government, with approximately 1,600 dedicated to combating fraud, waste and abuse and to improving the efficiency of DHHS programs.”

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The Department of Health and Human Services (DHHS) and the Department of Justice (DOJ) in 2009 created the Health Care Fraud Prevention and Enforcement Action Team (HEAT). With its creation, the fight against Medicare fraud became a Cabinet-level priority. The HHS Secretary and the Attorney General direct HEAT’s work. By 2015, HEAT coordinated a national healthcare fraud takedown that uncovered $712 million in fraudulent billing.

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Since 2010, the U.S. Department of Health & Human Services, Office of Inspector General (HHS OIG), the Centers for Medicare & Medicaid Services (CMS), and the U.S. Department of Justice (DOJ) have been using powerful, new anti-fraud tools to protect Medicare and Medicaid by shifting from a “pay and chase” approach toward fraud prevention. … In Fiscal Year (FY) 2015, the government recovered $2.4 billion as a result of health care fraud judgements, settlements and additional administrative impositions in health care fraud cases and proceedings. Since its inception in 1997, the Health Care Fraud and Abuse Control (HCFAC) Program has returned more than $29.4 billion to the Medicare Trust Funds. … Since 2007, the Medicare Fraud Strike Force has charged over 2,536 individuals involved in more than $8 billion in fraud.

• • •

Strike Force teams bring together the efforts of the Office of Inspector General, the Department of Justice, offices of the United States Attorneys, the Federal Bureau of Investigation local law enforcement, and others.

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The victims of healthcare frauds often include those who are physically and neurologically challenged. Senior citizens, at a time in their life in which they may be most vulnerable, are often the targets of perpetrators of fraud.

Investigation and Prosecution of Fraud

The Department of Justice–Health and Human Services Medicare Fraud Strike Force is a multiagency team of federal, state, and local investigators that is designed to combat Medicare fraud. Medicare fraud is estimated to cost the nation $80 billion annually.

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The success of cooperation of agencies on the federal and state levels was evident when in 2018, a Strike Force investigation netted 601 individuals charged with over $2 billion in fraudulent billing of Medicare, Medicaid, TRICARE (a health insurance program for members and veterans of the armed forces and family members), and private insurance companies.

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The message is clear that those involved in healthcare fraud are being vigorously pursued. The federal government’s initiative to investigate and prosecute healthcare organizations for criminal wrongdoing has resulted in the establishment of corporate compliance programs for preventing, detecting, and reporting criminal conduct. An effective corporate compliance program should include:

Developing appropriate policies and procedures

Appointing a compliance officer to oversee the compliance program

Communicating the organization’s compliance program to employees

Providing for monitoring and auditing systems that are designed to detect criminal conduct by employees and other agents

Publicizing a reporting system whereby employees and other agents can report criminal conduct by others within the organization without fear of retribution

Taking appropriate steps to respond to criminal conduct and to prevent similar offenses

Periodically reviewing and updating the organization’s corporate compliance program

Working with state and federal law enforcement and regulatory agencies and insurance companies to detect, prevent, and prosecute healthcare fraud

Developing appropriate policies and procedures

Appointing a compliance officer to oversee the compliance program

Communicating the organization’s compliance program to employees

Providing for monitoring and auditing systems that are designed to detect criminal conduct by employees and other agents

Publicizing a reporting system whereby employees and other agents can report criminal conduct by others within the organization without fear of retribution

Taking appropriate steps to respond to criminal conduct and to prevent similar offenses

Periodically reviewing and updating the organization’s corporate compliance program

Working with state and federal law enforcement and regulatory agencies and insurance companies to detect, prevent, and prosecute healthcare fraud

Healthcare fraud continues to present significant risks to patient health and is a financial drain on the healthcare system, leading to higher costs for legitimate care. As noted in the following remarks by Attorney General Jeff Sessions, healthcare fraud continues to present significant risks to patient health and is a financial drain on the healthcare system.

Health care fraud is a betrayal of vulnerable patients, and often it is theft from the taxpayer. In many cases, doctors, nurses, and pharmacists take advantage of people suffering from drug addiction in order to line their pockets. These are despicable crimes. That’s why this Department of Justice has taken historic new steps to go after fraudsters, including hiring more prosecutors and leveraging the power of data analytics. Today the Department of Justice is announcing the largest health care fraud enforcement action in American history. This is the most fraud, the most defendants, and the most doctors ever charged in a single operation—and we have evidence that our ongoing work has stopped or prevented billions of dollars’ worth of fraud. I want to thank our fabulous partners with the FBI, DEA, our Health Care Fraud task forces, HHS, the Defense Criminal Investigative Service, IRS Criminal Investigation, Medicare, and especially the more than 1,000 federal, state, local, and tribal law enforcement officers from across America who made this possible. By every measure we are more effective at finding and prosecuting medical fraud than ever.

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Schemes to Defraud

Individuals and corporate entities are continuously bombarding the public with fraudulent activities. Fraud has become so rampant that it has led to a decline of trust in corporate leadership. A defendant is guilty of a scheme to defraud when he or she engages in an arrangement establishing a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations, or promises, and so obtains property from one or more of such persons. To show intent in a scheme to defraud, one needs to establish the following elements:

That on or about (date), in the county of (county), the defendant (defendant’s name), engaged in a scheme constituting a systematic ongoing course of conduct;

That the defendant did so with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations, or promises; and

That the defendant so obtained property from one or more of such persons, at least one of whom has been identified.

36

Healthcare fraud is committed when a dishonest provider or consumer intentionally submits or causes someone else to submit false or misleading information for use in determining the amount of healthcare benefits payable. Some examples of provider healthcare fraud include the following:

Billing for services not rendered

Falsifying a patient’s diagnosis to justify tests, surgeries, or other procedures that are not medically necessary

Misrepresenting procedures performed to obtain payment for services not covered, such as cosmetic surgery

Upcoding services (billing for a more costly service than the one actually performed)

Upcoding medical supplies and equipment (billing for more expensive equipment than what was delivered to the patient)

Unbundling (billing each stage of a procedure as if it were a separate procedure)

Billing for unnecessary services (services that are not medically indicated)

Accepting kickbacks for patient referrals

Waiving patient copays or deductibles for medical or dental care and overbilling the insurance carrier or benefit plan

Billing a patient more than the co-pay amount for services that were prepaid or paid in full by the benefit plan under the terms of a managed care contract

Overbilling the insurance carrier or benefit plan

There are many examples of healthcare fraud, and some of the most egregious are described below.

Fraud Results in 45-Year Prison Sentence

The U.S. Supreme Court refused to hear Dr. Farid Fata’s appeal of his conviction for running a scheme that involved billing the government for medically unnecessary cancer and blood treatments. As a result of his scheme to defraud the government and harm patients in the process he will spend the next 45 years in prison.

The defendant, Farid Fata, was a physician who intentionally misdiagnosed no fewer than 553 of his patients with cancer and other maladies they did not have, then administered debilitating treatments, noxious chemicals, and invasive tests—including chemotherapy, intravenous iron, and PET scans—they did not need. For this reprehensible conduct, Fata received no less than $17 million in ill-gotten payments from Medicare and other insurers. The district court accurately described Fata’s conduct as “a huge, horrific, series of criminal acts.”

37

The number of healthcare fraud cases seems to have no end as noted in the following headlines on the FBI website.

Wednesday, July 25, 2018

Baldwin County Legislator Charged in Public Corruption Case Related to Diabetes Treatment Clinics

Monday, July 23, 2018

California Doctor and His Assistant Charged in Scheme to Distribute Prescription Drugs and Commit Health Care Fraud

Monday, July 23, 2018

California Doctor and His Assistant Charged in Scheme to Distribute Prescription Drugs and Commit Health Care Fraud

Friday, July 20, 2018

Vice President of Insurance Underwriting Group Charged with Fraudulently Obtaining $13.5 Million in Phony “Matching Deductible” Policies

Friday, July 13, 2018

Oklahoma Orthopedic Company and Physicians Agree to Pay $670,000 to Settle Allegations of False Claims

Tuesday, July 10, 2018

United States Settles False Claims Act Allegations Against Liberty Ambulance for $1.2 Million

Monday, July 9, 2018

Health Quest and Putnam Hospital Center to Pay $14.7 Million to Resolve False Claims Act Allegations

Thursday, July 5, 2018

National Health Care Fraud Takedown Results in Charges Against 601 Individuals Responsible for Over $2 Billion in Fraud Losses

Tuesday, July 3, 2018

Family Practice Doctor Pays $360,000 to Settle False Claims Act Allegations

Friday, June 29, 2018

Former Health Care Chief Executive Sentenced to 9.5 Years in Federal Prison

Friday, June 29, 2018

Houston Pharmacist Sentenced to Federal Prison for Role in Multi-Million Dollar Health Care Fraud Scheme

Thursday, June 28, 2018

Western District of Pennsylvania Participated in Largest Health Care Fraud Enforcement Action in Department of Justice History

Thursday, June 28, 2018

Southern District of Florida Charges 124 Individuals Responsible for $337 Million in False Billing as Part of National Healthcare Fraud Takedown

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Social media is not exempt from criticism as to ongoing fraudulent illegal activities of some advertisers in their efforts to sell bogus drugs. In 2014 Amazon was pressed to make it more difficult for rogue Internet pharmacies to sell counterfeit medications and other illegal drugs. As noted in the
following news clipping, Facebook is included in the fray. Although Google reached a settlement to pay $500 million to avoid prosecution for aiding illegal online pharmaceutical ads, some state prosecutors want to see more from Google in preventing ads from unlicensed pharmacies. “Google acknowledged in the settlement that it had improperly and knowingly assisted online pharmacy advertisers allegedly based in Canada to run advertisements for illicit pharmacy sales targeting U.S. customers.”

39
Amazon is not alone in criticism, as Facebook has joined the ranks of those not doing enough to remove posts from sellers of illicit opioids.

Mark Zuckerberg Took Heat from Members of Congress Wednesday Over Illegal Opioid Sales on Facebook

Rep. David McKinley, a Republican from West Virginia, was one of those who pressed Zuckerberg on why Facebook hasn’t done more to remove posts from sellers offering illicit opioids.

“Your platform is still being used to circumvent the law and allow people to buy highly addictive drugs without a prescription. With all due respect, Facebook is actually enabling an illegal activity and in so doing, you are hurting people. You’d agree with that statement?” he asked.

Critics have called out tech companies for not doing enough to crack down on illicit drug sales on their platforms.

—Sara Ashley O’Brien,
CNN Tech, April 11, 2018, 6:03 PM ET

40

Home Care Fraud

Today, more Americans are living longer than ever before. A United Nations report states that “the number of people 65 years and older rose from 8% to 12% of the total population between 1950 and 2000.”

41
As medicine has advanced, the average life expectancy has been increasing. The average life expectancy of Americans is higher today than in any other period in history.

42
This figure is expected to rise to 20% by 2050 and is likely to continue to rise due to improving patient care, research, and improving healthcare coverage.

43

An increasing number of older persons receive in-home care, dependent on family and healthcare providers to attend to their physical, financial, emotional, and healthcare needs. Medicare home health benefits allow individuals with restricted mobility to remain home, outside an institutional setting, by providing home care benefits. Home care services and supplies are generally provided by nurses, home nursing aides, speech therapists, and physical therapists under a physician-certified plan of care.

Home care is rapidly being recognized as a breeding ground for abuse. The numerous scams in home care fraud are caused by the difficulty in supervising services provided in the home, Medicare’s failure to monitor the number of visits per patient, beneficiaries paying no copayments except for medical equipment, and the lack of accountability to the patient by failing to explain services provided. “Unscrupulous physicians may also fraudulently certify that a beneficiary is home bound. In exchange, the beneficiary will be offered cash on a monthly basis or provided a home health aide that only prepares meals or cleans.”

44

Home care fraud is generally not easy to detect. It involves charging insurers for more services than patients received, billing for more hours of care than were provided, falsifying records, and charging higher nurses’ rates for care given by aides.

45
Kickback schemes in which marketers steer potential patients to specific service providers are another form of fraud.

46
The trend toward shorter hospital stays has created a multibillion-dollar market in home care services. This new market brings many opportunities for fraud.

Pharmacist Billing Fraud

Pharmacists have a duty to act with honesty and integrity in their professional relationships as noted in the following excerpt from their Code of Ethics for ethical behavior.

IV. A pharmacist acts with honesty and integrity in professional relationships.

A pharmacist has a duty to tell the truth and to act with conviction of conscience. A pharmacist avoids discriminatory practices, behavior or work conditions that impair professional judgment, and actions that compromise dedication to the best interests of patients.

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The following legal cases illustrate how not only did the pharmacists break the law; they also failed to adhere to their own code of professional ethics.

The court of appeals in
State v. Beatty

48
upheld a lower court’s finding that the evidence submitted against the defendant pharmacist was sufficient to sustain a conviction for Medicaid fraud. The state was billed for medications that were never dispensed, for more medications than some patients received, and
in some instances, for the more expensive trade name drugs when cheaper generic drugs were dispensed.

The pharmacists in
People v. Kendzia

49
were convicted of selling generic drugs in vials with brand name labels. Investigators, working undercover, were provided with Medicaid cards and fictitious prescriptions requiring brand name drugs to be dispensed as written. Between April and October 1979, the investigators had taken the prescriptions to the pharmacy, where they were filled with generic substitutions in vials with the brand name labels.

Manslaughter

Manslaughter is the commission of an unintentional act that results in the death of another person. It can be either voluntary or involuntary. Voluntary manslaughter is the intentional killing of another person in what is commonly referred to as the “heat of passion,” which is caused by the provocation of the victim (e.g., found having an affair with the defendant’s spouse). Involuntary manslaughter is the result of a negligent act (e.g., reckless driving).

Murder

Murder is the unlawful killing of a person. It is a homicide, and it involves malice aforethought and the premeditated intent to kill another human being. First-degree murder involves the deliberate and premeditated killing of another with malice aforethought. Second-degree murder is not deliberate, nor is it premeditated; however, it is the killing of another with malice aforethought. The tragedy of murder in healthcare settings that are dedicated to the healing of the sick has all too frequently occurred, as noted in the following examples.

In a highly publicized case, Dr. Kermit Gosnell was convicted of murdering newborn babies by snipping their spinal cords shortly after delivery. Following a 2-month trial and 10 days of deliberation the jury convicted Gosnell of murder. Although it was expected that prosecutors would seek the death penalty, Gosnell made a deal with prosecutors promising not to appeal the jury’s decision in exchange for life in prison without parole.

Cullen, a former nurse, pleaded guilty to 16 murders in New Jersey and Pennsylvania.

50
Cullen had refused to cooperate with prosecutors unless they promised not to seek the death penalty. Cullen claimed responsibility for the deaths of 30 to 40 patients over a 16-year nursing career. The case raised concerns about hospital oversight of employees. Cullen worked “at 10 different hospitals in New Jersey and Pennsylvania, over a period of 16 years, despite the fact that at seven of those hospitals, he was investigated, fired or forced to resign…”

51
Cullen had been found violating nursing standards from the beginning of his career. He had problems in every one of the 10 institutions that he worked for in New Jersey and Pennsylvania. As one report noted, “Apparently, not one of those institutions gave Cullen a bad reference, or told other hospitals he was trouble. It amounted to a policy of ‘see no evil, speak no evil’—one that gave Cullen, in effect, a license to kill.”

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Richard Angelo, an Eagle Scout and voluntary fireman, gained national attention as the “angel of death.” He was a registered nurse on the cardiac/intensive care unit at a Long Island hospital, where he murdered patients by injecting them with the drug Pavulon. Angelo was ultimately convicted of two counts of depraved indifference murder (second-degree murder), one count of second-degree manslaughter, one count of criminally negligent homicide, and six counts of assault with respect to five of the patients and was sentenced to 61 years to life.

53
Angelo had committed the murders in a bizarre scheme to revive the patients and be thought of as a hero. The attorney for the estate of one of the alleged victims had filed a wrongful death suit against Angelo and the hospital a day before the verdict was rendered by the jury.

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Theft

Theft is the illegal taking of another person’s or organization’s property. Healthcare organizations must be alert to the potential ongoing threat of theft by unscrupulous employees, physicians, patients, visitors, and trespassers. The theft of patient or resident valuables, supplies, drugs, and medical equipment is substantial and costs healthcare organizations millions of dollars each year.

The evidence presented in
People v. Lancaster

55
was found to have provided a probable cause foundation for information charging felony theft of nursing home residents’ money by the office manager. Evidence showed that on repeated occasions the residents’ income checks were cashed or cash was otherwise received on behalf of residents; that the defendant, by virtue of her office, had sole responsibility for maintaining the residents’ ledger accounts; and that cash receipts frequently were never posted to the residents’ accounts.

In another case,
Miller v. Dunn,

56
there was sufficient evidence to hold that a nurse assistant had misappropriated $15,000 from an 83-year-old nursing home resident. The record indicated that the funds
were taken during those times when the resident made visits to the hospital for respiratory problems. The patient had been diagnosed with dementia, and the resident’s confusion was increasing. The nursing assistant actively procured the check in question, filling in the date, amount, and her name as payee. As a result, the nursing assistant was placed on the Employee Disqualification List for misappropriating funds.

Drug Theft by Employee

One day in October, the night shift charge nurse began to reconcile the narcotics inventory on the patient care unit with the evening charge nurse. All appeared to be okay and the reconciliation sheet was signed off by both charge nurses. An evening shift staff nurse walked over to the two charge nurses and reported suspicious activity as to the usage of Demerol and Percocet during the day shift. She reported that one of the day shift nurses had been signing out two narcotic medications for a 3-day postoperative C-section patient. The patient’s medication record showed that the patient was administered Demerol at 8:30 a.m., 10:30 a.m., and 1:00 p.m. The nurse also had written that Percocet and Tylenol 3 had been administered every 2 hours. The charge nurses recognized that it would be unusual for a patient to be administered both an injection and oral narcotic at the same time and unlikely every 2 hours. When three other evening shift nurses were queried about the suspicion of medication theft, they responded:

Nurse 1: “This has been going on for a long time.”

Nurse 2: “I am not getting involved.”

Nurse 3: “Do you think we should report this?”

The two charge nurses spoke to the hospital’s night supervising nurse, who reported the possibility of medication theft to the VP of nursing. The nurse in question had been suspected of medication theft in the past, but no one ever established sufficient evidence to confront her. The VP for nursing questioned the suspected RN the following day when she arrived for work. She denied involvement in the theft of drugs. The nurse was asked to undergo a drug test, which she refused. She was then suspended for a week. When she returned, she was not permitted to carry the narcotics lock keys for a week. Later, after she regained access to narcotic drugs, she was observed giving a patient two Motrin when Percocet had been prescribed. Although an incident report had been filed against her, she continued to work into January. As other nurses eventually became concerned that they might be implicated in drug theft, they went to the VP of nursing and reported their observations. Finally, the suspected nurse was terminated. Eventually she was listed in the state professional newsletter as having a suspended license.

Sadly, this young nurse (39 years of age) was in a vehicle accident 6 months later with two other passengers. They were speeding 75 mph around a 35-mph curve without seat belts. They hit the embankment and were thrown from the car. The nurse and one passenger died instantly. The nurse had drugs in her possession, and an autopsy confirmed the presence of alcohol and drugs in all three passengers.

If action had been taken sooner, this tragedy may never have occurred. Management had the opportunity to explain the responsibility of nurses to report suspicious activity but failed to do so.

This same scenario was reported to have occurred in another state when an LPN was caught stealing medications. Within 24 hours of being caught, she had a choice of admitting to the theft and her chemical dependency or walking out of the hospital in handcuffs with the police.

Medical Identity Theft

Medical identity theft is the unauthorized use or disclosure of patient information. “Medical identity theft occurs when someone uses another person’s name or insurance information to get medical treatment, prescription drugs or surgery. It also happens when dishonest people working in a medical setting use another person’s information to submit false bills to insurance companies.”

57
Thieves often use patient mail (e.g., credit card information, bank statements, patient bills, checking account information) to obtain information about the consumer, which they use to steal their identity for financial gain.

To improve the efficiency and effectiveness of the health care system, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, included Administrative Simplification provisions that required HHS to adopt national standards for electronic health care transactions and code sets, unique health identifiers, and security. At the same time, Congress recognized that advances in electronic technology could erode the privacy of health information. Consequently, Congress incorporated into HIPAA provisions that mandated the adoption of Federal privacy protections for individually identifiable health information.

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Breeding Ground for Crime

The following news clippings illustrate how healthcare fraud has become a national breeding ground for criminals who prey on the sick and disabled for financial gain.

Virginia Court Rules Identity Theft Victim to Get $532,000 from …

Sloane delivered her second child … unaware that her last name would prove too big a temptation for an employee of the hospital’s accounting department, Shovana Sloan.

Sloan, who was hired for the department even though she was a felon, appropriated Sloane’s identification and went on a $35,000 spending spree.

—Alan Cooper,
Daily Record and the Kansas City Daily News-Press, September 23, 2006

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Medical Theft Trend Sweeps Pennsylvania

A slew of hospital thefts nationwide—including close to $75,000 of equipment from Mount Nittany Medical Center in 2005—has opened investigators’ eyes to a black market specializing in the swap of used medical instruments.

—Krystle Kopacz,
The Daily Collegian Online, January 13, 2006

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The Frightening New Frontier for Hackers: Medical Records

As health records have gone digital in the past seven years, they’ve become far more vulnerable to poaching—and far more valuable to thieves, who can sell a complete medical record for more than $1,000 on the darknet. That’s because the records contain not just your insurance info—which can be used for fraudulent billing and prescriptions—but also Social Security, driver’s license and credit card numbers. As a result, the health care industry is scrambling to play catch-up to secure patient and hospital data.

—Brigid Sweeney,
Crain’s Chicago Business, April 10, 2017

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Millions of Patient Billing Records Stolen from UT Hospital

Billing records for about 2.2 million patients and guarantors were stolen last week from the University of Utah Hospitals & Clinics, just one more in what appears to be a rapidly growing flood of identity theft incidents.

—Anne Zieger,
Fierce HealthIT, June 14, 2008

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Grady Hospital Battles Patient Thefts

“It’s got to be clearly 180 degrees from what we expect in an institution of care and shelter,” said Atlanta attorney Mark Spix, who says he represented a man whose wife lost an engagement ring after being flown to Grady in October 2004 with fatal injuries. “I just think that is unacceptable.”

There were 260 thefts involving patients, employees and visitors in 2007, compared with 262 in 2006 and 279 in 2005, Grady spokeswoman Denise Simpson said.

—Tim Eberly,
The Atlanta Journal-Constitution, July 24, 2008

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CONTRACTS

A
contract is a special kind of agreement, either written (

FIGURE 6-6

), or oral, that involves legally binding obligations between two or more parties. A contract can be
implied as well as voidable. An
implied contract can occur when emergency care and treatment is rendered to a comatose patient injured during an automobile accident. A
voidable contract is one in which one party, but not the other, has the right to escape from its legal obligations under the contract. It is considered to be a voidable contract at the option of that party. For example, a minor, not having the capacity to enter into a contract, can void the contract. However, the competent party to the contract may not void the contract. Contracts involving fraud, or where one party to the contract is incapacitated, not legally of sound mind, or under undue influence or duress are voidable contracts. The major purpose of a contract is to specify, limit, and define the agreements that are legally enforceable.

Elements of a Contract

Whether contracts are executed in writing or agreed to orally, they must contain the following elements to be enforceable: (1) offer/communication, (2) consideration, and (3) acceptance.

Offer/Communication

An offer must be communicated to the other party so that it can be accepted or rejected. Unless the offeror specifically requires that the acceptance be received before a contract is formed, communication of the acceptance to the offeror is not necessary.

Consideration

An offer is a promise by one party to do (or not to do) something if the other party agrees to do (or not do) something. Not all statements or promises are offers. Generally, advertisements of goods for sale are not offers but are invitations to the public to come to the place of business, view the merchandise, and be made an offer. An opinion is not an offer. Preliminary negotiations are not offers.

Acceptance

On proper acceptance of an offer, a contract is formed. It involves:

Meeting of the minds: Acceptance requires a “meeting of the minds” (mutual assent). The parties must understand and then agree on the terms of the contract.

Definite and complete: Acceptance requires mutual assent to be found between the parties. The terms must be so complete that both parties understand and agree to what has been proposed.

Duration: Generally, the other party may revoke an offer at any time prior to a valid acceptance. When the offeror does revoke the proposal, the revocation is not effective until the offeree (the person to whom the offer is made) receives it. After the offeree has accepted the offer, any attempt to revoke the agreement is too late and is invalid.

Complete and conforming: The traditional rule is that the acceptance must be the mirror image of the offer. In other words, the acceptance must comply with all the terms of the offer.

Employment Contracts

An employer’s right to terminate an employee can be limited by express agreement with the employee or through a collective bargaining agreement to which the employee is a beneficiary. No such agreement was found to exist in
O’Connor v. Eastman Kodak Co.,

64
in which the court held that an employer had a right to terminate an employee at will at any time, and for any reason or no reason. The plaintiff did not rely on any specific representation made to him during the course of his employment interviews, nor did he rely on any documentation in the employee handbook, which would have limited the defendant’s common-law right to discharge at will. The employee had relied on a popular perception of Kodak as a “womb-to-tomb” employer.

Exclusive Contracts

An
exclusive contract, in the context of a hospital, is an agreement between two or more entities to deal only with each other regarding a specific area of business (e.g., hospital[s] and radiology physician[s] group). The essential feature of an exclusivity contract is the covenant not to engage in a particular business activity with other parties for a specified period of time.

An organization often enters into an exclusive contract with physicians and/or medical groups for the purpose of providing a specific service to the organization. Exclusive contracts generally occur within the organization’s ancillary service departments (e.g., radiology, anesthesiology, and pathology). Physicians who seek to practice at organizations in these ancillary areas but who are not part of the exclusive group have attempted to
invoke the federal antitrust laws to challenge these exclusive contracts. These challenges generally have been unsuccessful.

Exclusive Contract with Radiology Group

Tennessee code permitted the hospital authority to enter into an exclusive contract with a radiology group. The governing body’s decision to close the staff of the imaging department did not violate medical staff bylaws, and the defendant radiologists were not legally or constitutionally entitled to a hearing if their privileges were terminated on entry of the hospital authority into an exclusive provider contract.

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Commercial Ethics and Noncompetition Agreements

The purpose in allowing noncompetition agreements is to foster “commercial ethics” and to protect the employer’s legitimate interests by preventing unfair competition, not ordinary competition.

The respondent hospital in
Washington County Memorial Hospital v. Sidebottom

66
employed the appellant/nurse practitioner from October 1993 through April 1998. Before beginning her employment, the nurse entered into an employment agreement with the hospital. The agreement included a noncompetition clause providing in part that the nurse “during the term of [the] Agreement and for a period of one (1) year after the termination of her employment … will not, anywhere within a fifty (50) mile radius … directly or indirectly engage in the practice of nursing … without the express direction or consent” of the hospital. In February 1994, the nurse requested the hospital’s permission to work for the Washington County Health Department doing prenatal nursing care. Because the hospital was not then doing prenatal care, the hospital gave her permission to accept that employment but reserved the ability to withdraw the permission if the services the nurse was providing later came to be provided by the hospital. In January 1996, the nurse and the hospital entered into a second employment agreement that continued the parties’ employment relationship through January 9, 1998. This agreement included a noncompetition clause identical to the 1993 employment agreement. It also provided for automatic renewal for an additional 2 years unless either party gave written termination notice no less than 90 days prior to the expiration of the agreement.

The hospital’s interest lies in protecting its patient base as a primary source of revenue. The specific enforcement of the nurse’s noncompetition clause is reasonably necessary to protect the hospital’s interest. Actual damage need not be proven to enforce a covenant not to compete. Rather, the employee’s opportunity to influence customers justifies enforcement of the covenant. Thus, the quality, frequency, and duration of an employee’s exposure to an employer’s customers are crucial in determining the covenant’s reasonableness. The nurse had opportunity to influence the hospital’s patients. Before her employment with the hospital, the nurse had never worked in Washington County, nor did she have a patient base there. The nurse helped to establish two rural healthcare clinics for the hospital, one of which she managed during her first year of employment. During almost 5 years of employment with the hospital, the nurse saw more than 3,000 patients. Pursuant to a collaborative practice agreement with a physician, the nurse treated patients, diagnosed illnesses and injuries, prescribed and dispensed medications, and ordered and interpreted laboratory tests. The nurse got to know the patients and families to whom she provided these services. At the clinic, she had her own telephone number, receptionist, appointment book, medical assistant, patient charts, laboratory, and examination rooms. Her offices were physically separated from those of the other medical practitioner at the clinic. Furthermore, during her employment, the hospital promoted the nurse as a nurse practitioner in the community by paying for advertisements with her picture and telephone number in the newspaper. In general, the nurse had a good rapport with her patients, and she had patients who requested her for medical services.

TRIAL PROCEDURE AND THE COURTROOM

This next section presents a brief review of the law as applied in the courtroom (

FIGURE 6-7

). Although many of the procedures leading up to and followed during a trial are discussed in this chapter, civil procedure and trial practice are governed by each state’s statutory requirements. Federal statutes govern cases on the federal level.

Pleadings

The pleadings of a case (e.g., summons and complaint), which include all the allegations of each party to a lawsuit, are filed with a court. The pleadings may raise questions of both law and fact. If only questions of law are at issue, the judge will decide the case based on the pleadings alone. If questions of fact are involved, the purpose of a trial is to determine those facts.

Summons and Complaint

The parties to a controversy are the plaintiff and the defendant. The plaintiff is the person who initiates an action by filing a complaint; the defendant is the person against whom a suit is brought. Many cases have multiple plaintiffs and defendants. Filing an order with a court clerk to issue a writ or summons commences an action.

Although the procedures for beginning an action vary according to jurisdiction, there are procedural common denominators. All jurisdictions require service of process on the defendant (usually through a summons) and a return to the court of that process by the person who served it. When a summons is not required to be issued directly by a court, an attorney, as an officer of the court, may prepare and cause a summons to be served without direct notice to or approval of a court. Notice to a court occurs when an attorney files a summons and complaint in a court, thereby indicating to the court that an action has been commenced.

The first pleading filed with the court in a negligence action is the complaint. The complaint identifies the parties to a suit, states a cause of action, and includes a demand for damages. It is filed by the plaintiff and is the first statement of a case by the plaintiff against the defendant. In some jurisdictions, a complaint must accompany a summons (an announcement to the defendant that a case has been commenced). An example of a complaint for damages by the plaintiff is presented here based on legal issues and violations of professional misconduct.

Complaint for Damages

COMES NOW the plaintiff JESSE BRAVO, by and through his attorneys of record, KIESEL BOUCHER LARSON LLP and PUBLIC COUNSEL, and for cause of action. Against Defendants, and each of them, hereby alleges upon personal knowledge with respect to his own acts, and upon information and belief as to all other matters as follows.

Introduction

1. On February 11, 2011, Defendants White Memorial Medical Center, a California corporation, and Adventist Health System/West, a California corporation; their physicians, nurses, staff members and employees and agents; Michael Hernandez, M.D., Inc., A Professional Corporation, and DOES 1 through 100, inclusive (herein collectively referred to as the “Defendants”), discharged an unstable, paranoid schizophrenic and heavily medicated man without his consent and then physically restrained him and transported him to an unfamiliar location against his will, abandoning and “dumping” him on the sidewalk without the ability to return home. During the two weeks prior to that abandonment and “dumping” Jessie Bravo (hereinafter also referred to as “Mr. Bravo” or “Plaintiff”) had been an inpatient at White Memorial Medical Center. Other than administering multiple prescription psychotropic medications, Defendants provided little care and treatment for him and did not stabilize the acute psychiatric condition that had led to his admission to the hospital. Defendants ignored the fact that Mr. Bravo was a married man who resided with his family, and, instead, treated him as if he were a homeless person by unilaterally deciding to discharge him from White Memorial Hospital Center to a shelter that cares for homeless people. Insofar as Defendants formulated treatment goals for Mr. Bravo, their own stated goal was not to discharge him until 24 hours had passed without any aggressive behavior on his part. At 10:10 p.m. on February 10, 2011, Defendants administered 100 milligrams of Thorazine to Mr. Bravo they determined that his behavior was a threat to his own safety and to the safety of others. Less that 12 hours later, however, they began the process that led to his discharge, abandonment and dumping.

• • •

2. Defendant’s action violate every standard of professional conduct.

• • •

PRAYER FOR RELIEF

For general, special, and compensatory damages in amounts proven at trial; …

For punitive damages. …

For pre Judgment interest. …

For costs and reasonable attorney fees. …

DEMAND FOR JURY TRIAL

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Answer

After service of a complaint, a response is required from the defendant in a document called the answer. In the answer, the defendant responds to each of the allegations contained in the complaint by stating his or her defense and by admitting to or denying each of the plaintiff’s allegations. If the defendant fails to answer the complaint within the prescribed time, the plaintiff can seek judgment by default against the defendant.

Bill of Particulars

A bill of particulars in a civil case is a written demand for more detailed information concerning the alleged claim/s by the defendant/s. A bill of particulars is requested when there is generally insufficient information provided in the complaint to file an answer. If a counterclaim is filed, the plaintiff’s attorney may request a bill of particulars from the defense attorney. In a criminal case the defendant’s attorney may request a bill of particulars in order to prepare their case.

Discovery

Discovery is the process of investigating the facts of a case before trial. The objectives of discovery are to:

obtain evidence that might not be obtainable at the time of trial

isolate and narrow the issues for trial

gather knowledge of the existence of additional evidence that may be admissible at trial

obtain leads to enable the discovering party to gather further evidence

The parties to a lawsuit have the right to discovery and to examine witnesses before trial.

Examination before trial (EBT) is one of several discovery techniques used to enable the parties of a lawsuit to learn more regarding the nature and substance of each other’s case. An EBT consists of oral testimony under oath and includes cross-examination. A deposition, taken at an EBT, is the testimony of a witness that has been recorded in a written format. Testimony given at a deposition becomes part of the permanent record of the case. Each question and answer is transcribed by a court stenographer and may be used at the subsequent trial. Truthfulness and consistency are important because answers that differ from those given at trial will be used to attack the credibility of the witness.

Preparation of Witnesses

The manner in which a witness handles questioning at a deposition or trial is often as important as the facts of the case. Each witness should be well prepared before testifying. Preparation should include a review of all pertinent records. Helpful guidelines for witnesses undergoing examination in a trial or a court hearing include the following:

Review the records (e.g., medical records and other business records) on which you might be questioned.

Do not be antagonistic when answering the questions. The jury may already be somewhat sympathetic toward a particular party to the lawsuit; antagonism may serve only to reinforce such an impression.

Be organized in your thinking and recollection of the facts regarding the incident.

Answer only the questions asked.

Explain your testimony in simple, succinct terminology.

Do not overdramatize the facts you are relating.

Do not allow yourself to become overpowered by the cross-examiner.

Be polite, sincere, and courteous at all times.

Dress appropriately and be neatly groomed.

Pay close attention to any objections your attorney may have as to the line of questioning being conducted by the opposing counsel.

Be sure to have reviewed any oral deposition in which you may have participated.

Be straightforward with the examiner. Any answers designed to cover up or cloud an issue or fact will, if discovered, serve only to discredit any previous testimony that you may have given. Do not show any visible signs of displeasure regarding any testimony with which you are in disagreement.

Be sure to have questions that you did not hear repeated and questions that you did not understand rephrased.

If you are not sure of an answer, indicate that you are not sure or that you just do not know the answer.

Remember that lawyers often get the answers they want by how they frame the questions they ask.

The Court

A case is heard in the court that has jurisdiction over the subject of controversy. The judge decides questions of law and is responsible for ensuring that a trial is conducted properly in an impartial atmosphere and that it is fair to both parties of a lawsuit. He or she determines what constitutes the general standard of conduct required for the exercise of due care. The judge informs the jury of what the defendant’s conduct should have been, thereby making a determination of the existence of a legal duty.

The judge decides whether evidence is admissible, charges the jury (defines the jurors’ responsibility in relation to existing law), and may take a case away from the jury (by directed verdict or judgment notwithstanding the verdict) if he or she believes that there are no issues for the jury to consider or that the jury has erred in its decision. This right on the part of the judge with respect to the role of the jury narrows the jury’s responsibility with regard to the facts of the case. The judge maintains order throughout the suit, determines issues of procedure, and is generally responsible for the conduct of the trial.

Mother Loses Custody of Her Children—Because She Has Breast Cancer

A woman with terminal breast cancer says she has lost custody of her children because doctors do not know how long she will live.

A judge ruled that 37-year-old Alaina Giordano, from Durham, North Carolina, must give up both her children to her estranged husband after she was diagnosed with stage four breast cancer.

Durham County Family Court judge Nancy Gordon ruled that Mr. Snyder should get the children after a psychiatrist recommended that they should live with him because of the “deteriorating condition of the mother’s health.”

—John Stevens,
Daily Mail, May 10, 2011

A Facebook account was set up for Alaina, and within several weeks, 18,743 people linked to her page. The following is a sampling of the numerous posts on her Facebook page:

D.D.: MAY GOD HAVE MERCY ON YOU AND I WILL PRAY FOR YOU AND YOUR CHILDREN. NO ONE HAS THE RIGHT TO TAKE WHAT GOD HAS GIVEN YOU … “YOUR CHILDREN”

M.A.B.: she should not lose her family because she feel ill. Falling ill is not a lifestyle choice she made—it is a circumstance she is forced to endure she should not endure it without her children. mothers in prison may have their children with them for God’s sake.

S.X.: Came home to NC after a business trip to see this report. SHAMEFUL that a court and an “expert witness” could have so little compassion and rule like this. I’m shocked. I know the family. These kids belong with Mom!

“We have learned that the North Carolina Supreme Court has denied my motion for a stay—this means that now, my children will be moving to Chicago to start the school year with their father.

As I write today, I deal with the difficult recognition that my children will have to live 800 miles away from me, until my appeal can be heard. In the wake of this legal decision, my children and I now must grieve the pending loss of each other.”

http://www.facebook.com/friendsofalaina

Comments by Danny: Alaina, I have been a hospital administrator and later inspected more than 500 hospitals and 100 ambulatory sites from Alaska to Puerto Rico. I have never experienced such a travesty by a Judge who apparently has little knowledge of the law or an understanding of the horrors you have been put through. Judges of this sort need some major training in ethics. I quote Earl Warren, Chief Justice of the United States (1891–1974), “In civilized life, law floats on a sea of ethics.” The Judge in your case failed to understand and practice the teachings of this most Honorable judge—Earl Warren. I wish you love and happiness always … and know that you are loved.

—Danny

Mother With Terminal Cancer Can Retain Child Custody, Judge Holds

In a case of first impression, a New Jersey judge has refused to strip a divorced mother of primary custody of her children even though she has terminal and inoperable breast cancer.

Ocean County Superior Court Judge Lawrence Jones said granting the father’s motion for an emergency change in the children’s primary residential status could cause them emotional harm.

“It would be fundamentally inequitable and inappropriate for this court to conclude that a person’s illness, disability, or condition, even a condition as serious as Stage IV cancer, automatically renders a person unfit per se to continue serving as a custodial parent. …”

—Michael Booth,
New Jersey Law Journal, November 22, 2013

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Discussion

Make an argument supporting the judge’s decision and one that opposes her decision.

Discuss both the moral and legal issues (e.g., the best interests of the children) you believe the judge may have failed to consider in this case.

The Jury

The right to a trial by jury is a constitutional right in certain cases. Not all cases entitle the parties to a jury trial as a matter of right. For example, in many jurisdictions, a case in equity (a case seeking a specific course of conduct rather than monetary damages) may not entitle the parties to a trial by a jury. An example of an equity case is one that seeks a declaration as to the title to real property. Members of a jury are selected from a jury list. They are summoned to court by a paper known as the jury process. Impartiality is a prerequisite of all jurors. The number of jurors who sit at trial is 12 in common law. If there are fewer than 12, the number must be established by statute.

An individual may waive the right to a jury trial. If this right is waived, the judge acts as judge and jury, becomes the trier of facts, and decides issues of law.

Counsel for both parties of a lawsuit may question each prospective jury member for impartiality, bias, and prejudicial thinking. This process is referred to as the
voir dire, the examination of jurors. After members of the jury are selected, they are sworn in to try the case.

The jury makes a determination of the facts that have occurred, evaluating whether the plaintiff’s damages were caused by the defendant’s negligence and whether the defendant exercised due care. The jury also makes a determination of the particular standard of conduct required in all cases in which the judgment of reasonable people might differ. The jury must pay close attention to the evidence presented by both sides of a suit in order to render a fair and impartial verdict.

The jury also determines the extent of damages, if any, and the degree to which the plaintiff’s conduct may have contributed to any injuries suffered.

Subpoenas

A
subpoena is a legal order requiring the appearance of a person and/or the presentation of documents to a court or administrative body. Attorneys, judges, and certain law enforcement and administrative officials, depending on the jurisdiction, may issue subpoenas.

A
subpoena ad testificandum orders the appearance of a person at a trial or other investigative proceeding to give testimony. Witnesses have a duty to appear and may suffer a penalty for contempt of court should they fail to appear.

A
subpoena duces tecum is a written command to bring records, documents, or other evidence described in the subpoena to a trial or other investigative proceeding. The subpoena is served on a person able to produce such records.

Opening Statements

During the opening statement, the plaintiff’s attorney outlines what he or she intends to prove. The opening statement by the plaintiff’s attorney provides in capsule form the facts of the case, what he or she intends to prove by means of a summary of the evidence to be presented, and a description of the damages to his or her client.

The defense attorney makes his or her opening statement indicating the position of the defendant and the points of the plaintiff’s case he or she intends to refute. The defense attorney summarizes the facts as they apply to the case for the defendant.

Burden of Proof

The
burden of proof requires that the plaintiff’s attorney show that the defendant violated a legal duty by not following an acceptable standard of care and that the plaintiff suffered injury because of the defendant’s breach. If the evidence presented does not support the allegations made, the case is dismissed.

The burden of proof in a criminal case requires that evidence presented against the defendant must be proven beyond a reasonable doubt by the prosecuting attorney. Note the terminology: reasonable doubt—not “all” doubt. The burden of proof in a criminal case lies with the prosecution. The prosecution has the burden of proving each element of a crime beyond a reasonable doubt.

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In a civil suit, the plaintiff has the burden of proving his case by a preponderance of the evidence. In other words, the evidence presented must demonstrate that, in a malpractice case, for example, it is more likely than not that the defendant(s) is (are) the cause of the patient’s alleged injuries. The evidence presented by the plaintiff need only tip the scales of justice.

Evidence

Evidence consists of the facts proved or disproved during a lawsuit. The law of evidence is a body of rules under which facts are proved. To be admitted at trial, evidence must be competent, relevant, and material.

Direct Evidence

Direct evidence is proof offered through direct testimony. It is the jury’s function to receive testimony presented by witnesses and to draw conclusions in the determination of facts.

Demonstrative Evidence

Demonstrative (real) evidence is evidence furnished by things themselves. It is considered the most trustworthy and preferred type of evidence. It consists of tangible objects to which testimony refers (e.g., medical instruments and broken infusion needles) that can be requested by a jury. Demonstrative evidence is admissible in court if it is relevant, has probative value, and serves the interest of justice. It is not admissible if it will prejudice, mislead, confuse, offend, inflame, or arouse the sympathy or passion of the jury. Other forms of demonstrative evidence include photographs, motion pictures, computer-generated information, drawings, human bodies as exhibits, pathology slides, fetal monitoring strips, safety committee minutes, infection committee reports, medical staff bylaws, rules and regulations, nursing policy and procedure manuals, census data, and staffing patterns.

A plaintiff’s injuries are admissible as an exhibit if the physical condition of the body is material to the complaint. The human body is considered the best evidence as to the nature and extent of the alleged injury/injuries. If there is no controversy about either the nature or the extent of an injury, presenting such evidence could be considered prejudicial and an objection can be made as to its presentation to a jury.

Documentary Evidence

Documentary evidence is written evidence capable of making a truthful statement (e.g., drug manufacturer inserts, autopsy reports, birth certificates, and medical records). Documentary evidence must satisfy the jury as to authenticity. Proof of authenticity is not necessary if the opposing party accepts its genuineness. In some instances, concerning wills, for example, witnesses are necessary. In the case of documentation, the original of a document must be produced unless it can be demonstrated that the original has been lost or destroyed, in which case a properly authenticated copy may be substituted.

Examination of Witnesses

After conclusion of the opening statements, the judge calls for the plaintiff’s witnesses. An officer of the court administers an oath to each witness, and direct examination begins. On cross-examination by the defense, an attempt is made to challenge or discredit the plaintiff’s witness. The plaintiff’s attorney may ask the same witness more questions in an effort to overcome the effect of the cross-examination. Re-cross-examination may also take place if necessary for the defense of the defendant.

Expert Witness

Laypersons are quite able to render opinions about a great variety of general subjects, but for technical questions, the opinion of an expert is necessary. At the time of testifying, each expert’s training, experience, and special qualifications are explained to the jury. The experts are asked to give an opinion concerning hypothetical questions based on the facts of the case. Should the testimony of two experts conflict, the jury will determine which expert opinion to accept. Expert witnesses may be used to assist a plaintiff in proving the wrongful act of a defendant or to assist a defendant in refuting such evidence. In addition, expert testimony may be used to show the extent of the plaintiff’s damages or to show the lack of such damages.

Defense of One’s Actions

The defendant’s case is presented to discredit the plaintiff’s cause of action and prevent recovery of damages. Principles of law that may relieve a defendant from liability include assumption of a risk, comparative
negligence, contributory negligence, Good Samaritan laws, ignorance of fact, unintentional wrongs, the statute of limitations, and sovereign immunity.

Assumption of a Risk

Assumption of a risk is knowing that a danger exists and voluntarily accepting the risk by exposing oneself to it, knowing that harm might occur. Assumption of a risk may be implicitly assumed, as in alcohol consumption, or expressly assumed, as in relation to warnings found on cigarette packaging.

This defense provides that the plaintiff expressly has given consent in advance, relieving the defendant of an obligation of conduct toward the plaintiff and taking the chances of injury from a known risk arising from the defendant’s conduct. For example, one who agrees to care for a patient with a communicable disease and then contracts the disease would not be entitled to recover from the patient for damages suffered. In taking the job, the individual agreed to assume the risk of infection, thereby releasing the patient from all legal obligations.

The following two requirements must be established in order for a defendant to be successful in an assumption of risk defense:

the plaintiff must know and understand the risk that is being incurred;
and

the choice to incur the risk must be free and voluntary.

Comparative Negligence

A defense of
comparative negligence provides that the degree of negligence or carelessness of each party to a lawsuit must be established by the finder of fact and that each party then is responsible for his or her proportional share of any damages awarded. For example, if a plaintiff suffers injuries of $10,000 from an accident and is found to be 20% negligent and the defendant is found to be 80% negligent, the defendant would be required to pay $8,000 to the plaintiff. Thus, with comparative negligence, the plaintiff can collect for 80% of the injuries, whereas an application of contributory negligence would deprive the plaintiff of any monetary judgment. This doctrine relieves the plaintiff from the hardship of losing an entire claim when a defendant has been successful in establishing that the plaintiff has contributed to his or her own injuries.

Contributory Negligence

Contributory negligence can be defined as any lack of ordinary care on the part of the person injured that, combined with the negligent act of another, caused the injury. A person is contributorily negligent when that person does not exercise reasonable care for his or her own safety. As a general proposition, if a person has knowledge of a dangerous situation and disregards the danger, then that person is contributorily negligent.

Good Samaritan Laws

The various states have enacted
Good Samaritan laws that relieve healthcare professionals, and in some instances laypersons, from liability in certain emergency situations. Good Samaritan legislation encourages healthcare professionals to render assistance at the scene of emergencies. Good Samaritan statutes provide a standard of care that delineates the scope of immunity for those persons eligible under the law.

Ignorance of the Law and Unintentional Wrongs

Ignorance of the law excuses no man; not that all men know the law, but because ‘tis an excuse every man will plead, and no man can tell how to confute him.

—John Selden (1584–1654)

The defendant cannot use ignorance of the law to excuse his or her negligent actions; otherwise, pleading ignorance would reward an individual. Arguing that a negligent act is unintentional is no defense. If such a defense were acceptable, all defendants would use it.

Because a defense of ignorance or “I didn’t know what I was doing” is not an acceptable answer in a courtroom, you need to learn and understand the potential consequences of your actions in the healthcare setting. This text lays the foundation for understanding your legal and ethical rights and responsibilities.

Statute of Limitations

The
statute of limitations refers to legislatively imposed time constraints that restrict the period of time after an injury occurs during which a legal action must be commenced. Should a cause of action be initiated later than the period of time prescribed, the case cannot proceed. The statutory period begins when an injury occurs, although in some cases (usually involving foreign objects left in the body during surgery) the statutory period commences when the injured person discovers or should have discovered the injury.

Many technical rules are associated with statutes of limitations. Computation of the period when the
statute begins to run in a particular state may be based on any of the following factors:

The date that the physician terminated treatment

The time of the wrongful act

The time when the patient should have reasonably discovered the injury

The date that the injury is discovered

The date when the contract between the patient and the physician ended

Sovereign Immunity

Sovereign immunity refers to the common-law doctrine by which federal and state governments historically have been immune from liability for harm suffered from the tortious conduct of employees. For the most part, both federal and state governments have abolished sovereign immunity.

Closing Statements

Closing statements give attorneys an opportunity to summarize for the jury and the court what they have proven. They may point out faults in their opponent’s case and emphasize points they want the jury to remember. “In civil proceedings, either party may receive a directed verdict in its favor if the opposing party fails to present a
prima facie case, or fails to present a necessary defense.”

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Judge’s Charge to the Jury

After the attorneys’ summations, the court charges the jury before the jurors recess to deliberate. Because the jury determines issues of fact, it is necessary for the court to instruct the jury with regard to applicable law. This is done by means of a charge. The charge defines the responsibility of the jury, describes the applicable law, and advises the jury of the alternatives available to it.

The judge will instruct the jury in each separate case as to the law of that case. For example, in each criminal case, the judge will tell the jury, among other things, that a defendant charged with a crime is presumed to be innocent and the burden of proving his guilt beyond a reasonable doubt is upon the Government. Jurors must follow only the instructions of law given to them by the trial judge in each particular case.

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Jury Deliberation

After the judge’s charge, the jury retires to the jury room and deliberates as to whether or not the defendant is liable. The jury returns to the courtroom upon reaching a verdict, and its determinations are presented to the court.

If a verdict is against the weight of the evidence, a judge may dismiss the case, order a new trial, or set his or her own verdict. At the time judgment is rendered, the losing party has an opportunity to motion for a new trial. If a new trial is granted, the entire process is repeated; if not, the judgment becomes final, subject to review of the trial record by an appellate court.

Damages

Damages suffered by plaintiffs can be awarded as compensation for loss or injury as a result of the negligence of the defendants. Damages can be sought for emotional distress, physical pain and suffering, and economic loss.
Punitive damages are sometimes awarded over and above that which is intended to compensate the plaintiff for economic losses resulting from the injury. Punitive damages cover such items as physical disability, mental anguish, loss of a spouse’s services, physical suffering, injury to one’s reputation, and loss of companionship. Punitive damages are referred to as “that mighty engine of deterrence” in
Johnson v. Terry.

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In
Estes Health Care Centers v. Bonnerman, it was found that:

While human life is incapable of translation into a compensatory measurement, the amount of an award of punitive damages may be measured by the gravity of the wrong done, the punishment called for by the act of the wrongdoer, and the need to discourage similar wrongs.

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Appeals

An appellate court reviews a case on the basis of the trial record as well as written briefs and, if requested, concise oral arguments by the attorneys. A brief summarizes the facts of a case, testimony of the witnesses, laws affecting the case, and arguments of counsel. The party making the appeal is the appellant. The party answering the appeal is the appellee. After hearing the oral arguments, the court takes the case under advisement until such time as the judges consider it and agree on a decision. An opinion is then prepared, explaining the reasons for a decision. The appellate court may modify, affirm, or reverse the judgment or may order a new trial on appeal.

CHAPTER REVIEW

Tort is a civil wrong committed against a person or property for which a court provides a correction in the form of an action for damages.

Objectives of tort law

Preservation of peace (between individuals by providing a substitute for retaliation).

Culpability—find fault for wrongdoing.

Deterrence—to discourage the wrongdoer (tort-feasor) from committing future torts.

Compensation—to indemnify the injured person[s] of wrongdoing.

Negligence is the unintentional
commission or
omission of an act that a reasonably prudent person would
or would not perform under given circumstances.

Malpractice

Negligence or carelessness of a professional person

Forms of negligence

Malfeasance, execution of an unlawful or improper act

Misfeasance, improper performance of an act that results in injury to another

Nonfeasance, failure to act when there is a duty to do so

Elements of negligence

Duty to care—obligation to conform to a recognized standard of care

Breach of duty—failure to meet a prevailing standard of care

Injury—actual damages must be established

Causation—defendant’s departure from the standard of care must be the cause of the plaintiff’s injury

Foreseeability—reasonable anticipation that harm or injury will result from an act or a failure to act

The test for foreseeability is whether or not one should have reasonably anticipated that the event in question or a similar event would occur.

Intentional tort involves an act that violates another person’s interests.

Assault and battery

Assault is the infringement on the mental security or tranquility of another person.

Battery is the violation of another person’s physical integrity.

False imprisonment

The unlawful restraint of an individual’s personal liberty or the unlawful restraint or confinement of an individual

Defamation of character

A false oral or written communication to someone other than the individual defamed, subjecting that individual’s reputation to scorn and ridicule

Libel—written defamation

Slander—spoken defamation

Invasion of privacy

Infliction of mental distress

Characterized by conduct that is so outrageous that it goes beyond the bounds tolerated by a decent society

Criminal law is society’s expression of the limits of acceptable human behavior.

Crime, a social harm defined and made punishable by law

Misdemeanor is an offense punishable by less than 1 year in jail and/or a fine.

Felony is generally punishable by imprisonment in a state or federal prison for a period of more than 1 year.

Criminal negligence, the reckless disregard for the safety of others and willful indifference to an injury that could result from an act. It differs from tort liability in that it provides for a more specific lack of care commonly characterized as “gross negligence” and “recklessness.”

Objectives of criminal law

Maintain public order and safety

Protect individuals and society from harm

Provide punishment as a deterrent to crime

Rehabilitate criminals for return to society

Criminal procedure

Arrest

Arraignment

Indictment

Conference

Prosecution

Defense

Trial

Healthcare fraud

Manslaughter

Murder

Theft

Contract, a written or oral agreement that involves legally binding obligations between two or more parties.

Elements of a contract

Offer/communication

Consideration

Acceptance

Exclusive contracts allow organizations to contract with physicians and/or medical groups to provide specific services to the organization.

Employment contracts

Exclusive contracts

Commercial ethics and noncompetitive agreements

Trial procedures

Pleadings

Summons and complaint

Answer

Bill of particulars

Discovery

Investigation of facts.

Examination Before Trial (EBT).

Process that allows for witnesses to be examined prior to trial

Preparation of witnesses

Court

Jury

Determines the facts in a case

Makes a determination of the particular standards of conduct required in which the judgment of reasonable people might differ

Subpoenas

Opening statements

Burden of proof

Evidence

Direct evidence, proof offered via direct testimony

Demonstrative evidence, proof offered by objects themselves

Documentary evidence, written evidence capable of making a truthful statement

Examination of witnesses

Expert witness used to resolve issues in a case outside the understanding or experience of the average juror

Defending one’s actions in a negligence case

Assumption of a risk

Comparative negligence

Contributory negligence

Good Samaritan laws

Ignorance of the law and unintentional wrongs

Statute of limitations

Sovereign immunity

Closing statements

Judge’s charge to the jury

Jury deliberation

Damages

Nominal damages

Compensatory damages

Punitive damages

Appeals process

TEST YOUR UNDERSTANDING

Terminology

assault

assumption of a risk

battery

breach of duty

burden of proof

causation

commission

comparative negligence

contract

contributory negligence

damages

defamation of character

demonstrative evidence

direct evidence

documentary evidence

duty to care

evidence

exclusive contract

false imprisonment

felony

foreseeability

Good Samaritan laws

infliction of mental distress

injury

intentional tort

invasion of privacy

libel

malfeasance

malpractice

manslaughter

misdemeanor

misfeasance

murder

negligence

nonfeasance

nonmaleficence

omission

proximate cause

punitive damages

reasonably prudent person

right to privacy

slander

sovereign immunity

standard of care

statute of limitations

subpoena

theft

tort

REVIEW QUESTIONS

Describe the objectives of tort law.

Discuss the distinctions among negligent torts, intentional torts, and strict liability.

Explain the difference between a
commission and
omission of a negligent act.

Explain the difference between negligence and malpractice.

What are the elements that must be proven in order to be successful in a negligence suit? Illustrate your answer with a case. (The facts of the case can be hypothetical.)

Describe the categories of intentional torts.

How does slander differ from libel? Give an example of each.

Describe the objectives of criminal law.

Describe the difference between a misdemeanor and a felony. Give an example of each.

Discuss why physicians have been so reluctant to remove a patient’s life-support systems.

Describe a scheme to defraud.

Explain the elements of a contract.

Describe why exclusive contracts are so controversial.

Describe the trial process, including pretrial motions and the functions of the judge, jury, and attorneys.

Describe the kinds of evidence that a plaintiff can present in order to establish a negligent act.

What defenses can a defendant present in order to refute a plaintiff’s evidence?

Describe how statutes of limitations favor defendants in a lawsuit.

Describe the various types of damages that can be awarded a plaintiff.

Explain why either the plaintiff or defendant may wish to appeal a jury’s verdict.

NOTES

1. Claire Kitchen, “‘You’re Taking Out the Wrong Kidney,’ Surgeon Was Told,” The Daily Mail.
http://www.dailymail.co.uk/health/article-123005/Youre-taking-wrong-kidney-surgeon-told.html (accessed July 17, 2018).

2. Claire Withycombe, “Lawsuit Alleges Incorrect Breast Removed,” The Bend Bulletin.
https://www.bendbulletin.com/localstate/bend/4421402-151/lawsuit-alleges-incorrect-breast-removed (accessed July 17, 2018).

3. “Doctor Who Cut Off Wrong Leg Is Defended by Colleagues,” The New York Times (September 17, 1995).
http://www.nytimes.com/1995/09/17/us/doctor-who-cut-off-wrong-leg-is-defended-by-colleagues.html (accessed July 17, 2018).

4.
Neade v. Portes, 710 N.E.2d 418 (Ill. App. Ct. 1999).

5. California Code of Regulations, Title 22, section 70217.

6.
Hastings v. Baton Rouge Hospital, 498 So. 2d 713 (La. Ct. App. 1986).

7.
Deerings West Nursing Center v. Scott, 787 S.W.2d 494 (Tex. Ct. App. 1990).

8.
Hastings v. Baton Rouge Hospital.

9.
Brown v. Koulizakis, 229 Va. 524, 331 SE.2d 440 at 446 (1985).

10.
Justia.com, “Actual and Proximate Cause”.
https://www.justia.com/injury/negligence-theory/actual-and-proximate-cause (accessed August 1, 2018).

11. 498 So. 2d 713 (La. Ct. App. 1986).

12.
Clark v. Wagoner, 452 S.W.2d 437, 440 (Tex. 1970).

13. 57A Am. Jur.2d Torts § 134 (1989).

14.
Niles v. City of San Rafael, 116 Cal. Rptr. 733 (Cal. Ct. App. 1974).

15.
Schloendorff v. Society of New York, 105 N.E. 92 (1914).

16.
Perna v. Pirozzi, 92 N.J. 446, 457 A.2d 431 (1983).

17.
Ibid.

18.
Peete v. Blackwell, 504 So.2d 22 (Ala. 1986).

19.
Eli v. Griggs County Hospital & Nursing Home, 385 N.W.2d 99 (N.D. 1986).

20.
Tomcik v. Ohio Dep’t of Rehabilitation & Correction, 598 N.E.2d 900 (Ohio Ct. App. 1991).

21.
Ibid. at 904.

22.
Ibid.

23.
Berger v. United States, 295 U.S. 78, 88 (1935).

24. John Kaplan,
Criminal Justice Introductory Cases, and, Materials (Frederick, MD: Aspen Law, 1973).

25.
Ibid. at 259.

26. Steven J. Hancox, “Red Flags for Fraud.”
http://www.osc.state.ny.us/localgov/pubs/red_flags_fraud (accessed July 17, 2018).

27.
FBI.gov, “What We Investigate: White-Collar Crime.”
http://www.fbi.gov/about-us/investigate/white_collar/health-care-fraud/ (accessed July 17, 2018).

28. U.S. Department of Justice, “National Health Care Fraud Takedown Results in Charges Against Over 412 Individuals Responsible for $1.3 Billion in Fraud Losses [press release].”
https://www.justice.gov/opa/pr/national-health-care-fraud-takedown-results-charges-against-over-412-individuals-responsible (accessed July 17, 2018).

29.
FBI.gov, “White-Collar Crime.”

30. U.S. Department of Health and Human Services, Office of the Inspector General, “About Us.”
https://oig.hhs.gov/about-oig/about-us/index.asp (accessed July 17, 2018).

31. U.S. Department of Justice, “Fact Sheet: The Health Care Fraud and Abuse Control Program Protects Consumers and Taxpayers by Combating Health Care Fraud.”
https://www.justice.gov/opa/pr/fact-sheet-health-care-fraud-and-abuse-control-program-protects-conusmers-and-taxpayers (accessed July 17, 2018).

32. U.S. Department of Health and Human Services, Office of the Inspector General, “Medicare Fraud Strike Force.”
https://oig.hhs.gov/fraud/strike-force/ (accessed July 17, 2018).

33.
Ibid.

34.
FBI.gov, “National Health Care Fraud Takedown.”
https://oig.hhs.gov/fraud/strike-force/ (accessed July 17, 2018).

35. U.S. Department of Justice, Office of Public Affairs, “National Health Care Fraud Takedown Results in Charges Against 601 Individuals Responsible for Over $2 Billion in Fraud Losses.”
https://www.justice.gov/opa/pr/national-health-care-fraud-takedown-results-charges-against-601-individuals-responsible-over (accessed August 1, 2018).

36. New York State Unified Court System, “Scheme to Defraud in the Second Degree.”
http://www.nycourts.gov/cji/2-PenalLaw/190/190.60 (accessed July 17, 2018).

37.
USA v. Farid Fata, No. 15-1935 (6th Cir. 2016).

38.
FBI.gov, “What We Investigate: Health Care Fraud News.”
https://www.fbi.gov/investigate/white-collar-crime/health-care-fraud/health-care-fraud-news (accessed August 1, 2018).

39. Thomas Catan, “Con Artist Starred in Sting That Cost Google Millions,” The Wall Street Journal (January 25, 2012).
https://www.wsj.com/articles/SB10001424052970204624204577176964003660658 (accessed July 17, 2018).

40. Sara Ashley O’Brien, “Mark Zuckerberg Takes Heat over Illegal Opioid Sales on Facebook,” CNN Tech (April 11, 2018).
https://money.cnn.com/2018/04/11/technology/mark-zuckerberg-questioned-over-facebook-opioid-sales/index.html.

41. USC Leonard Davis School of Gerontology, “Infographics: Americans Are Living Longer.”
https://gerontology.usc.edu/resources/infographics/americans-are-living-longer (accessed August 1, 2018).

42.
Ibid.

43.
Ibid.

44. Senior Medical Patrol, “Home Health Care Fraud.”
https://www.smpresource.org/Content/Medicare-Fraud/Fraud-Schemes/Home-Health-Care-Fraud.aspx (accessed July 17, 2018).

45. U.S. Department of Justice, “Home Health Agency Administrator Pleads Guilty in $7.8 Million Medicaid Fraud.”
https://www.justice.gov/opa/pr/home-health-agency-administrator-pleads-guilty-78-million-medicaid-fraud (accessed July 17, 2018).

46. U.S. Department of Justice, “Palm Beach, Florida Home Health Care Company and Its Owner Agree to Resolve False Claims Act Allegations for $1.5 Million.”
https://www.justice.gov/usao-sdfl/pr/palm-beach-florida-home-health-care-company-and-its-owner-agree-resolve-false-claims (accessed July 17, 2018).

47. American Pharmacists Association, “Code of Ethics.”
http://www.pharmacist.com/code-ethics (accessed July 17, 2018).

48.
State v. Beatty, 308 S.E.2d 65 (N.C. Ct. App. 1983).

49.
People v. Kendzia, 478 N.Y.S.2d 209 (N.Y. App. Div. 1984).

50. Janon Fisher, “Former Nurse Pleads Guilty in Killings of Another 3,” The New York Times (May 20, 2004).
https://www.nytimes.com/2004/05/20/nyregion/former-nurse-pleads-guilty-in-killings-of-another-3.html (accessed July 17, 2018).

51. Rebecca Leung, “Did Hospitals ‘See No Evil’? A Policy May Have Given One Nurse a License to Kill,” CBS News–60 Minutes (August 13, 2004).
http://www.cbsnews.com/stories/2004/08/13/60minutes/main635860.shtml (accessed July 17, 2018).

52.
Ibid.

53. Charles Montaldo, “Profile of Serial Killer Richard Angelo,” ThoughtCo.com (March 17, 2017).
http://crime.about.com/od/serial/a/richardangelo.htm (accessed July 17, 2018).

54. Carolyn Collwell, “The Verdict on Angelo: Murder Found in 2 Deaths,” Newsday 50 (December 15, 1989).
https://www.newsday.com/long-island/serial-killer/the-verdict-on-angelo-murder-found-in-2-deaths-1.1875478 (accessed July 17, 2018).

55.
People v. Lancaster, 683 P.2d 1202 (Colo. 1984).

56.
Miller v. Dunn, 184 S.W.3d 122 (Mo. App. 2006).

57. Federal Trade Commission, “Medical Identity Theft: FAQs for Health Care Providers and Health Plans.”
https://www.ftc.gov/tips-advice/business-center/guidance/medical-identity-theft-faqs-health-care-providers-health-plans (accessed July 17, 2018).

58.
HHS.gov, “HIPAA for Professionals.”
https://www.hhs.gov/hipaa/for-professionals/index.html (accessed July 17, 2018).

59. Alan Cooper, “Virginia Court Rules Identity Theft Victim to Get $532,000 from Credit Agency,” CBS Interactive Business Network Resource Library.

60. Krystle Kopacz, “Medical Theft Trend Sweeps Pennsylvania,” The Daily Collegian Online (January 13, 2006).
http://www.collegian.psu.edu/archives/article_a90522a0-e00a-57bc-9c67-2eb64b1018ba.html (accessed July 17, 2018).

61. Brigid Sweeney, “The Frightening New Frontier for Hackers: Your Medical Records,” Crain’s Chicago Business (April 10, 2017).
http://www.chicagobusiness.com/article/20170408/ISSUE01/170409897/hacking-of-medical-records-health-data-on-the-rise-it-experts-warn (accessed August 1, 2018).

62. Anne Zieger, “Millions of Patient Billing Records Stolen from UT Hospital,” FierceHealthIT, June 14, 2008;
https://www.fiercehealthcare.com/it/millions-patient-billing-records-stolen-from-ut-hospital (accessed July 17, 2018).

63. Tim Eberly, “Grady Hospital Battles Patient Thefts,” Atlanta Journal-Constitution, July 24, 2008.

64.
O’Connor v. Eastman Kodak Co., 492 N.Y.S.2d 9 (N.Y. 1985).

65.
City of Cookeville, No. M2001-00695-SC-R11-CV (Tenn. 2004).

66.
Washington County Memorial Hospital v. Sidebottom, 7 S.W.3d 542 (Mo. App. 1999).

67. Public Counsel [sample complaint],
http://www.publiccounsel.org/tools/assets/files/Jesse-Bravo-v-White-Memorial-et-al_Complaint_2-3-12.PDF (accessed July 17, 2018).

68. Michael Booth, “Mother with Terminal Cancer Can Retain Child Custody, Judge Holds,” New Jersey Law Journal (November 22, 2013).
https://www.law.com/njlawjournal/almID/1202629427960/ (accessed July 17, 2018).

69. Micah Schwartzbach, “What Are the Elements of a Crime?”

NOLO.com
.
http://www.nolo.com/legal-encyclopedia/what-the-elements-crime.html (accessed July 17, 2018).

70. Stephen H. Gifis, Law Dictionary, 1996 at 145.

71. U.S. District Court – Southern District of New York. Handbook for Trial Jurors.
http://www.nysd.uscourts.gov/jury_handbook.php (accessed July 17, 2018).

72.
Johnson v. Terry, No. 537-907 (Wis. Cir. Ct. Mar. 18, 1983).

73.
Health Care Centers v. Bonnerman, 411 So. 2d 109, 113 (Ala. 1982).

CHAPTER 7

Government Ethics and the Law

Nothing is politically right which is morally wrong.

—Daniel O’Connell (1775–1847)

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Describe some of the reasons why there has been a loss of trust in government.

Explain the purpose of various government committees on ethics.

Discuss how public policy protects the rights of citizens.

Describe federal laws designed to protect each individual’s rights.

Explain the concept of political malpractice.

Understand the importance of ethics in public service.

INTRODUCTION

Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor—let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap—let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs—let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars.

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—Abraham Lincoln

Ethics and the law are not mutually exclusive—they are intertwined. Without the two, we would become a lawless land. The words of Abraham Lincoln, so passionately spoken, resonate true today. Political corruption, antisocial behavior, declining civility, lack of integrity and transparency, and rampant unethical conduct have heightened discussions over the nation’s moral decline and decaying value systems. The numerous instances of questionable political decisions, executives with shocking salaries, dishonesty at work and school, sexually explicit websites, and the entertainment media have contributed to this decline. Legislators, investigators, prosecutors, and the courts have been quick to speak moral truths but continue to be slow in action. Can this boat be turned around, or are we just plugging the holes with new laws and creating more leaks in a misguided sinking ship?

The question remains: Can the decline in ethical behavior be reversed as citizens struggle with a broken legal system inundated with new laws? The answer is more likely to be a return to practicing the virtues and values upon which this nation was founded. Ethics and the law are not mutually exclusive—they are intertwined throughout the text, providing an overview of government agencies designed to protect each individual’s rights (e.g., the right to privacy and self-determination).

U.S. OFFICE OF GOVERNMENT ETHICS

The
Office of Government Ethics (OGE) is an agency within the executive branch of government whose mission and goals are to foster high ethical standards for employees in the executive branch of government. Common ethical issues that come under the committee’s purview include gifts from outside sources, gifts between employees, conflicting financial interests, remedies for financial conflicts of interest, impartiality in performing official duties, seeking other employment, misuse of position, outside activities, postemployment, representation to government agencies and courts, supplementation of salary, financial disclosure, informal advisory letters and memoranda and formal opinions, DAEOgrams (memoranda to Designated Agency Ethics Officials providing guidance on how to interpret and comply with modifications or new issuances of ethics laws, policies, and procedures; copies of the memoranda released since 1992 are available in the DAEOgrams section of the OGE website), and contractors in the workplace.

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The public may lose confidence in the integrity of Government if it perceives that an employee’s Government work is influenced by personal interests or by payments from an outside source. An executive branch employee’s Government work may have the potential to benefit the employee personally, affect the financial interests of the employee’s family, or involve individuals or organizations with which the employee has some past, present, or future connection away from the employee’s Government job. Separately, an employee might be offered a payment from a non-Federal source, such as a former employer, either before or after entering Government. Accordingly:

An employee may be disqualified from working on a particular Government matter.

An employee may be prohibited from holding specified property.

An employee may be prohibited from accepting a payment from a non-Federal source.

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HOUSE OF REPRESENTATIVES COMMITTEE ON ETHICS

I weep for the liberty of my country when I see at this early day of its successful experiment that corruption has been imputed to many members of the House of Representatives, and the rights of the people have been bartered for promises of office.

—Andrew Jackson

The Committee on Ethics is designated the “supervising ethics office” for the House of Representatives. The jurisdiction of the Committee on Ethics is derived from authority granted under House Rules and federal statutes.

The Committee on Ethics is unique in the House of Representatives. Consistent with the duty to carry out its advisory and enforcement responsibilities in an impartial manner, the Committee is the only standing committee of the House of Representatives with its membership divided evenly by party. These rules are intended to provide a fair procedural framework for the conduct of the Committee’s activities and to help ensure that the Committee serves the people of the United States, the House of Representatives, and the Members, officers, and employees of the House of Representatives.

4

The scope of the committee’s jurisdiction under the various authorizing rules and statutes involves duties and responsibilities related to:

Jurisdiction over all bills, resolutions, and other matters relating to the Code of Official Conduct.

Recommendations of administrative actions to establish or enforce standards of official conduct.

Investigation of alleged violations of the Code of Official Conduct or of any applicable rules, laws, or regulations governing the performance of official duties or the discharge of official responsibilities.

Reports to appropriate federal or state authorities substantial evidence of a violation of any law applicable to the performance of official duties that may have been disclosed in a committee investigation.

Consideration of requests for written waivers of the gift rule.

Oversight over foreign gifts and gifts to superiors and other federal employees.

Prohibition of members, officers, and employees of the House of Representatives from soliciting or receiving gifts.

5

The official Code of Conduct for the House of Representatives can be found on the
Committee on Ethics website.

6

SENATE SELECT COMMITTEE ON ETHICS

(a) The ideal concept of public office, expressed by the words, “a public office is a public trust,” signifies that the officer has been entrusted with public power by the people; that the officer holds this power in trust to be used only for their benefit and never for the benefit of himself or of a few; and that the officer must never conduct his own affairs so as to infringe on the public interest. All official conduct of Members of the Senate should be guided by this paramount concept of public office
.

7

The U.S. Senate Select Committee on Ethics consists of six members of the Senate, of whom three are selected from members of the majority party and three from members of the minority party.

8
The committee is responsible for investigating complaints involving a violation of the Franking statute, financial disclosure statements, and for outside employment with respect to members, officers, and employees of the Senate, foreign gifts and decorations, gifts to an official superior or receiving gifts from employees with a lower salary level, prohibitions against members, officers, and employees of the Senate soliciting or receiving gifts.

9

Poll: Americans Have Highest Trust in Military, While Congress and Media Fall Last

The American people have less confidence in Congress and the media than any other U.S. institutions, while trust in the military ranks the highest, according to a Gallup poll.

• • •

On the other end of the spectrum, Congress, television news, and newspapers fell to the bottom of the list.

Congress came in dead last with only 6 percent of Americans having significant confidence in the institution.

—Madeleine Weast,
The Washington Free Beacon, April 7, 2017

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The Senate Select Committee on Ethics is authorized to receive and investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct, and violations of rules and regulations of the Senate; recommend disciplinary action; recommend additional Senate rules or regulations to insure proper standards of conduct; and report violations of law to the proper federal and state authorities.

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OFFICE OF CONGRESSIONAL ETHICS

The Office of Congressional Ethics (OCE) was created in March 2008 as an independent, nonpartisan office governed by a board composed of private citizens that provides more public review and insight into the ethical conduct of members of the House of Representatives. The OCE reviews allegations of misconduct against members, officers, and staff of the House and, when appropriate, refers matters to the House Committee on Ethics. The OCE is not authorized to determine if a violation occurred nor it is it authorized to sanction members, officers, or employees of the House or to recommend sanctions. The OCE is unable to provide advice or education on the rules and standards of conduct applicable to members, officers, and employees of the House.

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The mission of the OCE and its board is to assist the House in upholding high standards of ethical conduct for its members, officers, and staff and, in so doing, to serve the American people. The board of directors consists of eight members, which are private citizens and cannot serve as members of Congress or work for the federal government.

13
As the reader will note, there are a variety of laws and agencies that provide oversight and regulations that are designed to protect the rights and safety of all citizens. Government is a reflection of the people it serves. Failure of the many to participate in the political process leads to government for the few who do. Additional information as to the work of the Office of Congressional Ethics is available at its website.

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U.S. JUDICIAL CODE OF CONDUCT

As with other branches of government federal judges are expected to abide by a code of conduct that includes ethical principles and guidelines. “The Code of Conduct provides guidance for judges on issues of judicial integrity and independence, judicial diligence and impartiality, permissible extra-judicial activities, and the avoidance of impropriety or even its appearance.”

15

The Code of Conduct for United States Judges includes the following ethical canons:

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently

Canon 4: A Judge May Engage in Extrajudicial Activities That Are Consistent with the Obligations of Judicial Office

Canon 5: A Judge Should Refrain from Political Activity

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STATE ETHICS COMMITTEES

Many states have legislative ethics committees that hear complaints of ethics violations by legislators. They often investigate complaints and impose penalties for ethics-related violations. Duties vary among the state committees. A state-by-state review can be found at
http://www.ncsl.org/research/ethics/table-of-legislative-ethics-committees.aspx. “State legislatures pass ethics laws that impose restrictions on themselves and lobbyists. To ensure these laws are kept, legislatures establish oversight entities that include ethics committees, ethics commissions or a combination of both. Internal ethics committees are an important way for legislatures to solidify their credibility with the public.”

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PUBLIC POLICY

Public policy is the principle of law that holds that no one can lawfully do that which tends to be injurious to the public or against the public good. The sources of public policy “include legislation; administrative rules, regulations, or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy.”

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Ethics and the law are not mutually exclusive—they are intertwined and resonate the history of our land. The following pages present an overview of laws, influenced by ethical principles, designed to protect each individual’s rights (e.g., the right to privacy and self-determination).

Veterans Administration

The House Committee on Veterans’ Affairs reviews veteran programs, examines current laws, and reports bills and amendments to strengthen existing laws concerning veterans and the Department of Veterans Affairs (VA), such as health care and disability compensation. Phil Roe, M.D. (R-TN), chairs the committee.

19
The news clippings below describe a variety of concerns with care veterans are receiving in Veterans Hospitals. Although there is undoubtedly excellent care in the VA system, there is a need to improve the care for every veteran, as noted by committee chairman Phil Roe:

Saturday marks one year since [the Department of Veterans Affairs (VA) Accountability and Whistleblower Protection Act] was signed into law, and as a result we’ve seen major changes at the VA. Before this law, veterans were not receiving the level of service they have earned, and many VA employees were not held accountable for failing to live up to the standards America’s veterans deserve. While we have much work to do to continue our efforts to fully transform the department, this law provides the secretary the tools he needs to bring real accountability to poor performers. It also provides important protections for whistleblowers. While disciplinary actions are up at VA, as I said time and time again, this law was never intended to simply increase the number of firings without truly changing the culture of the department. If the authority under this law is not used properly, VA will never live up to its full potential, which is why I am holding an oversight hearing later this summer to examine the implementation of this important law.

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As of this writing, the Veterans Administration is led by Acting Secretary Peter O’Rourke,

21
pending Senate approval of President Trump’s nominee, Robert Wilkie, a longtime Pentagon staffer.

22

VA, Heal Thyself, Agency is Told at Hearing Filled with Pained Testimony

The House Committee on Veteran’s Affairs met in Pittsburgh on Monday to hear testimony about problems with health care at agency facilities in that city and others.

• • •

Miller said the “the vast majority of the department’s more than 300,000 employees are dedicated and hard-working, and many veterans are satisfied with the medical care they received from the VA.”

But he and others sharply doubted the ability of the department’s leadership to avoid “heartbreaking situations” like those reported to the committee.

“By now,” he said, “It’s abundantly clear to most people that a culture change at VA is in order.”

—Joe Davidson,
The Washington Post, September 13, 2013

Atlanta VA Exec Scored Bonuses While Audits Found Lapses

The former top administrator at the Atlanta VA Medical Center received $65,000 in performance bonuses over a four-year span as internal audits revealed lengthy wait times for mental health care and mismanagement that led to three deaths.

—Daniel Malloy,
The Atlanta Journal – Constitution, April 26, 2013

“Too Trapped in a War to be at Peace”

Shortly before his death on June 10, Army veteran Daniel Somers wrote a note for his family, asking his wife, Angel, to share it as she saw fit.

“I am left with basically nothing,” he typed on his laptop at their Phoenix townhouse. “Too trapped in a war to be at peace, too damaged to be at war.”

His service in Iraq, including multiple combat missions as a turret gunner, left him with severe post–traumatic stress disorder and traumatic brain injury. But the government, he wrote, had “turned around and abandoned me.”

—Steve Vogel,
The Washington Post, August 24, 2013

Daniel Somers eventually saw a caregiver. Unfortunately for Daniel, the caregiver retired. He attempted to make a new appointment. That is when he ran into the all too common roadblock, being told that there was a shortage of caregivers and that he would be notified when he could be scheduled for his next appointment.

The following
reality check is believed by some to be an all too common experience by inspectors of not only VA hospitals but many hospitals across the country.

VA Hospital

And so there we were in a VA hospital, sent to survey the quality of patient care services provided to veterans. During the survey, there seemed to be a lack of interest in constructive suggestions as to how the hospital could improve services. Survey team members who wrote negative findings had been watched closely as though they were the ones being surveyed throughout the process. The real concern of management seemed to be more how the surveyors would score the hospital’s delivery of care to veterans, then how they could improve services. They seemed pleasant when things were going well, argumentative when they were not. The surveyors were between a rock and a hard place. Not only do the surveyors score the hospital, the hospital scores the surveyors as required by the surveyors’ employer. Down score the hospital and the inspectors could often expect to be down scored. The problem comes down to the integrity of the surveyor and the hospital. If a hospital views a survey as an opportunity to learn and improve patient care services, it is likely that it can be a win-win situation for both the surveyors and the hospital, ultimately benefiting the patient.

—Anonymous

The next
reality check illustrates how the majority of veterans standing outside a major VA hospital waiting for the clinics to open viewed their care. As I approached them and inquired about their care, it was reassuring that these veterans were extremely positive as to the care they were receiving.

Veterans Lack Insurance Benefits

Marc had a chat with some veterans about their healthcare benefits. Most seemed satisfied. Joe, one of the veterans, opening his mouth wide to show Marc, said, “Look at my teeth. [He had but a few teeth in his mouth.] They won’t fix them because they are not considered a war-related injury.” He turned his head sideways, and Marc noticed that an ear was missing. Joe continued, “Now this ear is gone. I lost it during the Viet Nam war. I was, however, able to get a prosthesis. It needs some work, so I didn’t wear it. I guess they will provide me with a new one. I am able to get care for it because it is a war-related injury, but I really could use some teeth.”

Marc queried the hospital about Joe’s teeth. They said that because of policy and the fact that Joe’s teeth were not related to a war injury, there was nothing that they could do for him. They did, however, suggest Joe could go to the University Hospital and get a set of false teeth that should be relatively inexpensive. Marc asked to see the hospital’s dental area. Following a tour of the dental suite, Marc commented, “This is the most modern dental facility I have ever seen.” The staff was happy that Marc was pleased with the facility. After observing ample staff, workspace, modern equipment, top of the line dental chairs, and unoccupied rooms, he asked, “Are you open? Where are the patients?” The staff in unison responded, “Oh yes, we are open, but we don’t have any patients at the moment. We should have a few later.” The staff proceeded to discuss with enthusiasm the wide variety of dental procedures they could provide, including complicated extractions, implants, preparation of dentures, and so on.

Discussion

Would you consider this to be a form of political malpractice? Discuss your answer.

Because hospital staff was able to make suggestions to a veteran for care outside the Veterans Administration healthcare system, how would you respond if you were the veteran?

Fourteenth Amendment to the Constitution

According to the Fourteenth Amendment to the Constitution, a state cannot act to deny any person equal protection of the laws. If a state or a political subdivision of a state, whether through its executive, judicial, or legislative branch, acts in such a way as to deny unfairly to any person the rights accorded to another, the amendment has been violated.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Title VI: Civil Rights Act

Civil rights are those rights ensured by the U.S. Constitution and by the acts of Congress and the state legislatures. Generally, the term includes all the rights of each individual in a free society.

Congress and the federal courts have dealt with discriminatory practices in healthcare organizations. Discrimination in the admission of patients and segregation of patients on racial grounds are prohibited in any organization receiving federal financial assistance. Pursuant to Title VI of the
Civil Rights Act of 1964, the guidelines of the Department of Health and Human Services (DHHS) prohibit the practice of racial discrimination by any organization or agency receiving money under any program supported by DHHS. This includes all “providers of service” receiving federal funds under Medicare legislation.

Sherman Antitrust Act

The
Sherman Antitrust Act, named for its author, Senator John Sherman of Ohio, prescribes that every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states is declared to be illegal. Those who attempt to monopolize, combine, or conspire with any other person or persons to monopolize any part of the trade or commerce can be deemed guilty of a felony.

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Areas of concern for healthcare organizations include reduced market competition, price fixing, actions that bar or limit new entrants to the field, preferred provider arrangements, and exclusive contracts.

A healthcare organization must be cognizant of the potential problems that may exist when limiting the number of physicians that it will admit to its medical staff. Because closed staff determinations can effectively limit competition from other physicians, the governing body must ensure that the decision-making process in granting privileges is based on legislative, objective criteria and is not dominated by those who have the most to gain competitively by denying privileges. Physicians have attempted to use state and federal antitrust laws to challenge determinations denying or limiting medical staff privileges. Generally, these actions claim that the organization conspired with its medical staff to ensure that the complaining physician would not obtain privileges in order to reduce competition.

Privacy Act

The
Privacy Act of 1974, Title 5 United States Code (U.S.C.) 552, was enacted to safeguard individual privacy from the misuse of federal records, to give individuals access to records concerning themselves that are maintained by federal agencies, and to establish a Privacy Protection Safety Commission. Section 2 of the Privacy Act reads as follows:

[a] The Congress finds that (1) the privacy of an individual is directly affected by the collection, maintenance, use, and dissemination of personal information by Federal agencies; (2) the increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information; (3) the opportunities for an individual to secure employment, insurance, and credit, and his right to due process, and other legal protections are endangered by the misuse of certain information systems; (4) the right to privacy is a personal and fundamental right protected by the Constitution of the United States; and (5) in order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary and proper for the Congress to regulate the collection, maintenance, use, and dissemination of information by such agencies. [b] The purpose of this Act is to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to (1) permit an individual to determine what records pertaining to him are collected, maintained, used, or disseminated by such agencies; (2) permit an individual to prevent records pertaining to him obtained by such agencies for a particular purpose from being used or made available for another purpose without his consent; (3) permit an individual to gain access to information pertaining to him in Federal agency records, to have a copy made of all or any portion thereof, and to correct or amend such records; (4) collect, maintain, use, or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that the information is current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information.

Health Insurance Portability and Accountability Act (HIPAA)

The
Health Insurance Portability and Accountability Act (HIPAA) of 1996 (Public Law 104-191) was designed to protect the privacy, confidentiality, and security of patient information. HIPAA standards are applicable to all health information in all of its formats (e.g., electronic, paper, verbal). It applies to both electronically maintained and transmitted information. HIPAA privacy standards include restrictions on access to individually identifiable health information and the use and disclosure of that information, as well as requirements for administrative activities such as training, compliance, and enforcement of HIPAA mandates.

Emergency Medical Treatment and Active Labor Act (EMTALA)

In 1986, Congress passed the
Emergency Medical Treatment and Active Labor Act (EMTALA), which forbids Medicare-participating hospitals from “dumping” patients out of emergency departments. The act provides that:

In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition … exists.

24

EMTALA was clearly violated in the
Burditt case reviewed next.

Case Studies

EMTALA Violated

In
Burditt v. U.S. Department of Health and Human Services,

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EMTALA was violated by a physician when he ordered a woman with dangerously high blood pressure (210/130) and in active labor with ruptured membranes transferred from the emergency department of one hospital to another hospital 170 miles away. The physician was assessed a penalty of $20,000. Dr. Louis Sullivan, secretary of DHHS at that time, issued a statement: “This decision sends a message to physicians everywhere that they need to provide quality care to everyone in need of emergency treatment who comes to a hospital. This is a significant opinion and we are pleased with the result.”

With the duty of care defined in EMTALA, Medicare-participating hospitals must provide a medical screening exam to any individual who enters the emergency department and requests examination or treatment for a medical condition. If the hospital determines that an individual has a medical emergency, it must then stabilize the condition or provide for an appropriate transfer to another medical facility. The hospital is obligated to provide these services regardless of the individual’s ability to pay and without delay to inquire about the individual’s method of payment or insurance status.

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Those ED physicians who do not wish to treat all patients of their choosing should vote with their feet and work in those settings where they can choose who they treat.

Ethical and Legal Issues

What are the main issues in this case?

What ethical theories, principles, and values are of concern? Describe them.

What action can be taken to prevent similar occurrences in the future?

What could have been done to prevent the ethical and legal issues from occurring in the first place?

If you were the judge in this case, what would you do in light of the American Public Health Association’s comments?

Describe both the hospital’s and physician’s ethical and legal responsibilities.

Health Care Quality Improvement Act

The
Health Care Quality Improvement Act of 1986 (HCQIA) was enacted in part to provide those persons giving information to professional review bodies and those assisting in review activities limited immunity from damages that may arise as a result of adverse decisions that affect a physician’s medical staff privileges. Before enacting the HCQIA, Congress found that “[t]he increasing occurrence of medical malpractice and the need to improve the quality of medical care … [had] become nationwide problems,” especially in light of “the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician’s previous damaging or incompetent performance.”

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The problem, however, could be remedied through effective professional peer review combined with a national reporting system that made information about adverse professional actions against physicians more widely available. HCQIA was enacted by Congress to “facilitate the frank exchange of information among professionals conducting peer review inquiries without the fear of reprisals in civil lawsuits. The statute attempts to balance the chilling effect of litigation on peer review with concerns for protecting physicians improperly subjected to disciplinary action.”

Case Studies

Failure to Meet Ethical Standards

Meyers applied for medical staff privileges at a hospital. Shortly thereafter, the Credentials Committee and the Medical Executive Committee (MEC) and the board of the hospital approved Meyers for appointment to the medical staff. All initial appointments to the medical staff were provisional for 1 year. At the end of that year, the physician was required to be reevaluated for advancement from associate to active staff.

The Credentials Committee began to evaluate Meyers for advancement to active staff privileges. The committee was concerned about Meyers’s history: moving from hospital to hospital after disputes with hospital staff, his failure to disclose timely and fully disciplinary and corrective action taken against him in another state, and the quality of his patient care. The MEC voted to accept a Credentials Committee recommendation to revoke Meyers’s staff privileges. The MEC was to consider the recommendation from the Credentials Committee and make a recommendation to the board, which had the ultimate authority to grant or deny advancement, or terminate Meyers’s privileges.

The board informed Meyers that it was assuming responsibility for determining his reappointment and advancement to active staff because of concerns with the manner in which the peer review process was being handled. Three members of the board, acting as a Credentials Committee, conducted an independent review. This committee discussed concerns about Meyers’s behavior and his inability to get along with others, in addition to questions about his surgical technique. The committee questioned Meyers about several incident reports concerning disruptive behavior, his history of problems at other hospitals, his failure to complete medical records timely, his hostility toward the operation room staff, reports of breaking the sterile field, and his failure to provide appropriate coverage for patients while he was away. Meyers acknowledged that he had a personality problem.

The three-member committee of the board voted to deny Meyers’s appointment to active staff. The reasons cited for the committee’s decision were Meyers’s failure to satisfy requirements that he “abide by the ethics of the profession,” work cooperatively with others, timely complete medical records, and abide by hospital standards. The committee outlined Meyers’s pattern of rude, abusive, and disruptive behavior that included, but was not limited to, temper tantrums, attempted interference with the right of an attending physician to refer a patient to the surgeon of his choice or to transfer the patient, condescending remarks toward women, refusal to speak to a member of his surgical team during surgical procedures, and several instances of throwing a scalpel during surgery. The committee informed Meyers that this behavior could have an adverse effect on the quality of patient care. As for his failure to complete medical records timely, the committee stated, “delinquent medical records can put patients at risk by being inaccurate or incomplete if needed to assist in later diagnosis and treatment of a patient.”

A Fair Hearing Committee issued its recommendation that Meyers not be reappointed to the hospital’s staff because of his failure to meet “ethical standards” and his inability to work cooperatively with others. In May, the board adopted and affirmed the Fair Hearing Committee’s recommendation. Ultimately, after further appeals the board revoked Meyers’s privileges.

Meyers brought suit in seeking a permanent injunction to require the hospital to reinstate him to staff. The court denied the motion for an injunction that would require the hospital to reinstate Meyers’s privileges.

The court agreed with hospital defendants that the behavior of Meyers had the potential of affecting the health and welfare of patients, despite the fact that no patients were actually injured. High-quality patient care demands that doctors possess at least a reasonable ability to work with others. Clearly, the hospital defendants were acting with a reasonable belief that the professional review action was in the furtherance of quality health care. They were concerned that Meyers’s behavior would continue until a patient was injured as a result of his actions.

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Ethical and Legal Issues

Describe the ethical theories, principles, and values of concern in this case.

Describe what steps the organization could take to prevent similar occurrences in the future.

Agency for Healthcare Research and Quality

The
Agency for Healthcare Research and Quality (AHRQ), established in 1989, is charged with researching ways to improve the quality of health care, reduce its costs, and broaden access to essential services. The AHRQ was created as a result of the mistakes that have occurred and continue to occur in the delivery of care. The pain, misery, and financial drain on the injured, their families, and society have taken their toll. The numerous ethical and legal issues that have evolved spawned the need for the AHRQ.

Ethics in Patient Referral Act

In 1989, the
Ethics in Patient Referral Act was enacted, prohibiting physicians who have ownership interest or compensation arrangements with a clinical laboratory from referring Medicare patients to that laboratory. The law also requires all Medicare providers to report the names and provider numbers of all physicians or their immediate relatives with ownership interests in the provider entity prior to October 1, 1991.

Patient Self-Determination Act

The
Patient Self-Determination Act of 1990 (PSDA)

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was enacted to ensure that patients are informed of their rights to execute advance directives and accept or refuse medical care. On December 1, 1991, the PSDA

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took effect in hospitals, skilled nursing facilities, home health agencies, hospice organizations, and health maintenance organizations serving Medicare and Medicaid patients. As a result of implementation of the PSDA,

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healthcare organizations participating in the Medicare and Medicaid reimbursement programs must address patient rights regarding life-sustaining decisions and other advance directives. Healthcare organizations have a responsibility to explain to patients, staff, and families that patients have a legal right to direct their own medical and nursing care as it corresponds to existing state law, including right-to-die directives. A person’s right to refuse medical treatment is not lost when his or her mental or physical status changes. When a person is no longer competent to exercise his or her right of self-determination, the right still exists, but the decision must be delegated to a surrogate decision maker. Those organizations that do not comply with a patient’s medical directives or those of a legally authorized decision maker are exposing themselves to the risk of a lawsuit.

Each state is required under the PSDA to provide a description of the law in the state regarding advance directives to providers, whether such directives are based on state statutes or judicial decisions. Providers must ensure that written policies and procedures with respect to all adult individuals regarding advance directives are established as follows:

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to provide written information to each such individual concerning

an individual’s rights under State law (whether statutory or as recognized by the courts of the State) to make decisions concerning such medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives … and

written policies of the provider organization respecting the implementation of such rights;

to document in the individual’s medical record whether or not the individual has executed an advance directive;

not to condition the provision of care or otherwise discriminate against an
individual based on whether or not the individual has executed an advance directive;

to ensure compliance with requirements of State law (whether statutory or recognized by the courts of the State) respecting advance directives at the facilities of the provider or organization; and

to provide (individually or with others) for education for staff and the community on issues concerning advance directives.

Although the PSDA is being cheered as a major advancement in clarifying and nationally regulating this often-obscure area of law and medicine, there are continuing problems and new issues that must be addressed.

Sarbanes-Oxley Act

The sense of somehow me beating up on Wall Street, I think most folks on Main Street feel like they got beat up on. … There’s a big chunk of the country that thinks that I have been too soft on Wall Street. That’s probably the majority, not the minority.

If you’re making a billion dollars a year after a very bad financial crisis where eight million people lost their jobs and small businesses can’t get loans, then I think that you shouldn’t be feeling put upon.

The notion that somehow me saying maybe you should be taxed more like your secretary when you’re pulling home a billion dollars or a hundred million dollars a year, I don’t think is me being extremist or being anti-business.

—President Barack Obama

The
Sarbanes-Oxley Act was signed by President George W. Bush on July 30, 2002, in response to the Enron debacle and high-profile cases of corporate financial mismanagement. The act requires top executives of public corporations to vouch for the financial reports of their companies. The act encourages self-regulation and the need to promote due diligence, select a leader with morals and core values, examine incentives, constantly monitor the organization’s culture, build a strong, knowledgeable governing body, be on the alert for conflicts of interest, focus attention on the right things, and have the courage to speak out.

Patient Protection and Affordable Care Act (2010)

The
Patient Protection and Affordable Care Act (PPACA) is a federal statute that contains a set of healthcare reforms passed by Congress and signed into law by President Barack Obama on March 23, 2010. After several challenges as to the constitutionality of the PPACA, the United States Supreme Court determined in 2012 that the PPACA was constitutional.

The PPACA was designed to expand medical insurance coverage to Americans who did not already have it by offering affordable and competitive rates through a newly created Health Insurance Marketplace, providing subsidies to individuals based on ability to pay. The law was set to bring insurance coverage to over 30 million Americans who never had coverage. The PPACA includes provisions for reform of the private health insurance market, providing better coverage for people with preexisting conditions, improving prescription drug coverage in Medicare, and extending the life of the Medicare trust fund by at least 12 years.

The website
www.healthcare.gov was set up to assist those who wish to purchase health insurance. Initially, the website was fraught with problems in connecting and signing up for insurance. Glitches in the system should come as no surprise with such a far-reaching program considering a population of over 317 million. As with a wedding of 300 people, there are glitches; there may be angry people who were invited to the church but not the reception, the food is served cold rather than hot, the wedding was on an island in the South Pacific, you preferred to sit at a different table than the one you were assigned, you were placed too far away from the bride and groom’s table, you were forgotten when the family picture was taken despite being the bride’s grandparent. But in the end, glitches notwithstanding, there is a happily married couple. The plan for the PPACA was to provide a more affordable and accessible healthcare system, and to a certain extent despite glitches, in the years following its full roll-out, it succeeded.

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Unfortunately, the political battles over the PPACA have upended some of its gains and continue to disrupt the democratic process.

Congress continues to make decisions on a bipartisan basis, often seemingly without regard to the needs of the people. There are those who consider health care a right and others who consider it a privilege. Many believe that Congress considers health care to be
their right—but no one else’s—as indicated by their superior health insurance plans at reduced costs due to lucrative subsidized health insurance premiums paid by the people. The costs associated with PPACA are without question fraught with numerous ethical dilemmas. Responsibility for reducing the costs associated with PPACA lies in part with each individual and their chosen style of life, which includes the abuse of addictive substances.

POLITICAL MALPRACTICE

I hate all the bungling as I do sin, but particularly bungling in politics, which leads to the misery and ruin of many thousands and millions of people.

—Johann Wolfgang von Goethe

Political malpractice is negligent conduct by an elected or appointed political official. Ronald Brownstein wrote in a news column in the
St. Petersburg Times, “Practical steps are possible to help millions of low income families live healthier lives and receive more effective care when they need it. Ignoring that opportunity, while waiting for consensus on coverage, would be a form of political malpractice.”

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The likelihood of a successful negligence case against a member of Congress is doubtful. If such a case ever got through a courtroom door the following four elements of negligence would have to be proven:

The first element necessary to prove political malpractice requires that the plaintiff/s be able to establish there is
a duty to care. Establishing this first element of negligence for a senator, for example, would be a difficult hurdle to jump. The oath of office for a senator is so amorphous that it would be difficult to establish a duty to care, as illustrated in the following quotes.

Oath of Office

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

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For nearly three-quarters of a century, that oath served nicely, although to the modern ear it sounds woefully incomplete. Missing are the soaring references to bearing “true faith and allegiance”; to taking “this obligation freely, without any mental reservation or purpose of evasion”; and to “well and faithfully” discharging the duties of the office.

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As to the elements of political malpractice, the elements of negligence that must be proven are as follows:

The first element of negligence requires that a duty to care must be established.

The second element of political malpractice requires the plaintiff to prove that the
duty to care was breached. Arguably, politicians, for example, who agree to veto any program the President supports while he is in office is contrary to the spirit of the law. The dilemma here requires the plaintiff/s to prove what specific duty to care was breached.

The third element of political malpractice requires proof of harm.

The fourth element requires proof of a
causal connection between the politician’s breach of duty and harm suffered. In other words, the plaintiff/s must prove that the breach of duty was the proximate cause of the plaintiff’s injury.

Like medical malpractice, political malpractice involves a failure to offer professional services to help prevent the travesties that take place daily, as illustrated by the following anonymous true story in the preceding
Reality Check.

The Coal Miner

Jimmy was a coal miner who had black lung disease. I had introduced myself to him as the administrator. Jimmy introduced himself to me and then turned to a man who was on the opposite side of his bed and said, “This is my brother Bill.” I asked, as he turned looking back at me, “Are we taking good care of you?” He said, “Yes.” Bill, looking at me, choked up and asked, “Can you help my brother? He has given up the will to live. Please help my brother want to live.” I looked at Jimmy lying there in his bed, fragile and struggling to breathe between each word, as he said, “I can no longer carry on this way. I am ready to move on. I’m a tired old man. I have fought so long. I’ve needed benefits for so many years for my family and myself. No one was able to help me. You see, I have black lung disease. I can barely breathe.” He then turned, looking over to Bill, and said, “My brother also has black lung disease. We worked together in the coalmines for many years. This is our reward.” I looked at Jimmy and slowly back to Bill and said, “I will help you.” As we said our goodbyes, I thought to myself, as I left the room, this man has fought so long. He has asked for so little,
a man forgotten by a cruel system of corrupt government and greedy corporations. I remember this day all too well. It brings tears to my eyes as I recall the sadness of that day.

—Administrator

Discussion

Explain what action you would take to help Jimmy.

Describe the ethical principles that apply to this case.

ETHICS IN PUBLIC SERVICE

Although not all cities may need to hire an ethicist in order to set priorities, it may be helpful in certain types of decisions. An independent, unbiased, professionally trained decision maker from an “outsider” may be more acceptable to councils, mayors, citizens, employees, or the press than one derived from inside the political process. The city of Alexandria, Virginia, in 2008, “hired an ethics consultant for $9000/year. Cities must make decisions to set priorities when allocating scarce resources. City council members, mayors and city managers have available the advice of the city attorney and/or their professional organizations when faced with ethical dilemmas.”

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It is particularly helpful in the decision-making process when decisions involve a reduction or elimination of services to older adults, people with disabilities, or those with fewer resources.

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CHAPTER REVIEW

Government Ethics Committees

U.S. Office of Government Ethics

Agency within the executive branch of government.

House of Representatives Committee on Ethics

Senate Select Committee on Ethics

Office of Congressional Ethics

U.S. Judicial Code of Conduct

Public Policy Protecting the Rights of Citizens—Principle of law that holds that no one can lawfully do that which tends to be injurious to the public or against the public good.

Veterans Administration

Fourteenth Amendment to the Constitution

A state cannot act to deny any person equal protection of the laws.

Title VI of the Civil Rights Act of 1964

HHS prohibits the practice of racial discrimination by any organization or agency receiving money under any program supported by DHHS.

Sherman Antitrust Act

The Privacy Act of 1974, Title 5 United States Code (U.S.C.) 552

Enacted to safeguard individual privacy from the misuse of federal records.

Provide individuals access to records concerning themselves that are maintained by federal agencies.

Establish a Privacy Protection Safety Commission.

HIPAA (Public Law 104-191)

Designed to protect the privacy, confidentiality, and security of patient information.

HIPAA standards are applicable to all health information in all of its formats (e.g., electronic, paper, verbal). It applies to both electronically maintained and transmitted information.

EMTALA

Forbids Medicare-participating hospitals from “dumping” patients out of emergency departments.

HCQIA

Enacted in part to provide those persons giving information to professional review bodies and those assisting in review activities limited immunity from damages that may arise as a result of adverse decisions that affect a physician’s medical staff privileges.

AHRQ

Charged with researching ways to improve the quality of health care, reduce its costs, and broaden access to essential services.

Ethics in Patient Referral Act of 1989

Prohibits physicians who have ownership interest or compensation arrangements with a clinical laboratory from referring Medicare patients to that laboratory.

PSDA

Enacted to ensure that patients are informed of their rights to execute advance directives and accept or refuse medical care. Each state is required under the PSDA to provide a description of the law in the state regarding advance directives to providers, whether such directives are based on state statutes or judicial decisions.

Sarbanes-Oxley Act

Executives of public corporations to vouch for the financial reports and encourages self-regulation.

Patient Protection and Affordable Care Act

A federal statute that contains a set of healthcare reforms passed by Congress and signed into law by President Barack Obama on March 23, 2010.

Political malpractice

Negligent or unethical conduct on the part of an elected official.

TEST YOUR UNDERSTANDING

Terminology

Agency for Healthcare Research and Quality

Civil Rights Act

Emergency Medical Treatment and Active Labor Act

Ethics in Patient Referral Act

Health Care Quality Improvement Act

Health Insurance Portability and Accountability Act

Office of Government Ethics

Patient Protection and Affordable Care Act

Patient Self-Determination Act

political malpractice

Privacy Act of 1974

public policy

Sarbanes-Oxley Act

Sherman Antitrust Act

REVIEW QUESTIONS

Discuss how the various branches of government address ethical issues.

Discuss how public policy protects individual rights (e.g., privacy and self-determination).

Discuss the legal and ethical implications of the public policy acts presented here.

Describe how the concept of “political malpractice” is similar to “medical malpractice” as discussed in this chapter.

Should the role of an ethics committee be expanded from one of consultation to that of a decision maker? Support your position. Here there is no right or wrong answer, but a better answer.

NOTES

1. Abraham Lincoln, “The Perpetuation of Our Political Institutions: Address Before the Young Men’s Lyceum of Springfield, Illinois” (January 27, 1838).
http://www.abrahamlincolnonline.org/incoln/speeches/lyceum.htm (accessed July 23, 2018).

2. United States Office of Government Ethics, “Mission and Responsibilities.”
https://www2.oge.gov/web/oge.nsf/Mission%20and%20Responsibilities (accessed July 23, 2018).

3. United States Office of Government Ethics, “Financial Conflicts of Interest.”
https://www.oge.gov/web/oge.nsf/Financial+Conflicts+of+Interest (accessed July 23, 2018).

4. U.S. House of Representatives Committee on Ethics, “Committee Rules.”
http://ethics.house.gov/about/committee-rules (accessed July 23, 2018).

5. U.S. House of Representatives Committee on Ethics, “Jurisdiction.”
http://ethics.house.gov/jurisdiction (accessed July 23, 2018).

6. U.S. House of Representatives Committee on Ethics [website].
https://ethics.house.gov (accessed July 23, 2018).

7. U.S. Senate Select Committee on Ethics, “Jurisdiction.”
http://www.ethics.senate.gov/public/index.cfm/jurisdiction (accessed July 23, 2018).

8. U.S. Senate Select Committee on Ethics, “Rules of Procedure.”
http://www.ethics.senate.gov/public/index.cfm/files/serve?File_id=551b39fc-30ed-4b14-b0d3-1706608a6fcb (accessed July 23, 2018).

9. U.S. Senate Select Committee on Ethics, “Jurisdiction.”

10.
Ibid.

11. Madeleine Weast, “Poll: Americans Have Highest Trust in Military, While Congress and Media Fall Last,” The Washington Free Beacon (April 7, 2017).
http://freebeacon.com/culture/poll-americans-highest-trust-military-congress-media-fall-last/ (accessed July 23, 2018).

12. Office of Congressional Ethics, “Frequently Asked Questions.”
http://oce.house.gov/learn/faq (accessed July 23, 2018).

13.
Ibid.

14. Office of Congressional Ethics [website].
http://oce.house.gov (accessed July 23, 2018).

15. United States Courts, “Ethics Policies: Code of Conduct for United States Judges.”
http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct.aspx (accessed July 23, 2018).

16. United States Courts, “Code of Conduct for United States Judges: Canon 5.”
http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges#f (accessed July 23, 2018).

17. National Conference of State Legislatures, “Table of Legislative Ethics Committees,”
http://www.ncsl.org/research/ethics/table-of-legislative-ethics-committees.aspx (accessed July 23, 2018).

18.
Pierce v. Ortho Pharmaceutical Corp., 417 A.2d 505, 512 (N.J. 1980).

19. U.S. House of Representatives Committee on Veterans’ Affairs, “About.”
http://veterans.house.gov/about (accessed July 23, 2018).

20. Rep. Phil Roe, MD, Chairman, House Committee on Veterans Affairs, June 22, 2018.
https://veterans.house.gov/news/documentsingle.aspx?DocumentID=2202 (accessed July 23, 2018).

21. U.S. Department of Veterans Affairs, “Office of Public and Intergovernmental Affairs: Acting Secretary of Veterans Affairs.”
https://www.va.gov/opa/bios/secva.asp (accessed July 23, 2018).

22. Hope Yen, “Senate Expected to Confirm President Trump’s Third Nominee for Veterans Affairs Secretary.” Time (July 23, 2018).
http://time.com/5345722/senate-robert-wilkie-veteran-affairs-secretary/.

23. 15 U.S.C. § 1 (1982).

24. 42 U.S.C.A. § 1395dd(a) (1992).

25.
Burditt v. U.S. Department of Health and Human Services, 934 F.2d 1362 (5th Cir. Tex. 1991).

26. Eric D. Dakhari, “Patient Dumping and the Emergency Medical Treatment and Labor Act (EMTALA),” The National Law Review (October 11, 2016).
https://www.natlawreview.com/article/patient-dumping-and-emergency-medical-treatment-and-labor-act-emtala (accessed August 19, 2018).

27. 42 U.S.C. § 11101.

28.
Meyers v. Logan Mem. Hosp., 82 F. Supp. 2d 707 (2000).

29.
Patient Self-Determination Act, 42 U.S.C. 1395cc(a)(1).

30. Public Law 101–508, November 5, 1990, sections 4206 and 4751 of the Omnibus Budget Reconciliation Act.

31. 42 U.S.C. § 1395 (1992).

32. 42 U.S.C. § 1395cc (1992).

33. David Blumenthal, “The Affordable Care Act: What Are the Facts After Five Years?” The Commonwealth Fund Blog (May 7, 2015).
http://www.commonwealthfund.org/blog/2015/affordable-care-act-what-are-facts-after-five-years (accessed July 23, 2018).

34. Ronald Brownstein, “Health Care Safety Net Stretched Thin,” St. Petersburg Times (June 4, 2004): Section A, at 13a.

35. United States Senate, “Oath of Office.”
http://www.senate.gov/artandhistory/history/common/briefing/Oath_Office.htm (accessed July 23, 2018).

36.
Ibid.

37. Ethics in Public Service, “Alexandria Hires Ethics Consultant” (April 9, 2009).
http://urpa5358group2.wordpress.com/2009/01/31/alexandria-hires-ethics-consultant/ (accessed October 21, 2014).

38. Laura Olsen, “Alexandria, Va., Turns to Ethicist to Help with Budget Cuts,” The Los Angeles Times (January 2, 2009).
http://articles.latimes.com/2009/jan/02/nation/na-government-ethicist2 (accessed July 23, 2018).

CHAPTER 8

Organizational Ethics and the Law

It is of utmost importance that each organization recognizes that its success lies with its ability to assure the staff, community and patients that it holds itself accountable to ensuring the highest standards of quality professional care and the well-being of all that enter its hallowed halls.

—GP

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Describe corporate structure.

Describe a code of ethics for organizations.

Discuss organizational misconduct.

Explain
respondeat superior and
corporate negligence.

Describe corporate duties and responsibilities.

Describe strategies to restore organizational trust.

INTRODUCTION

Legal and ethical issues in the healthcare setting are being carefully scrutinized across the nation by state and federal regulatory agencies. Organizations, like individuals, must comply with rules of law and ethical conduct. This chapter introduces the reader to corporate authority, contents for codes of ethics for organizations, and the ethical and legal risks to which healthcare organizations and their governing bodies can be exposed. There is an overview of corporate negligence,
respondeat superior, and independent contractors. The emphasis of this chapter is on the duties and responsibilities of healthcare organizations.

CORPORATE AUTHORITY

The typical healthcare organization is incorporated under state law as a freestanding for-profit or not-for-profit corporation. The corporation has a governing body that has ultimate responsibility for the decisions made in the organization. The existence of this authority creates certain duties and liabilities. The governing body, having ultimate responsibility for the operation and management of the organization, generally delegates responsibility for the day-to-day operations of the organization to the organization’s chief executive officer.

Although healthcare organizations may operate as sole proprietorships or partnerships, most function as corporations. Thus, an important source of law applicable to governing boards and to the duties and responsibilities of their members is state law regarding corporations. An incorporated healthcare organization is a legal person with recognized rights, duties, powers, and responsibilities. Because the legal “person” is in reality a “fictitious person,” there is a requirement that certain people are designated to exercise the corporate powers and that they are held accountable for corporate decision making.

Healthcare corporations—governmental, charitable, or proprietary—have certain powers expressly or implicitly granted to them by state statutes. Generally, the authority of a corporation is expressed in the law under which the corporation is chartered and in the corporation’s articles of incorporation. The existence of this authority creates certain duties and liabilities for governing bodies and their individual members.

FIDUCIARY RESPONSIBILITY

Board members (trustees, directors) are not always fully aware of their fiduciary responsibilities and legal risks when serving on a corporate board. Although it is an honor to be a member of a hospital board, board members must be fully knowledgeable as to their legal liability risks in their positions of trust and service to the organization.

A person who has a relationship of trust or confidence with another is called a fiduciary. A fiduciary’s relationship with an organization is one-sided, meaning that the relationship is designed to meet only the needs of the organization and the fiduciary must act without regard to his or her own needs. In hospitals and systems, board members are fiduciaries because they have been entrusted with overseeing the fulfillment of the organization’s mission. They must be principally concerned about the performance of the nonprofit and that its interests are pursued faithfully.

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Corporate boards must act in the best interests of the healthcare entities they represent and the communities they serve. Their fiduciary responsibilities include: corporate finances; providing quality care and a safe work environment for staff, patients, and visitors; and periodically assessing the organization’s progress, programs, and services. Trustees must be fully informed by the CEO prior to making business decisions. They must abide by applicable laws, rules, and regulations and standards that regulate hospital operations. Trustees must be objective in the decision-making process and free from the pressures and the all too often challenging demands and influences from within (e.g., professional staff requests designed to improve personal economic gain) and outside the organization. Board members must be free of conflicts of interest when discussing and making policy and financial decisions. Conflicts of interest statements for trustees and staff should disclose on an annual basis known financial interests with any business entity that transacts business with the corporation or its subsidiary businesses, when applicable. Board members can be held liable for their actions or inactions when carrying out their fiduciary duties and responsibilities.

These principles were outlined in the 1944 New York Superior Court case
Casey v. Woodruff and reiterated in 1996 by the U.S. Court of Appeals in
FDIC v. Stahl:

The directors are entrusted with the management of the affairs of the railroad. If in the course of management they arrive at a decision for which there is a reasonable basis, and they acted in good faith, as the result of their independent judgment, and uninfluenced by any consideration other than what they honestly believe to be for the best interests of the
railroad, it is not the function of the court to say that it would have acted differently and to charge the directors for any loss or expenditures incurred.

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Courts have properly decided to give directors a wide latitude in the management of the affairs of a corporation provided always that judgment, and that means an honest, unbiased judgment, is reasonable [
sic] exercised by them.

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Express Corporate Authority

Express corporate authority is authority specifically delegated by statute. Healthcare corporations derive authority to act from the laws of the state in which they are incorporated. The articles of incorporation set forth the purposes of each corporation’s existence and the powers that the corporation is authorized to exercise to carry out its purposes.

Implied Corporate Authority

Implied corporate authority is the authority to perform any and all acts necessary to exercise a corporation’s expressly conferred authority and to accomplish the purposes for which it was created. Generally, implied corporate authority arises where there is a need for corporate powers not specifically granted in the articles of incorporation. A governing body, at its own discretion, may enact new bylaws, rules, and regulations; purchase or mortgage property; borrow money; purchase equipment; select personnel; adopt corporate resolutions that delineate decision-making responsibilities; and so forth. These powers can be enumerated in the articles of incorporation and, in such cases, would be categorized as express rather than implied corporate authority.

Ultra Vires Acts

Ultra vires is a Latin term meaning “beyond the powers.”
Ultra vires acts are those acts conducted by a corporation that lies beyond its scope of authority to perform. A governing body can be held liable for acting beyond its scope of authority, which is either expressed (e.g., in its articles of incorporation) or implied in law. The governing body acts on behalf of the corporation. If any action is in violation of a statute or regulation, it is illegal. An example of an illegal act would be the “known” employment of an unlicensed person in a position that by law requires a license. The state, through its attorney general, has the power to prevent the performance of an
ultra vires act by means of an injunction.

CORPORATE ETHICS

Organizational ethics describes the ethics of an organization in terms of how it responds to internal or external circumstances affecting the organization’s mission and values. Ethical behavior in an organization can be enhanced by providing staff members with a written code of ethics; providing training and education to improve each staff member’s knowledge base, skills, and competencies; providing easy access to professional sources to assist in resolving ethical issues in the workplace; and providing systems for confidential reporting of breaches in ethical conduct within and outside the organization. Although most healthcare organizations have published their mission, vision, and values statements, policy and practice continue to be distant relatives. Commitment to organizational ethics begins with the organization’s leadership.

The purpose of organizational ethics in the healthcare setting is to promote responsible behavior in the decision-making process. Recent interest in organizational ethics is, in part, the result of concerns of government regulations (e.g., Sarbanes-Oxley Act, Emergency Medical Treatment and Active Labor Act) and accrediting agencies that certain unethical practices continue to plague the industry. These practices include billing scams, false advertising and marketing, and patient care issues (e.g., inappropriate patient transfers based on ability to pay, transferring patients before they have been clinically stabilized). Commitment to organizational ethics must begin with the organization’s leadership.

Code of Ethics for Organizations

Codes of ethics for organizations provide guidelines for behavior that help carry out an organization’s mission, vision, and values. Organizational codes of ethics build trust, increase awareness of ethical issues, guide decision making, and encourage staff to seek advice and report misconduct when appropriate. The following list provides some value statements that should be considered when preparing an organization’s code of ethics.

Employees and staff members will comply with the organization’s code of ethics, which includes compassionate care; an
understanding and acceptance of the organization’s mission, vision, and values; and adherence to one’s professional code of conduct.

Ethics training will be provided as required training for all employees.

Ethics competencies will be reviewed at the time of each employee’s initial ethics training and scheduled evaluation.

The organization will be honest and fair in dealings with employees.

The organization will develop and maintain an environment that fosters the highest ethical and legal standards.

Corporate officers, managers, and employees will be impartial when personal interests conflict with those of the organization and fellow employees.

Employees will be free to speak up without fear of retribution or retaliation.

A compliance officer will be available to protect employees who wish to speak up as to unprofessional practices he or she observes in the organization. The compliance officer will be held accountable for maintaining the confidentiality of the employee’s identity. Failure to do so will result in the immediate termination of the compliance officer.

The pitfalls of groupthink will not be acceptable conduct in the organization. The preservation of harmony will not become more important than the critical evaluation of ideas by
all employees.

Employees and patients will be provided with a safe environment (e.g., freedom from sexual harassment) within which to work.

The drive to increase revenues will not be tied to unethical activities, such as workforce cutbacks as a means to discharge employees when they are encouraged to speak up and then blacklisted because of their honesty.

Employees will avoid conflict-of-interest situations by not favoring one’s own interests over those of others, including the organization.

Patients will be provided with care that is of the highest quality regardless of the setting.

All patients will be treated with honesty, dignity, respect, and courtesy.

Patients will be informed as to the risks, benefits, and alternatives to care.

Patients will be treated in a manner that preserves their rights, dignity, autonomy, self-esteem, privacy, and involvement in their care.

Each patient’s culture, religion, and heritage will be respected and addressed as appropriate.

The organization will provide for a patient advocacy program.

The organization will provide appropriate support services for those with physical disabilities (e.g., those with language barriers and those who are hearing- or seeing-impaired).

Patients will be provided with a “Patient’s Bill of Rights and Responsibilities” on admission to the hospital.

Each patient’s right to execute advance directives will be honored.

Corporate Compliance Program

The federal government’s initiative to investigate and prosecute healthcare organizations for criminal wrongdoing, coupled with strong sanctions imposed after conviction, has resulted in healthcare organizations establishing
corporate compliance programs. These programs establish internal mechanisms for preventing, detecting, and reporting criminal conduct. Sentencing incentives are in place for organizations that establish such programs. An effective compliance program should include the design, implementation, and enforcement of program policies, procedures, and processes to facilitate the prevention and detection of criminal conduct. An effective corporate compliance program should include the following elements:

Appointment of a corporate compliance officer to oversee the corporate compliance program.

Development of standards of conduct, policies, procedures, and processes to help reduce the risk of criminal conduct.

Assignment of duties, authority, and responsibility to employees with high integrity.

Communication and education of all employees and agents as to the organization’s corporate compliance standards. This can be accomplished through required educational programs, computer training modules, and disseminating publications that describe the organization’s compliance program.

Utilization of monitoring and auditing systems designed to detect criminal conduct by employees and agents. This should include a program for publicizing a reporting system whereby employees and other agents are easily able to report criminal conduct by others within the organization without fear of retribution. A hotline number should be available to receive and review complaints. Procedures should be implemented to protect the anonymity of complainants from retaliation.

Policies must be consistently enforced through appropriate disciplinary mechanisms. Suspected illegal conduct should be handled through the corporate compliance officer.

The organization must take all reasonable steps to respond appropriately to any offense in order to prevent similar offenses.

An audit of the organization’s corporate compliance program should be conducted annually. Policies, procedures, and processes should be redesigned as necessary. It is important that the corporate board participate in the review and evaluation process.

The integrity and effectiveness of a compliance program will hold up only as long as there is trust in management on all levels within the organization.

The duties and responsibilities of the compliance officer can be compromised when the corporation pays the salary of the compliance officer. As they say in the world of finance, “follow the money,” and then you will know where loyalties lie.

Unprofessional Conduct

Unprofessional conduct continues to plague the healthcare system. Complex healthcare fraud schemes, for example, resulting in losses of billions of dollars annually impede advances in medicine and deny high-quality health care to the people. Enforcing and bringing to justice the number of individuals and organizations that defraud the government simply add to the losses. This section introduces the reader to a variety of ethical and legal risks associated with such conduct. Unprincipled behavior and conduct include lack of trust and integrity, false advertising, failure to disclose financial incentives, and concealing mistakes.

Trust and Integrity

Trust and integrity cannot always be presumed. Organizations must encourage patients to ask questions and seek second opinions both for peace of mind and to aid in determining the best course of treatment. As noted in the next news clipping, some healthcare providers consider their financial interests more important than the welfare of their patients.

Settlement Reached in St. Joe’s Medical Malpractice Case

A federal investigation and hospital review that began in 2010 found hundreds of cases between 2007 and 2009 in which Midei allegedly profited by placing stents in patients’ arteries that weren’t medically necessary.

• • •

During opening statements in the case, lawyers for the plaintiffs said the coronary unit at St. Joe’s was completely out of control and that patients were given stents they did not need. They said Midei and the hospital consciously decided to break the rules and look the other way, profiting from an abnormally high number of procedures.

—
WBAL TV 11, May 3, 2013

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False Advertising

False or misleading advertising by healthcare entities continues to confuse and mislead the public in the search for high-quality care. Hospitals, for example, at a time when the Joint Commission provided hospitals with numerical scores advertised their perfect or nearly perfect accreditation scores. Scores as high as 100 were often posted on billboards and/or in local newspapers. The intent of such advertisements was to associate high scores with a higher quality of care compared to care in hospitals receiving lower scores. Following numerous complaints by healthcare organizations and surveyors, numerical scoring was discontinued, arguably due in part to the misuse of scores for advertising purposes. Some hospitals seemed to be more concerned with scores than complying with the standards required for accreditation purposes. From both an ethical and a legal point of view, healthcare organizations should not advertise misleading information to encourage public confidence in the quality of care provided by one organization over that of another.

Advertising Unintentionally Misleading

Imagine you are an off-duty EMT on vacation driving down a four-lane highway, and suddenly you observe a car swerving off the road and flipping onto its side. You stop and see a young man lying on the grass and a young lady hysterical and afraid. Her friend appears to have hit his head on the windshield. There are no streetlights or cell phone connections, and there are no car lights in the distance. Not knowing the extent of the injuries, you gently place the victims in the car and start driving to the nearest exit. You observe a sign advertising “Anytown Hospital—Accreditation Survey Score 100, Exit 11-A” and another billboard advertising “General Medical Center—Accreditation Survey Score 89, Exit 11-B.” You just passed exit 10. Luck was on your side. Knowing that a score of 100 sounded better than a score of 88, you decided to take Exit 11-A. You followed the emergency sign. You stopped the car in front of the emergency department entrance, jumped out, and ran to the door. There was a sign that said ring bell if you need help. You quickly learned that you just arrived at a behavioral health hospital. General Medical Center Exit-B turned out to be a major teaching hospital. Anytown Hospital’s advertisement was not intended to mislead the public but to advertise how well they did during their survey. After all, the community was well aware of the services each hospital offered.

Discussion

Discuss what action the hospitals should take to prevent confusion in advertising.

Describe a principle of ethics that has been violated if no action is taken to prevent similar incidents.

Case Studies

Bait-and-Switch Advertising

An action was filed against the defendant, Managed Care, alleging claims of false advertising in connection with Managed Care’s sale, marketing, and rendering of medical services. The plaintiff alleged that he was an enrollee in Managed Care’s health plan. He also alleged that through misleading and deceptive material representations and omissions, Managed Care had employed a fraudulent, unfair scheme to induce people to enroll in its plan by misrepresenting that its primary commitment was to maintain and improve the quality of health care. The plaintiff alleged that Managed Care had been aggressively engaged in implementing undisclosed systemic internal policies that were designed to discourage its primary care physicians from delivering medical services and to interfere with the medical judgment of its healthcare providers. The result of these policies, he alleged, was a reduction in the quality of health care that is directly contrary to Managed Care’s representations.

The plaintiff claimed that Managed Care’s false advertising reduced the quality of medical services available to the enrollees and decreased the monetary value of their health coverage. The plaintiff requested restitution, refund, or reimbursement of monies paid by or on behalf of enrollees that resulted from excessive and ill-gotten monies obtained by Managed Care as a result of its unlawful, fraudulent, and unfair business practices and misleading advertisements.

Ethical and Legal Issues

Describe the ethical issues in this case.

Describe the value of a corporate compliance program and how it could help prevent false advertising.

Concealing Mistakes

Mistakes in medicine are common occurrences that often result in extended hospital stays, higher costs, injury, disability, or death. The Joint Commission in its accreditation process requires that patients be informed when a mistake has been made.

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22. The licensed independent practitioner responsible for managing the patient’s care, treatment, and services, or his or her designee, informs the patient about unanticipated outcomes of care, treatment, and services related to sentinel events when the patient is not already aware of the occurrence or when further discussion is needed. [2014] [Hospital Accreditation Standards, Standard RI.01.02.01.]

Unfortunately for patients, organizations sometimes cover up their mistakes, as noted in the following case.

Case Studies

Wrong Surgical Procedure Cover-Up

The physician–petitioner in
In re Muncan

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did not review either the patient’s CT or MRI images prior to surgery. In addition, he did not have the images with him in the operating room on the day of surgery. Had he done so, he would have discovered that the CT scan report erroneously stated there was a mass in the patient’s left kidney when in fact the mass was located in the patient’s right kidney. During surgery, the physician did not observe any gross abnormalities or deformities in the left kidney and was unable to palpate any masses. Nonetheless, he removed the left kidney.

The Supreme Court of New York, Appellate Division, Third Department held that the evidence was sufficient to support an inference of fraud. The physician knew he removed the wrong kidney and instead of taking steps to rectify the situation, intentionally concealed his mistake.

Statistical reports can knowingly be inaccurate and give patients a false sense of comfort when selecting a hospital for care, as noted in the following
Reality Check.

Appearance May Not Be Reality

General Hospital’s staff aggregated its infection rate data for comparison purposes with four other hospitals in the community. The staff members were aware that the data were flawed. They presented a false perception that General Hospital’s postoperative infection rates were lower than those of peer hospitals. The comparison data were published in the local newspaper.

The Jones family, believing the data to be correct and concerned about the number of deaths related to hospital-acquired infections, relied on the data in selecting General Hospital as their preferred hospital.

—Anonymous

Ethical and Legal Issues

Describe how organizational and professional codes of ethics were violated in this case.

Describe what role an organization’s ethics committee could play in addressing this or similar issues.

CORPORATE NEGLIGENCE

Corporate negligence occurs when a corporation fails to perform those duties it owes directly to a patient or to anyone else to whom a duty may extend. If such a duty is breached and a patient is injured as a result of that breach, the organization can be held culpable under the theory of corporate negligence.

Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party.

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Liability extends to nonemployees who act as a hospital’s ostensible agents. For example, in
Thompson v. Nason Hospital,

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a Pennsylvania court recognized that hospitals are more than mere conduits through which healthcare professionals are brought into contact with patients. Hospitals owe some nondelegable duties directly to their patients independent of the negligence of their employees, such as duties to use reasonable care in the maintenance of safe and adequate facilities and equipment; select and retain only competent physicians; oversee all persons who practice medicine within their walls as to patient care; and formulate, adopt, and enforce adequate rules and policies to ensure the best quality care for their patients.
Darling v. Charleston Community Memorial Hospital, discussed next, has had a major impact on the liability of healthcare organizations for patient injuries suffered within their walls. The immunity status of nonprofit hospitals was no longer an acceptable defense against a plaintiff’s negligence claims.

Case Studies

Darling—Health Care’s Benchmark Case

In 1965, the landmark case
Darling v. Charleston Community Memorial Hospital

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had a major impact on the liability of healthcare organizations. The court enunciated a “corporate negligence doctrine” under which hospitals have a duty to provide adequately trained medical and nursing staff. A hospital is responsible, in conjunction with its medical staff, for establishing policies and procedures for monitoring the quality of medicine practiced within the hospital.

Darling involved an 18-year-old college football player who was preparing for a career as a teacher and coach. The patient, a defensive halfback for his college football team, was injured during a play. He was rushed to the emergency department of a small, accredited community hospital where the only physician on emergency duty that day was Dr. Alexander, a general practitioner. Alexander had not treated a major leg fracture for three years.

The emergency department physician examined the patient and ordered an X-ray that revealed that the tibia and the fibula of the right leg had been fractured. The physician reduced the fracture and applied a plaster cast from a point 3 or 4 inches below the groin to the toes. Shortly after the cast had been applied, the patient began to complain continually of pain. The physician split the cast and continued to visit the patient frequently while the patient remained in the hospital. Not thinking that it was necessary, the physician did not call in a specialist for consultation.

After two weeks, the student was transferred to a larger hospital and placed under the care of an orthopedic surgeon. The specialist found a considerable amount of dead tissue in the fractured leg. During the next two months, the specialist removed increasing amounts of tissue in a futile attempt to save the leg, until it became necessary to amputate the leg 8 inches below the knee. The student’s father did not agree to a settlement and filed suit against the emergency department physician and the hospital. Although the physician later settled out of court for $40,000, the case continued against the hospital.

The documentary evidence relied on to establish the standard of care included the rules and regulations of the Illinois Department of Public Health under the Hospital Licensing Act; the standards for hospital accreditation, today known as the Joint Commission; and the bylaws, rules, and regulations of Charleston Hospital. These documents were admitted into evidence without objection. No specific evidence was offered that the hospital had failed to conform to the usual and customary practices of hospitals in the community.

The trial court instructed the jury to consider those documents, along with all other evidence, in determining the hospital’s liability. Under the circumstances in which the case reached the Illinois Supreme Court, it was held that the verdict against the hospital should be sustained if the evidence supported the verdict on any one or more of the 20 allegations of negligence. Allegations asserted that the hospital was negligent in (1) its failure to provide a sufficient number of trained nurses for bedside care of all patients at all times—in this case, nurses who were capable of recognizing the progressive gangrenous condition of the plaintiff’s right leg—and (2) failure of its nurses to bring the patient’s condition to the attention of the hospital administration and staff so that adequate consultation could be secured and the condition rectified.

Although these generalities provided the jury with no practical guidance for determining what constitutes reasonable care, they were considered relevant to helping the jury decide what was feasible and what the hospital knew or should have known concerning hospital responsibilities for the proper care of a patient. There was no expert testimony characterizing when the professional care rendered by the attending physician should have been reviewed, who should have reviewed it, or whether the case required consultation.

Evidence relating to the hospital’s failure to review Alexander’s work, to require consultation or examination by specialists, and to require proper nursing care was found to be sufficient to support a verdict for the patient. Judgment was eventually returned against the hospital in the amount of $100,000.

The Illinois Supreme Court held that the hospital could not limit its liability as a charitable corporation to the amount of its liability insurance.

[T]he doctrine of charitable immunity can no longer stand … a doctrine which limits the liability of charitable corporations to the amount of liability insurance that they see fit to carry permits them to determine whether or not they will be liable for their torts and the amount of that liability, if any.

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In effect, the hospital was liable as a corporate entity for the negligent acts of its employees and physicians. Among other things, the
Darling case indicates the importance of instituting effective credentialing and continuing medical evaluation and review programs for all members of a professional staff.

Ethical and Legal Issues

Describe the legal issues in this case.

Describe how the hospital failed in its ethical duty to the patient.

DOCTRINE OF RESPONDEAT SUPERIOR

Respondeat superior (let the master respond) is a legal doctrine holding employers liable, in certain cases, for the wrongful acts of their agents (employees). This doctrine has also been referred to as vicarious liability, whereby an employer is answerable for the torts committed by employees. In the healthcare setting, an organization, for example, is liable for the negligent acts of its employees, even though there has been no wrongful conduct on the part of the organization. “Hospitals are vicariously liable for the negligence of an independent contractor emergency-room physician where the patient enters the emergency room seeking treatment from the hospital rather than a specific physician of the patient’s own choosing.”

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For liability to be imputed to the employer:

A master–servant relationship must exist between the employer and the employee; and

The wrongful act of the employee must have occurred within the scope of his or her employment.

The question of liability frequently rests on whether persons treating a patient are independent agents (responsible for their own acts) or employees of the organization. The answer to this depends on whether the organization can exercise control over the particular act that was the proximate cause of the injury. The basic rationale for imposing liability on an employer developed because of the employer’s right to control the physical acts of its employees. It is not necessary that the employer actually exercise control, only that it possesses the right, power, and authority to do so.

When filing a lawsuit, the plaintiff’s attorney generally names both the employer and employee. This occurs because the employer is generally in a better financial condition to cover the judgment. The employer is not without remedy if liability has been imposed against the organization due to an employee’s negligent act. The employer can seek indemnification from the employee. Although it would be highly unlikely for a hospital to seek recovery from an employee, the ever-increasing number of employed physicians could give rise to a hospital seeking indemnification from a physician who is the cause of a negligent injury and carries his own malpractice insurance policy.

INDEPENDENT CONTRACTOR

Independent contractors are responsible for their own negligent acts. The independent contractor relationship is established when the principal has no right of control over the manner in which the agent’s work is to be performed. However, some cases indicate that an organization can be held liable for an independent contractor’s negligence. For example, in
Mehlman v. Powell,

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the court held that a hospital could be found vicariously liable for the negligence of an emergency department physician who was not a hospital employee but who worked in the emergency department in the capacity of an independent contractor. The court reasoned that the hospital maintained control over billing procedures, maintained an emergency department, and represented to the patient that the members of the emergency department staff were its employees, which might have caused the patient to rely on the skill and competence of the staff.

CORPORATE DUTIES AND RESPONSIBILITIES

Along with the corporate authority that is granted to the governing body, duties are attached to its individual members. These responsibilities are considered duties because they are imposed by law and can be enforced in legal proceedings. Governing body members are considered by law to have the highest measure of accountability. They have a fiduciary duty that requires acting primarily for the benefit of the corporation. The general duties of a governing body are both implied and express. Failure of a governing body to perform its duties may constitute mismanagement to such a degree that the appointment of a receiver to manage the affairs of the corporation could be warranted.

The duty to supervise and manage is applicable to the trustees as it is to the managers of any other business corporation. In both instances, there is a duty to act as a reasonably prudent person would act under similar circumstances. The governing body must act prudently in administering the affairs of the organization and exercise its powers in good faith. Various duties and responsibilities of hospital organizations are reviewed here.

Appointment of a CEO

The governing body is responsible for appointing a chief executive officer (CEO) to act as its agent in the management of the organization. The CEO is
responsible for the day-to-day operations. The CEO plans, directs, and coordinates the operational activities of the organization. The individual selected as CEO must possess the competence and the character necessary to maintain satisfactory standards of patient care.

The responsibilities and authority of the CEO should be expressed in an appropriate job description, as well as in any formal agreement or contract that the organization has with the CEO. Some state health codes describe the responsibilities of administrators in broad terms. They generally provide that the CEO/administrator shall be responsible for the overall management of the organization; enforcement of any applicable federal, state, and local regulations, as well as the organization’s bylaws, policies, and procedures; appointment of, with the approval of the governing body, a qualified medical director; liaison between the governing body and medical staff; and appointment of an administrative supervisor to act during the CEO’s absence from the organization.

The general duty of a governing body is to exercise due care and diligence in supervising and managing the organization. This duty does not cease with the selection of a CEO. A governing body can be liable if the level of patient care becomes inadequate because of the governing body’s failure to supervise properly the management of the organization. CEOs, like board members, can be personally liable for their own acts of negligence that injure others.

CEO Licensure

There are no formal licensing requirements for hospital administrators, although there are common educational career paths to follow when seeking executive positions in hospitals. A master’s degree in health services administration or a related field is often required. “Hospital administrators may also earn voluntary professional certification.”

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The American College of Healthcare Executives (ACHE) is the premiere professional organization offering a certification process.

The American College of Healthcare Executives is an international professional society of 40,000 healthcare executives who lead hospitals, healthcare systems and other healthcare organizations. ACHE’s mission is to advance its members and healthcare management excellence. ACHE offers its prestigious FACHE® credential, signifying board certification in healthcare management.

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To comply with federal requirements, the various states have incorporated licensing requirements in their regulations. Administrators are licensed under the laws of their individual states. Statutes generally provide that the administrator of a nursing facility be licensed in accordance with state law. Alaska statutes, for example, require licensing of nursing home administrators.

Sec. 08.70.080. License required. Only a licensed nursing home administrator may manage, supervise, or be generally in charge of a nursing home. The care provided by a nursing home or a licensed hospital providing nursing home care through the use of skilled nursing beds or intermediate care beds shall be supervised by a licensed nursing home administrator or by a person exempted from licensure requirements under this section.

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Licensure requirements include higher education, such as in New York State, which require that applicants:

must document that [they] hold a Bachelor’s (or higher level) Degree from an accredited educational institution. [The] degree must have included (or be supplemented by) successful completion of 15 credit hours of course work at an accredited educational institution in the following five areas:

Nursing Home Administration

Health Care Financial Management

Legal Issues in Health Care

Gerontology

Personnel Management

An accredited educational institution is one that is listed in the U.S. Department of Education’s Database of Accredited Postsecondary Institutions and Programs as having its degree program accredited by a regional or nationally recognized accrediting agency.

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In Massachusetts, 245 CMR 2.00 governs the licensure and practice of nursing home administrators and establishes the standards of conduct for the practice of nursing home administrators, which include a written examination.

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The National Association of Long Term Care Administrator Boards (NAB) offers the nursing home administrator examination.

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The NAB as of July 2017 “has transitioned its examinations to a new structure: examinees will need to pass a 100-item Core of Knowledge exam and a 50-item line of service exam.”

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States that require administrators to be licensed provide penalties ranging from fines to imprisonment for those administrators functioning without a license. The Alaska statues cited earlier provide that “A person convicted of violating a provision of this chapter is guilty of a class B misdemeanor.”

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A $5,000 fine was imposed on a nursing facility for operating without a licensed administrator for 54 days in
Magnolias Nursing and Convalescent Center v. Department of Health and Rehabilitation Services.

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The statute prohibiting operation of a nursing home without a licensed administrator was not considered vague, ambiguous, or unconstitutional.

CEO Responsibilities and Challenges

The CEO is responsible for the supervision of the administrative staff and managers who assist in the daily operations of the organization. The CEO derives authority from the owner or governing body. The CEO of an organization owned and operated by a governmental agency may be an appointed public official. The CEO is responsible to lead and oversee the implementation of the company’s long- and short-term plans in accordance with its strategy.

The CEO must implement as well as interpret the policies of the governing body. Appropriate action must be taken where noncompliance with rules and regulations occurs. The CEO is responsible for making periodic reports to the governing body regarding policy implementation.

There may be occasions when the CEO believes that following a direction of the governing body may create a danger to the patients or others. If the CEO knows or should have known, as a reasonably prudent person, of a danger or unreasonable risk or harm that will be created by certain directed activity but nevertheless proceeds as directed, he or she could become personally liable for any resulting injury. The CEO, therefore, must take appropriate steps to notify the governing body of any policies that create dangers or unreasonable risks.

Although the CEO cannot assume the functions of the professional staff, he or she must ensure that proper admission and discharge policies and procedures are formulated and carried out. The CEO must cooperate with the professional staff in maintaining satisfactory standards of medical care. The CEO is responsible to keep current as to regulatory changes that affect organizational operations. Periodic meetings should be conducted to inform the staff of regulatory changes affecting their duties and responsibilities. The CEO should designate a representative for administrative coverage during those hours he or she is absent from the organization. This individual should be capable of dealing with administrative matters and be able to contact the CEO when major problems arise.

Among the many responsibilities that apply to CEOs are the following:

Uphold the organization’s and one’s professional code of ethics.

Show support and respect to all physicians and staff, knowing that as a team they are the ones who provide bedside care.

Make daily rounds in the organization. Fix the things they can and find a way to fix the things they think they cannot.

Develop friendships and supporters who can help the organization to meet those extraordinary goals.

Implement community outreach programs. Reach out, teach, and educate members of the community on preventative care.

Not be influenced by power brokers simply because of their position. CEOs and managers must do the right thing, all the time—not in a vacuum, but as a team.

Show respect to all persons. Treat consultants, accreditation representatives, and inspectors on all levels (e.g., federal, state, local, and private) with respect, knowing that they are all there to help the organization become better in its delivery of patient care.

CEO Code of Ethics

The following is the preamble to the Code of Ethics of the American College of Healthcare Executives (ACHE):

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The purpose of the Code of Ethics of the American College of Healthcare Executives is to serve as a standard of conduct for members. It contains standards of ethical behavior for health care executives in their professional relationships. These relationships include colleagues, patients, or others served; members of the health care executive’s organization and other organizations, the community, and society as a whole.

The Code of Ethics also incorporates standards of ethical behavior governing individual behavior, particularly when that conduct directly relates to the role and identity of the health care executive.

The fundamental objectives of the health care management profession are to maintain or enhance the overall quality of life, dignity,
and well-being of every individual needing health care service and to create a more equitable, accessible, effective, and efficient health care system.

Health care executives have an obligation to act in ways that will merit the trust, confidence, and respect of health care professionals and the general public. Therefore, health care executives should lead lives that embody an exemplary system of values and ethics.

Maintain Moral Integrity

The CEO must reflect moral integrity in fulfilling the duties and responsibilities of his or her position. Leonard J. Weber wrote in
Business Ethics in Healthcare: Beyond Compliance that:

Healthcare ethics is not just about decisions made at the bedside. It is also about decisions made in executive offices and in boardrooms.
Business Ethics in Healthcare offers perspectives that can assist healthcare managers achieve the highest ethical standards as they face their roles as healthcare providers, employers, and community service organizations.

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Weber suggests guidelines and criteria based on the understanding that the healthcare organization is committed to patients’ rights, to careful stewardship of resources, to just working conditions for employees, and to service to the community.

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Paul B. Hoffman writes that if a person “succumbs to organizational pressures and ultimately suppresses long-held beliefs, values and principles, he or she turns into what Webster and Baylis have described as a ‘moral chameleon,’ thereby becoming ‘sensitized to wrongdoing, willing to tolerate morally questionable or morally impermissible actions.’”

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He further states that:

Because blatantly unethical conduct should never be condoned or promoted, it is the more frequent subtle compromises with dubious dimensions that permit otherwise ethical practitioners to rationalize their acquiescence. In the shadow of these compromises, we find a personal need for job security, popularity and loyalty trumping ethical behavior.

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There will often be decisions that may be costly to one’s career path, as noted in the following
Reality Checks.

Truthfulness Can Shed Light on Character

A CEO rudely left a briefing being conducted by a group of consultants. The consultants had been contracted by the governing body to review the quality of care being delivered at the hospital where he was employed. The CEO was unhappy with the report because it contained a list of things that needed to be addressed to improve the quality of patient care. As the CEO started to leave the room, he abruptly turned and said, “This is not just about the hospital! This is about my job!” His managers then rose and followed him out of the room with stone-cold faces, neither looking back nor saying their goodbyes.

—Anonymous

Discussion

Discuss what codes of ethics were violated in this case.

Explain how you would have handled this incident if you had been a member of the board.

The governing body, as best it can, must appoint a CEO who has demonstrated integrity during his or her career path. Such was not the case in the
Reality Check above. Pointed questions should be made during interviews with prospective CEOs that involve management style, ability to adapt to new employment environments, ability to relate to an organization’s mission and values, willingness to be forthcoming with the board; acceptance of the responsibility for decisions made (both the good and questionable); willingness to practice open communications that include both listening and a capacity to accept suggestions for resolving organizational challenges; openness to ideas that drive innovation; ability to recognize the best in others and give credit to where credit is due; and ability to demonstrate that he or she has a plan for his or her career, including describing what steps he/she has taken to achieve his or her personal goals and how he or she can be fulfilled in the leadership in the organization for which he or she is being interviewed.

The governing body of an organization should also on an annual basis evaluate its own effectiveness, as far up the ladder to board members and, yes, as high up the ladder as the board’s chair. No individual in any organization is exempt from the need to be upright and loyal to the mission, vision, and values of the organization based on well-accepted values reviewed in this book.

Ensuring Board Integrity

Jim, the administrator of General Hospital, was reviewing his mail and reports placed in his inbox by Carol, his secretary. He noticed a copy of correspondence that had been forwarded to him from the corporate office. The letter, describing a donation that had been made, read:

Dear John,

The care received at your East Campus was outstanding. As a result, I am forwarding to your offices a check in the amount of $500,000.

Sincerely,

Anonymous

After reading his morning mail and reports, Jim placed the letter in his outbox for filing. Carol later picked up Jim’s mail and other reports from his outbox. Later that afternoon, Carol walked back into Jim’s office and inquired, “Did you read this letter forwarded to you from the corporate office?” Handing it to Jim, he replied, “Yes, I read it.” Carol then asked, “Do you see anything that piqued your curiosity in this letter?” Jim replied that he had not. Carol, pointing at a strip of whiteout tape, urged Jim to look more closely. She then asked Jim to turn the letter over and read the words the tape was covering. He turned the letter over, noting what the letter had said. It appeared that only a copy had been meant for Jim, not the original correspondence. With the missing words inserted, the correspondence read:

Dear John,

The care received at your East Campus was outstanding. As a result, I am forwarding to your offices a check in the amount of $500,000, earmarked for capital projects at your East Campus.

Sincerely,

Anonymous

Discussion

Discuss why the whiteout tape might have been placed over the words, “earmarked for capital projects at your East Campus.” Take into account the comma placed prior to the word “earmarked.”

What action should Jim take? Remember that Jim could not absolutely determine who placed the whiteout tape on the correspondence, the letter’s author or some other unknown person.

Assuming Jim sent a memo to the corporate chief financial officer (CFO) to inquire what happened to the donated funds, should the CFO respond to Jim? In what way?

Assuming that the CFO failed to respond to Jim, should Jim take any further action, and, if so, what action should he consider?

Discrimination: Behind Closed Doors

It was a Monday morning. Jack remembers it well. As an administrator of a hospital in a multihospital system, Jack was settling into his office when his secretary put through a call from Gerard, the system CEO who was in the corporate office. Gerald asked Jack about interviews of candidates for the emergency department director. Jack replied that the emergency department director search committee had three interviews scheduled for that afternoon. Gerard replied, “The director has to be Christian.” Jack interrupted, saying, “Are you serious?” Gerard responded, “This is what the board wants. There are too many Jewish medical directors.” Jack replied, “This is what the board wants?” Gerard, again quickly interrupting, “Well, no, it’s what I want.” Jack, not believing that Gerard made this decision on his own, replied, “First of all, the selection of director is being conducted by a search committee that includes myself and the other medical directors as well as representatives from the general medical staff. The final decision is the consensus of that committee.” Gerard replied, “You are the administrator, and you can pick who you want.” Jack responded, “Who I want is the most qualified person for the position.” Gerard replied, “You got my message,” and abruptly hung up the phone.

That afternoon after interviewing the final candidates, the entire search committee unanimously agreed to select the physician they considered most qualified, a person who happened to be Jewish.

Later that week, Jack decided to take a vacation day to celebrate the Feast of San Gennaro in New York City. He received a call on his cell phone. Jack answered, and his secretary said, “Gerard wants to see you in his office on Monday morning.” Jack said, “I can tell from your voice it sounds ominous?” She said, “I think it is.”

On Monday morning, Gerard said, “I am planning to move you to the corporate office. I need your skills here.” The corporate office often was jokingly referred to as the deep, dark hole. This was a place where people seemed to disappear from the face of the earth, never to be heard from again.

Jack said, “I really prefer to stay at the hospital as the administrator.” Gerard replied, “That’s not an option.” Jack said, “Is this about the selection of the emergency department director? Because the doctor is Jewish?” Gerard said, “Now why would you think that?” Gerard, pausing for a moment, continued, “I really need your skills here.” Jack replied, “Do you remember the previous administrator recorded all his telephone calls?” Gerard replied, “What are you getting at?” Jack continued, “I never disconnected the recorder. Your conversation about the selection of an emergency room director was very clear.” Gerard replied angrily, “Are you threatening me?” Jack said, “No, I just wanted you to understand that the recorder was never disconnected.”

—Anonymous

Discussion

Discuss what you believe are the ethical issues of this case.

What should Jack do, assuming he really did tape the conversation?

If Jack had not taped the conversation, would that change your mind as to what he should do?

Screen Job Applicants

All job applicants must be closely screened prior to employment, regardless of the responsibilities for which they are seeking employment. The screening process is generally the responsibility of the human resources department and hospital managers. As noted in the news clippings that follow, failure to adequately screen applicants can lead to damaging consequences for both patients and the hospital.

Job Applicants Not Always Screened

Despite the danger of hiring an employee who might jeopardize assisted-living residents, some facilities neglect background screening of new workers.

More than 1 in 10 facilities inspected by state regulators in seven states during a two-year period within 2000–2002 picked up at least one citation for neglecting background checks on prospective caregivers. …

—Kevin McCoy,
USA Today, May 26, 2004

Did Hospitals “See No Evil”?

When police in New Jersey arrested a male nurse named Charles Cullen last year, he made a terrible claim. He said he’d killed as many as 40 patients during the course of his nursing career.

The question remains: How could Cullen have worked at 10 different hospitals in New Jersey and Pennsylvania, over a period of 16 years—despite the fact that at seven of those hospitals, he was under investigation, fired or forced to resign?

Apparently, not one of those institutions gave Cullen a bad reference, or told other hospitals he was trouble. It amounted to a policy of “See no evil–speak no evil”—one that gave Cullen, in effect, a license to kill.

—Rebecca Leung,

CBSNews.com
, April 4, 2004

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Credentialing, Appointment, Privileging, and Discipline

The governing body is ultimately responsible for the credentialing, appointment, and privileging process of the organization’s professional staff. The duty to select members of the professional staff is legally vested in the governing body charged with managing the organization. Although cognizant of the importance of professional staff membership, the governing body must meet its obligation to maintain high standards of practice and fairness. The governing body of
all healthcare entities must therefore be given the latitude necessary when prescribing the necessary qualifications for potential applicants. No court should substitute its evaluation of professional competency for that of the board, a court’s review should be limited to ensuring that the qualifications imposed by a board are reasonably related to the operation of the organization and fairly administered. Moreover, courts are generally reluctant to get involved with the internal affairs of hospitals or professional societies unless any sanctions they impose violate public policy.

Credentialing is a process for validating the background of healthcare professionals and assessing their qualifications to provide healthcare services. The process is an objective evaluation of a professional’s current licensure, training, or experience; competence; and ability to perform the services or procedures requested. Credentialing occurs during both the initial appointment and reappointment process. The
delineation of clinical privileges is the process by which the medical staff determines precisely what procedures a physician is authorized to perform. This determination is based on the credentials necessary to competently perform the privileges requested.

The medical staff is responsible to the governing body for the quality of care rendered by members of the medical staff. The hospital’s governing body has a duty to ensure that a mechanism is in place for the medical staff to evaluate, counsel, and when necessary take disciplinary action against physicians who pose an unreasonable risk of harm to patients.

Ensure Competency

Healthcare entities have a responsibility to take reasonable steps to ensure that physicians are qualified for the privileges granted. Failure to screen a medical staff applicant’s credentials properly can lead to liability for injuries suffered by patients as a result of that omission. Hospitals must adhere to procedures established under both their own bylaws and state statutes. The measure of quality and the degree of quality control exercised in a hospital are the direct responsibilities of the medical staff. Supervision of the manner of appointment of physicians to its staff is mandatory, not optional.

False Statements

In
Hoxie v. Ohio State Med. Bd., it was determined that a physician had made false statements concerning his criminal history when he stated in a deposition that he had never been arrested. There was sufficient evidence presented to support permanent revocation of his license to practice medicine. Certified records held by the state of California indicated that the physician had been arrested or detained by the Los Angeles Police Department multiple times in the 1970s and 1980s for possessing marijuana and PCP, for driving under the influence of alcohol and/or drugs, and for driving with a suspended license. Although the physician asserted that documentation of his criminal past had been fabricated by police and was not credible, law enforcement investigation reports are generally admissible. The physician himself added to the reliability of the records by verifying all significant identifying information contained within the documents and records.

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Masquerading Physician

An action was brought against Canton (who was masquerading as a physician, Dr. LaBella), the hospital, and others in
Insinga v. LaBella

29
for the wrongful death of a 68-year-old woman whom Canton had admitted. The patient died while she was in the hospital. Canton was found to be a fugitive from justice in Canada, where he was under indictment for the manufacture and sale of illegal drugs. He fraudulently obtained a medical license from the state of Florida and staff privileges at the hospital by using the name of LaBella, a deceased physician. Canton was extradited to Canada without being served process. The U.S. District Court for the Southern District of Florida directed a verdict in favor of the hospital. On appeal, the Florida Supreme Court held that the corporate negligence doctrine imposes on hospitals an implied duty to patients to select competent physicians who, although they are independent practitioners, would be providing in-hospital care to their patients through staff privileges. Hospitals are in the best position to protect their patients and consequently have an independent duty to select competent independent physicians.

Discipline of Physicians

Although the governing body has ultimate responsibility for disciplining members of the professional staff (e.g., disruptive behavior, incompetence, psychological problems, substance abuse), responsibility for disciplinary actions is generally delegated to the administrator and various department directors and managers. Depending on the seriousness of alleged misconduct, disciplinary action may require board involvement for resolution, such as those occurrences noted in the following news clipping.

The Joint Commission responded to complaints of disruptive physician behavior that can place patient care at risk and increase medical errors.

30
The Joint Commission in its 2018
Comprehensive Accreditation Manual for Hospitals in its Leadership Standards states: “Leaders create and maintain a culture of safety and quality throughout the hospital.”

31
The rationale for this standard further states that “Leaders must address such behavior in individuals working at all levels of the hospital, including management, clinical and administrative staff, licensed independent practitioners, and governing body members.”

32
The standards made it mandatory
for hospitals to establish written policies designed to address behavior that is demeaning, aggressive, uncivil, or hostile in the patient care setting.

33
The American Medical Association (AMA) has defined disruptive behavior as “a style of interaction with physicians, hospital personnel, patients, family members, or others that interferes with patient care or adversely affects the health care team’s ability to work effectively.”

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The discipline of a physician is sometimes difficult without adequate support of the medical staff, as noted in the following
Reality Check.

Physicians Reluctant to Discipline Physicians

Anytown Hospital has an outstanding reputation for surgical services. The operating room supervisor and a surgical nurse told Bob Wright that Dr. Flipton, an anesthesiologist, is abusing the use of anesthesia gases in the hospital’s dental suite. He was reportedly seen by operating staff administering nitrous oxide (laughing gas) by holding a mask against his face for short periods of time. This scene would be followed by a string of silly, seemingly meaningless jokes. Bob has repeatedly discussed this matter with the medical executive committee. The medical executive committee refused to take any action without definitive action by the department chair. Bob suspects that if he pursues the matter further with the governing board, he could end up without a job. The governing body is generally unable to resolve disciplinary actions against a physician without support from the medical executive committee.

Ethical and Legal Issues

What do you believe the ethical issues are for Bob? For Bob, doing the right thing and survival are competing concerns.

Which of the following would you do if you were in Bob’s position, with two children in college and hefty mortgage payments?

Voluntarily leave my job

Aggressively pursue the problem

Secretly enlist the aid of the medical staff

Confront Dr. Flipton

Other option (explain)

A hospital and its governing body were determined to be immune from liability under the federal Health Care Quality Improvement Act of 1986 in
Taylor v. Kennestone Hosp.,

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for claims arising out of their decision to deny a physician’s application to renew his medical staff privileges. A peer review board found that reasonable investigation had adduced evidence demonstrating that the physician had a history of sexual misconduct toward both nurses and patients. He admitted that he had sexual harassment problems, that he stopped seeing patients at the hospital, and that he sought psychiatric treatment. He admitted that he failed to comply fully with his own psychiatrist’s plan of care before he resumed seeing patients in the hospital. The evidence established that the peer reviewers could reasonably believe that their actions were warranted and that those actions furthered the quality of health care.

Case Studies

Physician Privileges Suspended

A physician received a letter from a hospital informing him that his clinical privileges at the hospital had been summarily suspended. The medical executive committee reviewed the suspension and recommended that it be upheld. The hospital board ultimately revoked the physician’s staff privileges. The physician received a hearing before a fair hearing panel, which recommended that he be reinstated. The board, however, upheld the revocation.

The physician alleged, among other things, wrongful termination and intentional infliction of emotional distress. The defendants argued that the courts do not have jurisdiction to review staffing decisions made by private, nonprofit hospitals.

The Court of Civil Appeals of Oklahoma, Division II, found that judicial tribunals are not equipped to review the action of hospital boards in selecting or refusing to appoint physicians to their medical staffs. The authorities of hospitals endeavor to serve in the best possible manner the sick and the afflicted. Not all professionals have identical ability, competence, experience, character, and standards of ethics. The mere fact that a physician is licensed to practice a profession does not justify any inference beyond the conclusion that a physician has met the minimum requirements for that purpose.

Without regard to the absence of any legal liability, the hospital in granting a physician privileges to practice in its facilities extends a moral or official approval to the physician in the eyes of the public. Not all professionals have personalities that enable them to work in harmony with others, and to inspire confidence in their peers and in patients. Courts should not substitute their evaluation in such matters. It is the board, not the court, that is charged with the responsibility of providing a competent staff of physicians. The board has chosen to rely on the advice of its medical staff, and the court cannot surrogate for the medical staff in executing this responsibility. Human lives are at stake, and the board must be given discretion in its selection so that it can have confidence in the competence and moral commitment of its staff.

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Ethical and Legal Issues

Do you agree with the court’s decision? Explain.

Discuss under what circumstances you believe a court should become involved in an organization’s disciplinary processes (e.g., age discrimination).

Provide Adequate Staff

The governing body must be involved in the decision-making process when staffing shortages and long work hours stress caregivers. The governing body should require that the CEO report and
discuss with the board at their monthly board meetings as to how management is addressing operating issues that include supply, equipment, and staffing issues and how they are being addressed in the organization. Staffing issues in particular continue to plague the healthcare industry, as noted in the new clipping presented here.

Why So Many Doctors Kill Themselves

Assembly-line medicine kills doctors. Brilliant, compassionate people can’t care for complex patients in 15-minute slots. When punished or fired by administrators for “inefficiency” or “low productivity,” doctors may become suicidal. Pressure from insurance companies and government mandates crush these talented people who just want to help patients. Many doctors cite inhumane working conditions in their suicide notes.

Bullying, hazing and sleep deprivation increase suicide risk. Medical training is rampant with deplorable conditions—such as working nonstop for 24 hours or more—that are not permitted in other industries.

—Pamela Wible,
The Chicago Tribune, January 15, 2018

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Various state and federal regulations address staffing requirements; however, they do not adequately address the problems associated with poor staffing and the plethora of regulations that require documentation by caregivers, detracting from the need for hands-on bedside care, thus to the detriment of patient care. Because the quality of care provided by nursing facilities is subject to substantial scrutiny, American families face difficult decisions about whether to move a loved one into such a setting. Under federal law, nursing facilities must have sufficient nursing staff to provide nursing and related services adequate to attain and maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. As nursing facilities are increasingly filled with older, disabled residents with complex care needs, the demands for highly educated and trained nursing personnel continue to grow.

Provide Adequate Supplies and Equipment

The governing body must ensure that there are adequate supplies and equipment on hand in each of its facilities. If the board is unable to provide the necessary supplies and equipment, it must consider finding the funds necessary to fulfill its mission or scaling back operations and, if necessary, consider other options, such as filing for bankruptcy or selling the organization’s assets to a competing organization.

Hospital’s Challenge to Survive

Brad was concerned with what he considered little opportunity for advancement at Blooming Hospital. He had been there for 8 years and there were two administrators in line for Woody’s position as chief executive officer. As far as Brad knew, Woody had no plans to leave Blooming Hospital. He was well liked, competent, and to this day the best boss anyone could hope to have.

Because of financial needs, Brad discussed his concerns with Margaret, the chief operating officer at Hope Hospital, one of several hospitals in a multihospital system. A few months later, Margaret called Brad and said, “I am leaving Hope Hospital and moving to another hospital in the system as CEO. Are you interested in applying for my job?” Brad replied that he was interested. He applied and was offered the job.

Brad found it difficult to approach Woody. As he walked toward Woody’s office, he felt a veil of despair and second thoughts but knew it would be financially difficult not to accept the position at Hope Hospital. Woody had an open-door policy and Brad entered his office unannounced. Woody said, “Hi, Brad.” Brad replied, “Hi, Woody. I find it hard to tell you, but I was offered a job at Hope Hospital in the number two position.” Woody asked, “Are you sure this is what you want to do?” Brad replied that it was. Woody appeared disappointed as Brad left his office. Later that afternoon Woody went to Brad’s office and described how the system Brad was about to enter could be problematic for him. As Woody stood in the doorway, he continued, “Hope Hospital has a reputation of being intensely political.” Woody was not one to use many words, but again he looked disappointed. After a few moments of silence, Woody turned and left the room. Brad could have asked for a raise but was uncomfortable to ask and felt Woody might have misgivings toward him.

Brad, after giving a one-month notice, left Blooming Hospital. The CEO at Hope Hospital was a kind gentleman. He resigned his position, however, just 9 months after Brad’s arrival. Brad was appointed the interim CEO as the board conducted a search for a new CEO. Brad threw his resume into the mix. Following a lengthy search and interviews, Brad was appointed CEO of Hope Hospital.

Brad was happy to be managing a profitable hospital; however, he quickly faced challenges on many fronts, including a continuing battle to obtain supplies from vendors due to the transfer of funds from his hospital by corporate leadership to prop up other failing entities in the system outside the state where his hospital was located. The following timeline documents his struggle to keep the hospital afloat:

July 2010—Phone Message from the Director of Procurement

Procter and Gamble has cut us off from all delivery of supplies. Johnson & Johnson has cut off all deliveries of supplies. Scott Labs and Anthony Medical have cut us off from all deliveries. If we don’t soon get supplies, the lab will be forced to close.

August 2010—Lack of OR Sutures

Dr. Plastics entered Brad’s office and said, “I can’t perform surgery without the proper suture materials. I have a patient on the table and they don’t have the sutures I prefer to close the surgical incision.” He then turned to return to the OR, looking back and apologizing, “I know you don’t control where the money goes.”

Brad discussed the lack of sutures material with Marcy, the OR supervisor. Marcy, in tears, said, “Brad, supply shortages are making my job difficult enough, and now the physicians are taking out their frustrations on me. Dr. Plastics, who complained to you, had other suture options, but like all surgeons, he had his own preferences, probably, I suspect, based on a salesman’s pressure.” Brad replied, “I can’t second-guess the surgeon’s selection of sutures; however, I understand your frustrations and I will continue to bring them up with the corporate CEO. I can assure you that the board members are well aware of the continuing supply shortages.”

August 2010—Lack of X-ray Film

One Friday at 5:00 p.m. a radiologist went to Brad’s office to report, “I know you are under a lot of pressure, but we do not have sufficient X-ray film to get through the weekend!” After Brad arranged to borrow X-ray film from a local state hospital, he called the corporate accounts payable department to inquire about payment of the vendor—a task that was beginning to be a daily occurrence for Brad.

September 2010—Message Relayed from Administrative Secretary

“Dr. Wild stormed in. He is furious! The fetal monitor machine is out of commission. He was lied to and told it was working, but it wasn’t. This is a life-saving instrument, and failure to have it fixed is intolerable (and a few more adjectives I couldn’t get down in shorthand) and inexcusable
and a legal matter—this is just the tip of the iceberg. If things don’t start to improve, he will pull his entire practice out of the hospital.”

April 2011—Memo from the President of the Medical/Dental Staff

We have been reduced to using menstrual pads for abdominal dressings. On two occasions last week, a major disaster was narrowly averted in the Operating Room only because of the proximity of … City Hospital and their willingness to supply us with emergency equipment.

March 2012—Input from Department of Supply Procurement

The director of supply procurement wrote a memo stating that the acute shortages of OR material and X-ray film were putting patients at risk at this facility. The memo recommended considering an orderly closing of the facility. Those present at a meeting to discuss the issue unanimously agreed that without immediate intervention regarding the specific needs, closing of the hospital should begin on a specified date. Ms. Nurse added that ensuring an adequate supply of sutures was critical.

June 2012—Phone Message from Dr. Orthopedics

Dr. Orthopedics called at noon today (6/12). He said about a week ago he was here at night and there were no finger splints. Dr. Orthopedics said he had to resort to the use of popsicle sticks that he obtained in the hospital coffee shop for splints.

September 2012—Memo from Dr. ER

Over the past 3 to 4 weeks, the supply of orthopedic-related supplies in the emergency room has dwindled to a dangerous level. Something must be done soon.

October 2012—Letter from Dr. Peds

“I was on call for the emergency room … on Friday, October 23, 2012. I was disappointed to note that important casting materials were not available. … I can repeat what others have said: if the hospital is to continue to provide high-quality care, a certain minimum level of supplies must be available.”

January 2013—Memo from Dr. Orthopedics

“Once again, I am forced to bring to your attention the abysmal state of affairs with reference to your credit ratings with various surgical vendors. It is a continual source of embarrassment to me to have to call in personal favors with salesmen and vendors so as to provide my patients with prostheses and equipment they need for their optimal health care.”

April 2013—Board Minutes

Father Smith (board member who chaired the physicians relations committee) requested that Brad and the president of the medical staff work together in locating the areas of greatest concern with regard to supply shortages. Father Smith asked that this information be available at the next board meeting.

May 2013—Brad speaks with the Corporate CEO

Brad called the corporate office to discuss the ongoing seriousness of the supply issues. The purchase, storage, and distribution of supplies had been centralized in a corporate location off site. At the same time, Accounts Payable was also centralized and was accused of paying vendors on the basis of who screamed the loudest rather than on patient need.

June 2013—Administrator and Medical Staff President Joint Memo to the Board

“We sincerely believe that as a result of the supply shortages, the negative impact on morale of patients and employees during the past 5 years is substantial. The serious nature of these concerns is noted in the following paragraphs.”

Major Vendors requiring advance payment

2010

8

2011

3

2012

29

2013

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The system CEO was distressed that Brad had provided this information to the board, complaining to him, “You’re out to get me.” Brad responded, “I am complying with the board’s request, and it’s in the board minutes. Besides, I gave you an advance copy of the memorandum.”

Discussion

Discuss the ethical issues that this case raises.

Are there any circumstances in which CEOs should attempt to keep information from their boards?

Brad is in a multihospital system making major profits but cannot control the flow of funds out of the community hospital. The governing body is aware of the serious nature of the supply crisis. What should the board do?

If you were Brad or on the board, what action would you take?

Allocate Scarce Resources

It is the responsibility of the governing body, and not the legal system, to provide appropriate staffing and provide adequate supplies and equipment for patients. Although the courts do not overlook the importance of maintaining adequate levels of patient care, it is not the job of the courts to referee disagreements. For example, a disagreement between the governing body and the local community as to how to allocate limited resources is not a question for the courts to settle. Questions of this sort often involve ethical principles and values. How to spend limited resources that provide good for the many is a value judgment, not a legal decision. Hospitals are in the business of serving patients with many kinds of illnesses and disabilities. Recognizing that the medical community is best equipped to conduct the balancing that medical resource allocations inevitably require, Congress has declined to give courts a mandate to arbitrate allocation disputes.

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The following
Reality Check and news clippings describe how some hospitals have been negatively affected when resources are not wisely distributed.

Multihospital System’s Allocation of Scarce Resources

At a time when many hospitals were on the brink of bankruptcy and struggling to survive, Brad, the administrator of a hospital in a multihospital system, had a positive bottom line in the millions. The hospital was located in an upscale, affluent community. Unfortunately, the money was siphoned off to support the operations and capital projects of other hospitals in the system. Meanwhile, Brad’s hospital was suffering from lack of supplies and funds for local capital projects.

Physicians and many community members, aware of the positive bottom line, were disturbed that the hospital’s funds from operations and donations were being earmarked to fund the day-to-day operations of the system’s failing hospitals. In addition, at a time when these hospitals were losing money, funds from Brad’s hospital were being earmarked for major building projects in these hospitals, as well as corporate office projects.

It was like trying to squeeze blood out of a stone to get people to donate to their own community hospital. The community had no trust their donations would stay in the community.

Corporate leadership was expanding its capital projects, expanding non-revenue-producing projects, relocating corporate offices to a more expensive site, building lavish suites, adding staff with vague job descriptions that served only to burden and penalize the revenue-producing entities, and jeopardizing patient care with their pet projects by deluging hospital staff with paperwork so they could produce even more paperwork to justify their own existence. Hospital staff felt that corporate staff had become an obstacle to the provision of high-quality patient care. No relief from battlefield fatigue seemed to be on the horizon.

Brad was able to work with some local community leaders (e.g., banker, lawyer, physician, newspaper editor, real estate agent) to establish a fundraising board, the mission of which was to oversee the local fundraising process and ensure the proper allocation of community funds to the local hospital. Although many corporate leaders privately objected to the concept, the corporate board reluctantly recognized the community board’s existence, hoping to make inroads into the pockets of the wealthy. With half-hearted support by the corporation’s leadership, the death of many of the founding fathers of the community board, and the resignation of Brad, who had developed the trust and provided the leadership, the community board slowly faded out of existence under the leadership of the administrators that followed him.

—Anonymous

Discussion

Discuss the ethical issues related to Brad’s dilemma regarding cash flow to other entities in the corporation. Do you consider this an isolated incident or an all too frequent occurrence with the rise of multihospital systems? Explain your answer.

Discuss what steps you would take to resolve the resource allocation issues if you were in Brad’s position.

Discuss the community’s reluctance to donate to the local hospital. What would you do?

MDs Weigh Action Over Hospital $$

A suit may be in the offing blocking the … [multi-system corporation] from pumping profits made by its [community hospital] into the … [system’s] two financially-ailing sister hospitals. …

“It’s a matter of going to the operating room and finding that a particular piece of equipment isn’t working, or finding that certain items are not up to date.”

Although … [system] officials would not comment, sources close to the scene say the … [system] will maintain that it has the right to spend as it sees fit.

—Vicky Penner Katz,
Smithtown News, July 24, 1980

… Says Hospitals Won’t Fail

The … [system] has been siphoning funds from the financially stable … hospital to make up deficits at the two other hospitals, which have a large volume of charity cases. The drain has angered … [community] physicians, who complain that it has caused staff and supply shortages.

Nearly 100 vendors have stopped dealing with the hospital. …

—Neil S. Rosenfeld,
Newsday, January 22, 1981

Provide Quality Patient Care

The provision of quality patient care begins from the time of admission and continues to the time of discharge. It involves adopting and following
best practices in the treatment of patients in line with both legal and ethical duties and responsibilities. Such was not the case as noted in the
Bravo case described here, where both organizational and professional ethics fail the patient.

A complaint for damages and a demand for jury trial was filed by the plaintiff,
Jesse Bravo v. White Memorial Hospital, et al, with the Superior Court of California, County of Los Angeles on February 3, 2012 (Case No.: BC478343).

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Damages were sought for elder abuse and neglect, breach of fiduciary duty, intention of infliction of emotional distress, false imprisonment, negligence per se, professional negligence, and hospital negligence.

The defendants were claimed to have discharged the plaintiff in an unstable, paranoid schizophrenic and heavily sedated state without his consent and then physically restrained him and transported him to the unfamiliar location against his will, abandoning him and dumping him on a sidewalk without the ability to return home.

Other than administering multiple prescriptions of psychotropic medications, defendants provided little care and treatment for him and failed to stabilize his acute psychiatric condition that had led to his admission to the hospital emergency department. The defendants ignored the fact that Mr. Bravo was a married man who resided with his family and instead treated him as if he were a homeless person by unilaterally deciding to discharge him from the medical center to a shelter that cares for homeless people. The patient per hospital policy should have been observed for 24 hours before any transfer. Less than 12 hours after being admitted to the emergency department, the patient was transferred to the shelter. Among other statutes, the hospital violated federal statutes and Centers for Medicare and Medicaid Services regulations by not engaging the patient assessment or treatment planning within the meaning of 42 CFR section 482.61.

The hospital was obligated to develop, implement, and follow policies that address the post-discharge needs of patients to help prevent adverse health consequences following the discharge. The
California Health and Safety Code section 1262.5 provides, in part:

(a) each hospital shall have a written discharge planning policy and process.

The patient should have been stabilized in the hospital emergency department prior to discharge. This in fact did not occur. Patient records do not show that any consideration was given to where the patient could be safely placed nor were there arrangements made with the shelter to receive the patient.

(b) The policy required by subdivision (a) shall require that appropriate arrangements for post hospital care, including, but not limited to, care at home, skilled nursing or intermediate care facility, or from a hospice, are made prior to discharge for those patients who are likely to suffer adverse health consequences upon discharge if there is no adequate discharge planning. If the hospital determines that the patient and family members or interested persons need to be counseled to prepare them for post hospital care, the hospital shall provide for that counseling.

The complaint states that the actions of the defendants constituted reprehensible and despicable
conduct and subjected Mr. Bravo to cruel and unjust hardship and conscious regard for his rights.

The plaintiff claimed that the conduct by the defendants was outrageous, intentional, and malicious and was done with reckless disregard of the probability of causing the plaintiff to suffer humiliation, mental anguish, and emotional distress.

42 CFR Section 482.61(c)(1) mandates that physicians develop or lead the development of the patient’s treatment plan. Dr. Hernandez signed one of Mr. Bravo’s treatment plans on March 4, 2011, well after Mr. Bravo’s discharge on February 11, and never signed the other. If Dr. Hernandez contributed to Mr. Bravo’s treatment plans, he would have signed them at the time. Accordingly, his failure to sign indicates a failure to participate.

Ultimately, the defendants negligently managed, cared for, treated, discharged, abandoned, and “dumped” Mr. Bravo during the relevant period, causing him to suffer injuries.

The hospital ultimately had a common law duty to use reasonable diligence in safeguarding a patient committed to its charge—if that duty is measured by the patient’s capacity to care for himself, there was no reasonable effort to assess the plaintiff’s just capacity for self-care.

Ethics and the law are in accord here, the “Defendants’ actions violate every standard of professional conduct. By failing to care for and then releasing a mentally ill, unstable, paranoid and schizophrenic man and abandoning him on the street in an unfamiliar and dangerous area.”

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Comply with Rules and Regulations

The governing body in general and its agents are responsible for compliance with federal, state, and local rules and regulations regarding the operation of the organization. Depending on the scope of the wrong committed and the intent of the governing body, failure to comply could subject board members and/or their agents to civil liability and, in some instances, to criminal prosecution. The following
Reality Check describes what can happen when an organization fails to comply with the provisions of the Family Medical Leave Act (FMLA).

Noncompliance with the Family Medical Leave Act (FMLA)

The Family Medical Leave Act (FMLA) of 1993 was enacted to grant temporary medical leave to employees up to a total of 12 workweeks of unpaid leave during any 12-month period for such things as the birth and care of an employee’s child, the care of an immediate family member with a serious health condition, or inability to work because of a serious health condition. After an FMLA leave, the employee’s job—or an equivalent job with equivalent pay, benefits, and other terms and conditions of employment—must be restored.

Ten CEOs and human resource directors were randomly queried to determine their compliance with the FMLA. Specifically, in 9 of the 10 organizations queried, a nurse, for example, would be returned to the same or similar position without financial penalty (e.g., prorated salary increase) after her return from family leave.

One organization chose to penalize an employee’s employment status by removing the employee’s part-time status for the remainder of the year in which family leave had been granted and taken. In addition, this same organization’s leaders prorated the employee’s salary increase. In effect, this was a penalty that would be compounded each year the employee worked in the organization.

On appeal by the employee to the United States Department of Labor, this organization was required to reimburse the employee for lost wages unlawfully withheld from the employee during the year in which family leave had been taken.

Discussion

Discuss what recourse the employee has when faced with discriminatory practices, both within the corporation (e.g., register a complaint with the human resources department and/or corporate compliance officer) and outside the organization (e.g., file a complaint with the Department of Labor).

Such activities raise both legal (e.g., interpretation of the law) and ethical issues (e.g., nonmaleficence).

Comply with Accreditation Standards

Accredited hospitals are responsible for compliance with their accrediting body’s standards (e.g., the Joint Commission). The Centers for Medicare and Medicaid Services (CMS) approves and recognizes national accrediting organizations such as The Joint Commission’s accreditation standards as meeting or exceeding Medicare’s requirements, or Conditions of Participation (COPs) required to be reviewed during the accreditation process, with which qualifying healthcare entities
must be in compliance in order to be accredited for federal funding. The accrediting body is then granted what is termed “deemed status” which recognizes the accrediting body as having the authority to conduct hospital accreditation surveys for standards compliance, which is necessary before receiving federal funding.

Recognized accreditation agencies include:

… the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), the National Committee for Quality Assurance (NCQA), the American Medical Accreditation Program (AMAP), the American Accreditation HealthCare Commission/Utilization Review Accreditation Commission (AAHC/URAC), and the Accreditation Association for Ambulatory HealthCare (AAAHC). In addition, the Foundation for Accountability (FACCT) and the Agency for Healthcare Research and Quality (AHRQ) play important roles in ensuring the quality of healthcare. Each of the accrediting bodies is unique in terms of their mission, activities, compositions of their boards, and organizational histories, and each develops their own accreditation process and programs and sets their own accreditation standards. For this reason, certain accrediting organizations are better suited than others to perform accreditation for a specific area in the healthcare delivery system. The trend toward outcomes research is noted as a clear shift from the structural and process measures historically used by accrediting agencies. Accreditation has been generally viewed as a desirable process to establish standards and work toward achieving higher quality care, but it is not without limitations. Whether accrediting organizations are truly ensuring high quality healthcare across the United States is a question that remains to be answered.

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Failure to follow safe practices identified in accreditation standards can result in patient injuries, such as those noted in the following news clipping, where patient equipment was disconnected because alarms were annoying to staff who became desensitized to the alarms—often as a result of frequent false alarms.

“Alarm Fatigue” Poses Risk for Hospital Patients

The sheer number—several hundred alarms per patient per day—can cause alarm fatigue. Nurses and other workers, overwhelmed or desensitized by the constant barrage, sometimes respond by turning down the volume on the devices, shutting them off or simply ignoring them—actions that can have serious, potentially fatal, consequences.

Clinicians and patient-safety advocates have warned of alarm fatigue for years, but the issue is taking on greater urgency as hospitals invest in more-complex, often-noisy devices meant to save lives. Last month, the Joint Commission, which accredits hospitals, directed facilities to make alarm safety a top priority or risk losing their accreditation.

—Lena H. Sun,
The Washington Post, July 8, 2013

Noncompliance with accreditation standards can lead to an organization’s loss of accreditation, which in turn would provide grounds for third-party reimbursement agencies (e.g., Medicare) to deny payment for treatment. The following case describes how a patient alarm was disabled, resulting in the death of a patient.

Case Studies

Monitor Alarm Disconnected

In
Odom v. State Department of Health and Hospitals,

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the appeals court held that the decedent’s cause of death was directly related to the absence of a heart monitor. Jojo was born 12 weeks prematurely at the HPL Medical Center. Jojo remained in a premature infant’s nursery and was eventually placed into two different foster homes prior to his admission to Pinecrest foster home. While Jojo was a Pinecrest resident, Mr. and Mrs. Odom adopted Jojo. He was unable to feed himself and was nourished via a gastrostomy tube. Because he suffered from obstructive apnea, he became dependent on a tracheostomy (trach) tube.

At Pinecrest, Jojo was assigned to Home 501. While making patient rounds, Ms. Means found Jojo with his trach tube out of the stoma. She called for help, and Ms. Wiley, among others, responded. Wiley immediately took the CPR efforts under her control. She noticed that Jojo was breathless and immediately reinserted the trach tube. She then noticed that Jojo was still hooked to a monitor.

No one had heard the heart monitor’s alarm sound. Means asserts that the monitor was on, because she saw that the monitor’s red lights were blinking, indicating the heart rate and breathing rate. She stated that she took the monitor’s leads off of Jojo to put the monitor out of the way, but the alarm did not sound. CPR efforts continued while Jojo was placed on a stretcher and sent by ambulance to HPL. Jojo was pronounced dead at HPL’s emergency department at 7:02 p.m.

The Odoms filed a petition against Pinecrest, alleging that Jojo’s death was caused by the negligence and fault of Pinecrest, its servants, and employees. Judgment was for the plaintiffs. The trial court’s reasons for judgment were enlightening because it stated that the monitor should have been on, but had been disconnected by the staff, and that this was the cause in fact of Jojo’s injury. The appeals court found that the record supported the trial court’s findings. There was overwhelming evidence upon which the trial court relied to find that the monitor was turned off, in breach of the various physicians’ orders with which the nurses should have complied. The monitor was supposed to be on Jojo to warn the nurses of any respiratory distress episodes that he might experience. A forensic pathologist’s report showed the cause of Jojo’s death to be hypoxia, secondary to respiratory insufficiency, secondary to apnea episodes. Thus, Jojo’s cause of death was directly related to the absence of a heart monitor.

The accreditation process of a healthcare organization is a major event in its day-to-day operations. Organizations are expected to maintain a culture that supports patient safety and an environment that fosters respect, honesty, and compassionate care. The accreditation process is one of many tools that help ensure that high-quality care is being provided.

As the following
Reality Check illustrates, there are times when a wake-up call is necessary to alert leadership that the provision of high-quality care is no trivial event when your goal is to heal another human being.

Accreditation is Serious Business

Six field consultants were assigned by their employer, the National Accreditation Association (NAA), to review the quality of care being delivered at Newtown Medical Center and its three outpatient centers. Newtown was larger and even more complex than the consultants had anticipated, offering multiple services. On the first day of the consulting assignment, only three of the six assigned consultants reported to the medical center for duty. Patrick, the team leader, called the corporate office to discuss the need for additional help. Mike, the manager responsible for addressing field requests, did not return Patrick’s call. Despite the lack of a follow-up call from Mike, the team covered the assigned task.

On the fourth day of the 5-day survey, Cheri, Newtown’s survey coordinator, asked Patrick if there was anything that needed to be covered prior to the exit conference to be held the following afternoon. Patrick replied, “Yes, there is. At the leadership conference this morning, there was no representation from the governing body. I find it difficult to score the various aspects of leadership since no one attended the scheduled interview.” Somewhat concerned about the outcome of the quality review the following day when the consultants presented their report, Cheri said, “The medical center’s leadership has not taken these surveys very seriously in the past. It has been an uphill battle to get them involved. Let me see what I can do to arrange for a leadership conference in the morning. We have 36 members on our board; hopefully I can find a few to attend.” The following morning Cheri approached Michael and said, “I was able to convince two board members to meet with you at 11:00 a.m.”

Michael met with the two board members along with the CEO. After the meeting ended, a board member approached Michael and said, “You sure are persistent. But I must say it was truly a worthwhile meeting.”

Discussion

Do you agree with Michael’s persistence in conducting the leadership interview? Discuss your answer.

Because the survey team was short three consultants, would you consider this a meaningful survey as to the quality of care being rendered at Newtown Medical Center? Discuss your answer.

Do you think the CEO would complain about being billed for six consultants when only three were present to conduct the survey? Discuss your answer knowing that the results of the survey were positive and that three additional consultants could have added to the number of findings resulting in a more negative report and an unhappy board.

Accreditation and Conflict of Interest

The mission of accrediting bodies is to improve the quality of care rendered in the nation’s hospitals through the survey process. Accrediting bodies depend upon the hospitals they survey to reimburse them for the costs of those surveys. This obligates the accrediting body to maintain satisfied clients, and in so doing, a
conflict of interest arises. How credible can a survey be when the accrediting body is dependent upon satisfied customers for financial survival? Further, hospitals evaluate the performance of the surveyors. Surveyors are expected to score an organization’s performance knowing that organizations often challenge a surveyor’s findings, which can lead to character assassination in the worst-case scenario and/or a poor performance review of the surveyor by the organization. Conflicting interests here encourage surveyors/inspectors to be cautious about what they score because of fear of retaliation by both the organizations surveyed and the accrediting body that may side with the organization. Because of the financial implications for both the accrediting body and the surveyed organization, surveys are far from effective in protecting the consumer from human errors that result in more than 100,000 deaths and injuries annually in the nation’s hospitals.

The food inspection process is remarkably similar to the hospital accreditation surveys:

Food makers often know when inspectors will audit their facilities, and they vigorously prepare for those inspections. This was also true with hospitals until The Joint Commission, for example, decided to conduct unannounced surveys. This change occurred mostly because of criticism from surveyors, the Centers for Medicare and Medicaid Services, the public, and some of the surveyed organizations. But the wheels of change move slowly; more than a decade passed before The Joint Commission submitted to the long overdue change.

Most food makers score high in their inspections and still have recalls and outbreaks.

As with hospitals, the food companies typically pay food industry inspectors, creating a conflict of interest for inspectors who might fear they will lose business if they do not hand out high ratings.

Clearly, the banking industry, food industry, and healthcare industry all share one major disturbing characteristic: there is a conflict of interest between the inspecting agencies and the entities they are inspecting. The question often arises, “Which master does the accrediting agency serve more easily?” The people who use an organization’s services or the organization? The answer is both. But, however, it is not easy to serve two masters well. As noted in the following
Reality Check, someone needs to regulate the regulators.

Hospital scores were eventually discontinued in the accreditation process because of criticism on numerous occasions from both its own surveyors and accredited hospitals. Because of the competition among hospitals, the surveyors were pressured to provide high scores by the organizations surveyed.

As noted in the following
Reality Check, the family of a patient who passed away in a high-scoring hospital was not all that pleased with the scores some hospitals were receiving.

One Family’s Experience

It was early winter, and Mary Ann had continuous headaches for more than a year. Dr. Fastrack, her family physician, examined her and diagnosed her with migraines. Handing her a prescription for ibuprofen, Dr. Fastrack said, “Mary Ann, it is stress related. Maybe some meditation would be helpful.” That following summer Mary Ann went to the Jersey shore, where she had been going on vacation for several years. While she was there, she experienced excruciating headaches. She went to a local emergency room, where they also diagnosed her with a severe migraine. Mary Ann returned home and was eventually examined by a neurologist, who ordered a brain scan. She was diagnosed with a brain tumor in her right frontal lobe, the same area of the head she had hit when she went through a car window 17 years earlier. About a year following radiation treatment, she was told she was in remission. It was Christmas, and she immediately called her brother, who was at his in-laws’, to tell him the good news. Mary Ann never saw another Christmas. Several years following her death, her daughter, my niece, said, “Can you believe the hospital where my mom died had advertised in our local newspaper that it scored 100 on a hospital accreditation survey? There wasn’t even a physician on duty in the emergency room. I wouldn’t take my dog to that hospital. They killed my mom.”

—Anonymous

Even so, the accreditation process for hospitals is working well in many ways, as noted by Pamela R. Knecht, CEO of Accord Limited. In her article “Zero Harm: An Achievable Goal” she describes how some organizations have been successful in improving the quality of patient care:

Memorial Hermann Health System, Houston, collaborated with the Joint Commission Center for Transforming Healthcare on the center’s hand hygiene project. The results were dramatic, as the average compliance across all of MHHS’s hospitals improved from 58 to 96 percent. In addition, one hospital received the systems Certified Zero Award for having no central line-associated bloodstream infections for 12 months. And, five hospitals had no cases of ventilation-associated pneumonia during that same year.

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Integrity Can Be Lost Through Greed

Forever Anonymous, Inc. (FA) employees are prohibited from consulting with accredited healthcare organizations during their employment with FA. In addition, employees are prohibited, for 3 years following termination, from consulting with any organizations they may have surveyed during their tenure with FA.

It is believed that not all members of FA’s leadership have been following this policy after termination of their employment. Employees questioned among themselves whether this policy applies only to rank-and-file employees or also includes FA’s leadership. Should the FA board investigate what organizations former FA leaders have been consulting with and in what capacity? Should FA’s board investigate which members of leadership have consulted and/or continue to consult? And what is the propriety of such consultations?

The importance of this policy is apparent. During a survey, some hospitals, through their leadership, often let it be known to the inspectors, accidentally of course, what former members of FA’s leadership they have been consulting with to prepare for their survey, expecting some leniency will be shown by the surveyors during the survey process. Yes, unfortunately, there are often some members of an organization’s leadership who are more concerned about the results of a survey and how it might affect their jobs than about how it affects the quality of patient care in their organization.

—Anonymous

Discussion

Describe how the FA board could address this issue.

Identify the ethical issues in this
Reality Check.

Provide Timely Treatment

VA, Heal Thyself, Agency Is Told at Hearing Filled with Pained Testimony

VA officials in Pittsburgh knew of an outbreak of Legionnaires’ disease, “but they kept it a secret for more than a year.”

VA staff in Buffalo potentially exposed patients to hepatitis and HIV by reusing disposable insulin injection pens. “At least 18 veteran patients have tested positive for hepatitis so far.”

VA workers, patients and family members had “a series of allegations” regarding “poor care” at the Dallas VA medical center.

Employee whistleblowers at the VA medical center in Jackson, Miss., reported “poor sterilization procedures, understaffing and misdiagnoses” to the Office of Special Counsel, an independent federal watchdog.

—Joe Davidson,
The Washington Post, September 13, 2013

Healthcare organizations are expected to provide timely treatment to patients. Hospitals can be liable for delays in treatment that result in injuries to their patients. For example, the patient in
Heddinger v. Ashford Memorial Community Hospital

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filed a malpractice action against a hospital and its insurer, alleging that a delay in treating her left hand resulted in the loss of her little finger. Medical testimony presented at trial indicated that if proper and timely treatment had been rendered, the finger would have been saved. The U.S. District Court entered judgment on a jury verdict for the plaintiff in the amount of $175,000. The hospital appealed, and the U.S. Court of Appeals held that even if the physicians who attended the patient were not employees of the hospital but were independent contractors, the risk of negligent treatment was clearly foreseeable by the hospital.

The following
Reality Check describes one consultant’s experience in the VA hospital system.

Veterans’ Care Unconscionably Delayed

I surveyed more than 500 hospitals. At one point, I asked not to be placed on Veterans hospital accreditation surveys. Not all, but some, of the Veterans Administration (VA) hospitals were very argumentative, fearing the possibility of written citations. So much so, that on a ride from one VA hospital in Pennsylvania to a Pittsburgh VA, the referring VA hospital sent three staff members to chauffeur me to the Pittsburgh VA. They all argued against my concerns that a veteran on a 6-month waiting list for a neurological consult was too long. They kept arguing, not discussing, that if he needed immediate attention, he would have been referred to a local civilian hospital for care. I said, “In my opinion, if he needs a neurological consult, he needs it now. Not 6 months from now.”

—Anonymous

Discussion

Based on this
Reality Check, what action should the VA leadership take in order to prevent such occurrences in the future?

Discuss how this situation might have been different if the veteran was a relative of one of the employees accompanying the surveyor in the car.

Avoid Conflicts of Interest

Suspicious Consulting Fees

About 800,000 Americans will get a new hip or knee this year, up 63% from 491,000 in 2001. Now a U.S. Department of Justice investigation reveals that many orthopedic surgeons have been pocketing hundreds of thousands of dollars in “consulting fees” with the understanding that they would implant a particular company’s device—even if it wasn’t the best choice for a patient.

The country’s top five medical device makers, which account for nearly 95% of the knee and hip implants on the market, have been implicated.

—Catherine Guthrie,
Oprah Magazine, May 2008

A conflict of interest involves situations where a person has the opportunity to promote self-interests that could have a detrimental effect on an organization with which he or she has a special relationship (e.g., employee, board member). The potential for conflict of interest exists for individuals at all levels within an organization. Disclosure of potential conflicts of interest should be made so that appropriate action may be taken to ensure that such conflict does not inappropriately influence important organization and healthcare decisions. Board members, physicians, and employees are required by most organizations to submit a form disclosing potential conflicts of interest that might negatively affect the organization’s reputation or financial resources.

Case Studies

Corporate Cover-Up

The case of
Advocat, Inc. v. Sauer

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involved the care of Mrs. Sauer, a 93-year-old nursing facility patient. On July 19, 1998, her vital signs began to decline, and the nursing staff reported this to her treating physician, who ordered that she be taken to the emergency department at a nearby medical center. She arrived at the hospital in a semicomatose condition and died about 16 hours later.

Nursing notes indicated that Sauer had lost 15 pounds in the previous month and was in need of a feeding tube. There were signs of bedsores on her body caused by lying in urine and excrement. Sauer’s estate sued for damages.

The trial began and lasted 8 days, with 28 witnesses testifying and 24 binders of exhibits. At the trial’s conclusion, the jury retired to consider four counts: ordinary negligence, medical malpractice, breach of contract, and wrongful death. The jury returned a verdict for the Sauer Estate on all counts. Total damages amounted to more than $78 million. On appeal, the appellants argued that the damage awards for negligence and medical malpractice were grossly excessive.

The appellants argued that long-term care surveys conducted at the facility had been admitted into evidence over their objection. They claimed that the survey results inflamed the jury because the surveys were replete with statements that there was not enough help in the nursing home to feed, bathe, or clean residents.

They further argued that testimony submitted by witnesses that the nursing home had engaged in “false charting” to show more staff than were actually present was prejudicial, because it suggested that the appellants had staffing inadequacies that they tried to conceal from the state.

Sauer died of severe malnutrition and dehydration. There was evidence presented that she was found at times with dried feces under her fingernails from scratching herself while lying in her own excrement. At other times, staff did not get her out of her bed as they should have. Often, Sauer’s food tray was found in her room, untouched, because there was no staff member at the nursing home available to feed her. She was not provided with range-of-motion assistance when the facility was short of staff.

Sauer had pressure sores on her back, lower buttock, and arms. A former staff member remembered seeing Sauer at one time with an open pressure sore the size of a softball. At times, she had no water pitcher in her room, nor did she receive a bath for a week or more because of shortage of staff. Sauer was found to suffer from poor oral hygiene, having caked food and debris in her mouth.

The appellate court found that the jury verdicts were not based on passion or prejudice. There was ample testimony and evidence to demonstrate that plaintiff’s decedent suffered considerably and was not properly cared for in the nursing home, that the home was short-staffed, and that the home tried to cover this up by “false charting” and by bringing in additional employees on state inspection days. All of that served to support the estate’s case that the nursing home knew it had staffing problems and committed negligence as to the decedent because it was short-staffed due to cutbacks.

The appellate court found that the circuit court abused its discretion by not granting a new trial due to excessive damages.

Ethical and Legal Issues

Describe the legal and ethical issues presented in this case.

According to a federal study, nearly 90% of the nation’s nursing homes are poorly staffed and find it difficult to provide basic services, such as cleaning, dressing, grooming, and feeding their residents.

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Assuming the accuracy of this number, discuss how you would distribute limited dollars to address this issue. Consider how your decision may affect the allocation of funds to other health-related programs (e.g., immunizations, prenatal care, and preventative medicine). Assume that no new dollars can be allocated for the new healthcare budget year.

Provide a Safe Environment

Organizations are responsible for providing a safe working environment for staff and living environment for patients. Responsibility for the safe functioning of the physical plant is assigned to the organization’s plant services/engineering department. Among other duties, the department is responsible for the provision of heat, water, electricity, and refrigeration and for maintenance of the organization’s equipment and physical plant. The duties of the department may vary depending on the complexity of the organization’s plant.

Healthcare facilities must keep abreast of new laws, rules, and regulations that affect their operations. As of this writing, Florida governor Rick Scott signed into law two bills that ratified the rules adopted by the Agency for Health Care Administration (AHCA) that require assisted living facilities (Rule 58A-5.036) and nursing homes (Rule 59A-4.1265) to acquire an alternative power source and fuel to ensure that ambient air temperatures will be maintained at or below 81 degrees Fahrenheit for a minimum of 96 hours in the event of the loss of primary electrical power. The Emergency Environmental Control for Assisted Living Facilities 58A-5.036 provides in part:

DETAILED EMERGENCY ENVIRONMENTAL CONTROL PLAN. Each assisted living facility shall prepare a detailed plan (“plan”) to serve as a supplement to its Comprehensive Emergency Management Plan, to address emergency environmental control in the event of the loss of primary electrical power in that assisted living facility. Procedures must address the care of residents occupying the facility during a declared state of emergency, specifically, a description of the methods to be used to mitigate the potential for heat related injury.

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The Emergency Environmental Control for Nursing Homes (59A-4.1265) provides in part:

PURPOSE AND EFFECT: The Agency for Health Care Administration in consultation with the Department of Health and the Department of Elderly Affairs announces the commencement of rulemaking proceedings to address nursing home regulation. The purpose of the rulemaking is to address the safety and quality of services and care provided to residents of nursing homes that may experience loss of power. Ensuring nursing homes have alternative power sources to provide sufficient cooling during emergency situations is critical to ensuring the health, safety and welfare of residents of nursing homes that experience loss of power.

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Facilities were required to have implemented their plans on or before June 1, 2018, although a facility could seek an extension until January 1, 2019, provided the request satisfied the rules required for an extension.

Healthcare organizations can be held liable for patient and employee injuries if such injuries are due to a known or should be known unsafe environment. For example, the importance of this is well illustrated when Florida authorities declared the deaths of patients at the Rehabilitation Center at Hollywood as homicides after Hurricane Irma hit the area. Eight residents died that day, and six others died in the following weeks. A spokeswoman for the Hollywood Police Department told the
Sun Sentinel that someone could be charged in their deaths.

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According to CNN, “By September 13, when officials first learned that the patients were suffering in hazardous conditions, eight residents were confirmed dead, ages 71 to 99.”

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The Center should have been aware of the hazard posed by the hurricane and prepared to safely evacuate, as well as provide emergency generators in the event of a power outage as occurred here.

The license of a nursing facility operator was revoked in
Erie Care Center, Inc. v. Ackerman

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for violations due to inadequate nurse staffing and findings of uncleanliness, disrepair, and inadequate record keeping. The court held that although the violation of a single public health regulation may have been insufficient in and of itself to justify revocation of the nursing home’s operating license, multiple violations, taken together, established the facility’s practice and justified revocation.

Management in the following
Reality Check failed in its responsibility to provide a safe working environment for its employees. The case in point here is that environmental issues need to be addressed in a timely manner.

Windows Wide Open

With windows wide open, what happened to the pharmacy employees that were exposed to carbon monoxide from the tailpipes of ambulances backed up to the open windows of City Medical Center’s ground floor pharmacy?

During a tour of City Medical Center, Bill, the surveyor-inspector, as part of the survey process asked to tour and review pharmacy practices (e.g., licensure of pharmacists, environmental safety compliance, accepted medication labeling practices, safe storage of medications, patient medication profiles maintained to determine dosages appropriate to the patient’s age and weight). He was taken to the ground floor where the pharmacy was located. He was escorted into the pharmacy by several hospital staff members assigned to escort him during the 5-day survey process and respond to any questions he may have. As Bill entered the pharmacy, he noticed a strong odor of vehicle exhaust fumes.

He observed open windows along the length of the pharmacy’s outside wall. He walked toward the open windows and counted and observed eight to ten ambulances that were parked and backed up to the open windows, some with engines running.

The odor from the fumes permeated the pharmacy. He noticed the admixture room where IV solutions were prepared for patients. He noticed the windows were open in this room as well. The room was quite warm as was the rest of the pharmacy. There were no intake or ventilation systems in place other than the hoods under which the staff worked. There were no air conditioning or air exhaust systems in the room other than the open windows. Bill asked the staff, “Do these fumes bother you?” They replied, “Oh no, we don’t notice it anymore.” One pharmacist remarked, “We are accustomed to it. New pharmacists complain, but they adapt to the odor.” Bill asked, “How long have these windows been opened?” The pharmacy manager replied, “Not sure. Several years.” The surveyor then asked “How long have the ambulances been backed up to the windows?” The pharmacist replied, “As long as I can remember.”

After touring and speaking to the staff working in the pharmacy, Bill turned to the pharmacy manager and asked, “Have you ever reported this to your manager?” She replied, “Yes, I have. But it gets too hot in the pharmacy during the summer to keep the windows closed.” Bill, looking at his escorts, said, “This is not a good situation. Employees have been exposed to exhaust fumes for way too long. And it is likely that the exhaust fumes contain carbon monoxide. Everyone working in
the pharmacy needs to be tested for carbon monoxide poisoning. The windows need to be closed and the ambulances removed to a safer location. And the intake and exhaust systems need to be addressed.” One of the escorts replied, “Mayor Smith will not be happy with this.” Bill replied, “This is not about the mayor, this is about the people working here.”

The following morning Bill was asked by his escorts to go back to the pharmacy for another tour. He agreed to go back. He was presented with architectural drawings prepared during the night addressing the air intake and exhaust systems flaws. Not only were the drawings prepared, but the necessary construction work was completed with air-conditioning and exhaust ducts installed. The ambulances had been removed to a more appropriate location. Bill looked at the escorts and pharmacy manager and said, “Your work has only begun. Everyone here needs to be tested, and if necessary, treated for carbon monoxide poisoning.” The question is after each survey, do hospitals actually follow through with recommendations for improving the working environment and protect patients, staff, and visitors from harm?

City Medical Center could be liable for any harm suffered. The seriousness is easy to understand; knowingly failing to address such issues in a timely manner is gross negligence.

—Anonymous

As a follow-up to this
Reality Check and the medical center’s reaction to the surveyor’s findings, an observer and former hospital CEO writes:

Obviously, the report to the manager by the chief pharmacist was ignored and not acted upon. That manager should have had the skills and background to conduct an inspection of the reported issue just like the … surveyor and have the authority to take action since carbon monoxide poisoning is a serious health threat.

Why, when we look at a case like this, don’t [we] recognize that this is an organizational weakness that no amount of accreditation activities is going to bring about real quality improvement? Yes, taking immediate action during the survey was wise, but the underlying management issues seem(s) to have been overlooked.

—
Hospital administrator and industry critic

Hospitals are required to provide a safe environment for patients, visitors, and staff. Safety concerns in hospitals flow from general mechanical safety to direct patient care in the operating room.

Efforts to End Surgeries on Wrong Patient or Body Part Falters

“Health care has far too little accountability for results. … All the pressures are on the side of production; that’s how you get paid,” said Hopkins’s [Peter] Pronovost [safety expert and medical director of the Johns Hopkins Center for Innovation in Quality Patient Care], who adds that increased pressure to turn over operating rooms quickly has trumped patient safety, increasing the chance of error.

—Sandra G. Boodman,
Kaiser Health News, June 20, 2011

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Employers are required by law and accreditation standards to provide a safe environment for patients, visitors, and employees. Although one cannot guard against the unforeseeable, a healthcare organization is liable, as noted in the next case, for injuries resulting from dangers that it knowingly failed to guard against or those that it should have known about and failed to guard against. An organization has a duty to safeguard the welfare of its patients, even from harm by third persons, and that duty is measured by the ability of the patient to provide for his or her own safety.

Case Studies

Challenging the Obvious—Runaway Elevator

Approximately 100 years ago, the Maryland Court of Appeals held that one who “is engaged in the undertaking of running an elevator as a means of personal transportation” is required to use the “highest degree of care and diligence practicable under the circumstances,” which is the same standard that common carriers are required to meet.

On August 30, 2000, Jane Correia was a passenger in an elevator owned and operated by Johns Hopkins Health Services Company and Johns Hopkins Hospital. The elevator came to a sudden stop because of a mechanical defect. Due to injuries allegedly caused by this malfunction, Mrs. Correia and her husband sued Johns Hopkins, and others, in the Circuit Court for Baltimore City for negligence. A jury considered the matter in October 2005.

The Correias introduced evidence that showed that, in the 6 months prior to the accident, Johns Hopkins had received 32 complaints about the elevator Mrs. Correia was in when the accident occurred. The 32 complaints, if accurate, indicated that at various times prior to the accident, the elevator was dropping, jumping, jerking, skipping, and sometimes trapping passengers.

At the end of a 9-day trial, the court gave the jury the following instruction:

The owner of a passenger elevator, in this case … Johns Hopkins is the owner of the passenger elevator, is bound to exercise to the highest degree of care and skill and diligence … practicable under the circumstances to guard against injury to individuals riding on those elevators. This rule of law applies to the owner of the elevator only. It does not apply to the service company [codefendant] Schindler [Elevator Company].

The jury returned a verdict in favor of Mrs. Correia in the amount of $264,500 and a separate $35,500 verdict in favor of Mr. and Mrs. Correia, jointly, for loss of consortium. Both verdicts were against Johns Hopkins; the jury found that codefendant Schindler Elevator Company was not negligent.

Johns Hopkins appealed, contending, among other things, that the trial judge committed reversible error in giving the instruction quoted previously.

On appeal, the Maryland Court of Appeals held that, from the record, it did not appear that this was a “close case” as to whether Johns Hopkins exercised the highest degree of care for Mrs. Correia’s safety. There was strong evidence that it had not met its duty, especially in light of the numerous complaints about the elevator in the 6 months prior to the accident. The case, it appears, was “close” as to the issue of causation in that there was room for doubt as to whether an abrupt stop of a low-speed elevator could have caused the extensive injuries claimed.

The Court of Special Appeals of Maryland determined that the trial judge did not abuse his discretion in denying the motion for mistrial. The judgment was affirmed, with costs to be paid by Johns Hopkins Hospital and John Hopkins Health Service Company.

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Ethical and Legal Issues

Do you believe that this case should have been settled out of court? Discuss your answer.

Explain how you would have handled this case. Discuss your answer.

Prevention of Falls

The patient in
Thomas v. Sisters of Charity of the Incarnate Word

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fell three stories to his death after he became locked out on the hospital roof and sat on a ledge in an apparent attempt to attract someone to get assistance. The trial court found that the fire exit configuration that allowed the patient access to the roof created an unreasonable risk of harm that was in fact the cause of his death.

There was testimony that the lack of signage violated both the Life Safety and 1988 Standard Building Codes. Standard building code required that signs direct an individual to the exit discharge or ultimate exit to the outside of the building. A lack of signage also violated hospital policy requiring that the roof should have been marked as a restricted area. The exit configuration was unsafe for either ordinary or emergency use because of the confusion encountered by an individual locked out of the building without any direction or instruction on where to go. Given the hospital’s duty regarding this exit, its breach of that duty was clear. The door to the roof contained no warning that it would lock the patient out of the building if he exited. Whether the patient exited the building voluntarily or out of momentary confusion, the hospital breached its duty to warn him that he would be locked out and to direct him across the catwalk to the fire exit stairwell.

Protect Patients and Staff from Sexual Harrassment and Assault

Hospitals are expected to protect patients and staff from sexual assault. A claim that a hospital was negligent in preventing such an assault will succeed only if such an assault is foreseeable. Such was not the case in following example.

Case Studies

Sexual Assault in the Recovery Room

The plaintiff was recovering from vaginal surgery. A surgical resident employed by the hospital sexually assaulted her during her recovery. There is no dispute about the assault or the resident’s liability. The question here is whether the hospital may be liable under a theory of vicarious liability or for negligence in its duty to protect the plaintiff.

The plaintiff, under the effects of anesthesia following surgery, was placed in a small, four-bed recovery room. Nurse R, accompanied by another nurse, admitted the plaintiff to the unit and monitored her vital signs. Minutes later, the nurses turned their attention to a second patient who had been placed on an adjacent bed two feet away and were soon joined by Nurse G, their supervisor. Privacy curtains between the plaintiff and the second patient had not been drawn.

A surgical resident wearing hospital scrubs and an identification badge entered the recovery room and went to the plaintiff’s bed. He was not one of the physicians listed on the plaintiff’s chart, and none of the nurses knew him. According to the plaintiff, she awoke to find the resident pulling up her hospital gown and performing an “internal pelvic exam,” which was contraindicated in light of the nature of the plaintiff’s surgery. The plaintiff tried to sit up and cover herself with the gown and repeatedly asked him to stop. On her third plea, the physician hastily began to leave the recovery room. After the plaintiff complained to the nurses about what had taken place, the supervising nurse confronted the resident, who admitted that he had examined the plaintiff without the presence of a female witness, as required by hospital policy. The hospital terminated the resident following an investigation.

The Appellate Division Majority reasoned that a direct negligence claim must fail because the resident’s misconduct was not foreseeable. The court also dismissed the vicarious liability claim against the hospital because the physician was acting outside the scope of his authority.

Two dissenting judges disagreed with the majority. They noted that the majority’s holding on the direct negligence cause of action failed to consider the actual foreseeability of harm, indicated by observations the hospital staff could or should have made at the time immediately preceding the actual wrongdoing.

Nurse R had acknowledged that residents were not directly assigned to the recovery room. Her deposition testimony further indicated that she was aware of the identity of all of the plaintiff’s physicians and that the resident was not one of those assigned to the plaintiff’s care. In fact, all of the nurses in the recovery room were unacquainted with the resident. All of the nurses knew of the hospital’s policy requiring the presence of a female staff member during a male physician’s pelvic examination of a female patient.

Despite the nurses’ assertions that they saw or heard nothing, an additional key question of credibility arises from the inference created by the undisputed close proximity of all of the nurses to the plaintiff’s bed.

In contrast to the Appellate Division majority opinion, the dissenting judges considered that this confluence of factors provided a sufficient basis from which a jury could determine that the nurses unreasonably disregarded that which was readily there to be seen and heard, alerting them to the risk of misconduct against the plaintiff by the resident, which could have been prevented. Accordingly, the Appellate Division order was modified by remitting the case to the Supreme Court (trial court in New York) for further proceedings.

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Ethical and Legal Issues

Describe the ethical and legal issues presented in this case.

Describe how the physician’s professional code of ethics was breached.

DECISIONS THAT COLLIDE WITH PROFESSIONAL ETHICS

Video of Md. Patient Put Out in Cold Stirs Fury

The man hurried up the Baltimore sidewalk with a camera in his hand as four black-clad hospital security guards walked toward him, then past him. One of them was pushing an empty wheelchair.

“So wait, y’all just going to leave this lady out here no clothes on?” said Imamu Baraka, referring to a dazed woman wearing only a thin hospital gown whom they had left alone at a bus stop Tuesday night in mid-30s temperatures. Her face appeared bloody, her eyes empty.

—John Woodrow Cox, Theresa Vargas and Justin Wm. Moyer,
The Washington Post, January 12, 2018

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This was the latest incident of the practice known as patient dumping in which homeless patients, some of whom also have signs of mental illness, are discharged from the hospital to the streets, often with no place to go. “Patient dumping typically refers to the transfer of a patient from a private hospital to a public one for economic reasons.”

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This has been a nationwide problem since the 1870s, when the
New York Times “began to report that private hospitals were using ambulances to shift poor, moribund patients to Bellevue, the city’s preeminent public facility. Many trips had serious medical consequences. Private hospitals also instructed ambulances to take critically ill patients directly to Bellevue regardless of the distance.”

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Although neither the state or federal governments track the incidents, in 1986 the Emergency Medical Treatment and Labor Act (EMTALA) was passed, which mandates that hospital emergency departments provide hospital services whether or not the patient has the ability to pay for its services.

Millions of dollars in fines have been levied against hospitals found to be engaging in the practice, especially in California which has 22% of the total homeless population. A 2013 HUD report revealed that 91,000 homeless people are living in unsheltered locations in California. Four hundred and fifty thousand dollars was paid by Good Samaritan Hospital to settle a 2014 homeless patient dumping case. One million dollars was also paid by Hollywood Presbyterian Hospital in 2007 when a paraplegic man was discovered being dumped in skid row by the hospital without a wheelchair, and the list of noncompliance with the law goes on. The Los Angeles city attorney has filed multiple lawsuits against hospitals for patient dumping.

Proper discharge policies and procedures in addition to effective training need to be implemented in conjunction with the necessary funding and monitoring of homeless patients. Healthcare facilities can and must find ways to maintain a high quality of care and ethical standards in a cost-effective manner.

Management’s financial decisions can at times be on a collision course with practice and professional codes of ethics. The principles of autonomy, beneficence, and justice and the ability to practice what is right according to such principles often collide when organizations have to, for example, ration scarce resources. Such rationing may require managers to cut costs at the expense of quality.

As noted in the news clipping shown here, there was a breakdown in the hospital’s own culture of compassion and sympathy that the hospital chief said would be investigated: “The University of Maryland Medical Center’s top executive, Dr. Mohan Suntha, apologized for what happened to the patient Thursday. He called it an isolated incident.”

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The all-too-frequent reported occurrences of patient dumping makes it necessary to ask, “What was the moral climate of the hospital that in this case made it so easy for the security guards to place the patient out in the freezing cold in a hospital gown and slippers?”

A Life Needlessly Shortened

An action filed against a health insurance company alleged that the way the insurer handled the insured’s chemotherapy needlessly shortened her life, causing her last days to be more painful than they should have been. The jury awarded the plaintiff $49 million. The punitive damages award was considered excessive under Ohio law, and the trial court’s failure to find as such was so unreasonable as to constitute abuse of discretion. A $30 million award was appropriate given the profits of the corporations involved and appropriate in the scheme of past punitive damages awards in Ohio.

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Financial Incentive Schemes

The managed care industry has historically failed to acknowledge the practice of denying medical claims at the expense of the patient’s health, while at the same time benefiting managed care organizations. Dr. Linda Peeno, a Medical Reviewer for Humana, exposed this practice during her testimony before Congress, which stated in part:

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For me, “ethics” must be done close range. Distance blurs the complexities of human experiences. Those who argue that “the further removed, the clearer the thinking” are those who too often use “ethics” as legalism, public relations, or high-sounding rationalization. I would argue that, at least in medicine, one’s ethical “authority” diminishes the further one is from the frontlines of patient experiences.

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Dr. Peeno came forward with her story and dedicated her career to helping others in a compassionate manner working in the field of healthcare ethics.

As part of this effort, I chair a hospital ethics committee (University of Louisville Hospital), for which I do consultation, education and policy development. I am the executive director of an international academic society (International Society for the Systems Sciences), and as chair of its Medicine and Healthcare group, I work on ethical issues in
international health care systems. I serve on the national board of Citizen Action, a nonpartisan consumer organization, through which I work toward equitable health reform. I am the founder of the CARE Foundation, a nonprofit group organized to promote consumer education, public accountability, and ethical responsibility in managed care. I am here to represent the largest interest group in our health care system: those affected by its design and operations, those who validate its consequences within their lives.

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Greg Ganske addressed the House of Representative on March 28, 2000:

Let me give my colleagues one example out of many of a health plan’s definition of medically necessary services. “Medical necessity means the shortest, least expensive or least intense level of treatment, care or service rendered or supply provided as determined by us.” Well, Mr. Speaker, contracts like this demonstrate that some health plans are manipulating the definition of medical necessity to deny appropriate patient care by arbitrarily linking it to saving money, not the patient’s medical needs.

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Dr. Wendell Potter in testimony before the Domestic Policy Subcommittee Oversight and Government Reform Committee on September 16, 2009, stated:

So, I would like to take this opportunity to apologize to you and my fellow panelists for the role I played over a decade ago in, essentially, cheating you out of a reformed health care system. Had it not been for greedy insurance companies and other special interests, and their army of lobbyists and spin-doctors like I used to be, we wouldn’t be here today.

I’m ashamed that I let myself get caught up in deceitful and dishonest PR campaigns that worked so well, hundreds of thousands of our citizens have died, and millions of others have lost their homes and been forced into bankruptcy, so that a very few corporate executives and their Wall Street masters could become obscenely rich.

But it was only during the last few years of my career that I came to realize the full scope of the harm my colleagues and I had caused, and the lengths that insurance companies will go to increase their profits at the expense of working families.

• • •

I know from personal experience that members of Congress and the public have good reason to question the honesty and trustworthiness of the insurance industry. Insurers make promises they have no intention of keeping, they flout regulations designed to protect consumers, and they make it nearly impossible to understand — or even to obtain — information consumers need. There is simply no solid basis for trusting that the insurance companies will make good on the promises they are making right now in order to avoid crucial reforms that would literally save countless American lives.

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Recently, the medical community has turned its attention to the authority of state medical boards to police improper physician expert testimony in medical malpractice actions. The discussion has been broadened to consider whether the presentation of testimony constitutes the carrying out of the practice of medicine. Depending on the state, some cases have held that the “carrying out” requirement means that the medical judgment must affect or have the possibility of affecting the patient. For example, in
Murphy v. Board of Medical Examiners,

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an Arizona court held that a physician performing prospective utilization review was practicing medicine because his decisions “could affect” a patient’s health. Dr. Peeno was engaging in prospective utilization review; however, several federal courts have held that neither prospective nor retrospective review constituted the practice of medicine.

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The public does, however, have the right to expect expert physicians to be accurate and truthful when giving testimony. If the profession cannot police itself, then the states will be forced to intervene in order to protect the public.

The patient in
Shea v. Esensten

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died after suffering a heart attack. Although the patient had recently visited his primary care physician and presented with symptoms of cardiac problems, and the patient also had a family history of cardiac trouble, the physician did not refer the patient to a cardiologist. The patient’s widow sued the health management organization for failing to disclose the financial incentive system it provided to its physicians to minimize referrals to specialists. The United States Court of Appeals for the Eighth Circuit agreed that knowledge of financial incentives that affect a physician’s decisions to refer patients to specialists is material information requiring disclosure. The appeals court reversed a lower court’s dismissal of the claim.

RESTORING TRUST

The lack of trust is slowly deteriorating the people’s faith in the nation’s healthcare system. A lack of trust in physicians, hospitals, and insurers is pervasive throughout the healthcare system. The horror stories in newspapers, malpractice suits, and the Institute of Medicine’s report on healthcare mistakes identify problems and provide a catalyst for encouraging lawsuits.

Organizations need to make a concerted effort to develop strategies to build and restore trust in the healthcare industry. The following strategies assist in building consumer trust:

Conduct business in compliance with applicable laws, rules, and regulations.

Adhere to ethical standards.

Provide cost-effective care.

Fairly and accurately represent the organization’s capabilities when treating a patient’s ailments.

Maintain a uniform standard of care throughout the organization, regardless of a person’s ability to pay, race, creed, color, and/or national origin.

Consider patient values and preferences as part of recognizing the organization’s legal responsibilities.

Inform patients of their rights and responsibilities.

Develop and recommend guidelines that assist and support patients and their families in exercising their rights.

Describe the process to patients by which hospital staff interact and care for them.

Trust must begin within the organization between management and employees. As the following
Reality Check describes, organizations can often become dysfunctional and cause employee turnover and resentment among employees.

Equal Pay for Equal Work?

The annual Health Systems Consulting conference was held at the New York City Hilton. During the closing session on Friday, the company’s leadership sat onstage summarizing the week’s training and conducting a question-and-answer period. Prior to the session, Frank, an administrator consultant, had asked his manager, “The grapevine is telling me that nurses have been placed at a higher pay rate than administrators. Is that true?” His manager replied, “You asked a direct question, so I will answer it, even though per company policy we don’t generally share such information.

“The answer is yes. It was implemented several weeks ago. The consulting process is more and more clinical and therefore nurses are getting a higher starting salary.” Frank answered, “That is true, but we still all do the same work.” His manager replied, “That’s the way it is,” and walked away.

—Anonymous

Discussion

Because employment law requires equal pay for equal work, what ethical concerns do you see in this case?

If you were Frank, what action would you pursue, if any?

Questions Solicited Not Always Welcomed

When you question a company policy, even after company insistence that all questions are welcomed, there can be a price to be paid. Gerard asked anyway, “Since the health survey process is leaning more toward the clinical side of care and we are attempting to get more physician involvement in the patient care review process, why aren’t physicians the team leaders? After all, they have the best clinical judgment.”

The leadership were basically at a loss about what to say, but in the end gave the usual response by stating they would look into it. One physician stood and said, “Nurses are better at this process than physicians.” The room became silent and the physician received some glares from his colleagues. The leadership quickly moved on to the next question.

Gerard later received several conflicting comments from his colleagues in the lobby:

Nurse Consultant 1: “I knew you were an ****. Now, I know you are an ****. I will give you the dirtiest work on the survey when you are on a consulting job with me!”

Nurse 2: “You’re senile!”

Nurse 3: “You had the courage to say what you think.”

AF Nurse practitioner/Consultant 4: “You stood up for something you believed in. I admire you for that.”

Nurse Consultant 5: “Nurses are more clinically adept than physicians.”

Nurse 6: “Gerard, some of those nurses were pretty awful to you. Why don’t you join us for something to eat?”

Nurse 7: “We don’t agree with all you said, but we respect your opinion.”

Nurse 8: “You had the courage to say what you think.”

Physician Consultant 1: “You will most likely find a horse’s head in your bed in the morning.”

Physician Consultant 3: “Gerard, I agreed with you, but was it really worth it?”

Physician Consultant 4: “I see you’re still alive.”

Gerard, somewhat despondent, walked away and into the lobby gift shop. He spotted an article in the
Washington Post.

The Role of Nurses Extends Beyond the Hospital Ward

“A nurse is a doctor’s best friend,” according to Marvin M. Lipman, Consumers Union’s chief medical adviser. This advice was given to him by a hospital ward’s head nurse when he was a third-year medical student making contact with patients for the first time, along with the suggestion that he’d do well not to forget it.

Over the years, those words continued to echo in Lipman’s mind. In part because hospital nurses work for the institution and many doctors work for themselves, occasional conflicts between the two are inevitable. When encountering such situations, he has generally tended to take the side of the nurses, sometimes to the chagrin of his fellow physicians. But he explains that his loyalty comes from the many times he has seen nurses go that extra step to make a patient more comfortable or more at ease.

—Consumers Union of United States Inc.,
The Washington Post, May 30, 2011

Discussion

Gerard is a congenial, humorous, and respected person. His colleagues know that he does give his opinion if he sees a wrong that should be righted, whether it is for him or others. Should he have spoken up or remained silent? Discuss your answer.

Based on the
Washington Post article, do you think Gerard might have had second thoughts about his concerns?

Describe the actions of Gerard’s colleagues and what ethical theories might apply.

Effective Communication Builds Trust

Effective communication spawns trust and is commonly acknowledged as a deciding factor in building a harmonious organization. All the players must work together and understand the role each plays. As in an orchestra (

FIGURE 8-1

), the instruments must work together to produce harmony. The better the musicians play, the more satisfied the audience. Even if you were able to play all the instruments in the orchestra, you can play only one at a time. During an interview with PBS, Dr. William Edwards Deming, an American author, professor, and consultant, stated that in a “140-piece orchestra, everybody supports the other 139. He’s not there to play a solo. He’s not to play as loud as he can play to attract attention. He’s there to support the other 139. The job of the conductor is to optimize their talents, their abilities.”

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And so it is with healthcare workers; they are there to support one another and
each caregiver trusts the other to play his or her part well. The better the teamwork in the healthcare setting the better the care, which in turn breeds satisfied patients, families, and staff.

IMPROVING ORGANIZATIONAL PERFORMANCE AND ETHICS

The following describe actions the healthcare organization can take to improve its effectiveness in delivering patient care to the community it serves.

Board Education

Clearly identify the responsibilities and accountabilities of board membership

Accurately describe the mission and goals of the organization

Appoint a qualified CEO who understands and can support the mission of the organization and who can provide meaningful and actionable reports, not so voluminous that little will be understood or sufficiently discussed

Provide a conduit for open communications up and down and across the organization

Understand both the relevant and timely financial, ethical, and legal issues, as well as the local issues impacting the board’s decision-making responsibilities

Conduct an annual retreat that focuses on system strategies to meet the stated mission of the organization and continuously improve the quality of patient care

Encourage collaboration between managers and physicians on all levels in the organization

Policies and Procedures

Develop and implement policies and procedures that describe the expectations of staff members when carrying out their assigned duties and responsibilities. It is important to collaboratively develop policies and procedures for those functions or processes that involve and often affect more than one department.

Collaboration between departments helps minimize conflicting practices and improve the quality of patient care. Collaboration on policies and procedures creates opportunities to determine best practices.

It is similarly important for the hospital’s administration and medical staff to approve all such policies and procedures, as appropriate to the nature of the policy or procedure, to ensure consistency and high-quality patient care throughout the hospital.

Ensure consistency throughout the hospital. The medical staff and administration approve all collaboratively developed department policies and procedures.

Search for Best Practices

Look at what other healthcare systems are doing to provide a culture of safety for both patients and staff.

All the catchwords:

Leadership: governing body professional staff, senior management, middle management, individuals

Recruitment

Sentara Leigh Healthcare—recognize that senior management must champion a culture of safety

Focus groups—best practices

Trust, respect, inclusion

Best practices

Vision, mission, goals (short term and long term), where are we and where do we want to go

Education, education, education … (e.g., age-specific competencies)

Pay attention to detail

Communicate clearly

Have a questioning attitude

Perform hands-off effectively

Look out for each other

Transparent culture of compassionate care and safety

Reinforce best practices

Accountability

Zero tolerance for reckless, disruptive behavior

Reduce Variation

Reduce variations in patient outcomes that encompass the various age groups.

Improving the quality of patient care.

Assure Continuity of Care

Continuity of care involves the seamless provision of care for each patient that is provided in a variety of healthcare settings, such as preventative care programs, physicians’ offices (e.g., primary care physicians and the full spectrum of medical and surgical specialties), ambulatory care sites (e.g., primary care, pediatric care, surgery), hospital care, nursing home/facility care, rehabilitation centers, home care, and hospice care. Linking and sharing of patient care information in these setting require improved communications that can now be provided through ever-improving information technology software and hardware integration. The Joint Commission, in its 2018 standards, defines continuing care as “[c]are provided over time in various settings, programs, or services and spanning the illness-to-wellness continuum.”

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CEOs have often been reluctant to delve into the concept of
wellness centers. That has been changing as G, a Joint Commission surveyor made a point to address the topic during a hospital triannual survey in northern New Jersey.

Three years following that survey, M, also a Joint Commission surveyor, approached G in the lobby at a Joint Commission triannual survey of a different hospital. The hospital had opened to the staff at a northern New Jersey hospital about wellness centers. He
had applauded it at one of his briefings with hospital leadership during the survey.

The nurse surveyor met him on another survey and greeted him in the lobby of a hospital that they were about to inspect. She gave him a big hug and he asked with smile, “What was that for?”

She replied, “I surveyed K hospital in New Jersey. You surveyed them three years ago. They ask me to give you a hug when I see you again. Apparently, after you left, the CEO discussed your vision of a wellness center at the hospital. They said you were enthralled with the enthusiasm and openness of the staff, the hospital’s location and possibilities, at the time, for building a wellness center. So, they asked me to thank you with a big hug if I ever saw you on another survey.”

Partner with the Community

Hospitals can provide health and fitness wellness centers. A model wellness center is the
Michigan Athletic Club owned in operated by the Sparrow Health System, Lansing, MI (
http://www.sparrow.org/mac-why-the-best).

Develop a Culture of Compassion and Kindness

In her article entitled “Drive Hospital Bottom Line with Culture of Kindness, Compassion,” Katie Sullivan writes,

Hospitals that want to stand out among their competitors must emphasize kindness and compassion, according to
Forbes contributor Rob Asghar.

“Compassion and kindness aren’t expensive, but the yield is priceless,” Lloyd H. Dean, president and CEO of Dignity Health, a California-based non-profit healthcare system, told
Forbes. Hospitals must hold all members of the organization accountable and hold them to high standards of kindness and compassion, Dean said. Furthermore, he said, leaders must make caregivers and frontline workers feel valued and respected so they can provide care for others in the best way possible.

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CHAPTER REVIEW

This chapter introduces the reader to the ethical responsibilities and legal risks of healthcare organizations.

Authority of a corporation is expressed in the law under which the corporation is chartered.

Governing body

Express corporate authority

Verbal

Written

Implied corporate authority

Ultra vires acts

Acts violate a corporation’s scope of authority

Organization code of ethics

Provides guidelines for behavior that help carry out an organization’s mission, vision, and values

Builds trust

Increases awareness of ethical issues

Guides decision making

Encourages staff to seek advice and report organizational misconduct

Unethical organizational conduct

Trust and integrity

False advertising

Concealing mistakes

Financial incentive schemes

Corporate negligence

Failure to perform duties owed directly to a patient or anyone else to whom a duty may extend.

Theory of corporate negligence—if a corporate duty is breached and a patient is injured as a result of that breach, the organization can be held liable for the injuries suffered.

Doctrine of
respondeat superior

A legal doctrine holding an employer liable for the wrongful acts of its agents (employees).

Respondeat superior has also been referred to as
vicarious liability, whereby an employer is answerable for the torts committed by its employees.

Darling v. Charleston Community Memorial Hospital is the benchmark case, which has had a major impact on the liability of healthcare organizations.

The court here enunciated a “corporate negligence doctrine,” under which hospitals have a duty to provide adequately trained medical and nursing staff.

Independent contractors

Responsible for their own negligent acts.

Occurs when the principal has no right of control over the manner in which the agent’s work is to be performed.

Corporate duties and responsibilities

Appointment of a CEO

Credentialing, appointments, and privileging of professional staff

Provide adequate staff

Provide adequate supplies and equipment

Allocation of scarce resources

Comply with rules and regulations

Comply with accreditation standards

Provide timely treatment

Avoid conflicts of interest

Provide a safe environment

Protect patients and staff from sexual assault

Build and restore trust through effective communications.

TEST YOUR UNDERSTANDING

Terminology

codes of ethics for organizations

conflict of interest

corporate authority

corporate negligence

credentialing

Darling v. Charleston Community Memorial Hosp.

delineation of clinical privileges

express corporate authority

implied corporate authority

independent contractor

respondeat superior

ultra vires acts

REVIEW QUESTIONS

Discuss the governing body’s decision-making authority.

Explain what an
ultra vires act is.

Describe the important aspects of a code of ethics for organizations.

Discuss the various forms of professional misconduct discussed here.

Describe the relationships among
corporate negligence,
respondeat superior, and
independent contractor.

Describe the duties and responsibilities of healthcare organizations and how the failure to adhere to those duties and responsibilities can result in both legal and ethical issues.

Discuss how an organization’s decisions can collide with professional ethics.

Discuss the importance of effective communications in building trust in the healthcare setting.

NOTES

1. Paul S. Davidson and Tera Rica Murdock, “Legal Duties and Avoiding Liability: A Nonprofit Board Member Primer”, Trustee, American Hospital Association (June 10, 2013).

2.
Casey v. Woodruff, 49 NYS2d 625, 643 [Sup Ct, NY County 1944].

3.
FDIC v. Stahl, 89 F. 3d 1510 (Ct. of App., 11th Circuit 1996).

4. “Settlement Reached in St. Joe’s Medical Malpractice Case,” WBAL TV (May 3, 2013).
http://www.wbaltv.com/article/settlement-reached-in-st-joe-s-medical-malpractice-case/7080305 (accessed July 26, 2018).

5. The Joint Commission, “Accreditation Process Overview.”
https://www.jointcommission.org/accreditation_process_overview/ (August 7, 2017; accessed July 25, 2018).

6.
In re Muncan, 745 N.Y.S.2d 304 (N.Y. App. Div. 2002).

7.
Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. 1991).

8.
Ibid.

9.
Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (Ill. 1965).

10.
Ibid. at 260.

11.
Abraham v. Dulit, 679 N.Y.S.2d 707 255 AD2d 255, 345 (1998).

12.
Mehlman v. Powell, 46 U.S.I.W. 2227 (Md. 1977).

13.
Learn.org, “Do Hospital Administrators Need Licenses?”
http://learn.org/articles/What_is_a_Hospital_Administrator_License.html (accessed July 25, 2018).

14. American College of Healthcare Executives (ACHE), “About ACHE.”
http://www.ache.org/aboutache.cfm (accessed July 25, 2018).

15. State of Alaska, Statutes and Regulations: Nursing Home Administrators (December 2012).
https://www.commerce.alaska.gov/web/portals/5/pub/NHAStatute (accessed July 25, 2018).

16. New York State Department of Health, “Qualifications.”
https://www.health.ny.gov/professionals/nursing_home_administrator/licensure_program/qualifications.htm (accessed July 25, 2018).

17. State of Massachusetts, “245 CMR: Board of Registration of Nursing Home Administrators.”
http://www.mass.gov/eohhs/docs/dph/regs/245cmr002 (accessed July 25, 2018).

18. National Association of Long Term Care Administrator Boards (NAB), “Exam Info.”
http://www.nabweb.org/examinations (accessed July 25, 2018).

19.
Ibid.

20. State of Alaska, Sec. 08.70.170.

21.
Magnolias Nursing and Convalescent Center v. Department of Health and Rehabilitation Services, 438 So. 2d 421 (1983).

22. American College of Healthcare Executives (ACHE), “ACHE Code of Ethics” (November 13, 2017).
http://www.ache.org/abt_ache/code.cfm (accessed July 25, 2018).

23. Leonard J. Weber, “Business Ethics in Healthcare,
Beyond Compliance,” March 22, 2001.
http://www.iupress.indiana.edu/product_info.php?products_id=20005 (accessed July 25, 2018).

24.
Ibid.

25. Paul B. Hoffman, “Exposing the Shadows of Compromise,” Healthcare Executive (2016).
https://www.highbeam.com/doc/1P3-4318300961.html (accessed July 25, 2018).

26.
Ibid.

27.
CBSNews.com, “Did Hospitals ‘See No Evil’?” (April 4, 2004).
http://www.cbsnews.com/stories/2004/04/02/60minutes/main610047.shtml (accessed July 25, 2018).

28.
Hoxie v. Ohio State Med. Bd., No. 05AP-681 (Ohio App. 2006).

29.
Insinga v. LaBella, 543 So. 2d 209 (Fla. 1989).

30. A. H. Rosenstein and M. O’Daniel, “A Survey of the Impact of Disruptive Behavior and Communication Defects on Patient Safety,” The Joint Commission Journal on Quality and Patient Safety 34 (August 2008): 464–471.

31. Comprehensive Accreditation Manual for Hospitals, 2018, The Joint Commission, LD.03.01.01 at LD–14.

32.
Id.

33. Ronald M. Wyatt, “Revisiting Disruptive and Inappropriate Behavior: Five Years After Standards Introduced,” The Joint Commission High Reliability Healthcare [blog] (October 2, 2013).
http://www.jointcommission.org/jc_physician_blog/revisiting_disruptive_and_inappropriate_behavior/ (accessed July 25, 2018).

34. Dudley M. Stewart for the AMA Council on Ethics and Judicial Affairs, “Physicians with Disruptive Behavior.”
https://www.ama-assn.org/sites/default/files/media-browser/public/about-ama/councils/Council%20Reports/council-on-ethics-and-judicial-affairs/i09-ceja-physicians-disruptive-behavior (accessed July 25, 2018).

35.
Taylor v. Kennestone Hosp., No. A03A2308 (Ga. App. 2004).

36.
Medcalf v. Coleman, No. 98906 (2003).

37. Pamela Wible, “Why So Many Doctors Kill Themselves,” The Chicago Tribune (January 15, 2018).
http://www.chicagotribune.com/lifestyles/health/ct-why-so-many-doctors-kill-themselves-20180115-story.html (accessed July 25, 2018).

38.
Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (2002).

39. Superior Court of California, County of Los Angeles, Case No.: BC478343, Jesse Bravo v. White Memorial Hospital, et al.
http://www.publiccounsel.org/tools/assets/files/Jesse-Bravo-v-White-Memorial-et-al_Complaint_2-3-12.PDF (accessed July 25, 2018).

40.
Ibid. at 2.

41. H. N. Viswanathan and J.W. Salmon, “Accrediting Organizations and Quality Improvement,” American Journal of Managed Care 6 (October 6, 2010): 1117–1130.
https://www.ncbi.nlm.nih.gov/pubmed/11184667 (accessed July 25, 2018).

42.
Odom v. State Department of Health and Hospitals, 733 So. 2d 91 (La. App. 3 Cir. 1999).

43. Pamela R. Knecht, “Zero Harm: An Achievable Goal,” Healthcare Executive, Mar/Apr 2018, at 70.

44.
Heddinger v. Ashford Memorial Community Hospital, 734 F.2d 81 (1st Cir. 1984).

45. 111 S.W.3d 346 (2003).

46. Christopher Newton, “90% of Nursing Homes Providing Substandard Care–Federal Report,” Seattle Times, February 20, 2002, at A1.

47. State of Florida 58A-5.036 Emergency Environmental Control for Assisted Living Facilities.
http://ahca.myflorida.com/MCHQ/Health_Facility_Regulation/Assisted_Living/docs/alf/Final_Ratified_58A-5.036 (accessed July 25, 2018).

48. Florida Department of State, “Rule: 59A-4.1265.” Florida Administrative Code and Florida Administrative Register.
https://www.flrules.org/gateway/ruleNo.asp?id=59A-4.1265 (accessed July 25, 2018).

49. Nicole Darrah, “Florida Nursing Home Deaths During Hurricane Irma Ruled Homicides,” Fox News (November 22, 2017).
http://www.foxnews.com/us/2017/11/22/florida-nursing-home-deaths-during-hurricane-irma-ruled-homicides.html (accessed July 25, 2018).

50. Michael Nedelman, “Husband and Wife among 14 Dead After Florida Nursing Home Lost A/C,” CNN (October 9, 2017).
https://www.cnn.com/2017/10/09/health/florida-irma-nursing-home-deaths-wife/index.html (accessed July 25, 2018).

51.
Erie Care Center, Inc. v. Ackerman, 449 N.E.2d 486 (Ohio Ct. App. 1982).

52. Sandra G. Boodman, “Effort to End Surgeries on Wrong Patient or Body Part Falters,” Kaiser Health News / The Washington Post (June 20, 2011).
http://www.kaiserhealthnews.org/Stories/2011/June/21/wrong-site-surgery-errors.aspx (accessed July 25, 2018).

53.
The Johns Hopkins Hospital, et al. v. Jane E.S. Correia, et ux., 174 Md. App. 359, 921 A.2d 837 (2007).

54.
Thomas v. Sisters of Charity of the Incarnate Word, No. 38,170 (La. App. 2004).

55.
N.X. v. Cabrini Med. Ctr., 765 N.E.2d 844 (2002).

56. John Woodrow Cox, Theresa Vargas, and Justin Wm. Moyer, “He Saw a Dazed Woman Put Out in the Cold by a Baltimore Hospital. He Started Filming.” The Washington Post (January 12, 2018).
https://www.washingtonpost.com/local/social-media-fury-follows-video-of-dazed-woman-put-out-in-cold-by-baltimore-hospital/2018/01/11/b8a7866c-f70d-11e7-b34a-b85626af34ef_story.html?utm_term=.b36f77e4bfc7

57. Emily Abel, “Patient Dumping in New York City, 1877–1917,” American Journal of Public Health 101 (May 2011): 789–795.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3076414/ (accessed July 25, 2018).

58.
Ibid.

59. Andrea K. McDaniels, “State Investigating University of Maryland hospital where woman was Found in Gown, Outside on Baltimore Street,” The Baltimore Sun (January 12, 2018).
http://www.baltimoresun.com/health/bs-hs-hospital-state-investigation-20180112-story.html (accessed July 25, 2018).

60.
Shea v. Esensten, 107 F.3d 625 & 8th Circuit (1997).

61. 146th U.S. Congress, “Important Issue Facing House–Senate Conference on Health Care Reform,” Congressional Record – House, March 28, 2000, pp. H1465–H1466.
https://www.gpo.gov/fdsys/pkg/CREC-2000-03-28/pdf/CREC-2000-03-28-pt1-PgH1465 (accessed July 25, 2018).

62.
Ibid.

63.
Ibid.

64.
Ibid.

65.
Between You and Your Doctor: the Private Health Insurance Bureaucracy: Testimony before the Subcommittee on Domestic Policy. (2009). (statement of Wendell Potter, Senior Fellow on Health Policy).

66.
Murphy v. Board of Medical Examiners, 949 P2d 530,535 (Ariz. Ct. App. 1997).

67.
Adnan Varol, M.D., P.C. v. Blue Cross Blue Shield of Mich., 708 F. Supp. 826 (E.D. Mich. 1989); Corcoran v. United Health Care, 956 F.2d 1321 (5th Cir. 1992).

68. PBS. The Deming of America. (1991). Transcript available at
http://www.getbig.com/boards/index.php?topic=179701.0 (accessed July 25, 2018).

69. The Joint Commission, “Glossary,” January 2018, at GL-8.

70. Katie Sullivan, “Drive Hospital Bottom Line with Culture of Kindness, Compassion,” FierceHealthcare (March 20, 2014).
https://www.fiercehealthcare.com/healthcare/drive-hospital-bottom-line-culture-kindness-compassion (accessed July 25, 2018).

CHAPTER 9

Healthcare Professional Legal-Ethical Issues

Ethics is nothing else than reverence for life.

—Albert Schweitzer

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Identify a variety of ethical and legal issues that arise in selected healthcare professions (e.g., nursing, emergency services, laboratory, pharmacy, radiology).

Explain how practicing one’s professional code of ethics can assist in resolving day-to-day issues that arise during patient care.

Explain the difference between the certification and licensure of a healthcare professional.

Identify helpful suggestions that help caregivers provide high-quality care.

INTRODUCTION

My life is my message.

—Mahatma Gandhi

This chapter presents an overview of how ethics and the law affect a variety of healthcare professions. The ethical codes for each profession demand a high level of integrity, honesty, and responsibility. Codes of ethics are designed to facilitate the resolution of common ethical dilemmas that arise in one’s profession.

The contents of codes of ethics vary depending on the risks associated with a particular profession. Ethical codes for psychologists, for example, define relationships with clients in greater depth because of the personal, one-to-one relationship psychologists have with their clients. Laboratory technicians and technologists, on the other hand, generally have little or no personal contact with patients but can have a significant impact on their care. Laboratory technologists, in their ethical code, pledge accuracy and reliability in the performance of tests. The importance of this pledge was borne out in a March 11, 2004, report by the
Baltimore Sun, wherein state health officials discovered that a hospital’s laboratory personnel overrode testing equipment controls that indicated the HIV test results might contain errors and mailed the test results—which contained both false positives
and false negatives—to patients anyway, leaving some patients ignorant of their positive status (preventing them from seeking treatment) and others devastated by the belief that they were HIV positive when they were not.

1

The various codes of ethics for each healthcare profession are accessible by profession on the Internet.

PARAMEDICS AND FIRST RESPONDERS

In the
2011 National EMS Assessment, “a national estimate of 36,698,670 EMS responses within the United States (excluding territories) was calculated. Nationally on average, there were 1,217 EMS responses per 10,000 population.”

2
Many of these patients “have complicated medical or traumatic conditions that require considerable knowledge, skill, and judgment to be treated effectively in the out-of-hospital setting. The regulations that describe the scope of practice for emergency services personnel varies from state to state. The National EMS Model describes the various activities EMS personnel can legally perform as regulated by law through certification and licensure.”

3
As of 2011, there were an estimated 826,111 EMS professionals licensed and credentialed within the United States.

4

The National EMS Scope of Practice Model identifies the psychomotor skills and knowledge necessary for the minimum competence of each nationally identified level of EMS provider. This model will be used to develop the National EMS Education Standards, national EMS certification exams, and national EMS educational program accreditation. Under this model, to be eligible for State licensure, EMS personnel must be verifiably competent in the minimum knowledge and skills needed to ensure safe and effective practice at that level. This competence is assured by completion of a nationally accredited educational program and national certification.

5

The scope of practice does not define every activity of a licensed individual, such as lifting and moving patients, blood pressure, or bleeding control. The scope of practice focuses on activities regulated by law (for example, starting an intravenous line, administering a medication).

6

The scope of practice for first responders is a continuing concern as the risks associated with their profession continue to change. The need for continuing education is therefore a high-priority concern in maintaining and improving their skills.

First responders are always at risk when responding to those in need of emergency services. Illicit drugs and chemical hazards are often an issue in emergencies ranging from industry fires to routine roadside accidents. Carfentanil, for example, is another chemical substance on a long list of hazardous materials that was recently reported as presenting a hazard to all first responders as well as members of the general public. Carfentanil is a synthetic opioid approximately 10,000 times more potent than morphine and 100 times more potent than fentanyl. In those situations where there is a chemical hazard present, such as carfentanil, EMS and law enforcement personnel are required to follow safety protocols to avoid accidental exposure to themselves and the public.

7

The four more common levels of EMS personnel reviewed here are emergency medical responder, emergency medical technician, advanced emergency medical technician, and paramedic.

Emergency Medical Responder

The primary focus of the Emergency Medical Responder is to initiate immediate, lifesaving care to critical patients who access the emergency medical
system. This individual possesses the basic knowledge and skills necessary to provide lifesaving interventions while awaiting additional EMS response and to assist higher-level personnel at the scene and during transport. The minimum skill sets of an EMR include airway and breathing, insertion of airway adjuncts intended to go into the oropharynx, use of positive pressure ventilation devices such as the bag-valve-mask, suction of the upper airway, supplemental oxygen therapy, pharmacological interventions, such as use of unit-dose auto-injectors for the administration of lifesaving medications intended for self or peer rescue in hazardous materials situations, medical/cardiac care, use of an automated external defibrillator, trauma care, manual stabilization of suspected cervical spine injuries, and manual stabilization of extremity fractures, bleeding control, and emergency moves.

8

Emergency Medical Technician

The primary focus of the Emergency Medical Technician is to provide basic emergency medical care and transportation for critical and emergent patients who access the emergency medical system. This individual possesses the basic knowledge and skills necessary to provide patient care and transportation.

The minimum skill sets of an EMT include: airway and breathing (e.g., insertion of airway adjuncts intended to go into the oropharynx or nasopharynx); use of positive-pressure ventilation devices such as manually triggered ventilators and automatic transport ventilators; pharmacological interventions by assisting patients in taking their own prescribed medications; administration of over-the-counter medications with appropriate medical oversight, such as oral glucose for suspected hypoglycemia, aspirin for chest pain of suspected ischemic origin, and trauma care, and application and inflation of the pneumatic anti-shock garment (PASG) for fracture stabilization.

9

Advanced Emergency Medical Technician

The primary focus of the Advanced Emergency Medical Technician is to provide basic and limited advanced emergency medical care and transportation for critical and emergent patients who access the emergency medical system.

The minimum skill sets of an AEMT include: airway and breathing, such as insertion of airways that are not intended to be placed into the trachea, tracheobronchial suctioning of an already intubated patient, patient assessment, pharmacological interventions such as establishing and maintaining peripheral intravenous access, establishing and maintaining intraosseous access in a pediatric patient, administration of (nonmedicated) intravenous fluid therapy, administration of sublingual nitroglycerine to a patient experiencing chest pain of suspected ischemic origin, administration of subcutaneous or intramuscular epinephrine to a patient in anaphylaxis, administration of glucagon to a hypoglycemic patient, administration of intravenous D50 to a hypoglycemic patient, administration of inhaled beta agonists to a patient experiencing difficulty breathing and wheezing, the administration of a narcotic antagonist to a patient suspected of narcotic overdose, and administration of nitrous oxide for pain relief.

10

Paramedic

A paramedic is a healthcare professional, predominantly in the pre-hospital and out-of-hospital environment, and working mainly as part of
Emergency Medical Services (EMS), such as on an ambulance. A paramedic is an allied health professional whose primary focus is to provide advanced emergency medical care for critical and emergent patients who access the emergency medical system. This individual possesses the complex knowledge and skills necessary to provide patient care and transportation. The minimum skill sets of a paramedic include: airway and breathing, performance of endotracheal intubation, performance of percutaneous cricothyrotomy, decompression of the pleural space, performance of gastric decompression, pharmacological interventions, insertion of an intraosseous cannula, enteral and parenteral administration of approved prescription medications, accessing indwelling catheters and implanted central IV ports for fluid and medication administration, administration of medications by IV infusion, maintaining an infusion of blood or blood products, percutaneous means to access via needle-puncture, medical/cardiac care including performance of cardioversion, manual defibrillation, and transcutaneous pacing.

11

Many states have enacted legislation that provides civil immunity to paramedics who render emergency lifesaving services. The Pennsylvania Supreme Court, for example, in
Morena v. South Hills Health Systems,

12
held that paramedics were not negligent in transporting a victim of a shooting to the nearest available hospital, rather than to another hospital located 5 or 6 miles farther away where a thoracic surgeon was present. The paramedics were not capable, in a medical sense, of accurately diagnosing the extent of the decedent’s injury. Except for the children’s center and the burn center, no emergency trauma centers are specifically designated for the treatment of particular injuries. It should be noted that immunity to liability does not, however, extend to negligent acts. The plaintiff, for
example, in
Riffe v. Vereb Ambulance Service, Inc.,

13
alleged that, while responding to an emergency call an emergency medical technician began administering lidocaine to the patient, as ordered over the telephone by the medical command physician at the defendant hospital. While en route to the hospital, the patient was administered 44 times the normal dosage of lidocaine. Consequently, normal heart function was not restored, and the patient was pronounced dead at the hospital shortly thereafter. At trial, the superior court held that the liability of medical technicians could not be imputed to the hospital. The court noted the practical impossibility of the hospital carrying ultimate responsibility for the quality of care and treatment given patients by emergency medical services.

NURSES: ETHICS AND LEGAL ISSUES

The nurse practices with compassion and respect for the inherent dignity, worth, and unique attributes of every person.

—To Be a Nurse: Swedish Hospital, Seattle, Washington

In memory of all those patients that have enriched my life and blessed me with their spirit of living—while they are dying.

Nursing is the honor and privilege of caring for the needs of individuals in their time of need. The responsibility is one of growth to develop the mind, soul, and physical well-being of oneself as well as the one cared for.

Excellence is about who we are, what we believe in, what we do with every day of our lives. And in some ways, we are a sum total of those who have loved us and those who we have given ourselves to.

I have been with a number of people/patients when they die and have stood in awe. Nursing encompasses the sublime and the dreaded. We are regularly expected to do the impossible. I feel honored to be in this profession.

To get well, I knew I had to accept the care and love that were given to me—when I did, healing washed over me like water.

Through all of this I was never alone.

In the caring for one another both are forever changed.

A friend takes your hand and touches your heart.

To all of you whose names were blurred by the pain and the drugs.

Don’t ever underestimate your role in getting patients back on their feet.

Will I lose my dignity? Will someone care? Will I wake tomorrow from this nightmare?

You exist as women living between heaven and hell. Inside a machine that demands absolute vigilance. I hated every minute of my stay with you; however, I totally realize the value of your efforts. Please accept my heartiest thank you.

—Unknown Authors in Hospital Lobby

The nurse is generally the one medical professional the patient sees more than any other. Consequently, the nurse is in a position to monitor the patient’s illness, response to medication, display of pain and discomfort, and general condition. This section provides an overview of the ethical responsibilities and legal issues of nursing practice. Although nurses traditionally have followed the instructions of attending physicians, physicians realistically have long relied on nurses to exercise independent judgment in many situations.

14
Patients in hospitals, nursing homes, or at home learning to manage a chronic condition are often at their most vulnerable moments. Nurses are the healthcare providers they are most likely to encounter; spend the greatest amount of time with; and often depend on for care. Research is now beginning to document what physicians, patients, other healthcare providers, and nurses themselves have long known: how well we are cared for by nurses affects our health and sometimes can be a matter of life or death.

15

The more than a decade old nursing shortage continues to require hospitals to search for foreign-trained registered nurses. New immigration laws have complicated the hiring and immigration process. Many countries are facing similar shortages, thus raising ethical dilemmas when recruiting foreign nurses from countries with shortages of their own.

Higher salaries and incentives have done little to resolve the nursing shortage. The unemployment rate would be expected to provide some incentive for students to enter the nursing profession, but the shortage persists. The Secretary of Health and Human Services (HHS), Kathleen Sebelius, announced in 2013 that $55.5 million in funding was awarded in FY 2013 to strengthen training for health professionals and increase the size of the nation’s healthcare workforce.

16
Since that time the shortage of nurses continues to negatively impact healthcare services, and it is only getting worse, as nursing schools are unable to meet the needs of would-be students due to lack of staff and facilities.

17
As one report noted, “There are currently about three million nurses in the United States. The country will need to produce more than one million new registered nurses by 2022 to fulfill its health care needs, according to the American Nurses Association estimates.”

18

Short on Staff: Nursing Crisis Strains U.S. Hospitals

To keep its operations intact, Charleston Medical is spending this year $12 million on visiting or “travel” nurses, twice as much as three years ago. It had no need for travel nurses a decade ago.

“I’ve been a nurse 40 years, and the shortage is the worst I’ve ever seen it,” said Ron Moore, who retired in October from his position as vice president and chief nursing officer for the center.

—Jilian Mincer,
Health News, October 20, 2017

19

Hospitals are caught between the proverbial rock and a hard place. The shortage of nurses continues, as one office of government strives to alleviate the shortage while at the same time the Conditions for Participation (COP) for Medicare and Medicaid reimbursement requires that hospitals provide adequate nurse staffing in the present in order to qualify for reimbursement. More specifically, COP regulations provide:

(b)
Standard: Delivery of Care: The nursing service must have adequate numbers of licensed registered nurses, licensed practical (vocational) nurses, and other personnel to provide nursing care to all patients as needed. There must be supervisory and staff personnel for each department or nursing unit to ensure, when needed, the immediate availability of a registered nurse for bedside care of any patient.

20

Such regulations at best are ambiguous and difficult to enforce except in those instances where state laws, rules, and regulations set specific standards for nurse–patient ratios, such as those that apply in nursing homes and on hospital intensive care units. As noted in an abstract of an article entitled “Enforcement of Hospital Nurse Staffing Regulations Across the United States: Progress or Stalemate?” its authors describe how:

Nurse staffing regulations were enacted to ensure that adequate numbers of nurses were available to provide high-quality and safe care. Although these regulations represent progress toward addressing staffing inadequacies, enforcement language is absent or weak and compliance data are either not collected or difficult to access. Explicit and funded enforcement measures need to be included in staffing regulations. Additionally, compliance monitoring and reporting are necessary to evaluate these types of staffing regulations and to determine if they actually achieve the goal of appropriate nurse staffing.

21

Registered Nurse

A
registered nurse is one who has passed a state registration examination and has been licensed to practice nursing. The scope of practice of a registered professional nurse includes patient assessment, analyzing laboratory reports, patient teaching, health counseling, executing medical regimens, and operating medical equipment as prescribed by a physician, dentist, or other licensed healthcare provider. The nursing profession “is in a period of rapid and progressive change in response to the advances in technology, changes in patterns of demand for health services, and the evolution of professional relationships among nurses, physicians and other health professions.”

22
Although most states have similar definitions of nursing, differences generally revolve around the scope of practice permitted.

Advanced Practice Nurse

An
advanced practice registered nurse (APRN) is a registered nurse having education beyond that of a registered nurse. APRNs include nurse practitioners, clinical nurse specialists, nurse anesthetists, and nurse midwives. They often play a critical role as primary care providers for patients who live in remote areas or have difficulty obtaining a primary care physician. APRNs are certified by a nationally recognized professional organization in their nursing specialty or meet other criteria established by a board of nursing that sets education, training, and experience requirements.

Nurse Practitioner

The Role of Nurses Extends Beyond the Hospital Ward

Nurse practitioners … Studies have found that their ability to diagnose illnesses, order and interpret tests, and treat patients is equivalent to that of primary-care physicians. They also tend to spend more time with patients during routine office visits than physicians, and they are more likely to discuss preventative health measures.

—Consumers Union of United States Inc.,
The Washington Post, May 30, 2011

Nurse practitioners (NPs) are RNs who have completed the necessary education to engage in primary healthcare decision making. A nurse practitioner is a registered nurse working in an expanded nursing role, usually with a focus on meeting primary healthcare needs. NPs conduct physical examinations, interpret laboratory results, select plans of treatment, identify medication requirements, and perform certain medical management activities for selected health conditions. During the course of their studies, they engage in clinical work and select specialties such as cardiology or geriatric care. Moreover, the NP is trained in the delivery of primary health care and the assessment of psychosocial and physical health problems such as the performance of routine examinations and the ordering of routine diagnostic tests. A physician may not delegate a task to an NP when regulations specify that the physician must perform it personally or when the delegation is prohibited under state law or by an organization’s own policies.

The potential risks of liability for the NP are as real as the risks for any other nurse. The standard of care required most likely will be set by statute. If not, the courts will determine the standard based on the reasonable-person doctrine (i.e., what would a reasonably prudent NP do under the same or similar circumstances). The standard would be established through the use of expert testimony of other NPs in the field. Because of potential liability problems and pressure from physicians, hospitals and physicians’ office practices have been historically reluctant to use NPs to the full extent of their training. Such reluctance has been diminishing as the competency of NPs has been continuing to be well demonstrated in practice. Several cases involving NPs are presented here.

NP Negligence Imputed to Physician

As described in
Adams v. Krueger,

23
the negligence of an NP can be imputed to a physician if the physician is the employer of the nurse. The plaintiff here went to her physician’s office for diagnosis and treatment. A NP who was employed by the physician performed her assessment and diagnosed the plaintiff as having genital herpes. The physician prescribed an ointment to help relieve the patient’s symptoms. The plaintiff eventually consulted with another physician who advised her that she had a yeast infection, not genital herpes. The plaintiff and her husband filed an action against the initial treating physician and his NP for their failure to correctly diagnose and treat her condition. The action against the physician was based on his failure to review the NP’s diagnosis and treatment plan. The trial court found in favor of the plaintiff and the defendants appealed. The court of appeals affirmed, and further appeal was made. The Idaho Supreme Court held that the negligence of the nurse was properly imputed to the physician. The physician and NP stood in a master-servant relationship and the nurse acted within the scope of her employment. Consequently, her negligence was properly charged, or attributed to Krueger in applying the comparative negligence statute.

24
Even though a physician can be at risk as a defendant in a lawsuit against the negligent acts of a nurse practitioner, the risk is minimal as compared to physicians.

Nurse practitioners (NPs), like any clinicians, are at risk for being sued for malpractice. If a physician is associated with an NP (through employment, independent contracting, state-mandated collaboration, consultation, or supervision) who is sued, the physician bears some risk of being sued as well.

Physicians thinking about hiring or otherwise collaborating with NPs should understand that lawsuits involving NPs don’t even total 1% of all medical malpractice closed claims.

25

Telephone Medicine

There are circumstances which prevent a patient from going to the hospital or directly to a physician’s office. When that occurs, the physician or a nurse practitioner may give medical advice over the telephone, which can open them to more scrutiny since the provider would not be examining the patient in person. As noted in the case presented here, a 9-year-old boy died shortly following an after-hours phone call to a physician’s office for advice. An on-call NP had responded to the call and rendered her advice to the boy’s father, who then described his 9-year-old son’s flu-like symptoms, after which the NP had given care instructions to the father. Unaware that his son had diabetes mellitus, the boy died later that evening of ketoacidosis. The parents sued the nurse practitioner, alleging wrongful death of their son due to negligence in diagnosis and treatment of diabetic ketoacidosis. The case was settled against the NP. The key lessons in this case are clear:

Many illnesses can mimic others, and noting any subtle differences can be very difficult without actually seeing the patient or obtaining diagnostic tests.

Clinicians triaging patients over the phone should err on the side of either bringing the patient into the office to be seen or, if the office is closed, sending them to the ED for evaluation.

Clinical staff should carefully and accurately document telephone encounters with patients.

26

It should be noted that “If a physician is associated with an NP (through employment, independent contracting, state-mandated collaboration, consultation, or supervision) who is sued, the physician bears some risk of being sued as well. Physicians thinking about hiring or otherwise collaborating with NPs should understand that lawsuits involving NPs don’t even total 1% of all medical malpractice closed claims.”

27

Clinical Nurse Specialist

The
clinical nurse specialist (CNS) is a professional registered nurse with an advanced academic degree, experience, and expertise in a clinical specialty (e.g., obstetrics, pediatrics). The clinical nurse specialist functions in a leadership capacity as a clinical role model, assisting the nursing staff to continuously evaluate patient care. The CNS acts as a resource for the management of patients with complex needs and conditions, participates in staff development activities related to his or her clinical specialty, and makes recommendations for establishing standards of care for patients. The CNS functions as a change agent by influencing attitudes, modifying behavior, and introducing new approaches to nursing practice, and collaborates with other members of the healthcare team to develop and implement the therapeutic plan of care for patients.

Nurse Anesthetist

Administration of anesthesia by a
nurse anesthetist requires special training and certification. Nurse-administered anesthesia was the first expanded role for nurses requiring certification. Oversight and availability of an anesthesiologist are required by most organizations. The major risks for nurse anesthetists include improper placement of an airway, failure to recognize significant changes in a patient’s condition, and the improper use of anesthetics (e.g., wrong anesthetic, wrong dose, wrong route).

Nurse Midwife

Nurse midwives provide comprehensive prenatal care, including delivery for patients who are at low risk for complications. For the most part, they manage normal prenatal, intrapartum, and postpartum care. Provided that there are no complications, normal newborns are also cared for by a nurse midwife. Nurse midwives often provide primary care for women’s health issues from puberty to postmenopause.

Special Duty Nurse

A
special duty nurse is a nurse employed by a patient or patient’s family to perform nursing care for the patient. An organization is generally not liable for the negligence of a special duty nurse unless a master–servant relationship can be determined to exist between the organization and the special duty nurse. If a master–servant relationship exists between the organization and the special duty nurse, the doctrine of
respondeat superior may be applied to impose liability on the organization for the nurse’s negligent acts. Although the patient employs the special duty nurse and the organization has no authority to hire or fire the nurse, the organization does have the responsibility to protect the patient from incompetent or unqualified special duty nurses.

Float Nurse

Float nurses are designated as such because they are rotated from unit to unit based on staffing needs. They often cover nursing units with unusually burdensome workloads that often involve complex patients. Float nurses can present a liability to the organization if they are assigned to work in an area where they are not qualified and competent to perform the assigned duties. Failure to match skills with work assignments can be risky business for both the patient and the healthcare professional. Behavioral health nurses, for example, usually do not have the skills or competencies to cover for surgical nurses in the operating room. Failure to make assignments based on a nurse’s skills presents a legal risk if a patient is injured as the result of a nurse’s negligent act. The standard of care required in order to establish negligence would be based on the skills and competencies required of the assigned task. In addition to legal implications, it is clear that assignment of a professional to a task he or she is not competent to perform is ethically and morally wrong. The New York State Nurses Association, in a position statement on float nurses, states, in part:

Adequate staffing (appropriate number, mix and competency of nursing staff) is critical to ensure quality patient care.

The nursing profession has an obligation to evaluate and monitor patient assignments to ensure the delivery of safe, quality care.

The state has a responsibility to hold healthcare employers accountable for the provision of appropriate and timely orientation and training for staff expected to float to unfamiliar units.

The optimum solution to emergency staffing, such as in a sudden fluctuation in census
or unexpected increase in absenteeism, is the establishment of an internal pool of competent personnel whose credentials have been reviewed and who have been oriented to the facility’s units and current policies.

All professional nurses must continually assess their own knowledge, ability, and experience and access appropriate resources when needed.

RNs have the right and responsibility to express their concerns and protest an assignment if placed in a potentially unsafe practice situation.

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Joint Commission standards require that “Those who work in the hospital are competent to complete their assigned tasks.”

29
It is the responsibility of the hospital’s leadership to ensure that nurses are competent to perform the duties and responsibilities to which they are assigned. Not only is the employee responsible for a negligent act, the hospital can be found liable for assigning an employee to a duty that he or she is not competent to perform. This applies not strictly to float nurses but to all staff members.

Agency Personnel

Healthcare organizations are at risk for the negligent conduct of agency personnel. Because of this risk, it is important to ensure that agency workers have the necessary skills and competencies to carry out the duties and responsibilities assigned by the organization.

Nursing Assistants

A
nursing assistant is an aide who has been certified and trained to assist patients with activities of daily living. The nursing assistant provides basic nursing care to non-acutely ill patients and assists in the maintenance of a safe and clean environment under the direction and supervision of a registered nurse or licensed practical nurse. The nursing assistant helps with positioning, turning, and lifting patients and performs a variety of tests and treatments. The nursing assistant establishes and maintains interpersonal relationships with patients and other hospital personnel while ensuring confidentiality of patient information. Common areas of negligence for nursing assistants include failure to follow or improperly performing procedures; failure to assist patients and prevent falls; unsafe placement or positioning of equipment; failure to maintain equipment properly; failure to observe a patient and take vital signs at appropriate intervals; failure to chart pertinent information regarding a patient’s changing condition (e.g., vital signs); and failure to respond to a patient’s call for help (e.g., call bells).

Student Nurses

Student nurses are entrusted with the responsibility of providing nursing care to patients. When liability is being assessed, a student nurse serving at a healthcare facility is considered an agent of the facility. Student nurses are personally liable for their own negligent acts, and the facility is liable for their acts on the basis of
respondeat superior.

A student nurse is held to the standard of a competent professional nurse when performing nursing duties. The courts have taken the position that anyone who performs duties customarily performed by a professional nurse is held to the standard of care required of a professional nurse. Every patient has the right to expect competent nursing services even if students provide the care as part of their clinical training.

Negligent Acts in Nursing

The following cases illustrate some of the acts or omissions constituting negligence that all nurses should be aware of. They are by no means exhaustive and merely represent the wide range of potential legal pitfalls in which nurses might find themselves.

Nurse Assessments and Diagnoses Valid

The defendant physicians in
Cignetti v. Camel

30
ignored a nurse’s assessment of a patient’s diagnosis, which contributed to a delay in treatment and injury to the patient. The nurse had testified that she told the physician that the patient’s signs and symptoms were not those associated with indigestion. The defendant physician objected to this testimony, indicating that such a statement constituted a medical diagnosis by a nurse. The trial court permitted the testimony to be entered into evidence. Section 335.01(8) of the Missouri Revised Statutes (1975) authorizes a registered nurse to make an assessment of persons who are ill and to render a nursing diagnosis. On appeal, the Missouri Court of Appeals affirmed the lower court’s ruling, holding that evidence of negligence presented by a hospital employee, for which an obstetrician was not responsible, was admissible to show the events that occurred during the patient’s hospital stay.

Ambiguous Medication Order

A nurse is responsible for making an appropriate inquiry if there is uncertainty about the accuracy
of a physician’s medication order in a patient’s record. The medication order in
Norton v. Argonaut Insurance Co.,

31
as entered in the medical record, was incomplete and subject to misinterpretation. Believing the order to be incorrect because of the dosage, the nurse asked two physicians present on the patient care unit whether the medication should be given as ordered. The two physicians did not interpret the order as the nurse did and therefore did not share the same concern. They advised the nurse that the attending physician’s instructions did not appear out of line. The nurse did not contact the attending physician but instead administered the misinterpreted dosage of medication. As a result, the patient died due to a fatal overdose of the medication.

The nurse was negligent by failing to consult with the attending physician before administering the medication. The nurse was held liable, as was the physician who wrote the ambiguous order that led to the fatal dose. In discussing the standard of care expected of a nurse who encounters an apparently erroneous order, the court stated that not only was the nurse unfamiliar with the medication in question, but she also violated the rule generally followed by members of the nursing profession in the community, which requires that the prescribing physician be called when there is doubt about an order. The court noted that it is the duty of a nurse to make absolutely certain what the physician intended regarding both dosage and route.

Wrong Dosage of a Medication

State Cites Safety Drug Lapses at Cedars-Sinai

Cedars-Sinai Medical Center’s handling of high-risk drugs placed its pediatric patients in immediate jeopardy of harm, the state said Wednesday in its response to an overdose involving the newborn twins of actor Dennis Quaid.

In a 20-page report, the California Department of Public Health said the prestigious Los Angeles hospital gave the twins and another child 1,000 times the intended dosage of the blood thinner heparin Nov. 18.

“This violation involved multiple failures by the facility to adhere to established policies and procedures for safe medication use,” state inspectors wrote.

—Charles Ornstein,
Los Angeles Times, January 10, 2008

More Heparin Overdoses, this Time in Texas

Add at least 17 Texas infants to the number of children mistakenly given overdoses of heparin in the hospital. At least one of those infants died, and an autopsy is planned to determine whether the blood thinner played a role. Another is still in critical condition.

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—Tami Dennis,
Los Angeles Times, July 9, 2008

The nurse in
Harrison v. Axelrod

33
administered the wrong dosage of haloperidol to the patient on seven occasions while employed at a nursing facility. The patient’s physician had prescribed a 0.5-mg dosage of haloperidol. The patient’s medication record indicated that the nurse had been administering doses of 5 mg, which were being sent to the patient care unit by the pharmacy. The nurse had admitted that she administered the wrong dosage and that she was aware of the facility’s medication administration policy, which she breached by failing to check the dosage supplied by the pharmacy against the dosage ordered by the patient’s physician. The commissioner of the Department of Health made a determination that the administration of the wrong dosage of haloperidol on seven occasions constituted patient neglect.

Medicating the Wrong Patient

A patient’s identification bracelet must be checked before administering any medication. To ensure that the patient’s identity corresponds to the name on the patient’s bracelet, the nurse should address the patient by name when approaching the patient’s bedside to administer any medication. Should a patient unwittingly be administered another patient’s medication, the attending physician should be notified, and appropriate documentation placed in the patient’s chart.

Failure to Note an Order Change

Failure to review a patient’s record before administering a medication to ascertain whether an order has been modified may render a nurse liable for negligence. The physician in
Larrimore v. Homeopathic Hospital Association

34
wrote an instruction on the patient’s order sheet changing the method of administration from injection to oral medication. The nurse mistakenly gave the medication by injection. Perhaps the nurse had not reviewed the order sheet after being told by the patient that the medication was to be given orally; perhaps the nurse did not notice the physician’s
entry. Either way, the nurse’s conduct was held to be negligent. The court went on to say that the jury could find the nurse negligent by applying ordinary common sense to establish the applicable standard of care.

Failure to Follow Instructions

Failure of a nurse to follow the instructions of a supervising nurse to wait for her assistance prior to performing a procedure can result in the revocation of the nurse’s license. The nurse in
Cafiero v. North Carolina Board of Nursing

35
failed to heed instructions to wait for assistance before connecting a heart monitor to an infant. The incorrect connection of the heart monitor resulted in an electrical shock to the infant.

[6] Ms. Cafiero put the leads on Jami’s [
sic] chest, and inserted the end of the leads into a cord attached to the back of the monitor. Ms. Cafiero then plugged the machine into the wall. A click was heard, and Jami [
sic] was noted to be balled up in a fetal position, trembling, with a red color, and “looked hard.” Mrs. Moss screamed and told Ms. Cafiero to turn the monitor off, that she was shocking her baby. Ms. Cafiero told her everything would be o.k. in a minute. Mrs. Moss then saw a black cord on the bed next to Jami [
sic] and she unplugged the leads from this black cord. Jami [
sic] then fell back on the bed. Ms. Moss went into the hall calling for assistance from a physician.

Gretchen Baughman, RN, Charge Nurse on this shift, came to the room and initiated cardio-pulmonary resuscitation. Jami [
sic] was successfully resuscitated, and transferred to the Pediatric Intensive Care Unit (PICU). She did sustain two burns on her chest and one burn on her stomach from this incident. Jamie’s parents were later told by the Risk Manager that Jami [
sic] was electrocuted by the Neonatal Monitor. …

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The North Carolina Board of Nursing, under the Nursing Practice Act, revoked the nurse’s license. The board had the authority to revoke the nurse’s license even though her work before and after the incident had been exemplary. The dangers of electric cords are within the realm of common knowledge. The record showed that the nurse failed to exercise ordinary care in connecting the infant to the monitor.

Failure to Report Physician Negligence

An organization can be liable for the failure of nursing personnel to take appropriate action when a patient’s personal physician is clearly unwilling or unable to cope with a situation that threatens the life or health of the patient. In a California case,
Goff v. Doctors General Hospital,

37
a patient was bleeding seriously after childbirth because the physician failed to suture her properly. The nurses testified that they were aware of the patient’s dangerous condition and that the physician was not present in the hospital. Both nurses knew the patient would die if nothing was done, but neither contacted anyone except the physician. The hospital was liable for the nurses’ negligence in failing to notify their supervisors of the serious condition that caused the patient’s death. Evidence was sufficient to sustain the finding that the nurses who attended the patient and who were aware of the excessive bleeding were negligent and that their negligence was a contributing cause of the patient’s death. The measure of duty of the hospital toward its patients is the exercise of that degree of care used by hospitals generally. The court held that nurses who knew that a woman they were attending was bleeding excessively were negligent in failing to report the circumstances so that prompt and adequate measures could be taken to safeguard her life.

Failure to Question Patient Discharge

A nurse has a duty to question the discharge of a patient if he or she has reason to believe that such discharge could be injurious to the health of the patient. Jury issues were raised in
Koeniguer v. Eckrich

38
by expert testimony that the nurses had a duty to attempt to delay the patient’s discharge if her condition warranted continued hospitalization. By permissible inferences from the evidence, the delay in treatment that resulted from the premature discharge contributed to the patient’s death. Summary dismissal of this case against the hospital by a trial court was found to have been improper.

Failure to Observe Patient’s Changing Condition

Failure to observe changes in a patient’s condition can lead to liability on the part of the nurse and the organization. The recovery room nurse in
Eyoma v. Falco

39
(who had been assigned to monitor a postsurgical patient) left the patient and failed to recognize that the patient had stopped breathing. Nurse Falco had been assigned to monitor the patient in the recovery room. She delegated that duty to another nurse and failed to verify that the other nurse accepted that responsibility.

Nurse Falco admitted she never got a verbal response from the other nurse, and, when she returned, there was no one near the decedent. She acknowledged that Dr. Brotherton told her to watch the decedent’s breathing but claimed that she was not told that the decedent had been given narcotics. She maintained that on her return she checked the decedent and observed his respirations to be eight per minute.

Thereafter, Brotherton returned and inquired about the decedent’s condition. Falco informed the doctor that the patient was fine; however, on his personal observation, Brotherton realized that the decedent had stopped breathing. Decedent, because of oxygen deprivation, entered a comatose state and remained unconscious for over a year until his death.

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The jury held the nurse to be 100% liable for the patient’s injuries. The court held that there was sufficient evidence to support the verdict.

Charting Observations

The patient’s care, as well as the nurse’s observations, should be recorded on a regular basis. The nurse should comply promptly and accurately with the physician orders written in the record. Should the nurse have any doubt as to the appropriateness of a particular order, he or she is expected to verify with the physician the intent of the prescribed order.

Failure to Remove Endotracheal Tube

The court in
Poor Sisters of St. Francis v. Catron

41
held that the failure of nurses and an inhalation therapist to report to the supervisor that an endotracheal tube had been left in the plaintiff longer than the customary period of 3 or 4 days was sufficient to allow the jury to reach a finding of negligence. The patient experienced difficulty speaking and underwent several operations to remove scar tissue and open her voice box. At the time of trial, she could not speak above a whisper and breathed partially through a hole in her throat created by a tracheotomy. The hospital was found liable for the negligent acts of its employees and the resulting injuries to the plaintiff.

CHIROPRACTOR

The Code of Ethics is based upon the acknowledgement that the social contracts dictates the profession’s responsibilities to the patient, to the public, and to the profession; and upholds the fundamental principle that the paramount purpose of the chiropractor’s services shall be to the benefit of the patient.

—Preamble: American Chiropractic Association Code of Ethics

42

Chiropractors are required to exercise the same degree of care, judgment, and skill exercised by other reasonable chiropractors under like or similar circumstances. They are expected to maintain the integrity, competency, and standards of their profession, as well as avoid even the appearance of professional impropriety.

Chiropractors have a duty to determine whether a patient is treatable through chiropractic means and to refrain from chiropractic treatment when a reasonable chiropractor would or should be aware that a patient’s condition will not respond to chiropractic treatment. Failure to conform to the standard of care can result in liability for any injuries suffered.

Although the American Chiropractic Association says that neck manipulation is a safe procedure, there are risks associated with chiropractic manipulation as with any medical procedure. Failure to conform to the standard of care can result in liability for any injuries suffered. Lawsuits against chiropractors often involve a failure to properly diagnose a patient’s medical condition and harm as a result of treatments, such as manipulation of the spine and neck. For example, a patient stated that she knew she was in trouble shortly after a chiropractor began to manipulate her neck. She said she knew what was happening, telling the chiropractor, “Stop. I’m having a stroke.”

43
The patient stated that if she had been told that there would be a risk of a stroke, she would not have continued with the treatment.

44
As with any medical procedure, the chiropractor should inform each patient as to the risks, benefits, and alternatives associated with a suggested procedure. All patients should sign a consent form acknowledging that they have been informed of the risks, benefits, and alternatives to the recommended procedure.

Case Studies

Poor Judgment

II. Doctors of chiropractic should maintain the highest standards of professional and personal conduct and should comply with all governmental rules and regulations.

III. Doctors of chiropractic have an obligation to the profession to endeavor to assure that their behavior does not give the appearance of professional impropriety. Any actions that may benefit the practitioner to the detriment of the profession must be avoided so as not to erode public trust.

45

The chief medical officer of the Nebraska Department of Health and Human Services Regulation and Licensure in
Poor v. State

46
entered an order revoking Poor’s license to practice as a chiropractor in the state of Nebraska.

Poor engaged in a conspiracy to manufacture and distribute a misbranded substance and introduced into interstate commerce misbranded and adulterated drugs with the intent to defraud and mislead. He was arrested for driving under the influence and was convicted of that offense. In addition, Poor knowingly possessed cocaine. He conceded that these factual determinations were understood as beyond dispute.

The district court’s determination that Poor had engaged in “grossly immoral or dishonorable conduct” was not based on “trivial reasons.” The appeals court found that Poor’s conduct clearly fell within the plain and ordinary meaning of grossly immoral or dishonorable conduct. In its order finding Poor to be unfit, the district court relied in part on Poor’s denial of conduct underlying a previous felony conviction. The court stated, “Poor’s denial now, after taking advantage of a plea bargain, that he committed any of the acts he admitted to in the United State[s] District Court is disturbing and is not consistent with the integrity and acceptance of responsibility expected by persons engaged in a professional occupation.”

Chiropractic medicine is a regulated healthcare profession. Patients necessarily rely on a chiropractor’s honesty, integrity, sound professional judgment, and compliance with applicable governmental regulations. Poor argued that there was absolutely no testimony or evidence to the effect that anything he did constituted a threat of harm to his patients.

The Supreme Court of Nebraska determined that due to the seriousness of Poor’s felony conviction and its underlying conduct, his subsequent lack of candor with respect to that conduct, as well as his lack of sound judgment demonstrated by his driving-under-the-influence conviction, revocation of Poor’s license was an appropriate sanction.

Ethical and Legal Issues

Did the chiropractor in this case violate his professional code of ethics? Explain your answer.

Describe how an individual’s personal life can affect his or her professional career.

DENTISTRY

Hawaii Family Sues Dentist for Root Canal that Left 3-Year-Old Girl Brain Dead

A Hawaii family has sued a dentist for root canal gone horribly wrong that left a 3-year-old girl brain dead.

The lawsuit brought by the Boyle family against Island Dentistry in Honolulu alleges staff bungled the Dec. 3 procedure on little Finley Boyle and were unprepared for the emergency 26 minutes into her multiple root canal, local news station KITV reported.

The child “went into respiratory and cardiac arrest due to an overdose given to her during her treatment,” Finley’s family wrote on an online fundraiser.

—Stephen Rex Brown,
New York Daily News, January 3, 2014

Dentists are expected to respect patient rights and to avoid harm to their patients. They are expected to treat patients within their scope of practice. Such did not occur in the following cases.

Case Studies

Practicing Outside the Scope of Practice

Practicing outside one’s scope of practice involves both ethical and legal issues. For example, plaintiff Brown, in
Brown v. Belinfante,

47
sued a dentist for performing several elective cosmetic procedures, including a facelift, eyelid revision, and facial laser resurfacing. He was licensed to practice dentistry in Georgia. Brown claims that after the cosmetic
procedures, she could not close her eyes completely, developed chronic bilateral eye infections, and required remedial corrective surgery. Brown alleged that the dentist’s performance of the cosmetic procedures constituted negligence because he exceeded the scope of the practice of dentistry.

The primary purposes of the Georgia Dental Act are to define and regulate the practice of dentistry. The statute limits the scope of the practice of dentistry. Such limitation protects the health and welfare of patients who submit themselves to the care of dentists by guarding against injuries caused by inadequate care or by unauthorized individuals. Brown falls within that class of persons the statute was intended to protect, and the harm complained of was of the type the statute was intended to guard against. In performing the elective cosmetic procedures, the dentist violated the Dental Practice Act by exceeding the statutory limits of the scope of dentistry.

Ethical and Legal Issues

Describe the ethical issues presented here.

Describe the legal issues in this case.

Case Studies

Inappropriate Sexual Conduct

Revocation of a dentist’s license on charges of professional misconduct was properly ordered in
Melone v. State Education Department

48
on the basis of substantial evidence that while acting in a professional capacity the dentist had engaged in physical and sexual contact with five different male patients within a 3-year period. Considering the dentist’s responsible position, the extended time period during which the sexual contacts occurred, the age and impressionable nature of the victims (7 to 15 years of age), and the possibility of lasting effects on the victims, the penalty was not shocking to the court’s sense of fairness.

Ethical and Legal Issues

Describe the ethical and legal issues of this case.

Describe what procedures could be implemented in a dentist’s office to help reduce the likelihood of sexual abuses.

Dental Hygienist

Dental hygienists are expected to treat patients with respect and to disclose all relevant information so that they can make informed choices about their care. Patient information must be kept confidential. Dental hygienists have an obligation to provide services in a manner that protects all patients and minimizes harm to them.

Case Studies

Unlawful Administration of Nitrous Oxide

This case

49
arises from a complaint by a dental hygienist against a former employer, Lowenberg and Lowenberg Corporation. The dental hygienist alleged that the defendant allowed dental hygienists to administer nitrous oxide to patients. Under state law, dental hygienists may not administer nitrous oxide. The Department of Education’s Office of Professional Discipline investigated the complaint by using an undercover investigator. The investigator made an appointment for teeth cleaning. At the time of her appointment, she requested that nitrous oxide be administered. Agreeing to the investigator’s request, the dental hygienist administered the nitrous oxide. There were no notations in the patient’s chart indicating that she had been administered nitrous oxide.

A hearing panel found the dental hygienist guilty of administering nitrous oxide without being properly licensed. In addition, the hearing panel found that the dental hygienist had failed to record accurately in the patient’s chart that she had administered nitrous oxide.

The New York Supreme Court, Appellate Division, held that the investigator’s report provided sufficient evidence to support the hearing panel’s determination. There is adequate evidence in the record to support a finding that the dentist’s conduct was such that it could reasonably be said that he permitted the dental hygienist to perform acts that she was not licensed to perform.

Ethical and Legal Issues

Discuss how the ethical values listed in the Pillars of Moral Strength were violated in this case.

Explain how both legal and ethical issues are intertwined in this case.

Case Studies

Patient Injured During Procedure

The plaintiff in
Hickman v. Sexton Dental Clinic

50
brought a malpractice action against a dental clinic for a serious cut under her tongue. The dental assistant, without being supervised by a dentist, placed a sharp object into the patient’s mouth, cutting her tongue while taking impressions for dentures. The court of common pleas entered a judgment on a jury verdict in favor of the plaintiff, and the clinic appealed. The court of appeals held that the evidence presented was sufficient to infer without the aid of expert testimony that there was a breach of duty to the patient. The testimony of Dr. Tepper, the clinic dentist, was found pertinent to the issue of the common knowledge exception in which the evidence permits the jury to recognize breach of duty without the aid of expert testimony. Tepper presented the following testimony regarding denture impressions:

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Q. You also stated that you have taken, I believe, thousands?

A. Probably more than that.

Q. Of impressions?

A. Yes, sir.

Q. This never happened before?

A. No, sir, not a laceration.

Q. Would it be safe and accurate to say that if someone’s mouth were to be cut during the impression process, someone did something wrong?

A. Yes, sir.

Ethical and Legal Issues

Do you see any ethical issues in this case? Explain your answer.

Describe the legal issues of this case.

DIETARY

Healthcare organizations are expected to provide patients with diets that meet their individual needs. Some university hospitals stress the importance of good nutrition. University Hospitals in Cleveland describe the importance of nutritional services by promoting “the idea that proper nutrition can improve health and well-being. Our registered dietitians offer nutrition education and counseling for patients with conditions such as diabetes, seizure disorders or immune disorders, and work to incorporate dietary plans into the patients’ course of treatment.”

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Massachusetts General Hospital “experts from the Department of Nutrition and Food Services aid the general public with management of specific dietary needs in many different areas, including cardiac care, diabetes and childhood and adult obesity. They also provide nutritional care and advice about lifestyle maintenance and good nutrition, often through classes available on the hospital’s main campus and at community health centers.”

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New York-Presbyterian hospital in their nutrition program states:

Our vision is to go beyond the expectations of our patients and customers with the clinical expertise, service, compassion, education, and caring that one expects from a premier clinical nutrition and food service department. Networking, our team focuses on best practices in the spirit of unity where each team member autographs their work with pride and quality.

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Healthcare organizations have traditionally failed to recognize or promote the importance of good nutritional care. However, The Joint Commission standards require that “Food and Nutrition products are consistent with each patient’s care, treatment, and services.”

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Failure to address the nutritional needs of patients can lead to negligence suits, as noted in the cases presented here.

Patient’s Diet Order Inappropriate

Mom had colon cancer and was told she would be placed on a soft diet following surgery. One evening following surgery I was visiting mom. The diet aide entered the room, laid down mom’s food tray on her bedside table, and left the room. Mom lifted the cover off her plate. There on her plate laid a dried-out pork chop with mashed potatoes and broccoli. She looked up at me and said, “Do you want my meal? I can’t eat that.” I walked to the nurses’ station and asked, “Why does my mom have pork chops on her plate? She was told she would be on a soft diet following surgery.” The nurse said, “Let me look at her record.” After a few moments searching the record, the nurse looked up at me and said, “Yes, it’s right here written by the doctor. ‘Regular diet for Mrs. Dively.’ I can’t change her diet. I will have to get an order change from her physician.” The nurse continued, “Your mom will have to remain on a regular diet until the doctor writes a new order.” I asked, “And how long will that take?” The nurse replied, “When he comes in to visit her on rounds. Probably tomorrow because he just saw her earlier.” I then asked to speak to the dietitian. She came to the floor and said, “I understand your dilemma, but I can’t change your mom’s diet without an order from the physician.” I asked for the evening nursing manager, who eventually talked to me on the nursing station phone. She was eventually able to get an order change from the physician, who had not returned her call until later that evening.

—Anonymous

Dietitians are expected to exercise professional judgment and practice dietetics based on scientific principles and current practice. Yet few healthcare organizations have fully integrated them into their
patient care teams. Although the participation of pharmacists in the patient care setting is becoming the norm on patient care units, participation of dietitians is yet to be at an optimal level.

Case Studies

Patient Suffers Malnutrition

Healthcare organizations must provide each patient with a nourishing, palatable, well-balanced diet that meets the daily nutritional and special dietary needs of each patient. Failure to do so can lead to negligence suits. The deceased patient’s daughter in
Lambert v. Beverly Enterprises, Inc.,

56
filed an action claiming that her father had been mistreated. The notice of intent to sue indicated that the deceased suffered various injuries and malnutrition as a direct result of the acts or omissions of dietary personnel, and that the plaintiff’s father suffered actual damages that included substantial medical expenses and mental anguish because of the injuries he sustained. A motion to dismiss the case was denied.

Ethical and Legal Issues

Identify the ethical issues in this case.

How might the dietitians’ professional ethical code have been violated in this case?

The inability of hospitals and ambulatory care centers to provide adequate staff to address the nutritional needs of patients is due in part to financial constraints. Rural outpatient centers are generally understaffed and barely have time to address the patient’s presenting complaints. Staffing to address the unique nutritional needs of many patients often goes unaddressed. Frequently, patients with poor nutritional habits often return over the years with more severe, costly, and debilitating medical conditions (e.g., diabetes and heart disease), as discussed in the following
Reality Check.

Patient’s Nutritional Status Not Addressed

Jeb, a 12-year-old, 175-pound boy, came with his mother to General Hospital’s ambulatory care clinic to be treated for poison ivy. When Brad, a physician’s assistant, had completed his assessment, he provided Jack’s mother with a prescription and gave instructions for caring for her son. He then asked, “Do you have any questions?” She replied that she had none. After she and her son left the treatment room, I asked, as a resident assigned to the clinic for training, “Brad, do you know if anyone ever discussed Jack’s nutritional status with his mother and the future risks associated with his weight?”

Brad looked in Jack’s medical record and noted that he had been a patient in the clinic since birth. He could not find any notations indicating there was any discussion over the years regarding his weight. He did note that there was a height and weight chart in the record by age and that Jack’s height was in the norm for his age; however, his weight was, as Brad put it, “Off the scale.” He looked at me and said, “The problem here is, the mother, as you may have observed, has a weight problem as well. We have been asking for a registered dietitian to schedule a morning once a week for referral purposes. It like singing in the wind, and nobody is listening.”

—Anonymous

Discussion

Balancing the financial constraints of the clinic and the long-term health risks that Jeb faces, discuss what creative action you would take in order to provide nutritional consultations for clinic patients, assuming the hospital has no available resources to provide for nutritional counseling.

What are the ethical issues of treating poison ivy and seemingly ignoring Jeb’s risks of developing diabetes and/or heart disease?

Incidence and Recognition of Malnutrition

The importance of diet is often not given sufficient consideration in healthcare settings, which was noted by J. P. McWhirter and C. R. Pennington in a study conducted to determine the incidence and recognition of malnutrition in a hospital. The results of the study were reported in the
British Medical Journal.

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Although not totally conclusive of what the findings would be in a larger sampling, the results of this study are somewhat perplexing. The abstract of the McWhirter and Pennington study is presented here.

Abstract

Objectives: To determine incidence of malnutrition among patients on admission to hospital, to monitor their changes in nutritional status during stay, and to determine awareness of nutrition in different clinical units.

Design: Prospective study of consecutive admissions.

Setting: Acute teaching hospital.

Subjects: 500 patients admitted to hospital: 100 each from general surgery, general medicine, respiratory medicine, orthopaedic surgery, and medicine for the elderly.

Main Outcome Measures: Nutritional status of patients on admission and reassessment on discharge, review of case notes for information about nutritional status.

Results: On admission, 200 of the 500 patients were undernourished (body mass index less than 20) and 34% were overweight (body mass index >25). The 112 patients reassessed on discharge had mean weight loss of 5.4% with greatest weight loss in those initially most undernourished. But the 10 patients referred for nutritional support showed mean weight gain of 7.9%. Review of case notes revealed that, of the 200 undernourished patients, only 96 had any nutritional information documented.

Conclusion: Malnutrition remains a largely unrecognized problem in hospital and highlights the need for education on clinical nutrition.

—J. P. McWhirter and C. R. Pennington,
“Incidence and Recognition of Malnutrition in Hospital,” BMJ 308:945, April 9, 1994

EMERGENCY DEPARTMENT

Wait Times Lengthen at Emergency Rooms

Emergency-room patients are waiting ever longer to see a doctor, a potentially dangerous development as rising numbers of uninsured and underinsured Americans turn to ERs for medical care.

—Theo Francis,
The Wall Street Journal, January 15, 2008

Federal and state statutes impose a duty on hospitals to provide emergency care (

FIGURE 9-1

). The statutes require hospitals to provide some degree of emergency service. If the public is aware that a hospital furnishes emergency services and relies on that knowledge, the hospital has a duty to provide those services to the public.

Treatment rendered by hospitals is expected to be commensurate with that available in the same or similar communities or in hospitals generally. In
Fjerstad v. Knutson,

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the South Dakota Supreme Court found that a hospital could be held liable for the failure of an on-call physician to respond to a call from the emergency department. An intern, who attempted to contact the on-call physician and was unable to do so for 3½ hours, treated and discharged the patient. The hospital was responsible for assigning on-call physicians and ensuring that they would be available when called. The patient died during the night in a motel room as a result of asphyxia resulting from a swelling of the larynx, tonsils, and epiglottis that blocked the trachea. Testimony from the laboratory director indicated that the emergency department’s on-call physician was to be available for consultation and was assigned that duty by the hospital. Expert testimony also was offered that someone with the decedent’s symptoms should have been hospitalized and that such care could have saved the decedent’s life. The jury could have believed that an experienced physician would have taken the necessary steps to save the decedent’s life.

Case Studies

On-call Physician Fails to Respond

Hospitals are expected to notify specialty on-call physicians when their particular skills are required in the emergency department. An on-call physician who fails to respond to a request to attend a patient can be liable for injuries suffered by the patient because of his or her failure to respond. In
Thomas v. Corso,

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a Maryland court sustained a verdict against the hospital and physician. The patient had been brought to the hospital emergency department after being struck by a car. A physician did not attend to him even though he had dangerously low blood pressure and was in shock. There was some telephone contact between the nurse in the emergency department and the physician who was providing on-call coverage. The physician did not act on the hospital’s call for assistance until the patient was close to death, and the patient did die. The court reasoned that expert testimony was not even necessary to establish what common sense made evident: that a patient who had been struck by a car may have suffered internal injuries and should have been evaluated and treated by a physician. Lack of attention in such cases is not reasonable care by any standard. The concurrent negligence of the nurse, who failed to contact the on-call physician after the patient’s condition had worsened, did not relieve the physician of liability for his failure to come to the emergency department at once. Rather, under the doctrine of
respondeat superior, the nurse’s negligence was a basis for holding the hospital liable as well.

Ethical and Legal Issues

Describe how both the physician and nurse failed in their ethical responsibilities to the patient.

Describe what actions the hospital can take to prevent future occurrences of this nature.

What are the legal and ethical concerns for the physician, nurse, and hospital?

Timely Response May Require a Phone Call

Hospitals are not only required to care for emergency patients but also required to do so in a timely fashion. In
Marks v. Mandel,

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a Florida trial court was found to have erred in directing a verdict against the plaintiff. It was decided that the relevant inquiry in this case was whether the hospital and the supervisor should bear ultimate responsibility for failure of the specialty on-call system to function properly. Jury issues had been raised by evidence that the standard for on-call systems was to have a specialist attending the patient within a reasonable time of being called.

Emergency rooms are aptly named and vital to public safety. There exists no other place to find immediate medical care. The dynamics that drive paying patients to a hospital’s emergency departments are well known. A sudden, acute ailment or injury occurs: a child breaks his arm, an individual suffers a heart attack, an existing medical condition such as the flu or asthma worsens abruptly, a patient with diabetes lapses into a coma—any of these situations demand immediate medical attention at the nearest emergency department. The catchphrase in legal nomenclature “time is of the essence” takes on real meaning. Generally, one must choose the nearest emergency department, and after arrival, it would be a mistake to depart in hope of finding one that provides services through employees rather than independent contractors. The patient is there and must rely on the services available and agree to pay the premium charged for those services.

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The public not only relies on the medical care rendered by emergency departments but also considers the hospital as a single entity providing all of its medical services. A set of commentators observed:

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[T]he hospital itself has come to be perceived as the provider of medical services. According to this view, patients come to the hospital to be cured, and the doctors who practice there are the hospital’s instrumentalities, regardless of the nature of the private arrangements between the hospital and the physician. Whether or not this perception is accurate seemingly matters little when weighed against the momentum of changing public perception and attendant public policy.

The change in public reliance and public perceptions, as well as the regulations imposed on hospitals, has created an absolute duty for hospitals to provide competent medical care in their emergency departments.

Given the cumulative public policies surrounding the operation of emergency departments and the legal requirement that hospitals provide emergency services, hospitals must be accountable in tort for the actions of caregivers working in their emergency departments.

Emergency Department Lifeline

Emergency departments are the lifelines for millions of people around the nation each day. For those with and those without insurance, each day, we know someone out there cares. Often forgotten is the compassion that caregivers show each day. One such occurrence was observed when a young man walked into the emergency department at General Hospital. He described symptoms of severe chest pain. He was afraid, but he was soon rushed to a room where he was attended to by a physician, a nurse, an ECG technician, and a laboratory technician. He had blood drawn, an ECG, and a history and physical. As I watched, his fear turned to gratitude as treatment was administered and his pain alleviated. Fear faded away and the young man left with instructions for follow-up care. Fear turned to happiness for this young man. His smile spoke a million words.

—Anonymous

In the
Marks v. Mandel case:

Extensive trial testimony proved that the local and national standard for on call systems is to have a specialist actually attending to the patient within thirty minutes of the call to the physician. Palmetto General had a published policy which adopted this standard. In the case at bar, however, the fact that a thoracic surgeon eventually attended to Marks was a matter of coincidence and not a result of the on-call system. The system failed. A jury should decide whether the failure was a breach of the standard of care owed to Michael Marks.

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LABORATORY

Health organizations are generally required to provide clinical laboratory services in order to address the care needs of their patients. They are responsible for the quality and timeliness of the services provided. There are a variety of highly specialized tests that healthcare organizations contract out to reference laboratories. Some organizations, such as nursing home facilities, because of limited financial resources contract with reference laboratories to provide routine lab testing services. Reference labs are often private commercial facilities that perform routine high-volume and specialty testing.

Laboratory medical technologists are expected to protect the welfare of patients and the tests conducted above all else. They are expected to avoid dishonest and unethical conduct. An organization’s laboratory provides data that are vital to a patient’s treatment. Among its many functions, the laboratory monitors therapeutic ranges, measures blood levels for toxicity, places and monitors instrumentation on patient units, provides education for the nursing staff (e.g., glucose monitoring), provides valuable data used in research studies, supplies data on the most effective and economical antibiotic for treating patients, serves in a consultative role, and provides important data as to the nutritional needs of patients.

Representation by a laboratory representative during routine patient rounds is noted by their absence, mostly because of the difficulty in determining the proper fit for such representation on an interdisciplinary patient care team. For sure, exclusion does not breed participation. A well-rounded educational experience should include exposure to the knowledge of the laboratory technologist, who provides a wealth of information in diagnosing, treating, and/or monitoring the progression or regression of illness. Lab tests provide invaluable information in:

identifying changes in health condition(s) before symptoms occur

diagnosing or aiding in the diagnosis of a disease or condition

planning treatment for a disease or condition

evaluating a patient’s response to treatment

monitoring the course of a disease over time

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The value of laboratory medicine in patient care is unquestioned. A detailed study by the Lewin Group for the U.S. Centers for Disease Control and Prevention concluded that “laboratory medicine is an essential element of the health care system. It is integral to many clinical decisions, providing physicians, nurses, and other health care providers with often pivotal information for the prevention, diagnosis, treatment and management of disease.”

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As noted in the following
Reality Check, healthcare professionals can learn from the presence of a laboratory representative during case reviews.

Abnormal Laboratory Results Not Addressed

I was reviewing a patient record during the patient care conference and asked why the patient, Mrs. X, was admitted. The patient’s nurse replied, “The patient was diagnosed with an impending stroke.” Looking at the patient’s lab results, I said, “The patient’s glucose is high.” The nurse again replied, “Yes, but we are more concerned about the impending stroke.” I said, “I see the patient was admitted at 11:00 PM. Do you know when the patient ate last before her admission to the hospital?” The nurse, asking for and looking at the record, replied, “She ate last at 4:00 PM prior to her 11:00 PM lab results.” Looking at the laboratory manager, who was also a working laboratory technologist, I asked, “Is it normal for a patient who ate last at 4:00 PM to have an abnormally high blood glucose at 11:00 PM?” The laboratory manager replied, “It is not normal for it to be that high.” I followed up, “So the patient has been here three days, has there been any follow-up blood tests to determine if the blood glucose is back to normal?” The survey coordinator interrupted, “At the moment we are more concerned about the impending stroke.” I then asked, “Do you know if the patient has diabetes?” The nurse said confidently that the patient did not have diabetes.

I continued, “Looking at the history and physical, I see the physician wrote that the family medical history has been marked as unremarkable. Did your nursing assessment, care, and conversations with the patient reveal anything different as to the patient’s family history and the patient’s present condition? In other words, do you know if the patient might have a predisposition to a stroke based on the family history?” The nurse replied, “The parents died of natural causes.” I then asked to interview the patient if she agreed.

The nurse left the conference room to speak to the patient and shortly thereafter returned to the conference room and said, “Mrs. X said she was willing to talk to you.”

After introducing myself to the patient and explaining my purpose for being at the hospital, I asked the patient about her care at the hospital. The patient said, “I am very happy with the care I am receiving at the hospital.” During our conversation I had the opportunity to ask about her parents. She explained how her father passed away as the result of a heart attack and her mother passed away as the result of a stroke. We talked a bit more on a happier note, and I thanked her for the opportunity to speak with her.

Returning to the conference room, I sat down with the staff and said, “My concern here is that the high blood glucose laboratory results were not addressed. The patient had other blood tests, but there was no follow-up on the one abnormal glucose reading. All the other tests were found to be normal. If the patient’s blood glucose is under control, the patient’s deficits will be less severe should her impending stroke result in a stroke. It should also be noted that abnormally high or low glucose readings could mimic the symptoms of a stroke. I am also concerned that the patient’s family history was written on the patient’s record as ‘Unremarkable.’

“I asked for the laboratory to have representation at this conference today. Technologists are rarely represented in these sessions, yet some have estimated that as many as 70% of medical decisions are based on laboratory results. Thank you for attendance here today.”

—Anonymous Patient Care Reviewer

Discussion

Should the responsibility of the laboratory end once the results of diagnostic tests are provided to bedside caregivers? Discuss your answer.

Discuss how beside care can be more inclusive (e.g., teamwork through seamless education where patient-centered care can through case studies include representation by the various disciplines involved in patient care). Here the surveyor’s observations provide an opportunity to jointly discuss and review all aspects of patient-centered care.

Ethics and Inaccurate Lab Results

Ethics codes for both healthcare organizations and their professionals are written to protect patients as well as employees and their employers. The
American Society for Clinical Laboratory Science, in its code of ethics states as to the duty owed to patients:

Medical Laboratory Professionals’ primary duty is to the patient, placing the welfare of the patient above their own needs and desires and ensuring that each patient receives the highest quality of care according to current standards of practice. High quality laboratory services are safe, effective, efficient, timely, equitable, and patient-centered. Medical Laboratory Professionals work with all patients and all patient samples without regard to disease state, ethnicity, race, religion, or sexual orientation. Medical Laboratory Professionals prevent and avoid conflicts of interest that undermine the best interests of patients.

Medical Laboratory Professionals are accountable for the quality and integrity of the laboratory services they provide. This obligation includes maintaining the highest level of individual competence as patient needs change, yet practicing within the limits of their level of practice. Medical Laboratory Professionals exercise sound judgment in all aspects of laboratory services they provide. Furthermore, Medical Laboratory Professionals safeguard patients from others’ incompetent or illegal practice through identification and appropriate reporting of instances where the integrity and high quality of laboratory services have been breached.

Medical Laboratory Professionals maintain strict confidentiality of patient information and test results. They safeguard the dignity and privacy of patients and provide accurate information to patients and other health care professionals. Medical Laboratory Professionals respect patients’ rights to make decisions regarding their own medical care.

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Lab tests are not always accurate, sometimes due to human error or faulty test results. According to an article in the
Baltimore Sun on March 11, 2004, approximately 640 patients at Maryland General Hospital may have received incorrect HIV and
hepatitis test results. Some patients might have been told they were HIV-negative when in fact they were positive and vice versa, and the hospital failed to notify the patients of the problem. A former hospital employee had apparently filed a complaint. State health officials discovered in January that the hospital’s laboratory personnel overrode controls in the testing equipment that showed the results might be in error and then mailed them to patients anyway.

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Licensure and certification of laboratory staff are necessary in order to help prevent incidents of this nature. The American Society for Clinical Pathology, in a policy statement on State Licensure of Laboratory Personnel, Policy (Number 05-02), states:

Due to the complexity of laboratory medicine and its importance in quality patient care, it is imperative that medical laboratory personnel possess the qualifications necessary to ensure their professional competence. Licensure and certification programs not only set minimum standards for medical laboratory personnel working in clinical laboratories; they also help ensure quality laboratory testing and proper patient care.

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Inaccurate lab tests are not uncommon occurrences and the headlines of inaccurate reporting continue to come to public attention, as noted in the next news clipping.

Spokane Woman Suing over False HIV Diagnosis

A Spokane woman is suing a Pennsylvania-based plasma donation company saying she was falsely told she had hepatitis and HIV after donating plasma at a clinic in Hayden, Idaho.

Melissa Bloom filed the lawsuit against BioLife Plasma Services alleging the clinic acted negligently when employees informed her she had the viruses after a combination of blood samples from several donors tested positive.

Bloom is seeking damages for emotional stress and punitive damages, saying she was informed of the positive test in April and went immediately to her doctor’s office for tests that determined she did not have the viruses.

—KOMONEWS.com,
Associated Press, December 26, 2013

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Refusal to Perform HIV Testing

Stepp, a laboratory staff technician, refused to perform tests on AIDS-contaminated fluids, a choice for which she was eventually terminated by the hospital. The Review Board of the Indiana Employment Security Division upheld the hospital’s decision to terminate the technician. The technician appealed the board’s decision. The Court of Appeals of Indiana, in
Stepp v. Review Board of the Indiana Employment Security Division,

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held that the technician was dismissed for just cause and that the laboratory did not waive its right to compel employees to perform assigned tasks. The technician had been warned, suspended, and discharged for her refusal to perform the tests. She told her supervisors that she refused to perform the tests because “AIDS is God’s plague on man and performing the tests would go against God’s will.”

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The technician argued that that the employer hospital failed to provide a safe place to work. Under Section 11(c)(1) of the Occupational Safety and Health Act of 1970 (OSHA) an employer is prohibited from discharging any employee who exercises any right afforded by OSHA, which provides “the right of an employee to choose not to perform his assigned task because of a reasonable apprehension of death or serious injury coupled with a reasonable belief that no less drastic alternative is available.” The Supreme Court in
Whirlpool Corp. v. Marshall laid out a two-part test.

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“First, an employee must reasonably believe the working conditions pose an imminent risk of serious bodily injury, and second, the employee must have a reasonable belief there is not sufficient time or opportunity either to seek effective redress from his employer or to apprise OSHA of the danger.”

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Stepp failed to successfully argue both parts of this test.

Although Stepp’s case involved legal issues for the courts to decide, there are a variety of moral issues for healthcare professionals to consider when refusing to perform tests that are required to determine a patient’s diagnosis. Of major applicability in this case is the principle of
nonmaleficence—first, do no harm. Suppose for a moment that a technician was working alone at night on a weekend and was the only hospital employee who could perform cardiac enzyme blood tests to determine if the patient had a cardiac event. The blood sample arrives in the laboratory with an AIDS warning label attached. Should the laboratory technician refuse to perform the test, the legal and moral principles of ethics and applicable codes would not support the technician’s refusal to perform the tests so urgently needed to determine the patient’s treatment regimen.

MEDICAL ASSISTANT

A
medical assistant is an unlicensed person who provides administrative, clerical, and/or technical support to a licensed practitioner. A licensed practitioner is generally required to be physically present in the treatment facility, medical office, or ambulatory facility when a medical assistant is performing procedures, but duties and scope of practice vary from state to state.

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Employment of medical assistants is expected to continue to grow over time. This growth is due in part to technological advances in medicine and a growing and aging population. Increasing use of medical assistants in the rapidly growing healthcare industry is expected to result in continuing rapid employment growth for the occupation.

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Medical assistants work in physicians’ offices, clinics, nursing homes, and ambulatory care settings. The duties of medical assistants vary from office to office, depending on the location and size of the practice and the practitioner’s specialty. In small practices, medical assistants usually are generalists, handling both administrative and clinical duties. Those in large practices tend to specialize in a particular area, under supervision. Administrative duties often include answering telephones, greeting patients, updating and filing patients’ medical records, filling out insurance forms, handling correspondence, scheduling appointments, arranging for hospital admission and laboratory services, and handling billing and bookkeeping. Clinical duties vary according to state law and include assisting in taking medical histories, recording vital signs, explaining treatment procedures to patients, preparing patients for examination, and assisting the practitioner during examinations. Medical assistants collect and prepare laboratory specimens or perform basic laboratory tests on the premises, dispose of contaminated supplies, and sterilize medical instruments. They instruct patients about medications and special diets, prepare and administer medications as directed by a physician, authorize drug refills as directed, provide telephone prescriptions to a pharmacy, prepare patients for X-rays, perform electrocardiograms, remove sutures, and change dressings.

Medical assistants who work in the various medical specialties often have additional duties. Podiatric medical assistants, for example, make foot molds and assist podiatrists in surgery. Ophthalmic medical assistants help ophthalmologists provide eye care. They conduct diagnostic tests, measure and record vision, and test eye muscle function. They also teach patients how to insert, remove, and care for contact lenses. Under the direction of the physician, ophthalmic medical assistants may administer eye medications. They also maintain optical and surgical instruments and may assist the ophthalmologist in surgery.

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Case Studies

Looking for Help

On July 12, Jill, who suffered so many years with neck surgeries, life-threatening infections, systemic sclerosis, and an ever-evolving number of physical symptoms requiring medical care—often poor best—developed severe pain in the left side of her head while at work. She was not speaking coherently and eventually lost consciousness for a few moments. She was taken to her physician’s office by a coworker. Jill’s physician ordered some tests at the hospital’s outpatient imaging center to rule out a transient ischemic attack (TIA). A medical assistant at the imaging center explained to Jill that her tests could not be scheduled until July 14.

Dan drove his wife Jill to her appointment. They arrived early on July 14 for her imaging test. On their arrival at the imaging center, Dan dropped Jill off at the front entrance while he searched for a parking space. Meanwhile Jill went into the center and handed her prescription to Carol, a medical assistant at the front desk. Carol said to Jill, “I am sorry, but we cannot perform your test. Your doctor faxed us an unsigned and undated order sheet. It is confusing as to what imaging studies he wants. He checked a box on the physician’s order sheet indicating that he wanted a CT scan of the head. In addition, there was a handwritten note on the form indicating that your physician wants an MRI to rule out a TIA. We are not sure if he wants one or both tests. You will have to get clarification from the physician as to exactly what procedure he wants.” Dan, after having parked his wife’s car, arrived at the front desk and saw his wife somewhat distressed. Carol explained the problem to Dan. He asked Carol, “Could you please contact the physician and ask him to clarify and fax back to the center what tests he wants?” Carol replied, “We are very busy; however, you can use our phone and ask the physician to clarify his order and have him fax us a new order.” Jill interrupted, appearing somewhat agitated, and asked, “What is your fax number?” Carol (pointing to a wall) replied, “It is posted there on the wall by the phone. You can use that phone.” Carol suggested to Jill that she complete the patient intake paperwork while Dan contacted Jill’s physician. Dan was able to get a new faxed order. As they waited for Jill to be called for her tests, with her eyes tearing up, she turned to Dan and said, “This is how my last 6 years of life have been … with so many health issues and hopelessly fighting to stay alive. What would I do without you?”

Ethical and Legal Issues

Should the medical assistant have clarified the physician’s order prior to the patient’s arrival? Consider in your answer how Carol might have reacted if she was the patient, or her spouse, parent, or child was the patient.

Discuss what ethical issues you would be concerned with and what action would you take if you were a member of the governing body sitting in the waiting room observing this incident.

Case Studies

Untimely Diagnosis

The patient–plaintiff in
Follett v. Davis

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discovered a lump in her right breast in the spring of 1988. She made an appointment to see Dr. Davis, her obstetrician/gynecologist, to see if she should be concerned about the breast lump she had discovered. The clinic had no record of her appointment. The clinic’s employees directed her to radiology for a mammogram. A technician examined the plaintiff’s breast and confirmed the presence of a lump in her right breast. Neither Dr. Davis nor any other physician at the clinic offered the plaintiff an examination. In addition, she was not scheduled for a physician’s examination as a follow-up to the mammogram. The plaintiff was instructed that she would hear from Dr. Davis if there were any concerns with her mammogram.

The radiologist explained in his deposition that the mammogram was not normal. Dr. Davis received and reviewed the mammogram report and considered it to be negative for malignancy. He did not know this was a new breast lump because none of the clinic employees had informed him about it. Neither clinic staff nor Dr. Davis contacted the plaintiff about her lump or the mammogram. The plaintiff called the clinic on April 6, 1990. She was told that there was nothing to worry about unless she heard from Dr. Davis. On September 24, 1990, the plaintiff returned to the clinic after she had developed pain associated with the same lump. A mammogram performed on that day gave results consistent with cancer. Three days later, Dr. Davis made an appointment for the plaintiff with a clinic surgeon for a biopsy and treatment. She kept her appointment with the surgeon. Nevertheless, this was her last visit with the clinic, as she subsequently transferred her care to other physicians. In October 1990, the biopsy confirmed the diagnosis of cancer.

In August 1992, the plaintiff filed a lawsuit. The evidence showed that after the patient found a lump in her breast, she went to Dr. Davis and clinic for help. Dr. Davis and the clinic, through the clinic’s employees and agents, undertook to treat her ailment. That undertaking ended when the clinic’s surgeon performed the biopsy and therefore was continuous in nature. The evidence demonstrated that had clinic procedures been followed, Dr. Davis or another physician at the clinic would have made a more timely diagnosis.

Ethical and Legal Issues

Describe the legal and ethical issues presented in this case.

Discuss what action the clinic’s leadership should take in order to prevent similar incidents in the future.

MEDICAL RECORDS

Healthcare organizations are required to maintain a medical record for each patient in accordance with accepted professional standards and practices. The main purposes of the medical record are to provide a planning tool for patient care; to record the course of a patient’s treatment and the changes in a patient’s condition; to document the communications between the practitioner responsible for the patient and any other healthcare professional who contributes to the patient’s care; to assist in protecting the legal interests of the patient, the organization, and the practitioner; to provide a database for use in statistical reporting, continuing education, and research; and to provide information necessary for third-party billing and regulatory agencies. Medical records must be complete, accurate, current, readily accessible, and systematically organized.

PHARMACY

The practice of pharmacy essentially includes preparing, compounding, dispensing, and retailing medications. These activities may be carried out
only by a pharmacist with a state license or by a person exempted from the provisions of a state’s pharmacy statutes. The entire stock of drugs in a pharmacy is subject to strict government regulation and control. The pharmacist is responsible for developing, coordinating, and supervising all pharmacy activities and reviewing the drug regimens of each patient.

Because of the immense variety and complexity of medications now available, it is impossible for nurses or physicians to keep up with all of the information required for safe medication use. The
pharmacist has become an essential resource in modern hospital practice.

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Medication errors are considered a leading cause of patient injury (

FIGURE 9-2

). Antibiotics, chemotherapeutic drugs, and anticoagulants are the three categories of drugs responsible for most drug-related adverse events. The prevention of medication errors requires recognition of common causes and the development of practices to help reduce the incidence of errors. With thousands of drugs, many of which look alike or have names that sound alike, it is understandable that medication errors are so common. The more common types of medication errors include prescription errors, transcription errors (often caused by illegible handwriting and improper use of abbreviations), dispensing errors, and administration errors. As noted in the following news clippings, medication errors are all too common occurrences.

Hospital Errors Common and Underreported

Sorrel King’s 18-month-old daughter Josie was recovering from second degree burns at Johns Hopkins Hospital in Baltimore when a communication breakdown caused a deadly misstep.

As King watched, a nurse gave Josie a methadone injection despite verbal orders to the contrary, assuring King that the order had been changed. Josie, who was about to be released from the hospital, went into cardiac arrest. “I took one look at her, ran into the hallway, and screamed for help,” King said. Josie died 2 days later. …

As many as one-third of hospital visits leads to hospital-related injuries, according to a report published today in
Health Affairs.

—Katie Moisse,
ABC News Medical Unit, April 7, 2011

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Drug Overuse Threatens Nursing Home Residents

More than five years after the federal government warned that drugs routinely prescribed to nursing-home residents posed serious threats, including an increased risk of death, inappropriate use remains high, according to a recent analysis by the American Society of Health-System Pharmacists (ASHP).

—Consumer Reports, December 2010

Dispensing and Administration of Drugs

The dispensing of medications is the processing of a drug for delivery or for administration to a patient pursuant to the order of a healthcare practitioner. It consists of checking the directions on the label with the directions on the prescription or order to determine accuracy; selecting the drug from stock to fill the order; counting, measuring, compounding, or preparing the drug; placing the drug in the proper container; and adding to a written prescription any required notations.

The administration of medications is the act of giving a single dose of a prescribed drug to a patient by an authorized person in accordance with federal and state laws and regulations. The complete act of administration includes removing an individual dose from a previously dispensed, properly labeled container (including a unit dose container); verifying it with the physician’s order; giving the individual dose to the proper patient; and recording the time and dose given.

Licensed persons, in accordance with state regulations, may administer medications. Each dose of a
drug administered must be recorded on the patient’s clinical records. A separate record of narcotic drugs must be maintained. The record must contain a separate sheet for each narcotic of different strength or type administered to the patient. The narcotic record must contain the following information: date and time administered, physician’s name, signature of person administering the dose, the balance of the narcotic drug on hand, and the proper recording of any drugs wasted/destroyed.

In the event that an emergency arises requiring the immediate administration of a particular drug, the patient’s record should be documented properly, showing the necessity for administration of the drug on an emergency basis. Procedures should be in place for handling emergency situations.

Drug Substitution

Drug substitution may be defined as the dispensing of a different drug or brand in place of the drug or brand ordered. “All states permit generic interchange to one extent or another.”

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Healthcare organizations use a “formulary system” whereby physicians and pharmacists create a formulary listing drugs used in the institution. The formulary contains the brand names and generic names of drugs. Under the formulary system, a physician agrees that his or her prescription calling for a brand name drug may be filled with the generic equivalent of that drug (e.g., a drug that contains the same active ingredients in the same proportions). When a formulary system is in use, the prescribing physician can request the use of a particular brand-name drug, when he or she deems it necessary or desirable for patient safety, by expressly prohibiting the use of the formulary system.

Hospitals are watchful for any abuses by physicians who circumvent the formulary for no valid, patient-safety reason. The ever-escalating costs of pharmaceutical products necessitates that hospitals become more vigilant in order to rein in costs.

Expanding Role of the Pharmacist

Historically, the role of the pharmacist was centered on management of the pharmacy and accurate preparation and dispensing of drugs. The duties and responsibilities of pharmacists have, however, moved well beyond the scope of filling prescriptions and dispensing medications. Pharmacists do much more than this. They are increasingly playing an ever-expanding clinical role on various hospital specialty units (e.g., cardiology and oncology). They provide patient and staff education, consultation, and evaluation and selection of medications for placement in the hospital formulary; review medication errors; and report adverse drug reactions. Schools of pharmacy, recognizing the ever-expanding role of pharmacists in the clinical aspects of patient care, have raised the educational requirements for new graduates by requiring a Doctor of Pharmacy (Pharm.D.) degree.

Duty to Monitor Patient’s Medications

In
Baker v. Arbor Drugs, Inc.,

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a Michigan court imposed a duty on a pharmacist to monitor a patient’s medications. Three different prescriptions were prescribed by the same physician and filled at the same pharmacy. The pharmacy maintained a computer system that detected drug interactions. The pharmacy advertised to consumers that it could, through the use of a computer monitoring system, provide a medication profile of a customer for adverse drug reactions. Because the pharmacy advertised and used the computer system to monitor the medications of a customer, the pharmacist voluntarily assumed a duty of care to detect the harmful drug interaction that occurred.

Warning Patients About Potential for Overdose

A Pennsylvania court held that a pharmacy failed to exercise due care and diligence because the patient was not warned about the maximum dosage of a medication.

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This failure resulted in an overdose, causing the patient permanent injuries. Expert testimony focused on the fact that a pharmacist who receives inadequate instructions as to the maximum recommended dosage of a medication has a duty to ascertain whether the patient is aware of the limitations concerning the use of the drug or, alternatively, to contact the prescribing physician regarding the inadequacy of the prescription.

Refusal to Honor a Questionable Prescription

In
Hooks v. McLaughlin,

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the Indiana Supreme Court held that a pharmacist had a duty to refuse to refill prescriptions at an unreasonably faster rate than prescribed pending directions from the prescribing physician. The Indiana Code provides that a pharmacist is immune from civil prosecution or civil liability if he or she, in good faith, refuses to honor a prescription because, in his or her professional judgment, honoring of the prescription would aid or abet an addiction of habit.

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Reducing Medication Errors

Reducing medication errors requires an education process through college that includes not only pharmacists but must include physicians, nurses, and patients. A medication error is defined by the National Coordinating Council for Medication Error Reporting and Prevention “as any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the healthcare professional, patient, or consumer. Such events may be related to professional practice, healthcare products, procedures, and systems, including prescribing, order communication, product labeling, packaging, and nomenclature, compounding, dispensing, distribution, administration, education, monitoring, and use.”

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Many errors occur as a result of poor oral or written communications. Enhanced communication skills and better interactions among members of the health care team and the patient are essential. The informed consent process should be used as a patient safety tool, and the patient should be warned about material and foreseeable serious side effects and be told what signs and symptoms should be immediately reported to the physician before the patient is forced to go to the emergency department for urgent or emergency care. Last, reducing medication errors is an ongoing process of quality improvement. Faulty systems must be redesigned, and seamless, computerized integrated medication delivery must be instituted by health care professionals adequately trained to use such technological advances.

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The American Academy of Pediatrics issued guidelines to aid in reducing the number of medication errors in pediatricians’ daily practice.

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Write prescriptions legibly, clearly, and unambiguously.

Confirm the patient’s correct weight.

Fully write out instructions about how to administer the drug; do not use abbreviations for dosage units or for the name of the drug.

Avoid vague instructions; specify the exact dosage strength.

Avoid the use of terminal zero to the right of the decimal point to minimize 10-fold dosing errors (e.g., use “5 mL” instead of “5.0 mL,” which could be misread as 50 mL).

Use a zero to the left of a dose that is less than 1 to avoid 10-fold dosing errors (e.g., “0.1 mg” instead of “.1 mg,” which could be misread as 1 mg).

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The physician’s goal to heal and
do no harm mandates from both a legal and ethical perspective that physicians adopt and follow guidelines that help reduce the number of patient injuries associated with medication errors.

PHYSICAL THERAPY

Physical therapy is the art and science of preventing and treating neuromuscular or musculoskeletal disabilities through the evaluation of an individual’s disability and rehabilitation potential and the use of physical agents—heat, cold, electricity, water, and light—and neuromuscular procedures that, through their physiologic effect, improve or maintain the patient’s optimum functional level. Because of different physical disabilities brought on by various injuries and medical problems, physical therapy is an extremely important component of a patient’s total health care. As the following cases illustrate, there can be both ethical and legal issues when a therapist incorrectly interprets a physician’s orders for physical therapy.

Incorrectly Interpreting Physician’s Orders

Richard J. Pontiff, in
Pontiff v. Pecot & Assoc.,

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filed a petition for damages against Pecot and Associates Rehabilitation & Physical Therapy Services and its employee Kim Morris. Pontiff alleged that Pecot and Associates had been negligent in failing to properly train, supervise, and monitor its employees, including Morris, and that Pecot and Associates was otherwise negligent. Pontiff alleged that employee Morris failed to exercise the degree of care and skill ordinarily exercised by physical therapists, failed to heed his protests that he could not perform the physical therapy treatments she was supervising, and failed to stop performing physical therapy treatments after he began to complain he was in pain. Pontiff claimed he felt a muscle tear while he was exercising on the butterfly machine, a resistive exercise machine.

Pontiff’s expert, Patricia Boulet, a licensed practicing physical therapist, testified that Mary Pecot, the clinic’s owner, deviated from the standard of care of physical therapists by introducing a type of exercise that, according to her, was not prescribed by Dr. deAraujo, the treating physician. She stated that Pecot had added resistive or strengthening exercises to Pontiff’s therapy and that these were not a part of the physician’s prescription, which specified “range of motion and stretching exercises.” Pecot argued that resistive exercises were implicitly part of the prescription, even if her interpretation of the prescription was not reasonable.

Legally, under Louisiana law, a physical therapist may not treat a patient without a written physical
therapy prescription.
Ethically, the Physical Therapists’ Code of Ethics, Principle 3.4, states “any alteration of a program or extension of services beyond the program should be undertaken in consultation with the referring practitioner.” Because resistive exercises were not set forth in the original prescription, Boulet stated that consultation with the physician was necessary before Pontiff could be advanced to that level. Only in the case where a physician has indicated on the prescription that the therapist is to “evaluate and treat” would the therapist have such discretion. There was no such indication on the prescription written by Dr. deAraujo.

Virginia Davis, a physical therapist in private practice and Pecot’s expert witness, testified that the program that Pecot designed for Pontiff was “consistent with how she [Pecot] interpreted the prescription for therapy that the physician wrote.” Davis, however, did not at any time state that Pecot’s interpretation was a reasonable one. In fact, Davis herself would not have interpreted the prescription in the manner that Pecot did. Davis testified only that Pecot’s introduction of resistive exercises was reasonable based on her interpretation of the prescription.

It is clear that Pecot, as a licensed physical therapist, owed a duty to Pontiff, her client. Pecot’s duty is defined by the standard of care of similar physical therapists and the American Physical Therapy Association. If Pecot found the prescription to be ambiguous, she had a duty to contact the prescribing physician for clarification. The appeals court found that the trial court was correct in its determination that Pontiff presented sufficient evidence to show that this duty was breached and that Pecot’s care fell below the standard of other physical therapists.

Resident Neglect

The physical therapist in the following case not only failed according to the legal system but also failed to adhere to the professional code of ethics for physical therapists, which provides:

2B. Physical therapists shall provide physical therapy services with compassionate and caring behaviors that incorporate the individual and cultural differences of patients/clients.

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In
Zucker v. Axelrod,

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a physical therapist had been charged with resident neglect for refusing to allow an 82-year-old nursing facility resident to go to the bathroom before starting his therapy treatment session. Undisputed evidence at a hearing showed that the petitioner refused to allow the resident to be excused to go to the bathroom. The petitioner claimed that her refusal was because she assumed that the resident had gone to the bathroom before going to therapy and that the resident was undergoing a bladder-training program. The petitioner had not mentioned when she was interviewed after the incident or during her hearing testimony that she considered bladder training a basis for refusing to allow the resident to go to the bathroom. It is uncontroverted that the nursing facility had a policy of allowing residents to go to the bathroom whenever they wished to do so. The court held that the evidence supported resident neglect.

Multidisciplinary Approach to Patient Care

Do patients believe that care is always well coordinated? Are patients at times treated based on short “handwritten notes” by the prescribing physician? Are mistakes sometimes made because of illegible handwriting? Is it helpful to the radiologist if the ordering physician notes on the order sheet why a particular imaging study is required? Do nurses sometimes find it necessary to clarify medication orders? Do pharmacists find it necessary to contact the physician when there are dosing questions? Would it be helpful for the prescribing physician to discuss a patient’s needs with the treating therapist? Would it be helpful if the physician reviewed the imaging studies of his or her patient with serious neck injuries, prior to treatment by a therapist? Does understaffing affect the quality of care?

Jill recently visited a pain center where the medical director had integrated a pain therapist into the hospital’s pain management program. After several visits to the hospital’s pain management program, Jill complimented the staff as to their multidisciplinary approach to her care.

The medical director stated that the success of the hospital’s pain management program was due to the multidisciplinary approach practiced in the hospital. He stated that pain management is often poorly practiced because of the failure of the treating physician to become more involved in the patient’s therapy. A patient’s pain is often exacerbated because of a superficial treatment plan that fails to include the physician, and the failure to provide the images to the treating therapist. Both the physician and treating therapist, and most important the patient’s care, are optimized when there is ongoing communication among caregivers. The medical director further stated that professionalism and satisfaction among caregivers improve when communications flow freely.

Jill again complimented the staff and stated that she would not hesitate to recommend the hospital’s pain management program to her family and friends.

The next time a caregiver treats a patient, the patient should ask: What records have you seen? Have you discussed my treatment plan with my physician? What were my physician’s specific orders? May I see them? What precautions have you been asked to follow with me? Have you seen my imaging studies? Has anyone discussed them with you?

My pledge as a patient: I will ask myself, am I being treated in an assembly-line fashion, assembled in a room like cattle, without privacy in cramped corridors by a caregiver who, because of understaffing, is frantically moving from patient to patient, or am I truly getting individualized care and treatment in a style worthy of the words “I am receiving good quality care”?

Discussion

Regardless of your profession or healthcare setting, discuss how the multidisciplinary approach to patient care might be improved in your organization.

Consider and discuss what questions you might ask if you were the patient undergoing treatment.

PHYSICIAN ASSISTANT

Physician assistants (PAs) are healthcare professionals who “practice medicine on a team under the supervision of physicians and surgeons; there are 123,000 certified PAs nationwide, 70% of whom work in specialty practice and 27% working in primary care.”

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They are formally educated to examine patients, diagnose injuries and illnesses, and provide treatment. PAs work in physicians’ offices, hospitals, and other healthcare settings.

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They are subject to the licensing laws within the state they are qualified to practice in. As the role of PAs continues to expand, it is mandatory that they review and understand applicable state licensing laws. In addition, PAs must work within the scope of practice as defined by their employers.

PAs are responsible for their own negligent acts. Further, an employer of a PA can be held liable for a PA’s negligent acts on the basis of
respondeat superior. Physicians who delegate tasks to PAs that licensing laws stipulate a physician must perform can be held liable for assignment of an unauthorized task that results in an injury to a patient. If there is no proof that a PA breached the applicable standard of care for a PA, liability will not accrue to the PA. However, if the physician was negligent in making the assignment to the PA that led to the injury, liability could accrue to the physician.

The plaintiff in
Cox v. MA Primary and Urgent Care Clinic

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sued for injuries she allegedly suffered as a result of a PA’s failure to diagnose her condition accurately. The patient was eventually diagnosed with cardiomyopathy. A mitral valve repair and mitral valve replacement were ultimately performed. The patient sued the PA for failure to readily diagnose her condition. The Tennessee Supreme Court, after reviewing the case, held:

The professional standard of care applicable to physician assistants is distinct from that applicable to physicians. Because Plaintiff introduced no expert proof as to any violation of the applicable standard of care, the trial court was correct in its ruling that Defendants are entitled to summary judgment.

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To limit the potential risk of liability for a PA’s negligent acts, PAs should be monitored and supervised by a physician. Moreover, guidelines and procedures should also be established to provide a standard mechanism for reviewing a PA’s performance.

PSYCHOLOGY

Psychologists are expected to safeguard the welfare and rights of those with whom they interact professionally. They must establish relationships of trust with those with whom they work. They must uphold professional standards of conduct, clarify their professional roles and obligations, and accept responsibility for their behavior. Principle A of the “Psychologist and Code of Conduct” states in part:

Principle A: Beneficence and Nonmaleficence

Psychologists strive to benefit those with whom they work and take care to do no harm. In their professional actions, psychologists seek to safeguard the welfare and rights of those with whom they interact professionally
and other affected persons, and the welfare of animal subjects of research. When conflicts occur among psychologists’ obligations or concerns, they attempt to resolve these conflicts in a responsible fashion that avoids or minimizes harm. Because psychologists’ scientific and professional judgments and actions may affect the lives of others, they are alert to and guard against personal, financial, social, organizational, or political factors that might lead to misuse of their influence. Psychologists strive to be aware of the possible effect of their own physical and mental health on their ability to help those with whom they work.

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Failure to Minimize Harm: Unethical Conduct

Sturm, a licensed psychologist who has taught professional ethics since 1985 and who served on the ethics committee of the Oregon Psychological Association for 6 years, testified that testimony about the best interests of children in a custody dispute by a therapist who had not observed both parents’ interactions with the children was unethical. Sturm further stated that a psychologist has an obligation to adopt an impartial stance and to avoid actions that would escalate an adversarial nature of the relationship between the parents. Sturm explained that psychologists have “an ethical responsibility to anticipate the possible purposes” behind a request to prepare an affidavit to be used in a custody dispute in order to prevent misuse of the evaluation and agreed that practices such as making evaluative statements about persons or relationships not observed directly are blatantly unethical. The petitioner’s affidavit made such statements, and it was not until the show cause hearing that petitioner admitted to her bias toward her patient.

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Sexual Harassment

The
Ethical Principles of Psychologists and Code of Conduct, on sexual harassment states:

3.02 Sexual Harassment

Psychologists do not engage in sexual harassment. Sexual harassment is sexual solicitation, physical advances or verbal or nonverbal conduct that is sexual in nature, that occurs in connection with the psychologist’s activities or roles as a psychologist and that either (1) is unwelcome, is offensive or creates a hostile workplace or educational environment, and the psychologist knows or is told this or (2) is sufficiently severe or intense to be abusive to a reasonable person in the context. Sexual harassment can consist of a single intense or severe act or of multiple persistent or pervasive acts.

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The Board of Psychologist Examiners in
Gilmore v. Board of Psychologist Examiners

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revoked a psychologist’s license because of sexual improprieties. The Board found that:

When a therapist’s emotional state overwhelms the rational decision-making process in dealing with clients, we think it demonstrates a significant personal problem. This personal problem would be very likely to cause loss of objectivity and to therefore result in inferior services to a client who is the object of the attraction. Harm to the client in this situation is also likely, because the client is vulnerable, is in a position to be exploited, yet has placed trust in the therapist.

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The psychologist petitioned for judicial review. She argued that therapy had terminated before the sexual relationships began. The court of appeals held that evidence supported the board conclusion that the psychologist had violated an ethical standard in caring for her patients. When a psychologist’s personal interests intrude into the practitioner–client relationship, the practitioner is obliged to seek objectivity through a third party. The board’s findings and conclusions indicated that the petitioner failed to maintain that objectivity.

Reporting Child Abuse

Two children were placed in the temporary custody of a foster family. One child was referred to a licensed psychologist for evaluation. After two interviews, the psychologist formed the professional opinion that the child had been sexually molested. Based in part on statements made by the child, the psychologist further believed that the perpetrator of the suspected molestation was the father. At a hearing before the juvenile court, the court determined that the evidence did not support a finding the child had been abused by his father. Custody was returned to the parents. The child’s parents subsequently initiated an action for medical malpractice against the psychologist. The psychologist claimed immunity from liability, as provided by a state child abuse reporting statute. The trial court and the parents appealed, arguing that the immunity provisions of the statute do not apply to the psychologist because she was not a “mandatory reporter” under that statute.

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The Georgia Court of Appeals held that the statute’s grant of immunity from liability extended to the psychologist. The evidence did not establish bad faith on the part of the psychologist so as to deprive her of such immunity. The statute provides that any person participating in the making of a report or participating in any judicial proceeding or any other proceeding resulting in a report of suspected child abuse is immune from any civil or criminal liability that might otherwise be incurred or imposed, provided such participation pursuant to the statute is made in good faith. The grant of qualified immunity covers every person who, in good faith, participates over time in the making of a report to a child welfare agency. Proof of negligent reporting or bad judgment is not proof that the psychologist refused to fulfill her professional duties out of some harmful motive or that she consciously acted for some dishonest purpose. There was no competent evidence that the psychologist acted in bad faith.

RADIOLOGY

Medical imaging–related lawsuits include ordering unnecessary tests, physician kickbacks, patient falls, the negligent handling of equipment, improper lead shielding, and misdiagnosis. Lawsuits against radiologic technologists are rare. It has been reported “fewer than nine malpractice payments involving an x-ray technician are awarded each year. In more than half of these cases, payments do not exceed $50,000. These findings come from analysis of x-ray technician malpractice payments reported to the National Practitioner Data Bank over 18 years.”

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Radiology technologists are expected to conduct themselves in a professional manner, respond to patient needs, and support colleagues and associates in providing quality patient care. The radiologic technologist, as with all healthcare professionals who care for patients must within their scope of responsibility, exercise care, discretion, and judgment; assume responsibility for professional decisions; and act in the best interest of the patient.

The technologist failed to exercise discretion in the following case by not making sure the patient was secured to the table prior to the examination to prevent the patient from falling.

Failure to Restrain Causes Patient Fall

The plaintiff in
Cockerton v. Mercy Hospital Medical Center

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was admitted to the hospital for the purpose of surgery. Her physician ordered postsurgical X-rays for her head and face to be taken the next day. A hospital employee took the plaintiff from her room to the X-ray department by wheelchair. A nurse had assessed her condition as slightly “woozy” and drowsy. An X-ray technician took charge of the plaintiff in the X-ray room. After the plaintiff was taken inside the X-ray room, she was transferred from a wheelchair to a portable chair for the procedure. After being moved, the plaintiff complained of nausea. The technician did not use the restraint straps to secure the plaintiff to the chair. At some point during the procedure, the plaintiff had a fainting seizure. The technician called for help. When another hospital employee entered the room, the technician was holding the plaintiff in an upright position. She appeared nonresponsive. The plaintiff only remembered being stood up and having a lead jacket placed across her back and shoulders. The technician maintains that the plaintiff did not fall. At the time the plaintiff left the X-ray room, her level of consciousness was poor. The plaintiff’s physician noticed a deflection of the plaintiff’s nose but had difficulty assessing it because of the surgical procedure from the day before.

The following day, the deflection of the plaintiff’s nose was much more evident. A specialist was contacted, and an attempt was made to correct the deformity. The specialist made an observation that it would require a substantial injury to the nose to deflect it to that severity.

The plaintiff instituted proceedings against the hospital, alleging that the negligence of the nurses or technicians allowed her to fall during the procedure and subsequently caused injury. The jury concluded that the hospital was negligent in leaving the plaintiff unattended or failing to restrain her, which proximately caused her fall and injury.

The X-ray technician testified that during the X-ray the plaintiff appeared to have a “seizure episode.” She also testified that she left the plaintiff unattended for a brief period of time and that she did not use the restraint straps that were attached to the portable X-ray chair. Using the restraint straps would have secured the plaintiff to the portable chair during the X-ray examination.

RESPIRATORY CARE

Respiratory care involves the treatment, management, diagnostic testing, and control of patients with cardiopulmonary deficits. A
respiratory therapist (RT) is a person employed in the practice of respiratory care who has the knowledge and skill
necessary to administer respiratory care. As with other healthcare professionals, respiratory RTs are expected to comply with their professional code of ethics. The American Association for Respiratory Care, in its
Statement of Ethics and Professional Conduct, requires that RTs:

Demonstrate behavior that reflects integrity, supports objectivity, and fosters trust in the profession and its professionals.

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That code was violated in
State University v. Young.

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In this case, the RT was suspended for using the same syringe for drawing blood from a number of critically ill patients. The therapist had been warned several times of the dangers of that practice and that it violated the state’s policy of providing quality patient care.

Although an RT is responsible for the negligent acts, the employer can be held responsible for the negligent acts of the therapist under the legal doctrine of
respondeat superior.

Case Studies

Restocking the Code Cart

In
Dixon v. Taylor,111 N.C. App. 97, 431 S.E.2d 778 (1993), Dixon had been admitted to the hospital and was diagnosed with pneumonia in her right lung. Dixon’s condition began to deteriorate, and she was moved to the intensive care unit (ICU). A code blue was eventually called, signifying that her cardiac and respiratory functions were believed to have ceased. During the code, a decision was made to intubate by inserting an endotracheal tube into Dixon so that she could be given respiratory support by a mechanical ventilator.

As Dixon’s condition stabilized, Dr. Taylor, Dixon’s physician at that time, ordered that she be gradually weaned from the respirator. Blackham, a respiratory therapist employed by the hospital, extubated Dixon at 10:15 p.m. Taylor left Dixon’s room to advise her family that she had been extubated.

Blackham decided an oxygen mask would provide better oxygen to Dixon but could not locate a mask in the ICU; thus, he left ICU and went across the hall to the critical care unit. When Blackham returned to Dixon’s room with the oxygen mask and placed it on Dixon, he realized that she was not breathing properly. Blackham realized that she would have to be reintubated as quickly as possible.

A second code was called and Shackleford, a nurse in the cardiac critical care unit, responded to the code. Shackleford recorded on the code sheet that she arrived in Dixon’s room at 10:30 p.m. She testified that Blackham said he had too short of a blade and he needed a medium, a Number 4 MacIntosh laryngoscope blade, which was not on the code cart. The code cart is a cart equipped with all the medicines, supplies, and instruments needed for a code emergency. The code cart in the ICU had not been restocked after the first code that morning; thus, Shackleford was sent to obtain the needed blade from the critical care unit across the hall.

When Shackleford returned to the ICU, the blade was passed to Taylor, who had responded to the code and was attempting to reintubate Dixon. After receiving the blade, Taylor was able to quickly intubate Dixon. Dixon was placed on a ventilator, but she never regained consciousness. After the family was informed there was no hope that Dixon would recover the use of her brain, the family requested that no extraordinary measures be taken to prolong her life.

A medical negligence claim was filed against Taylor and the hospital. The jury found that Taylor was not negligent. Evidence presented at trial established that the hospital’s breach of duty in not having the code cart properly restocked resulted in a 3-minute delay in the intubation of Dixon. Reasonable minds could accept from the testimony at trial that the hospital’s breach of duty was a cause of Dixon’s brain death, without which the injury would not have occurred. Foreseeability on the part of the hospital can be established from the evidence introduced by the plaintiff that the written standards for the hospital require every code cart be stocked with a Number 4 MacIntosh blade. This evidence permits a reasonable inference that the hospital should have foreseen that the failure to have the code cart stocked with the blade could lead to critical delays in intubating a patient. Accordingly, there was substantial evidence that the failure to have the code cart stocked with the proper blade was a proximate cause of Dixon’s fatal injuries.

Ethical and Legal Issues

Describe the ethical issues involved in this case.

Explain how the elements of negligence are met in this case.

What steps could be implemented to prevent similar occurrences in the future?

SOCIAL WORK

Social workers in the hospital setting assist patients and families with psychosocial issues; obtaining insurance coverage; making difficult care decisions; and assisting the patient and family in planning for post-discharge care. As with many professionals, social workers are often overlooked and underused when it comes to the team approach to health care. It has, over the years, been a low priority with hospitals to hire an effective team, adequately staffed to address the myriad of issues that need to be addressed in the delivery of patient care.

The National Association of Social Workers Code of Ethics specifies the following six purposes:

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The Code identifies core values on which social work’s mission is based.

The Code summarizes broad ethical principles that reflect the profession’s core values and establishes a set of specific ethical standards that should be used to guide social work practice.

The Code is designed to help social workers identify relevant considerations when professional obligations conflict or ethical uncertainties arise.

The Code provides ethical standards to which the general public can hold the social work profession accountable.

The Code socializes practitioners new to the field to social work’s mission, values, ethical principles, and ethical standards.

The Code articulates standards that the social work professional itself can use to assess whether social workers have engaged in unethical conduct. NASW has formal procedures to adjudicate ethics complaints filed against its members. [For information on NASW adjudication procedures, see NASW Procedures for the Adjudication of Grievances.] In subscribing to this Code, social workers are required to cooperate in its implementation, participate in NASW adjudication proceedings, and abide by any NASW disciplinary rulings for sanctions based on it.

As with any profession, legal and moral issues concern social workers as well, as noted in the following news clipping.

Caseworker Fired after Baby Dies

A District of Columbia social worker was fired Tuesday following the death of a baby who was reported as neglected, city officials said.

The city’s Child and Family Service Agency received a call about the 6-month-old boy in March, but the social worker assigned to the case never visited the child, interim Attorney General Peter Nickles said.

—Nikita Stewart,
The Washington Post, July 8, 2008

CERTIFICATION OF HEALTHCARE PROFESSIONALS

The
certification of healthcare professionals is the recognition by a governmental or professional association that an individual’s expertise meets the standards of that group. Some professional groups establish their own minimum standards for certification in those professions that are not licensed by a particular state. Certification by an association or group is a self-regulation credentialing process.

LICENSING OF HEALTHCARE PROFESSIONALS

Licensure can be defined as the process by which some competent authority grants permission to a qualified individual or entity to perform certain specified activities that would be illegal without a license. As it applies to healthcare personnel, licensure refers to the process by which licensing boards, agencies, or departments of the several states grant to individuals who meet certain predetermined standards the legal right to practice in a healthcare profession and to use a specified healthcare practitioner’s title. The commonly stated objectives of licensing laws are to limit and control admission to the different healthcare occupations and to protect the public from unqualified practitioners by promulgating and enforcing standards of practice within the professions. Health professions commonly requiring licensure include dentists, nurses, pharmacists, PAs, osteopaths, physicians, and podiatrists.

The authority of states to license healthcare practitioners is explicit in their regulatory powers. Implicit in the power to license is the right to collect licensing
fees, establish standards of practice, require certain minimum qualifications and competency levels of applicants, and impose on applicants other requirements necessary to protect the general public welfare. This authority, which is vested in the legislature, may be delegated to political subdivisions or to state boards, agencies, and departments. In some instances, the scope of the delegated power is made specific in the legislation; in others, the licensing authority may have wide discretion in performing its functions. In either case, however, the authority granted by the legislature may not be exceeded.

SUSPENSION AND REVOCATION OF LICENSE

Licensing boards have the authority to suspend or revoke the license of a healthcare professional found to have violated specified norms of conduct. Such violations may include procurement of a license by fraud; unprofessional, dishonorable, immoral, or illegal conduct; performance of specific actions prohibited by statute; and malpractice. Suspension and revocation procedures are most commonly contained in a state’s licensing act; in some jurisdictions, however, the procedure for suspension and revocation of a license is left to the discretion of the licensing board.

HELPFUL ADVICE FOR CAREGIVERS

Helpful advice for caregivers includes the following:

Break down the barriers between departments and work as a team.

Abide by the ethical code of one’s profession.

Do not criticize the professional skills of others.

Maintain complete medical records.

Provide each patient with medical care comparable with national standards.

Seek the aid of professional medical consultants when indicated.

Obtain informed consent for diagnostic and therapeutic procedures.

Inform the patient of the risks, benefits, and alternatives to proposed procedures.

Practice the specialty in which you have been trained.

Participate in continuing education programs.

Keep patient information confidential.

Check patient equipment regularly and monitor it for safe use.

When terminating a professional relationship, give adequate written notice to the patient.

Authenticate all telephone orders.

Obtain a qualified substitute when you will be absent from your practice.

Be a good listener and allow each patient sufficient time to express fears and anxieties.

Develop and implement an interdisciplinary plan of care for each patient.

Safely administer patient medications.

Closely monitor each patient’s response to treatment.

Provide education and teaching to patients.

Foster a sense of trust and feeling of significance.

Communicate with the patient and other caregivers.

Provide cost-effective care without sacrificing quality.

CHAPTER REVIEW

The contents of codes of ethics vary depending on the risks associated with a particular profession.

Ethical codes for psychologists, for example, define relationships with clients in greater depth because of the personal one-to-one relationship they have with their clients.

Practicing outside one’s scope of practice has both ethical and legal concerns.

Legislation in many states imposes a duty on hospitals to provide emergency care. If the public is aware that a hospital furnishes emergency services and relies on that knowledge, the hospital has a duty to provide those services to the public.

Hospitals are expected to notify specialty on-call physicians when their particular skills are required in the emergency department. A physician who is on call and fails to respond to a request to attend a patient can be liable for injuries suffered by the patient because of his or her failure to respond.

There can be both ethical and legal repercussions if a professional incorrectly interprets a physician’s orders.

A defense that sexual improprieties with clients did not take place during treatment sessions is unacceptable conduct.

Scope of practice refers to the permissible boundaries of practice for healthcare professionals, as is often defined in state statutes, which define the actions, duties, and limits of professionals in their particular roles.

A professional who exceeds his or her scope of practice as defined by state practice acts can be found to have violated licensure provisions or to have performed tasks that are reserved by statute for another healthcare professional.

The power and authority to regulate drugs and their products, packaging, and distribution rest primarily with federal and state governments.

Certification of healthcare professionals is the recognition by a governmental or professional association that an individual’s expertise meets the standards of that group.

Licensure can be defined as the process by which some competent authority grants permission to a qualified individual or entity to perform certain specified activities that would be illegal without a license.

TEST YOUR UNDERSTANDING

Terminology

advanced practice nurse

certification

chiropractor

clinical nurse specialist

dentist

dietitian

float nurse

laboratory medical technologist

licensure

medical assistant

nonmaleficence

nurse anesthetist

nurse midwife

nurse practitioner

nursing assistant

paramedic

patient care teams

pharmacist

physical therapy

physician assistant

psychologist

radiology technologist

registered nurse

respiratory therapist

social worker

special duty nurse

REVIEW QUESTIONS

Describe how ethics and the law have an impact on the various healthcare professions discussed in this chapter.

Discuss the ethical and legal implications of practicing outside one’s scope of practice.

Discuss the circumstances under which a hospital has a duty to provide emergency services to the public.

Are sexual encounters acceptable with clients as long as they do not take place during treatment? Explain your answer.

Consider under what circumstances a professional’s legal responsibilities may overlap with his or her ethical duties.

Describe how and why the scope of practice for various professionals (e.g., nurses and pharmacists) is changing.

Discuss what action a caregiver should take, if any, if a physician’s written orders appear questionable.

Describe a professional’s responsibilities when a patient’s condition takes a turn for the worse.

Describe the difference between the certification and licensing of a healthcare professional.

NOTES

1. Walter F. Roche, Jr., “City Hospital’s HIV Testing Manipulated,” The Baltimore Sun (March 11, 2004).
http://www.baltimoresun.com/news/maryland/bal-lab0311-story.html (accessed July 27, 2018).

2. Federal Interagency Committee on Emergency Medical Services.
2011 National EMS Assessment. Washington, D.C.: U.S. Department of Transportation, National Highway Traffic Safety Administration, DOT HS 811 723.
https://www.ems.gov/pdf/811723-National-EMS-Assessment-2011 (accessed July 27, 2018).

3. U.S. Department of Transportation, National Highway Traffic Safety Administration (NHTSA), National EMS Scope of Practice Model.
https://www.ems.gov/education/EMSScope (accessed July 27, 2018).

4. Federal Interagency Committee on Emergency Medical Services.
2011 National EMS Assessment. Washington, D.C.: U.S. Department of Transportation, National Highway Traffic Safety Administration, DOT HS 811 723.
https://www.ems.gov/pdf/811723-National-EMS-Assessment-2011 (accessed July 27, 2018).

5. NHTSA, National EMS Scope of Practice Model at 9.

6.
Ibid. at 10.

7. U.S. Drug Enforcement Administration, “Officer Safety Alert: Carfenatil: A Dangerous New Factor in the U.S. Opioid Crisis.”
https://www.dea.gov/divisions/hq/2016/hq092216_attach (accessed July 27, 2018).

8. NHTSA, National EMS Scope of Practice Model at 23.

9.
Ibid. at 26.

10.
Ibid. at 26.

11.
Ibid. at 27-28.

12.
Morena v. South Hills Health Systems, 462 A.2d 680 (Pa. 1983).

13.
Riffe v. Vereb Ambulance Service, Inc., 650 A.2d 1076 (Pa. Super. 1994).

14.
Fraijo v. Hartland Hosp., 160 Cal. Rptr. 252 (Ct. App. 1979).

15. Institute of Medicine,
Keeping Patients Safe: Transforming the Work Environment of Nurses. Washington, D.C.: The National Academies Press, at 2. Available at
http://www.nap.edu/openbook.php?isbn=0309090679 (accessed July 28, 2018).

16.
HHS.gov, “HHS Awards $55.5 Million to Bolster America’s Health Care Workforce.”
http://wayback.archive-it.org/3926/20150618190916/http://www.hhs.gov/news/press/2013pres/12/20131205a.html (accessed July 28, 2018).

17. Parija Kavilanz, “Nursing Schools Are Rejecting Thousands of Applicants—in the Middle of a Nursing Shortage,” CNN Money (April 30, 2018).
https://money.cnn.com/2018/04/30/news/economy/nursing-school-rejections/index.html (accessed July 28, 2018).

18.
Ibid.

19. Jilian Mincer, “Short on Staff: Nursing Crisis Strains U.S. Hospitals,” Reuters (October 20, 2017).
https://www.reuters.com/article/us-usa-healthcare-nursing/short-on-staff-nursing-crisis-strains-u-s-hospitals-idUSKBN1CP0BD (accessed July 28, 2018).

20. Code of Federal Regulations, 42 CFR Ch IV, Subpart C, § 482.23 (b).
https://www.gpo.gov/fdsys/granule/CFR-2011-title42-vol5/CFR-2011-title42-vol5-part482/content-detail.html (accessed July 28, 2018).

21. Teresa Serratt, Suzanne Meyer, and Susan A. Chapman, “Enforcement of Hospital Nurse Staffing Regulations Across the United States: Progress or Stalemate?” Policy, Politics, & Nursing Practice 15 (2014): 21–29.
http://journals.sagepub.com/doi/pdf/10.1177/1527154414532502 (accessed July 28, 2018).

22. Department of Health, Education and Welfare, Extending the Scope of Nursing Practice: A Report of the Secretary’s Committee to Study Roles for Nurses, Pub. No. (HSM) 73-2037, 8 (1971).

23.
Adams v. Krueger, 856 P.2d 864 (Idaho 1993).

24.
Ibid. at 867.

25. Carolyn Buppert, “Reducing Liability Risk When Collaborating with Nurse Practitioners,” Medscape (September 1, 2017).
https://www.medscape.com/viewarticle/884582 (accessed July 28, 2018).

26. Debbie LaValley, “Boy Dies After Call to NP for Flu Symptoms.” CRICO (February 1, 2012).
https://www.rmf.harvard.edu/Clinician-Resources/Case-Study/2012/Boy-9-Dies-After-Offhours-Call-to-NP-for-Flu-Symptoms (accessed July 28, 2018).

27. Buppert, “Reducing Liability Risk When Collaborating with Nurse Practitioners”

28. New York State Nurses Association, “Position on Statement on Floating.”
https://www.nysna.org/position-statement-floating#.W1zdmS2ZPIE.

29. The Joint Commission, 2014 Hospital Accreditation Standards, LD.03.06.04 at LD–20.

30.
Cignetti v. Camel, 692 S.W.2d 329 (Mo. Ct. App. 1985).

31.
Norton v. Argonaut Insurance Co., 144 So. 2d 249 (La. Ct. App. 1962).

32. Tami Dennis, “More Heparin Overdoses, This Time in Texas,” Los Angeles Times, July 9, 2008;
http://latimesblogs.latimes.com/booster_shots/2008/07/more-heparin-ov.html.

33.
Harrison v. Axelrod, 599 N.Y.S.2d 96 (N.Y. App. Div. 1993).

34.
Larrimore v. Homeopathic Hospital Association, 181 A.2d 573 (Del. 1962).

35.
Cafiero v. North Carolina Board of Nursing, 403 S.E.2d 582 (N.C. Ct. App. 1991).

36.
Ibid. at 584–585.

37.
Goff v. Doctors General Hospital, 333 P.2d 29 (Cal. Ct. App. 1958).

38.
Koeniguer v. Eckrich, 422 N.W.2d 600 (S.D. 1988).

39.
Eyoma v. Falco, 589 A.2d 653 (N.J. Super. App. Div. 1991).

40.
Ibid. at 655.

41.
Poor Sisters of St. Francis v. Catron, 435 N.E.2d 305 (Ind. Ct. App. 1982).

42. American Chiropractic Association, “Code of Ethics.”
http://ccodc.org/ethics.html (accessed July 28, 2018).

43. Susan Berger, “How Safe Are the Vigorous Neck Manipulations Done by Chiropractors?” The Washington Post.
http://www.washingtonpost.com/national/health-science/how-safe-are-the-vigorous-neck-manipulations-done-by-chiropractors/2014/01/06/26870726-5cf7-11e3-bc56-c6ca94801fac_story.html (accessed January 6, 2014).

44.
Ibid.

45.
Ibid.

46.
Poor v. State, No.S-02-472, 266 Neb. 183 (Neb. 2003).

47.
Brown v. Belinfante, 557 S.E.2d 339 (2001).

48.
Melone v. State Education Department, 495 N.Y.S.2d 808 (N.Y. App. Div. 1985).

49.
Lowenberg v. Sobol, 594 N.Y.S.2d 874 (N.Y. App. Div. 1993).

50.
Hickman v. Sexton Dental Clinic, 367 S.E.2d 453 (S.C. 1988).

51.
Ibid. at 455–456.

52. University Hospitals, “Nutrition Services.”
http://www.uhhospitals.org/services/nutrition-services (accessed July 28, 2018).

53. Massachusetts General Hospital, “Nutrition.”
http://www.massgeneral.org/nutrition/ (accessed July 28, 2018).

54. New York-Presbyterian, “Food and Nutrition.”
http://www.nyp.org/nutrition (accessed July 28, 2018).

55. The Joint Commission, 2017 Hospital Accreditation Standards, PC.02.02.03 (element 7).

56.
Lambert v. Beverly Enterprises, Inc., 753 F. Supp. 267 (W.D. Ark. 1990).

57. J. P. McWhirter and C. R. Pennington, “Incidence and Recognition of Malnutrition in Hospital,” British Medical Journal 308 (1994): 945–948.
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2539799/ (accessed July 28, 2018).

58.
Fjerstad v. Knutson, 271 N.W.2d 8 (S.D. 1978).

59.
Thomas v. Corso, 288 A.2d 379 (Md. 1972).

60.
Marks v. Mandel, 477 So. 2d 1036 (Fla. Dist. Ct. App. 1985).

61.
Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998).

62. Martin C. McWilliams, Jr., and Hamilton E. Russell III, Hospital Liability for Torts of Independent Contractor Physicians, 47 S.C. L. reV. 431, 473 (1996).

63.
Marks v. Mandel.

64.
Ibid. at 1039.

65. U.S. Food and Drug Administration, “Tests Used in Clinical Care.”
https://www.fda.gov/MedicalDevices/ProductsandMedicalProcedures/InVitroDiagnostics/LabTest/default.htm (accessed July 28, 2018).

66. Mike J. Hallworth, “The ‘70%’ Claim: What Is the Evidence Base?” Annals of Clinical Biochemistry: International Journal of Laboratory Medicine 48 (2011).
http://journals.sagepub.com/doi/full/10.1258/acb.2011.011177 (accessed July 28, 2018).

67. American Society for Clinical Laboratory Science (ASCLS), “Code of Ethics.”
http://www.ascls.org/about-us/code-of-ethics (accessed July 28, 2018).

68. Walter F. Roche, Jr., “City Hospital’s HIV Testing Manipulated,” The Baltimore Sun, March 11, 2004,
http://www.baltimoresun.com/news/maryland/bal-lab0311,0,3643424.story.

69. American Society for Clinical Pathology, State Licensure of Laboratory Personnel (Policy Number 05-02).
http://www.pathologylearning.org/docs/default-source/pdf/706df311-5dd9-49de-85bb-8fec4b1149b4 (accessed July 28, 2018).

70.
KOMONEWS.com/Associated Press, “Spokane Woman Suing over False HIV Diagnosis,” (December 26, 2013).
http://www.komonews.com/news/local/Spokane-woman-suing-over-false-HIV-diagnosis-237318161.html.

71.
Stepp v. Review Board of the Indiana Employment Security Division, 521 N.E.2d 350 (Ind. Ct. App. 1988).

72.
Ibid. at 352.

73.
Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980).

74.
Stepp v. Review Board of the Indiana Employment Security Division at 353.

75. Healthcare Careers Guide, “Medical Assistant Scope of Practice Varies in Every State.”
http://www.healthcarecareersguide.com/medical-assistant-scope-of-practice/ (accessed July 28, 2018).

76. Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook: Medical Assistants [online].
https://www.bls.gov/ooh/healthcare/medical-assistants.htm (visited July 23, 2018).

77.
Ibid.

78.
Follett v. Davis, 636 N.E.2d 1282 (Ind. Ct. App. 1994).

79. Institute of Medicine, To Err Is Human: Building a Safer Health System, supra note 1, at 194.

80. Katie Moisse, “Hospital Errors Common and Underreported,” ABC News, April 7, 2011.
http://abcnews.go.com/Health/hospital-errors-common-underreported-study/story?id=13310733.

81. Jesse C. Vivian, “Generic-Substitution Laws,” U.S. Pharmacist (June 19, 2008).
https://www.uspharmacist.com/article/generic-substitution-laws (accessed July 28, 2018).

82.
Baker v. Arbor Drugs, Inc., 544 N.W.2d 727 (Mich. Ct. App. 1996).

83.
Riff v. Morgan Pharmacy, 508 A.2d 1247 (Pa. Super. Ct. 1986).

84.
Hooks v. McLaughlin, 642 N.E.2d 514 (Ind. 1994).

85. Ind. Code A4 25-26-13-16(b)(3) (1993).

86. National Coordinating Council for Medication Error Reporting and Prevention, “About Medication Errors.”
http://www.nccmerp.org/about-medication-errors (accessed July 28, 2018).

87. David M. Benjamin, “Reducing Medication Errors and Increasing Patient Safety: Case Studies in Clinical Pharmacology,” Journal of Clinical Pharmacology 43 (July 2013): 768–783.
https://accp1.onlinelibrary.wiley.com/doi/full/10.1177/0091270003254794.

88. Russell W. Steele, “Medical Error Reduction in Daily Practice,” Medscape.
https://www.medscape.org/viewarticle/447139 (accessed July 28, 2018).

89.
Ibid.

90.
Pontiff v. Pecot & Assoc., 780 So. 2d 478 (2001).

91. American Physical Therapy Association, “Code of Ethics for the Physical Therapist.”
https://www.apta.org/uploadedFiles/APTAorg/About_Us/Policies/Ethics/CodeofEthics (accessed July 28, 2018).

92.
Zucker v. Axelrod, 527 N.Y.S.2d 937 (N.Y. App. Div. 1988).

93. National Commission on Certification of Physician Assistants (NCCPA), “Just Released Data Registers Mobility Trends of Certified PAs [Press Release],” (May 22, 2018).
http://prodcmsstoragesa.blob.core.windows.net/uploads/files/PressRelease2017StatisticalReport (accessed July 28, 2018).

94. Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook: Physician Assistants [online].
http://www.bls.gov/ooh/Healthcare/Physician-assistants.htm (visited July 23, 2018).

95.
Cox v. MA Primary and Urgent Care Clinic, 313 SW 3d 240 – Tenn: Supreme Court 2010.

96.
Ibid. at 262.

97. American Psychological Association (APA), “Ethical Principles of Psychologists and Code of Conduct.”
http://www.apa.org/ethics/code/index.aspx.

98.
Loomis v. Board of Psychologist Exam’rs, 954 P.2d 839 (1998).

99. APA, “Ethical Principles of Psychologists and Code of Conduct.”

100.
Gilmore v. Board of Psychologist Examiners, 725 P.2d 400 (Or. Ct. App. 1986).

101.
Ibid. at 204.

102.
Michaels v. Gordon, 439 S.E.2d 722 (Ga. Ct. App. 1993).

103. Lisa Tortorello, “XRay Technicians: Missing in Malpractice Cases,” X-Ray Schools (June 10, 2011).
http://www.xrayschools.com/articles/xray-technicians-missing-in-malpractice-cases.html (accessed July 28, 2018).

104.
Cockerton v. Mercy Hospital Medical Center 490 N.W.2d 856 (Iowa Ct. App. 1992).

105. American Association of Respiratory Care, AARC Statement of Ethics and Professional Conduct (Revised 04/2015).
https://www.aarc.org/wp-content/uploads/2017/03/statement-of-ethics (accessed July 28, 2018).

106.
State University v. Young, 566 N.Y.S.2d 79 (N.Y. App. Div. 1991).

107. National Association of Social Workers, “Code of Ethics.”
https://www.socialworkers.org/about/ethics/code-of-ethics (accessed July 28, 2018).

CHAPTER 10

Physicians’ Ethical and Legal Issues

Observation, Reason, Human Understanding, Courage; these make the physician.

— Martin H. Fischer (1879–1962)

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Apply the
Hippocratic Oath to modern codes of medical ethics.

Understand how the law and ethics intertwine in patient care.

Describe common medical errors and ethical issues relative to physician practice.

Describe important guidelines for developing positive physician–patient relations.

INTRODUCTION

Of all the Hippocratic writings the Oath, in spite of its shortness, is perhaps the most interesting to the general reader and also to the modern medical man. Whatever its origin, it is a landmark in the ethics of medicine.

1

—W. H. S. Jones, Ed.

The Hippocratic Oath

I swear by Apollo the physician, and Asclepius, and Hygieia and Panacea and all the gods and goddesses as my witnesses, that, according to my ability and judgement, I will keep this Oath and this contract:

To hold him who taught me this art equally dear to me as my parents, to be a partner in life with him, and to fulfill his needs when required; to look upon his offspring as equals to my own siblings, and to teach them this art, if they shall wish to learn it, without fee or contract; and that by the set rules, lectures, and every other mode of instruction, I will impart a knowledge of the art to my own sons, and those of my teachers, and to students bound by this contract and having sworn this Oath to the law of medicine, but to no others.

I will use those dietary regimens which will benefit my patients according to my greatest ability and judgement, and I will do no harm or injustice to them.

I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly, I will not give a woman a pessary to cause an abortion.

In purity and according to divine law will I carry out my life and my art.

I will not use the knife, even upon those suffering from stones, but I will leave this to those who are trained in this craft.

Into whatever homes I go, I will enter them for the benefit of the sick, avoiding any voluntary act of impropriety or corruption, including the seduction of women or men, whether they are free men or slaves.

Whatever I see or hear in the lives of my patients, whether in connection with my professional practice or not, which ought not to be spoken of outside, I will keep secret, as considering all such things to be private.

So long as I maintain this Oath faithfully and without corruption, may it be granted to me to partake of life fully and the practice of my art, gaining the respect of all men for all time. However, should I transgress this Oath and violate it, may the opposite be my fate.

2

This chapter provides the reader with an overview of common medical errors and ethical issues relative to the practice of medicine. The medical profession has long subscribed to a body of ethical principles. One of Hippocrates’ gifts to medicine, among many, was the
Hippocratic Oath for physicians, which has been credited to Louis Lasagna, Academic Dean of the School of Medicine at Tufts University in 1964,

3
and has been modified and adopted by various medical schools, such as John Baylor College of Medicine, Johns Hopkins Medical School, and Tufts University School of Medicine. The modern version is as follows, with variations depending on the school:

4

I swear to fulfill, to the best of my ability and judgment, this covenant:

I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.

I will apply, for the benefit of the sick, all measures which are required, avoiding those twin traps of overtreatment and therapeutic nihilism.

I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon’s knife or the chemist’s drug.

I will not be ashamed to say “I know not,” nor will I fail to call in my colleagues when the skills of another are needed for a patient’s recovery.

I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.

I will remember that I do not treat a fever chart [or] a cancerous growth, but a sick human being, whose illness may affect the person’s family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick.

I will prevent disease whenever I can, for prevention is preferable to cure.

I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm. If I do not violate this oath, may I enjoy life and art, respected while I live and remembered with affection thereafter. May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.

Code of Medical Ethics

The American Medical Association, in the footsteps of Hippocrates, describes the code of ethical conduct for physicians:

AMA Code of Medical Ethics

A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.

A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.

A physician shall respect the law and also recognize a responsibility to seek changes in those requirements that are contrary to the best interests of the patient.

A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.

A physician shall continue to study, apply, and advance scientific knowledge; maintain a commitment to medical education; make relevant information available to patients, colleagues, and the public; obtain consultation; and use the talents of other health professionals when indicated.

A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.

A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.

A physician shall, while caring for a patient, regard responsibility to the patient as paramount.

A physician shall support access to medical care for all people.

5

Although there is no direct punishment for violating the Hippocratic Oath or AMA Code of Medical Ethics, medical malpractice suits often involve a physician’s failure to adhere to the oath and/or other applicable medical codes of ethics. Malpractice suits can lead to financial awards to the injured party.

LAW AND ETHICS INTERTWINE

This section introduces the reader to how the law and ethics intertwine in patient care. The law provides that injury to a patient due to a negligent act can result in financial penalties imposed by the courts to compensate the injured party and hopefully deter similar acts.
Nonmaleficence in medical ethics is a central guiding principle of the ethical practice of medicine first expressed by Hippocrates, and translated into Latin as
primum non nocere, “first do no harm.” It is medicine’s most fundamental axiom that aptly describes where the law and ethics unite—
first do no harm. The injury of a patient due to an avoidable negligent act often involves both principles of law and ethics.

Morally Wrong, Legally Actionable

A
USA Today report claims that physicians knowingly perform thousands of unnecessary surgeries annually. In that same article, Nancy Epstein, a neurosurgeon and chief of Neurosurgical Spine and Education at Winthrop University Hospital in Mineola, New York, states, “I am seeing more and more patients who are told to have operations they don’t need. … If patients have operations they don’t need, they risk having major problems—infections, paralysis, heart attacks, strokes.”

6

Doctors Perform Thousands of Unnecessary Surgeries

There are three broad categories of unnecessary surgery: the immoral, the incompetent, and the indifferent.

Doctors who perform needless operations to enrich themselves are the public face of the problem. Lured by the millions of dollars that can be made by billing Medicare, Medicaid and private insurers for expensive procedures that aren’t necessary, they’ve become a top target of investigators who consider this type of healthcare fraud to be particularly insidious.

—Peter Eisler and Barbara Hansen,
USA TODAY, June 19, 2013

7

Hippocratic Oath and AMA Code of Ethics Violated

The Thompsons in
Scripps Clinic v. Superior Ct.

8
alleged negligent treatment of Patricia Thompson’s broken clavicle. A medical malpractice claim was filed against Dr. Thorne and Dr. Carpenter, both of whom were affiliated with Scripps, a group medical practice. At the time the malpractice action was filed, Patricia was no longer being treated by Thorne and Carpenter, but was being treated by other Scripps physicians: Drs. Botte and Froenke for the broken clavicle and Dr. Harkey for endometriosis.

Binford, a Scripps employee, sent a letter to the Thompsons informing them that Scripps had been notified about the legal action the Thompsons had taken against the group. Because of the legal action, the Scripps Clinic requested that Health Net immediately terminate the Thompsons with the Scripps Clinic and transfer their membership to another medical group.

When Patricia received Binford’s letter, she immediately requested Health Net to reassign the couple to a new medical group. Health Net transferred the Thompsons to the San Diego Medical Group. As the result of Scripps’s actions, Patricia had to cancel a follow-up visit with Dr. Harkey that had been scheduled near the end of June even though Patricia was still suffering severe pain and bleeding. Before Patricia could be referred to a new gynecologist at University of California, San Diego Medical Group, she had to schedule a visit with her new primary care physician and receive authorization. Patricia’s care was also delayed until the San Diego Medical Group received her medical records from Scripps.

Scripps contends that it gave adequate notice to the Thompsons. The court disagreed. There was a 2-week hiatus between the time Scripps denied the Thompsons access to its physicians for nonemergency services and the time the Thompsons were assigned to the San Diego Medical Group.

The court rejected Scripps’s contention the court should have granted summary adjudication of the negligent infliction of emotional distress and breach of fiduciary duty causes of action. The court denied the motion because the Thompsons raised a triable issue of fact as to breach, based upon the declaration of Dr. David Goldstein, the Thompsons’ expert. Goldstein declared Scripps breached the standard of care and its fiduciary duty by violating the AMA Code of Medical Ethics 1.3.10 and the Hippocratic Oath, because its policy is retaliatory and “promotes the self-interest of physicians over that of patients.”

9

Physicians have both a legal and ethical obligation to attend to their patients’ needs. Physicians licensed in Illinois, for example, are specifically prohibited from abandoning their patients.

10
Furthermore, the American Medical Association’s Council on Ethical and Judicial Affairs mandates that “once having undertaken a case, the physician should not neglect the patient.”

11

The relationship between a physician and a patient, once established, continues until it is ended by the mutual consent of the parties, the patient’s dismissal of the physician, the physician’s withdrawal from the case, or the fact that the physician’s services are no longer required. A physician who decides to withdraw his or her services must provide the patient with reasonable notice so that the services of another physician can be obtained. Premature termination of treatment is often the subject of a legal action for
abandonment, the unilateral termination of a physician–patient relationship by the physician without notice to the patient. The following elements must be established in order for a patient to recover damages for abandonment:

Medical care was unreasonably discontinued.

The discontinuance of medical care was against the patient’s will. Termination of the physician–patient relationship must have been brought about by a unilateral act of the physician. There can be no issue of abandonment if the relationship is terminated by mutual consent or by dismissal of the physician by the patient.

The physician failed to arrange for care by another physician. Refusal by a physician to enter into a physician–patient relationship by failing to respond to a call or render treatment is not considered a case of abandonment. A plaintiff will not recover for damages unless he or she can show that a physician–patient relationship had been established.

Foresight indicated that discontinuance might result in physical harm.

The patient as a result of the physician’s abandonment suffered actual harm.

Physicians must, as provided in the Hippocratic Oath and codes of ethics, make care decisions for the benefit of their patients and not for their hurt or for any wrong. Terminating a physician–patient relationship must be done within legal guidelines, otherwise the physician can be held liable for abandonment. As noted next, compassion, trust, justice, and respect for patient privacy are all ethical principles and values that are intertwined with law.

PRINCIPLES OF MEDICAL ETHICS

The medical profession has long subscribed to a body of ethical guidelines developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self. The principles adopted by the American Medical Association are not laws but rather standards of conduct that define the essentials of honorable behavior for the physician.

Compassionate Care

I. A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.

—AMA Ethical Principles

Compassion is a moral value hoped for in all caregivers. Those who truly possess it will have a more rewarding career and at the end of life be able to say, “I have not only lived, but I have lived for something, it was worthwhile, I had a reason for living and a reason for leaving. I led a purpose-fulfilled life.” The following news clipping succinctly illustrates how one physician’s experience when faced with a dying patient can spring forth compassion and a time for reflection.

Physician Lacks Compassion

Mrs. Smith arranged for an appointment to see Dr. Mean, a rheumatologist, who was a specialist in her particular disease process, systemic scleroderma. After scheduling her appointment, Mrs. Smith was asked to have her medical records faxed to Dr. Mean’s office before her scheduled appointment on March 27. Two days before her scheduled appointment with Mean, Mrs. Smith called Mean’s office to confirm that her records had arrived. She was told at that time that she was on Mean’s calendar for March 23, not March 27. She had missed her appointment. Mrs. Smith protested that no confirmation call had been made from the office to remind her of the appointment and verify the time and date—a common practice that Mrs. Smith had experienced with her other physicians. Mrs. Smith, desperate for help, pleaded with the scheduler to reschedule her as soon as possible. She had waited 2 months for this appointment, and her illness had gotten progressively worse. The scheduler explained to Mrs. Smith that Mean was a busy physician and that according to the practice’s rules, which Dr. Mean had set and emphasized could not be altered, she could not schedule a new appointment until the next date available—which was April 27, a month later—even though she agreed that no call had been made to confirm the appointment. At the time of Mrs. Smith’s appointment, it became quickly evident that Dr. Mean had not ever read the patient’s lengthy forms that had to be completed by the patient prior to her scheduled appointment. Dr. Mean was dismissive of the patient’s concerns and exhibited the same uncaring attitude as her office staff from the time the patient arrived until she left the physician’s office.

Discussion

Describe how Dr. Mean’s office practices violate the professional code of ethics for a physician.

What role could a hospital ethics committee play in addressing Dr. Mean’s insensitivity to Mrs. Smith’s needs? Explain your answer.

It is important for not only the physician but also the office staff that works with patients to show compassion from the time they walk in the office door until the time they leave, as the following
Reality Check illustrates.

Staff Lacks Compassion

Mark was waiting to be seen by his physician in a multispecialty physician office practice. As Mark was waiting to see his physician, he observed a woman, most likely in her late 70s, limping into the office. She had a large leg brace that ran from her thigh to the calf of her leg. She struggled to push her husband in a wheelchair into the office. She carefully parked the wheelchair and approached the check-in counter. She apologized for being late for her appointment as she was late getting out of another physician’s office. The patient was told, “You are late for your appointment. The office has a 15-minute late arrival rule. You will have to reschedule your appointment.” She apologized for being late but said that she did tell the office staff she would be late. She was then told, “You can wait, and I will try to squeeze you into the schedule, but I don’t know how long you will have to wait.” The lady said, “I don’t want to bother anyone. I will reschedule my appointment.” She was directed around the corner to another desk to reschedule her appointment. Mark got up out of his chair, walked over to the scheduler, and said, “I don’t believe this. Her husband is sitting in a wheelchair, and she is having difficulty walking. She can have my appointment, and I can reschedule.” The lady suddenly turned to Mark and gave him a big hug.
The scheduler asked, “Who is your physician?” Mark told her, and she said, “I am sorry, but this lady has a different physician.” The lady, now a bit teary-eyed, continued to make her appointment.

Discussion

Describe the ethical issues involved in this observation.

Consider and discuss how this event could have had a more pleasant outcome.

Responsibility to the Patient Is Paramount

VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.

—AMA Principles of Medical Ethics

The first responsibility of the physician is to the patient. It overrides all teaching obligations. Handoffs of complex medical diseases to medical students for evaluation outside the attending physician’s presence illustrates disregard and disrespect for the rights and needs of the patient, as noted in the following
Reality Check.

During a follow-up interview after writing the letter above, Mrs. Smith described the many difficulties she encountered while being passed from physician to physician over a span of 15 years. She described her feelings as to how so many physicians lack compassion and empathy, as she sat in their offices with agonizing pain wracking her body from the top of her head to the soles of her feet. This
Reality Check illustrates why the attending physician’s care for the patient is of paramount (overriding) importance in the delivery of quality patient care.

My Hopes for Help Crumble

When I went to your office, it was with great hopes that someone was finally going to piece together all of the bizarre symptoms I have been experiencing over the last several months and get to the cause of my pain.

I was quite frankly shocked by how I was treated as a patient—especially one experiencing a health crisis. A medical student examined me. He wrote my history and current health problems on a small pad of yellow Post-It notes. You were not in the room when he examined me, and then I saw you for approximately 10 minutes. You took the business card of my New York doctor and said you were going to call him, and then call me regarding what you thought the next steps should be. I called you on Friday because my local doctor said that you had not called, and I was told you were on vacation until yesterday. I had asked that you call me. You never did. I called you yesterday again, but you did not answer, nor did you return my call. On Monday, I was very surprised to receive a hand-written letter—from a medical student, I assume. Although I empathize with the demands on your time, I have never seen a handwritten letter like the one I received informing me of test results.

I provided my medical records to you prior to my appointment with you. You never mentioned the liver enzyme elevations or the results of my February tests that my New York doctor performed. Moreover, no mention was made regarding any plan to help me alleviate immediate problems.

Doctor, I am not a complainer or a person with a low pain tolerance. Since moving here, I’ve had fainting episodes, severe chest pain and pressure, leg and arm pain and stiffness, congestion on the left side when the pain kicks in, and by 3 o’clock I have to go home and lie down because I’m so weak and tired. I cannot continue to exist like this. It is not normal. If you’re too busy and don’t want to take me as a patient, you will not offend me. Frankly, I need attention now to get these things resolved. Testing my cholesterol in a month will not address the problem. I’ve been treated for that for three years. Please call or write to me so I can get another doctor if I have to.

—Anonymous

The patient’s hope for answers and possible treatment in this
Reality Check were dashed. The patient began to lose trust in the medical profession. I listened as she explained to me, “I was troubled as I stood looking at the
Code of Medical Ethics that hung so prominently in the physician’s waiting room. All the right words were there; only one thing was missing.” I asked her what was missing. She looked at me and said emphatically, “Practice.”

Trust

II. A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities.

—AMA Principles of Medical Ethics

Your Doctor is Here and There

Hospitals debate the wisdom and ethics of allowing surgeons to operate on two patients in different rooms at the same time.

The controversial practice has been standard in many teaching hospitals for decades, its safety and ethics largely unquestioned and its existence unknown to those most affected: people undergoing surgery.

—Sandra G. Boodman,
The Washington Post, July 7, 2017

Informed consent is predicated on trust, as well as a legal duty that requires the physician to disclose to the patient sufficient information to enable the patient to evaluate a proposed medical or surgical procedure before submitting to it. Informed consent requires that a patient have a full understanding of that to which he or she has consented. A physician’s explanation of treatment options should take into consideration the patient’s ability to understand the description of the risks of treatment and the probable consequences of each treatment.

A patient who undergoes surgery in a teaching hospital may have a resident participating in the surgical procedures. Patients who prefer the attending to perform the surgery, often because of his or her reputation, should make an inquiry as to who will be performing the surgery. Informed consent forms in such settings should include the name(s) and role of the participating surgeon(s). Dr. James Rickert, an Indiana orthopedic surgeon, recommends in surgical cases that the patient ask the surgeon, “‘Are you going to be in the room the entire time during my surgery?’ … If the doctor’s not willing to say yes, vote with your feet.”

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The American College of Surgeons in its Statements on Principles states: “Concurrent or simultaneous operations occur when the critical or key components of the procedures for which the primary attending surgeon is responsible are occurring all or in part at the same time. The critical or key components of an operation are determined by the primary attending surgeon. A primary attending surgeon’s involvement in concurrent or simultaneous surgeries on two different patients in two different rooms is inappropriate.”

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Informed consent should include what a reasonable person would consider material to his or her decision of whether or not to undergo treatment. The needs of each patient can vary depending on age, maturity, and mental status. Florida statute § 766.103 (3) (a) (2) notes that reasonable care on the part of a physician in obtaining informed consent for treatment consists of providing the patient with information sufficient to give a reasonable person a general understanding of the proposed procedure, the medically acceptable alternative procedures, and the substantial risks and hazards inherent in the proposed procedure that are recognized by other physicians in the same or similar community who perform similar procedures.

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A physician is not under a duty to elucidate upon all the possible risks, but only those of a serious nature. Expert testimony is required to establish whether a reasonable physician in the community would make the pertinent disclosures under the same or similar circumstances.

The ethical rationale underlying the doctrine of informed consent is firmly rooted in the notions of liberty and individual autonomy. Informed consent protects the basic right of the patients to make the ultimate informed decision regarding the course of treatment to which they knowledgeably consent. The focus of informed consent must involve the patient receiving informed consent as a result of active personal interaction with the physician. Consent forms should be used as a supplement to the oral disclosure of risks, benefits, and alternatives to the proposed procedure that a physician normally gives. Ideally, the consent should be the result of an active process of dialogue between the patient and physician.

The physician who fails to actively participate in an agreed upon surgical procedure will surely be named in any lawsuit if the patient is injured due to such negligence. The surgeon, however, will not be held liable for participating in and exercising his or her best judgment in applying a course of treatment supported by a reputable and respected body of medical experts even if another body of expert medical opinion would favor a different course of treatment.

Surgeons and Medical Center Breach Trust

A young woman went to a medical center for removal of a benign fibroid tumor in her uterus, an outpatient procedure. By the end of the day, she was dead.

The surgery was performed by two doctors—one on probation—who used equipment they were neither familiar with nor authorized to use, the Health Department said. In a highly
unusual violation, the agency said, a salesman from Johnson & Johnson, which made the piece of equipment used in the surgery, operated its controls while the doctors performed their procedure on the woman. And the patient was never given the chance to consent to the use of the equipment or the presence of the salesman, the agency said.

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The actions of the surgeons and medical center in this case clearly place the spotlight on trust and the ability of healthcare organizations to competently monitor their professional staff. The community of patients across the nation trust that the physicians appointed and credentialed by hospitals are closely monitored and privileged strictly according to their proven capabilities. This trust must not falter.

Failure to Read Nurses’ Notes

On October 17, the medical record indicated that Mr. Todd’s sternotomy wound and the mid-lower left leg incision were reddened, and his temperature was 99.6 degrees Fahrenheit. Dr. Sauls did not commonly read the nurses’ notes but instead preferred to rely on his own observations of the patient. In his October 18 notes, he indicated that there was no drainage. The nurses’ notes, however, show that there was drainage at the chest tube site. In contrast to the medical records showing that Todd had a temperature of 101.2 degrees Fahrenheit, Dr. Sauls noted that the patient was afebrile (normal, without fever).

On October 19, Dr. Sauls noted that Todd’s wounds were improving, and he did not have a fever. Nurses’ notes indicated redness at the surgical wounds and a temperature of 100 degrees Fahrenheit. No white blood count had been ordered. Again on October 20, the nurses’ notes indicated redness at the site of the wound and a temperature of 100.8 degrees Fahrenheit. No wound culture had yet been ordered. Dr. Kamil, one of Todd’s treating physicians, noted that Todd’s nutritional status needed to be seriously confronted and suggested that Dr. Sauls consider supplemental feeding. Despite this, no follow-up to his recommendation appeared and the record shows no action by Dr. Sauls to obtain a nutritional consult.

Todd was transferred to the intensive care unit on October 21 because he was gravely ill with profoundly depressed ventricular function. The following day the nurses’ notes described the chest tube site as draining foul-smelling bloody purulence. The patient’s temperature was recorded to have reached 100.6 degrees Fahrenheit. This was the first time that Dr. Sauls had the chest tube site cultured. On October 23, the culture report from the laboratory indicated a staph infection, and Todd was started on antibiotics for treatment of the infection.

On October 25, at the request of family, Todd was transferred to St. Luke’s Hospital. At St. Luke’s, Dr. Leatherman, an internist and invasive cardiologist, treated Todd. Dr. Zeluff, an infectious disease specialist, examined Todd’s surgical wounds and prescribed antibiotic treatment. On his admission to St. Luke’s, every one of Todd’s surgical wounds was infected. Despite the care given at St. Luke’s, Todd died on November 2, 1988. The family brought a malpractice suit against the surgeon. The District Court entered judgment on a jury verdict for the defendant, and the plaintiff appealed, claiming the surgeon breached his duty of care owed to the patient by failing to (1) aggressively treat the surgical wound infections, (2) read the nurses’ observations of infections, and (3) provide adequate nourishment, instead allowing the patient’s body weight to waste away rapidly.

Dr. Sauls committed medical malpractice when he breached the standard of care he owed to Todd. Todd was effectively ineligible for a heart transplant, which was his only chance of survival because of the infections and malnourishment caused by Dr. Sauls’s negligent care. Sauls’s testimony convinced the Louisiana Court of Appeals that he failed to treat the surgical wound infections aggressively, that he chose not to take advantage of the nurses’ observations of infection, and that he allowed Todd’s body weight to waste away, despite knowing that extreme vigilance was required because of Todd’s already severely impaired heart.

In cases in which a patient has died, the plaintiff need not demonstrate that the patient would have survived if properly treated. Rather, the plaintiff need only prove that the patient had a chance of survival and that his chance of survival was lost as a result of the defendant/physician’s negligence. The defendant/physician’s conduct must increase the risk of a patient’s harm to the extent of being a substantial factor in causing the result, but need not be the only cause. Dr. Sauls’s medical malpractice exacerbated an already critical condition and deprived Mr. Todd of a chance of survival.

Todd trusted Dr. Sauls to do the right thing. Instead, he failed to follow Todd’s care closely enough to identify his declining health as a result of an infection—which was clearly indicated in the nurses’ notes.

Failure to Refer for Consultation

1 in 4 Cancer Cases Missed: GPs Send Away Alarming Number of Patients, Delaying Vital Treatment

Tens of thousands of patients are initially told that their symptoms are “nothing to worry about” or advised to take painkillers or antibiotics for months.

They have to make repeated trips to their doctor before being given a correct diagnosis, the report concludes. Britain has one of the lowest cancer survival rates in Europe despite billions being invested in treatment over the last decade.

Experts blame late diagnosis for the alarmingly high death rates and say many tumors are spotted only when it is too late for successful treatment.

—Sophie Borland and David Wilkes,
Daily Mail, March 1, 2011

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When a practitioner determines or should have determined that a patient’s ailment is beyond his or her scope of knowledge, technical skill or ability, or capacity to treat with a likelihood of reasonable success, he or she is under a duty to disclose such determination to the patient. The patient should be advised of the necessity of other or different treatments.

A physician has a duty to consult and/or refer a patient whom he or she knows or should know needs referral to a physician familiar with and clinically capable of treating the patient’s particular ailments. Whether the failure to refer constitutes negligence depends on whether referral is demanded by accepted standards of practice. To recover damages, the plaintiff must show that the physician deviated from the standard of care and that the failure to refer resulted in injury.

The California Court of Appeals found that expert testimony is not necessary where good medical practice would require a general physician to suggest a specialist’s consultation.

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The court ruled that because specialists were called in after the patient’s condition grew worse, it is reasonable to assume that they could have been called in sooner. The jury was instructed by the court that a general practitioner has a duty to seek consultation by a specialist if a reasonably prudent general practitioner would do so under similar circumstances.

A physician is in a position of trust, and it is his or her duty to act in good faith. If a preferred treatment in a given situation is outside a physician’s field of expertise, it is his or her duty to advise the patient. Failure to do so could constitute a breach of duty. Today, with the rapid methods of transportation and easy means of communication, the duty of a physician is not fulfilled merely by using the means at hand in a particular area of practice.

Falsification of Records

The intentional alteration, falsification, or destruction of medical records to avoid liability for one’s medical negligence is generally sufficient to show actual malice, and punitive damages may be awarded whether or not the act of altering, falsifying, or destroying records directly causes compensable harm. The evidence in
Dimora v. Cleveland Clinic Foundation

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had shown that the patient had fallen and broken five or six ribs; nevertheless, on examination, the physician noted in the progress notes that the patient was smiling and laughing pleasantly, exhibiting no pain on deep palpation of the area. Other testimony indicated that she was in pain and crying. This discrepancy between the written progress notes and the testimony of the witnesses who observed the patient was sufficient to raise a question of fact as to the possible falsification of documents by the physician to minimize the nature of the incident and the injury of the patient because of the possible negligence of the hospital personnel. The testimony of the witnesses, if believed, would have been sufficient to show that the physician falsified the record or intentionally reported the incident inaccurately in order to avoid liability for the negligent care of the patient.

Tampering with records sends the wrong signal to jurors and can shatter one’s credibility. Altered records can create a presumption of negligence. The court in
Matter of Jascalevich

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held that “a physician’s duty to a patient cannot but encompass his affirmative obligation to maintain the integrity, accuracy, truth, and reliability of the patient’s medical record. His obligation in this regard is no less compelling than his duties respecting diagnosis and treatment of the patient because the medical community must, of necessity be able to rely on those records in the continuing care of that patient. The rendering of good care must not be jeopardized or prejudiced by false, misleading, or inaccurate entries in the patient’s medical record. A deliberate falsification by a physician of a patient’s medical record in order to protect one’s own personal interests at the expense of the patient’s is regarded as gross malpractice endangering the health or life of his patient.”

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The physician’s oath to first do no harm was violated in this case.

Post-Cath Note Written Prior to Procedure

Dr. Benjamin, a physician consultant, noted that a cardiologist had documented a postprocedure catheterization note before the procedure was completed. The physician consultant discussed with the cardiologist the inappropriate record entry and had a peer-to-peer discussion to help the surgeon understand the ramifications of his actions. The organization was most grateful for the way the physician surveyor managed the situation as it made their job much easier in addressing the issue with the surgeon, whose nonadherence to hospital and medical staff policy the organization had difficulty trying to handle over the past year. They were pleased with the process.

Discussion

Who should have handled the discipline issues with the physician? Explain your answer. Consider in forming your answer: The surveyor had 3 days to survey the hospital to determine its compliance with accreditation standards and now the surveyor is involved in a counseling session taking valuable time out of his duties.

How should the hospital have dealt with the cardiologist?

Justice

Does the value of life diminish with age? Do you see me? Do you hear me? Am I less valuable because I am older? We are all created equal in God’s sight. But when it comes to supply and demand, everything we thought we learned about ethics is put to the test. Who gets the new lung when there is a limited supply? Are there criteria for determining what the right thing to do is? If so, who decided what the criteria should be? The questions as to justice and the distribution of scarce resources are numerous and the answers are not easily sorted out, as noted in the following
Reality Check.

Care Based on Age

I was undergoing some minor revisions to a surgical procedure that I had 5 years earlier. I distinctly remember the surgeon speaking to one of his assistants during the surgery, as he wielded a scalpel in his hand, “I definitely take more time with younger patients, especially children, than older patients.” As I lay there on a small surgical table, I thought,
what do I say? I could’ve smacked him for being so rude. What an uncomfortable situation for me to be in, knowing that the surgeon had already made an incision under a local anesthetic. He spoke as though I wasn’t there. I thought I better just act as though I had not heard him. Afterward, I thought,
that was a stupid thought. It wasn’t like he was whispering. He was actually somewhat loud as though I was under a general anesthetic. If a friend told me that this happened to him, I would most likely have found it hard to believe. A surgeon should always do his best, regardless of the patient’s age. But then maybe I am living in La La Land.

—Anonymous

Discussion

Discuss what, if anything, the patient should have said to the surgeon. Consider when framing your answer that the patient is thinking to himself, “Unfortunately I have to come back to have the stitches taken out.”

Describe what action you would take, if any, as a board member. Assume you had been sitting outside the treatment room and you had overheard the surgeon’s remarks. Further assume you were a friend of the patient and had dropped in the surgeon’s office to pick him up to take him home.

Respect for Privacy

Respect for the privacy of medical information is a central feature of the physician–patient relationship. Under the Hippocratic Oath and modern principles of medical ethics derived from it, physicians are ethically bound to maintain patient confidences.

The physician–patient privilege imposes on a physician an obligation to maintain the confidentiality of each patient’s communications. This obligation applies to all healthcare professionals. An exception to the rule of confidentiality of patient communications is the implied right to make necessary information available to others involved in the patient’s care. Information received by a physician in a confidential capacity relating to a patient’s health should not be disclosed without the patient’s consent. Disclosure may be made under compelling circumstances (e.g., suspected child abuse) to a person with a legitimate interest in the patient’s health.

The Code of Medical Ethics requires that patient information remain confidential and that physicians who violate that confidentiality be reported to the appropriate regulatory body as provided for in federal and state statutes and regulations. Section 6530 (23) of the New York State Education Law, for example, defines professional misconduct as the “revealing of personally identifiable facts, data or information obtained in a professional capacity without the consent of the patient.”

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The State of New York Department of Health has set forth a penalty of censure, reprimand, suspension of license, revocation of license, annulment of license, limitation on further license, or fine for a person found guilty of professional misconduct (Public Health Law A4 230-a), which includes revealing patient information without consent or failing to maintain accurate information. The Department of Health is responsible for maintaining the standards and ethics of the profession and for enforcing those standards. In addition, the Principles of Medical Ethics of the American Medical Association states that physicians, including physicians employed by industry, have an ethical and legal duty to protect patient confidentiality.

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NEGLIGENCE

This section provides an overview of common medical mistakes. The reader should keep in mind when reading this section that “ethical values and legal principles are usually closely related, but ethical obligations typically exceed legal duties. … The fact that a physician charged with allegedly illegal conduct is acquitted or exonerated in civil or criminal proceedings does not necessarily mean that the physician acted ethically.”

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Patient Assessments and Diagnosis

Patient assessment involves the systematic collection and analysis of patient-specific data necessary to help determine a
patient diagnosis, from which stem the patient’s care and treatment plans. The patient’s plan of care is only as good as assessments conducted by the practitioners of the various disciplines (e.g., physicians, nurses, dietitians, physical therapists).

The physician’s assessment involves an evaluation of the patient’s history, symptoms, and physical examination results. It must be conducted within 24 hours of a patient’s admission to the hospital. The findings of the clinical examination are used to determine the patient’s plan of care. The assessment is the process by which a doctor investigates the patient’s state of health, looking for signs of trauma and disease. It sets the stage for accurately diagnosing the patient’s medical problems. A cursory and negligent assessment can lead to a misdiagnosis of the patient’s health problems and/or care needs and, consequently, to poor care.

Family Medical History

When reviewing a patient’s family history (

FIGURE 10-1

), the physician must not be indifferent or dismissive of the patient’s complaints and thoughts as to the possible cause of his or her illness. Such was the case in the following news clipping.

A Brother’s History Offers Clues to a Woman’s Frightening and Dangerous Symptoms

Sheryl Stein, who lives in Arlington, said she kept telling doctors and nurses about an odd coincidence involving her oldest brother—one she increasingly believed was relevant to her medical problems—but no one seemed to pay much attention.

“They were all sort of scratching their heads about what might be wrong, and I was getting so frustrated. …”

At her brother’s suggestion, Stein said, she kept telling doctors about his CVID diagnosis, but no one seemed to follow up. “They’d say, ‘Yeah that’s interesting.’”

—Sandra G. Boodman,
The Washington Post, February 25, 2014

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Patient Medical History

It is questionable in some cases as to whether a physician actually completes the process of obtaining a patient’s medical history (

FIGURE 10-2

) when the physician simply draws a diagonal line from the top right to the bottom left of the form and writes through the line “unremarkable” as noted in the following
Reality Check.

Questionable Medical History Conducted

Smith was admitted to Community Hospital for surgery. Community Hospital medical staff bylaws require that a history and physical (H&P) exam be completed prior to patients undergoing surgery. Smith’s attending physician did not complete the H&P form. He simply drew a diagonal line from the top right to the bottom left of the H&P, indicating that the patient had no history of or current disease processes.

The patient’s nurse, per hospital policy, completed a nursing assessment. The nurse documented on the patient admission assessment form that the patient had a history of transient ischemic attacks, diabetes, and hypothyroidism.

The anesthesiologist did not perform an anesthesia assessment before surgery. General anesthesia was administered without knowing the patient’s previous experiences, if any, with anesthesia.

Failure of the attending physician to complete an appropriate H&P examination and the anesthesiologist’s failure to perform a pre-anesthesia assessment placed the patient’s life and health at risk. The physician did not complete the H&P. He merely went through the motions of completing an H&P examination because it was mandated that the patient have an H&P in his medical record prior to surgery.

Ethical and Legal Issues

Discuss the ethical issues and principles violated in this case.

What are the potential legal issues of concern in this case?

Discuss what actions the organization should consider to improve the quality of H&P documentation.

Failure to obtain an adequate patient history and physical examination violates the standard of care owed to the patient. In
Foley v. Bishop Clarkson Memorial Hospital,

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Mr. Foley sued the hospital for the death of his wife. During her pregnancy, the patient was under the care of a private physician. She gave birth in the hospital on August 20, 1964, and died the following day. During July and August, her physician had treated her for a sore throat. Several days after her death, one of her children was treated in the hospital for a strep throat infection. There was no evidence in the hospital record that the patient had complained about a sore throat while in the hospital. The hospital rules required that an H&P had to be written promptly (within 24 hours of admission). No history had been taken, although the patient had been examined several times in regard to the progress of her labor. The trial judge directed a verdict in favor of the
hospital. On appeal, the appellate court held that the case should have been submitted to the jury for determination. A jury might reasonably have inferred that if the patient’s condition had been treated properly, the infection could have been combated successfully and her life saved. It also might have been reasonably inferred that if an H&P had been taken promptly when she was admitted to the hospital, the throat condition would have been discovered and hospital personnel alerted to watch for possible complications of the nature that later developed. Quite possibly, this attention also would have helped in diagnosing the patient’s condition, especially if it had been apparent that she had been exposed to a strep throat infection. The court held that a hospital must guard not only against known physical and mental conditions of patients but also against conditions that reasonable care should have uncovered.

Patient Diagnosis

Patient diagnosis refers to the process of identifying a possible disease or disease process, thus providing the physician with treatment options. Screens, assessments, reassessments, and the results of medical diagnostic testing such as electroencephalography (EEG), electrocardiography (ECG), imaging (

FIGURE 10-3

), and laboratory findings are some of the tools of medicine that assists providers (e.g., physicians, osteopaths, dentists, podiatrists, nurse practitioners, physician assistants) in diagnosing the possible causes of a patient’s symptoms and medical problems—that is, the
medical diagnosis—from which a treatment plan is developed. The cases presented here describe some of the lawsuits that have occurred due to misdiagnoses and failure to properly treat the patient based on the results of diagnostic testing.

As Hands-on Doctoring Fades Away, Patients Lose

“In most hospitals today, the average amount of time a busy intern spends with a patient is four minutes,” said Brendan Reilly, who until recently was the executive vice chair of medicine at New York Presbyterian Hospital. No longer are tests ordered based on the results of a careful physical exam and history, Reilly said, but the “technological tests become the primary source of information on the patient. It’s backwards now,” and the process is driving up health-care costs posed by sometimes unnecessary, risky procedures.

—Sandra G. Boodman,
The Washington Post, May 20, 2014

Even with all the diagnostic tools available to physicians, if they order the tests and fail to review or interpret them in conjunction with a patient’s physical complaints and medical history, they are of little or no value. Tests results from imaging studies and laboratory results are useless in arriving at an accurate diagnosis and appropriate treatment plan if they are merely filed away after a cursory review.

Concern is Growing that the Elderly Get Too Many Medical Tests

Increasingly, questions are being raised about the over testing of older patients, part of a growing skepticism about the widespread practice of routine screening for cancer and other ailments of people in their 70s, 80s, and even 90s. Critics say there is little evidence of benefit—and considerable risk—from common tests for colon, breast, and prostate cancer, particularly for those with serious problems such as heart disease or dementia that are more likely to kill them.

• • •

Telling someone that screening is no longer necessary can be dicey, as California family physician Pamela Davis discovered when she advised her robust 86-year-old mother to stop getting mammograms and routine colon tests.

Her mother was incensed.

—Sandra G. Boodman,
Kaiser Health News, September 12, 2011

Discussion

There are some whose age is well hidden beneath their skin. As care and treatment options become
safer (e.g., robotic surgery), should age alone be the sole criterion for determining the extent of medical care one should receive?

Do one’s rights to care and treatment diminish with age?

Regardless of age, who should decide whether a particular diagnostic test or treatment is warranted?

Misdiagnosis

Her Doctor Dismissed the Lump in Her Breast

Many express anger at the practice where I had my breast exams. A few people even suggested that I look into legal action.

I choose not to walk down that political path, though. Sure, sometimes I allow the thought to creep into my head. What if it had been caught earlier? Would it still be in my lymph nodes? Would my prognosis be better? As soon as they pop up, I try to kick these thoughts to the curb. I will never know the answers, and blaming someone won’t change my current reality. I choose to focus my energy on a path toward healing, not fault.

—Kathryn Petrides,
The Washington Post, May 14, 2014

Misdiagnosis is the most frequently cited injury event in malpractice suits against physicians. Although diagnosis is a medical art and not an exact science, early detection can be critical to a patient’s recovery. Misdiagnosis may involve the diagnosis and treatment of a disease different from that which the patient actually suffers or the diagnosis and treatment of a disease that the patient does not have. Misdiagnosis in and of itself will not necessarily impose liability on a physician, unless deviation from the accepted standard of care and injury can be established.

My Physician Would Not Listen

I was left undiagnosed for over a year and a half. I had to endure extended chemotherapy for a stage III cancer because my GP would not listen to my concerns at first, and then again 1.5 years later when the cancer had spread throughout my body to my lungs causing a nasty cough. I should’ve taken him to the GMC [Britain’s General Medical Council] at the time but was more interested in getting better first! I made a diary all about it, just google my name; it’s easy to find. I’m very grateful to be alive, but it has left me broke, nothing or no one can fix that.

—Tim Stollery

Fractured Skull, Not Intoxication

In
Ramberg v. Morgan,

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a police department physician at the scene of an accident examined an unconscious man who had been struck by an automobile. The physician concluded that the patient’s insensibility was a result of alcohol intoxication, not the accident, and ordered the police to remove him to jail instead of the hospital. The man, to the physician’s knowledge, remained semiconscious for several days and finally was taken from the cell to the hospital at the insistence of his family. The patient subsequently died, and the autopsy revealed massive skull fractures. The court found that any physician should reasonably anticipate the presence of head injuries when a car strikes a person. Failure to refer an accident victim to another physician or a hospital was actionable neglect of the physician’s duty.

Although the presence of a physician does not ensure the correctness of the diagnosis or treatment, a patient is entitled to such thorough and careful examination as his or her condition and attending circumstances permit, with such diligence and methods of diagnosis as usually are approved and practiced by medical people of ordinary or average learning, judgment, and skill in the community or similar localities.

Patient Treatment

This section focuses on negligence cases that relate to
medical treatment and various legal and ethical issues that healthcare professionals encounter when treating patients.
Patient treatment is the attempt to restore the patient to health following a diagnosis. It is the application of various remedies and medical techniques, including the use of medications for the purpose of treating an illness or trauma. Treatment can be
active, directed immediately to the cure of the disease or injury;
causal, directed against the cause of a disease;
conservative, designed to avoid radical medical therapeutic measures or operative procedures;
expectant, directed toward relief of untoward symptoms but leaving cure of the disease to natural forces;
palliative, designed to relieve pain and distress with no attempt to cure;
preventive/prophylactic, aimed at the prevention of disease and illness;
specific, targeted specifically at the disease being treated;
supportive, directed mainly
to sustaining the strength of the patient; or
symptomatic, meant to relieve symptoms without effecting a cure (i.e., intended to address the symptoms of an illness, but not its underlying cause, as in scleroderma, lupus, or multiple sclerosis, for example).

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A physician’s suggested treatment for an ailment can differ based on a physician’s education, training, and practice experiences. Thus, under the
two-schools-of-thought doctrine, a physician is not be liable for medical malpractice if he or she follows a course of treatment supported by reputable, respected, and reasonable medical experts. The doctrine is applicable only in medical malpractice cases in which there is more than one method of accepted treatment for a patient’s disease or injury. A physician’s treatment that results in a patient’s injury does not constitute negligence merely because it was unsuccessful in a particular case. A physician cannot be required to guarantee the results of treatment. The mere fact that an adverse result may occur following treatment is not, in and of itself, evidence of professional negligence.

Medical practice guidelines are evidence-based best practices that are developed to assist physicians in the diagnosis and treatment of their patients. It should be remembered that best practices are not iron-clad rules. Skillful medical judgment demands that the physician determine how to use best practices and interpret the information.

Online Medical Treatment Advisor provides access to the findings of medical specialists to accurately select the best and newest treatments for patients. It is based on the individual patient’s characteristics. Online Medical Treatment Advisor assesses each patient’s symptoms with a knowledge base created by 1,500 specialist physicians. Online Medical Treatment Advisor includes treatments for 1,200 diseases.

“Online Medical Advisor” is a novel website dedicated to providing comprehensive online medical and healthcare information while caressing your privacy the best we can. No more embarrassments, awkwardness and doubt. Online Medical Advisor dispels your uncertainties on medical disorders and at the same time provides holistic online medical knowledge in the way that doctors look at diseases. Indeed, consulting
Onlinemedicaladvisor.com is akin to having a doctor in the family. This website offers cutting edge free online medical advice, answers to your pressing medical questions, recent advances in treatments and in-depth answers to the how’s and why’s of medical conditions.

In fact, Online Medical Advisor is like a surrogate personal medical and healthcare advisor, helping you arm yourself with online solutions to medical dilemmas, thereby keeping you prepared with what to ask and expect from your treating physicians. Today it’s mayhem of modern medicine with an array of ever increasing terminologies and treatments. Our unique search strategy has sorted this out by finding the most popular medical conditions for which the patient community seeks a solution.

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Autonomy and Informed Consent

Patients have a right to make their own treatment choices. When there are two or more medically acceptable treatment alternatives, a competent patient has the right to choose which option he or she wants after being informed of the risks, benefits, and alternatives of each option. The physician has a legal, ethical, and moral duty to respect a patient’s
autonomy and to provide only authorized medical treatment. It is inappropriate for physicians to pursue a treatment alternative other than the one to which their patient has given consent. Unless the patient consents to the physician’s recommended treatment approach, the physician may not proceed with that approach even if the physician personally believes the recommended approach to be in the patient’s best interests.

29

The doctrine of
informed consent is a theory of professional liability independent from malpractice. A physician’s duty is to disclose known and existing dangers associated with a proposed course of treatment. The patient in
Leggett v. Kumar

30
was awarded $675,000 for pain and disfigurement resulting from a mastectomy procedure. The physician in this case failed to advise the patient of treatment alternatives. He also failed to perform the surgery properly.

It is the physician’s role to provide the necessary medical facts and the patient’s role to make a subjective decision concerning treatment based on his or her understanding of those facts. Before subjecting a patient to a course of treatment, the physician has a duty to disclose information that will enable the patient to evaluate options and the risks attendant to a specific procedure. A failure to disclose any known and existing risks of a proposed treatment when such risks might affect a patient’s decision to forgo treatment
constitutes a prima facie violation of a physician’s duty to disclose. If a patient can establish that a physician withheld information concerning the inherent and potential hazards of a proposed treatment, consent is abrogated. Consent for a medical procedure may be withdrawn at any time before the act consented to is accomplished.

Medications

With thousands of brand-name and generic drugs in use, it is no surprise that drug errors are one of the leading causes of patient injuries. Physicians should encourage the limited and judicious use of all medications and should document periodically the reason for their continuation (

FIGURE 10-4

). They should be alert to any contraindications and incompatibilities among prescription and over-the-counter drugs, and herbal supplements. Medication errors often occur due to administration of the wrong medication to the wrong patient of the wrong dosage at the wrong site by the wrong route, or a combination of the aforementioned errors.

The Board of Regents in
Moyo v. Ambach

31
determined that a physician had prescribed methaqualone fraudulently and with gross negligence to 20 patients. The Board of Regents found that the physician did not prescribe methaqualone in good faith or for sound medical reasons. His abuse in prescribing controlled substances constituted the fraudulent practice of medicine. Expert testimony established that it was common knowledge in the medical community that methaqualone was a widely abused and addictive drug. Methaqualone should not have been used for insomnia without first trying other means of treatment. On appeal, the court found that there was sufficient evidence to support the board’s finding.

Damages were awarded in
Argus v. Scheppegrell

32
for the wrongful death of a teenage patient with a preexisting drug addiction. It was determined that the physician had wrongfully supplied the patient with prescriptions for controlled substances in excessive amounts, with the result that the patient’s preexisting drug addiction had worsened, causing her death from a drug overdose. The Louisiana Court of Appeal held that the suffering of the patient caused by drug addiction and deterioration of her mental and physical condition warranted an award of $175,000. Damages of $120,000 were to be awarded for the wrongful death claims of the parents, who not only suffered during their daughter’s drug addiction caused by the physician’s wrongfully supplying the prescription, but who also were forced to endure the torment of their daughter’s slow death in the hospital.

Surgery

As noted in the preceding news clipping, surgical instruments inadvertently left in patients are reported by hospitals accredited by The Joint Commission. The various states also require the reporting of surgical errors, such as wrong patient, wrong surgery, and wrong site.

Joint Commission Alert: Preventing Retained Surgical Items

The Joint Commission today issued a Sentinel Event Alert urging hospitals and ambulatory surgery centers to take a new look at how to avoid mistakenly leaving items such as sponges, towels and instruments in a patient’s body after surgery.

Known in medical terminology as the unintended retention of foreign objects (URFOs) or retained surgical items (RSIs), this is a serious patient safety issue that can cause death or harm patients physically and emotionally. The Joint Commission has received more than 770 voluntary reports of URFOs in the past seven years.

—Elizabeth Eaken Zhani,
The Joint Commission, October 17, 2013

33

Wrong-site surgical mistakes have multiple causes, including draping the wrong surgical site, marking the wrong surgical site, and failing to mark the surgical site as required by hospital policy.

The Pain of Wrong-Site Surgery

Hospitals find it hard to protect patients from wrong-site surgery

“It’s disheartening that we haven’t moved the needle on this,” said Peter Pronovost, a prominent safety expert and medical director of the John Hopkins Center for Innovation in Quality Patient Care. “I think we made national policy with a relatively superficial understanding of the problem.” Pronovost suggests that doctors’ lip service to the rules, which he calls “ritualized compliance,” may be a key factor. Studies of wrong-site errors have consistently revealed a failure by physicians to participate in a timeout.

—Sandra G. Boodman,
Kaiser Health News, June 20, 2011

34

Pregnant Woman Dies after Horrifying Medical Mix-Up

(Newser)—As far as medical mix-ups go, it’s a horrifying one. In October 2011, a 32-year-old woman underwent an operation at Queen’s Hospital outside of London; Maria De Jesus was suffering from appendicitis and needed to have her appendix removed. Instead, her right ovary was taken out, and De Jesus, who was 21 weeks pregnant with her fourth child at the time, ended up dying roughly three weeks later. The case is now in front of a medical tribunal, which is weighing the medical fates of the two doctors involved. …

—Kate Seamons,
Newser, April 17, 2014

35

Aggravation of Patient’s Condition

Aggravation of a preexisting condition through negligence can result in a physician being liable for malpractice. If the original injury is aggravated by treatment or the failure to treat, liability can be imposed for injuries suffered as a result of the aggravation of the patient’s condition.

Patient Infections

Physicians are increasingly at risk for lawsuits related to hospital-acquired infections (HAIs). According to the Centers for Disease Control and Prevention, over 700,000 HAIs occur each year in acute care hospital settings.

36
Surgical site infections are serious, all-too-common occurrences requiring intensive and costly care, as is illustrated in

FIGURE 10-5

. Both physicians and hospitals are at a greater risk of lawsuits when there are failures to implement and enforce recognized infection control practices, policies, and procedures.

The District Court of Appeals of Florida held in
Gill v. Hartford Accident & Indemnity Co.

37
that the physician who performed surgery on a patient in the same room as the plaintiff should have known that the infection the patient had was highly contagious. The failure of the physician to undertake steps to prevent the spread of the infection to the plaintiff and his failure to warn the plaintiff led the court to find that hospital authorities and the plaintiff’s physician caused an unreasonable increase in the risk of injury. As a result, the plaintiff suffered injuries causally related to the negligence of the defendant. The court held that the plaintiff’s complaint does state a cause of action and alleges a duty and a breach of that duty.

Pain Management

Pain

I have been with Angie, my wife, on many of her appointments. One such appointment I vividly remember was at the University Hospital Pain Center, described by some as one of the top medical centers in the country. Here, after several residents poked her, they left the room. They later returned with their supervising attending physician. He stood over my Angie as she lay on the examination table. Looking down at her, he said, “We treat bone pain here.” Angie replied, “You advertise yourself as a pain-management center. I don’t understand.” The attending physician
replied, “Anything we do for you would be very risky and most likely will not work.” Angie described a new implantable device being used at Duke University Medical Center. The attending responded, “We never heard of that; however, we can suggest other procedures, but they do have associated risks.” The attending then proceeded to describe the procedures to Angie. Both Angie and I thought, “This is a major teaching hospital? Why won’t the physicians suggest looking into Duke’s procedure as to the potential risks and benefits for Angie?” The attending suggested, “Why don’t you think about the procedures we have discussed. Just schedule a new appointment before you leave.”

—Spouse

Discussion

Should the physicians have conducted research to determine whether the Duke device might be helpful to Angie? Explain your answer.

What would you do if you were Angie?

DISCHARGE AND FOLLOW-UP CARE

The premature discharge of a patient is risky business. The intent of discharging patients more expeditiously is often a result of a need to reduce costs. As pointed out by Dr. Nelson, an obstetrician and board member of the American Medical Association, such decisions “should be based on medical factors and ought not be relegated to bean counters.”

38
As noted in
Doan v. Griffith,

39
discharge instructions must be clear and complete. In this case, an accident victim was admitted to the hospital with serious injuries, including multiple fractures of his facial bones. The patient contended that the physician was negligent in not advising him at the time of discharge that his facial bones needed to be realigned by a specialist before the bones became fused. As a result, his face became disfigured. Expert testimony demonstrated that the customary medical treatment for the patient’s injuries would have been to realign his fractured bones surgically as soon as the swelling subsided and that such treatment would have restored the normal contour of his face. The appellate court held that the jury reasonably could have found that the physician failed to provide timely advice to the patient regarding his need for further medical treatment and that such failure was the proximate cause of the patient’s condition.

Untimely Discharge

Barbara Jupiter, as executor of the Estate of Warren Jupiter, brought an action against the Department of Veterans Affairs (VA) in
Jupiter v. U.S.,

40
alleging that Mr. Jupiter sustained personal injury, pain, and suffering prior to his death allegedly caused by the negligence of the defendant’s agents and employees while he was a patient at the VA hospital. A bench trial was conducted over a period of seven days.

Mr. Jupiter had elected to undergo bariatric surgery for weight loss at the VA hospital. One step in the operation was claimed to be a departure from the accepted practice of performing bariatric surgery that led to an infection and ultimately resulted in Jupiter’s death. The record showed that the distal stomach was removed at that time. The removal of the distal stomach was determined to be a departure from the standard of care.

Evidence in this case included testimony from 14 witnesses, medical records, reports of approximately 6,000 pages, and multiple anatomical diagrams and images. One witness, Dr. Randall, who performed over 6,000 bariatric surgeries, testified that in his opinion there was no surgical reason for removing the distal stomach. He explained that the basis for that opinion was the positive postoperative management opportunities of which Jupiter was deprived by the removal of the distal stomach. Jupiter was discharged with an elevated white blood count without timely treatment. Dr. Randall was of the opinion that the elevated white blood count indicated that there was an ongoing infection at the time Jupiter was discharged.

Jupiter was readmitted to the VA hospital on June 13, 2003, and an evaluation of his condition then revealed a urinary tract infection (UTI), which was successfully treated. By June 23, 2003, even though his white blood count remained high, he was discharged from the VA hospital and sent to St. Alban’s Hospital. Dr. Telzak testified that decision departed from accepted medical practice. He testified the same early departure from the VA hospital on May 14, 2003, was unacceptable medical practice because no determination was made as to why his white blood count remained elevated. His testimony was further supported by the fact that several months later, in November 2003, an abdominal CT scan evidenced a gastric leak and fluid in the ultra-abdominal cavity which, he testified, was the cause of the elevated white blood count on June 23.

The surgeon failed to address Jupiter’s condition two months earlier when there were signs of infection. The surgeon was indifferent to whether
his recommendation that something be done to address the possibility of an internal gastric leak attributable to his surgery was heeded. He claimed it was the medical service’s responsibility and not his. His testimony is startling, given the testimony of Dr. Weinshel, the deputy chief of staff of the VA hospital. Weinshel was asked whether the department of surgery was responsible for the patient’s follow-up care, and he answered “sure.”

41

The failure to make or attempt to make a differential diagnosis which the undiagnosed elevated white blood count, the fever (the inexplicable failure to take his temperature for weeks), his progressive debilitation, failure to thrive, anorexia, virtually cried out for is, that if that were done and the relationship between an intra-abdominal leak and the infection was revealed and corrective surgery performed at or about June 2003, the likelihood of a successful outcome was better than it was when that surgery was finally performed approximately 5 months later, in November.

42

The court concluded that the defendant’s negligence was the proximate cause of the patient’s pain and suffering. The plaintiff’s estate was awarded $5,900,000.

Failure to Provide Follow-Up Care

Failure to provide follow-up care can result in a lawsuit if such failure results in injury to a patient. In
Truan v. Smith,

43
the Tennessee Supreme Court entered judgment in favor of the plaintiffs, who had brought action against a treating physician for damages alleged to have been the result of malpractice by the physician in the examination, diagnosis, and treatment of breast cancer. In January or February of 1974, the patient noticed a change in the size and firmness of her left breast, which she attributed to an implant. She later noticed discoloration and pain on pressure. While being examined by the defendant on March 25, 1974, for another ailment, the patient brought her symptoms to the physician’s attention but received no significant response, and the physician made no examination of the breast at that time. The patient brought her symptoms to the attention of her physician for the second time on May 6, 1974. She had been advised by the defendant to observe her left breast for 30 days for a change in symptoms, which at the time of the examination included discomfort, discoloration, numbness, and sharp pain. She was given an appointment for 1 month later. The patient, on the morning of her appointment, June 3, 1974, called the physician’s office and informed the nurse that her symptoms had not changed and that she would like to know if she should keep her appointment. The nurse indicated that she would pass on her message to the physician. The patient assumed she would be called back if it was necessary to see the physician. By late June, the symptoms became more acute, and the patient made an appointment to see the defendant physician on July 8, 1974. The patient also was scheduled to see a specialist on July 10, 1974, at which time she was admitted to the hospital and was diagnosed as having a malignant mass. A radical mastectomy was performed. Expert witnesses expressed the opinion that the mass had been palpable seven months before the removal. When the defendant undertook to give the plaintiff a complete physical examination and embarked on a wait-and-see program as an aid in diagnosis, the physician should have followed up with his patient, who died before the conclusion of the trial.

The state supreme court held that the evidence was sufficient to support a finding that the defendant was guilty of malpractice in failing to inform his patient that cancer was a possible cause of her complaints and in failing to make any effort to see his patient at the expiration of the observation period instituted by him.

Failure to Follow-Up on Test Results

It is the responsibility of the ordering caregiver to have an effective process in place to follow-up with patients on a timely basis as to each patient’s clinical test results, such as laboratory and imaging studies (e.g., CT, MRI, and PET scans). A critical test result is defined as an abnormal test result that is considerably out of the normal range and needs to be urgently communicated to the patient. Follow-up care continues to be of concern in patient care settings such as physician offices, ambulatory care, walk-in-clinics, hospitals, nursing home facilities, and rehabilitative care settings. The failure to notify patients as to abnormal test results is not uncommon and can result in a missed or delayed diagnosis that can result in patient injury and even death. Such failures often lead to negligence suits and are difficult to defend in those cases where it is determined that the responsible caregiver failed to provide the patient with critical test results. A process for informing patients of both normal and abnormal test results is the responsibility of the ordering caregiver. Policies relating to responsibility, timing, and process of communication with the patient or appointed guardian requires implementation of a communication process that ensures appropriate notification and follow-up with
the patient. Emergency rooms have unique environments in that the ordering physician may not necessarily be the same physician who receives the test result and has ultimate responsibility for treating the patient. In these environments, practitioners should take extra care to put a system in place to ensure that the physician who receives the result can appropriately communicate the result(s). Effective follow-up care demands effective communications in managing each patient’s care needs, as noted in the following case. Managing test results should include telling the patient not only the bad news but also the good news.

The patient in
Downey v. University Internists of St. Louis, Inc.

44
entered the hospital in December of 1996 for heart bypass surgery. Two chest X-rays were taken during this hospitalization. The X-rays were interpreted as showing a lesion in the patient’s left lung and that a neoplasm could not be completely ruled out. If clinically warranted, CT scanning could be performed. No further tests or evaluations were ordered in response to these reports. A jury found that the now-deceased patient had a material chance of surviving his cancer and that his chance of survival was lost as a result of the physician’s negligence. The jury, however, did not award damages to compensate for the harm suffered. The Missouri Court of Appeals found that the verdict of no-damage award was inconsistent with the evidence and remanded the case for a new trial.

PHYSICIAN–PATIENT RELATIONSHIP

The physician–patient relationship entails special obligations for the physician to provide care to his or her patient. The physician’s primary commitment must always be the patient’s welfare and best interests, whether the physician is preventing or treating illness or helping the patient to cope with illness, disability, and death. It has long been recognized that the health and welfare of the patient depends on a collaborative effort between the physician and the patient. The physician must support the dignity of all patients and respect their uniqueness.

Personalized Treatment Versus Assembly-Line Medicine

Physician–patient relationships are more likely to be successful when patient care is more personalized.
Assembly-line medicine often depersonalizes the rapport between physician and patient.

Frederick Taylor was credited with being the first American management consultant and his philosophy of “the system must come before man”

45
has been credited with improving the manufacturing process in the United States. Taylorism (as it has come to be called) has been infiltrating the medical system, however, and both patients and doctors complain about the negative impact on them of what is perceived to be the practice of assembly-line medicine. Productivity factors and medical record requirements in addition to salary considerations place heavy burdens on many doctors to limit patient face time to fifteen-minute blocks for routine visits. However, if during that visit, the patient reveals an unexpected complication that requires a longer visit, it then throws the doctor’s entire day’s schedule off. Patients sitting in a doctor’s waiting room to be seen are not privy to the reasons why they are not called in to see their doctor until long past the scheduled appointment time.

Is U.S. Medicine Becoming Assembly-Line Medicine?

“Physicians sense that the clock is always ticking, and patients are feeling the effect. One of our patients recently told us that when she came in for a yearly wellness visit; she had jotted down a few questions so she wouldn’t forget to ask them. She was upset and frustrated when she did not get the chance: her physician told her there was no time for her questions because a standardized list had to be addressed—she needed to schedule a separate visit to discuss her concerns.”

—Michael Cook,
BioEdge, January 16, 2016

46

Those patients who are disgruntled with the long wait times to see their doctors believe that they should be reimbursed when the doctor is late. Their argument is based on the late fees that doctors’ offices charge for patients who don’t show up for their appointments and fail to call 24 hours ahead of time. Why, the patient argues, is the doctor’s time more important than the patient’s? The Geisinger Health System, which serves almost 3 million people in Pennsylvania and New Jersey, acquiesces to that logic. The new CEO there put a reimbursement system into place two years ago that refunds money to patients who file reports of a poor healthcare experience. “Requests for refunds have not shot up and have held steady at about $500,000.00 for each of the
last two years.”

47
The time has come to put Taylor’s philosophy to rest, at least in healthcare settings. Patients must come before the system.

Conduct a thorough assessment/history and physical examination that includes a review of all body systems.

Do not be dismissive as to the patient’s thoughts as to the cause of his or her ailments.

Develop a problems list and comprehensive treatment plan that addresses the patient’s problems.

Provide sufficient time and care to each patient. Take the time to explain treatment plans and follow-up care to the patient, his or her family, and other professionals who are caring for your patient.

Request consultations when indicated and refer if necessary.

Closely monitor the patient’s progress and, as necessary, make adjustments to the treatment plan as the patient’s condition warrants.

Maintain timely, legible, complete, and accurate records. Do not make erasures.

Do not guarantee treatment outcome.

Provide for cross-coverage during days off.

Do not overextend your practice.

Avoid prescribing over the telephone.

Do not become careless because you know the patient. Seek the advice of counsel should you suspect the possibility of a malpractice claim.

Take Care of Yourself Doctor: We Need You In thoughts and in the heart are the memories of the hundreds of thousands of physicians who daily do the right thing well and yet their best efforts fail and would have failed no matter who was the intervening physician.

Treat Caregivers with Respect

Why So Many Doctors Kill Themselves

The doctor had treated a girl in the ER for flu and then released her. She ended up back in the ER 30 hours later in respiratory distress and eventually died. His job was in jeopardy. “When I got home in the early-morning hours, I was just sad. I cried for the girl and her family. I cried myself to sleep and woke up still sad. … There’s a saying we have in the emergency room when we witness trauma and death among the innocent: A little piece of my soul died.”

—Pamela Wible,
The Chicago Tribune, January 15, 2018

48

CHAPTER REVIEW

The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient.

Hippocratic Oath dates back to 400 BC.

Modified version of the
Hippocratic Oath has been used by such medical schools as Johns Hopkins, Baylor College of Medicine, Tufts University School of Medicine.

American Medical Association developed its own code of ethical conduct for physicians.

Law and ethics interweave in patient care.

Hippocratic Oath and AMA Code of Ethics were violated when the physicians in
Scripps Clinic v. Superior Ct. terminated a patient’s care before ensuring the patient had continuing medical care.

Compassion, trust, justice, and respect for patient privacy are all ethical principles and values that are intertwined with law.

Physician negligence often involves one or more of the following:

Patient assessments

Medical diagnosis

Treatment

TEST YOUR UNDERSTANDING

Terminology

abandonment

assembly-line medicine

autonomy

Hippocratic Oath

informed consent

medical diagnosis

medical treatment

misdiagnosis

nonmaleficence

patient assessment

patient diagnosis

patient treatment

two-schools-of-thought doctrine

REVIEW QUESTIONS

Describe how the
Hippocratic Oath and modern codes of medical ethics apply to the practice of medicine.

Explain how the law and ethics intertwine in patient care.

Describe common medical errors relative to physician practice involving assessment, diagnosis, and treatment.

Discuss common guidelines that would be helpful in improving the physician–patient relationships.

NOTES

1. W. H. S. Jones, Ed. “Hippocrates, Oath, Introduction.” Hippocrates Collected Works I. Cambridge, MA: Harvard University Press (1868).
http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A2007.01.0077 (accessed July 29, 2018).

2. Hippocrates,
Hippocratic Oath (trans. Michael North). Bethesda, MD: National Library of Medicine History of Medicine Division (2002).
http://www.perseus.tufts.edu/hopper/text?doc=Perseus:text:1999.01.0252 (accessed July 29, 2018).

3. Peter Tyson, “The Hippocratic Oath Today,” PBS: Nova (March 27, 2001).
http://www.pbs.org/wgbh/nova/body/hippocratic-oath-today.html (accessed July 29, 2018).

4.
Ibid.

5. American Medical Association, “Code of Medical Ethics.”
https://www.ama-assn.org/delivering-care/ama-code-medical-ethics (accessed July 29, 2018).

6. Peter Eisler and Barbara Hansen, “Doctors Perform Thousands of Unnecessary Surgeries,” USA Today (June 20, 2013).
https://www.usatoday.com/story/news/nation/2013/06/18/unnecessary-surgery-usa-today-investigation/2435009/ (accessed July 28, 2018).

7.
Ibid.

8.
Scripps Clinic v. Superior Ct., 134 Cal. Rptr. 2d 101 (2003).

9.
Ibid.

10.
Bloomington Urological Associates v. Scaglia, 686 N.E.2d 389 (1997).

11. American Medical Association, Code of Medical Ethics: Current Opinions with Annotations, 8.11 (1996).

12. Sandra G. Boodman, “Is Your Surgeon Double Booked?” The Washington Post, July 10, 2017, at E-4.

13. American College of Surgeons, “Statement on Principles: Informed Consent.”
https://www.facs.org/about-acs/statements/stonprin#iia (accessed July 28, 2018).

14. 2018 Florida Statutes: 766.103 Florida Medical Consent Law.
https://m.flsenate.gov/Statutes/766.103 (accessed July 28, 2018).

15. Jennifer Steinhauer, “Fatal Surgery Leads to Fine for Hospital,” The New York Times (November 6, 1998).
http://www.nytimes.com/1998/11/06/nyregion/fatal-surgery-leads-to-fine-for-hospital.html (accessed July 28, 2018).

16. Sophie Borland and David Wilkes, “1 in 4 Cancer Cases Missed: GPs Send Away Alarming Number of Patients, Delaying Vital Treatment,” MailOnline, March 1, 2011;
http://www.dailymail.co.uk/health/article-1361269/1-4-cancer-cases-missed-GPs-delaying-vital-treatment.html (accessed July 28, 2018).

17.
Valentine v. Kaiser Found. Hosps., 15 Cal. Rptr. 26 (Cal. Ct. App. 1961) (dictum).

18.
Dimora v. Cleveland Clinic Foundation, 683 N.E.2d 1175 (Ohio App. 1996).

19.
Matter of Jascalevich, 442 A.2d 635 (N.J. Super. Ct. 1982).

20.
Ibid. at 644–645.

21. New York State Department of Health, New York State Education § 6530 Definitions of Professional Misconduct.
https://www.health.ny.gov/professionals/office-based_surgery/law/6530.htm (accessed July 29, 2018).

22.
Horn v. New York Times, 100 N.Y.2d 85 (2003).

23. AMA, “Opinion 1.02—The Relation of Law and Ethics.”
http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion102.page? (accessed July 28, 2018).

24. Sandra G. Boodman, “An Unusual Coincidence Solved the Mystery of the Scary Nosebleeds and Low Platelet Counts,” The Washington Post (February 24, 2014).
https://www.washingtonpost.com/national/health-science/an-unusual-coincidence-solved-the-mystery-of-the-scary-nosebleeds-and-low-platelet-counts/2014/02/24/4c803fd6-8b70-11e3-916e-e01534b1e132_story.html?utm_term=.facec6bd0776 (accessed July 29, 2018).

25.
Foley v. Bishop Clarkson Memorial Hospital, 173 N.W.2d 881 (Neb. 1970).

26.
Ramberg v. Morgan, 218 N.W.2d 492 (Iowa 1928).

27. The Free Dictionary, “Treatment.”
http://www.medical-dictionary.thefreedictionary.com/treatment (accessed July 28, 2018).

28. Online Medical Advisor [website].
http://www.onlinemedicaladvisor.com (accessed July 28, 2018).

29.
Bankert v. United States, 937 F. Supp. 1169, 1173 (D. Md. 1996).

30.
Leggett v. Kumar, 570 N.E.2d 1249 (Ill. App. Ct. 1991).

31.
Moyo v. Ambach, 23 N.Y.S.2d 645 (N.Y. App. Div. 1988).

32.
Argus v. Scheppegrell, 489 So. 2d 392 (La. Ct. App. 1986).

33. The Joint Commission, “Joint Commission Alert: Preventing Retained Surgical Items [Press Release].” (October 17, 2013).
http://www.jointcommission.org/joint_commission_alert_preventing_retained_surgical_items/ (accessed July 28, 2018).

34. Sandra G. Boodman, “Effort to End Surgeries on Wrong Patient or Body Part Falters,” Kaiser Health News, June 20, 2011.
http://www.kaiserhealthnews.org/Stories/2011/June/21/wrongsite-surgery-errors.aspx (accessed July 28, 2018).

35. Kate Seamons, “Pregnant Woman Died After Wrong Organ Removed,” Newser (April 16, 2014).
https://shine.yahoo.com/parenting/pregnant-woman-dies-horrifying-medical-mixup-200700512.html (accessed July 28, 2018).

36. Shelley S. Magill, Jonathan R. Edwards, Wendy Bamberg, … for the Emerging Infections Program Healthcare-Associated Infections and Antimicrobial Use Prevalence Survey Team. “Multistate Point-Prevalence Survey of Health Care-Associated Infections.” The New England Journal of Medicine 370 (2014): 1198–1208.

37.
Gill v. Hartford Accident & Indemnity Co., 337 So. 2d 420 (Fla. Dist. Ct. App. 1976).

38. Anita Manning, “AMA Calls Drive-Thru Birth Risky,” USA Today (June 21, 1995) at 1.

39.
Doan v. Griffith, 402 S.W.2d 855 (Ky. Ct. App. 1966).

40.
Jupiter v. U.S., No. 05 CV 4449 (United States District Court, E.D. New York, December 20, 2012).

41.
Ibid. (Tr. at 273).

42.
Ibid. (Tr. at 273).

43.
Truan v. Smith, 578 S.W.2d 73 (Tenn. 1979).

44.
Downey v. University Internists of St. Louis, Inc., No. ED83231 (Mo. App. 2004).

45. Michael Cook, “Is US Medicine Becoming an Assembly Line?” BioEdge (January 16, 2016).
https://www.bioedge.org/bioethics/is-us-medicine-becoming-an-assembly-line/11708 (accessed July 28, 2018).

46.
Ibid.

47. Steven Petrow, “What Can You Do If Your Doctor Always Keeps You Waiting?” The Washington Post (January 23, 2018) at E5.

48. Pamela Wible, “Why So Many Doctors Kill Themselves,” The Chicago Tribune (January 15, 2018).
http://www.chicagotribune.com/lifestyles/health/ct-why-so-many-doctors-kill-themselves-20180115-story.html (accessed July 29, 2018).

CHAPTER 11

Employee Rights and Responsibilities

I have always believed that the way you treat your employees is the way they will treat your customers, and that people flourish when they are praised.

—Sir Richard Branson

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Describe and understand the rights of employees.

Describe the responsibilities of employees in the workplace.

Discuss what professionals can do to improve professional relationships.

INTRODUCTION

This chapter provides an overview of the rights and responsibilities of employees, as well as independent contractors (e.g., physicians) in the healthcare work setting, many of which are expressed in state and federal laws. Applicable laws include employment practices, such as wages, hours, working conditions, union activity, and providing a safe work environment. This chapter demonstrates that balancing the rights and responsibilities of employees and their employer is not always an easy task. As is often said in the performance improvement process, it is not enough to do the right thing; one must do the right thing
well. As discussed next, with every right, there comes a corresponding duty equal to the right enjoyed.

EMPLOYEE RIGHTS

Man never fastened one end of a chain around the neck of his brother that God did not fasten the other end round the neck of the oppressor.

−Alphonse de Lamartine (1790–1869)

This section introduces the reader to employee rights from both a legal and moral standpoint. “The Department of Labor (DOL) administers and enforces more than 180 federal laws. These mandates and the regulations that implement them cover many workplace activities for about 10 million employers and 125 million workers.”

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Fair Treatment and Employment at Will

The common-law “employment-at-will” doctrine provides that employment is at the will of either the employer or the employee. The employer or employee may terminate employment for any or no reason, unless there is a contractual agreement in place that specifies the terms and duration of employment. Historically, termination of employees for any reason was widely accepted; however, contemporary thinking does not support this concept.

An at-will prerogative without limits could be suffered only in anarchy, and there not for long; it certainly cannot be suffered in a society such as ours without weakening the bond of counter-balancing rights and obligations that holds such societies together.

−
Sides v. Duke Hospital

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Employment at will does not abrogate employee rights. Employees have faced discrimination involving age, race, creed, color, gender, wages, benefits, wrongful termination, as well as a host of other common labor issues. A variety of federal and state laws protect employee rights to be treated fairly in the workplace. The following listing describes but a few of the rights of employees in the workplace.

In recent years, the rule that employment for an indefinite term is terminable by the employer whenever and for whatever cause the employer chooses without incurring liability has been the subject of considerable scholarly debate and judicial and legislative modification. Consequently, there has been a growing trend toward a restricted application of the at-will employment rule, whereby the right of an employer to discharge an at-will employee without cause is limited by either public policy considerations or an implied covenant of good faith and fair dealing.

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In
Sides v. Duke Hospital, the North Carolina Court of Appeals found it to be an:

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obvious and indisputable fact that in a civilized state where reciprocal legal rights and duties abound, the words “at will” can never mean “without limit or qualification,” as so much of the discussion and the briefs of the defendants imply; for in such a state the rights of each person are necessarily and inherently limited by the rights of others and the interests of the public. An at-will prerogative without limits could be suffered only in an anarchy, and there not for long; it certainly cannot be suffered in a society such as ours without weakening the bond of counter-balancing rights and obligations that holds such societies together. …

If we are to have law, those who so act against the public interest must be held accountable for the harm inflicted thereby; to accord them civil immunity would incongruously reward their lawlessness at the unjust expense of their innocent victims.

The concept of the employment-at-will doctrine is embroiled in a combination of legislative enactments and judicial decisions. Some states, such as New York, tend to be more employer-oriented, whereas others, such as California, emerge as being much more forward-thinking and in harmony with the constitutional rights of the employee.

The employment-at-will common law doctrine is not truly applicable in today’s society and many courts have recognized this fact.
In the last century, the common law developed in a laissez-faire climate that encouraged industrial growth and improved the right of an employer to control his own business, including the right to fire without cause an employee at will. … The twentieth century has witnessed significant changes in socioeconomic values that have led to reassessment of the common law rule. Businesses have evolved from small- and medium-size firms to gigantic corporations in which ownership is separate from management. Formerly there was a clear delineation between employers, who frequently were owners of their own businesses, and employees. The employer in the old sense has been replaced by a superior in the corporate hierarchy who is himself an employee.

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Some courts and legislative enactments have overturned the view that employers have total discretion to terminate workers who are not otherwise protected by collective bargaining agreements or civil service regulations. Montana law grants every employee the right to sue the employer for wrongful discharge. The mere fact that an employment contract is terminable at will does not give the employer an absolute right to terminate it in all cases. However, the Montana wrongful discharge statute of 1989 provides that a discharge is wrongful only if:

(1) it was in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy;

(2) the discharge was not for good cause and the employee had completed the employer’s probationary period of employment; or

(3) the employer violated the express provisions of its own written personnel policy.

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Accordingly, “the evolving legal doctrines surrounding the breach of the duty of good faith and fair dealing still have primary importance.”

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Fairness—When 6 + 1 = 9

Bill had nine evaluations during seven consulting assignments. One corporation submitted one original evaluation and two copies of the same evaluation. Policy requires that each corporation submit one evaluation for each consultant at the end of a consulting project. Unfortunately for Bill, the same evaluation by the same person was submitted three times. It was negative in 2 of 20 ratings. This skewed Bill’s overall performance average in two categories to an overall score of “meets expectations.” Bill—being a perfectionist—had “exceeds expectations” in all of the categories over the past 10 years. Bill believed that the data were flawed, and he approached Vinnie, his supervisor, to discuss his concerns. Vinnie brushed off Bill’s concerns and said, “Everything will average out in the end. Don’t worry about it.”

Bill later learned that Vinnie was responsible for assuring the accuracy of aggregate data in the organization. Bill thought, “If the performance data are flawed, how can I trust any other data that Vinnie presents at corporate meetings?”

Bill decided to email his concerns to Vinnie about the inaccurate aggregation of data in his evaluations. He made the analogy that, if he had seven algebra exams and in six he scored 100 and in one he scored 70, the aggregate data would be flawed if the score of 70 had been averaged into his total score three times. Bill was sure Vinnie would understand this analogy. Not so. Vinnie said to Bill, “We have already had this discussion. I don’t want to hear about it again.”

Discussion

Should Bill pursue his concerns, or should he accept the performance downgrade that has resulted from the use of flawed data? Discuss your answer.

Was Vinnie unreasonable in his thinking—“I’ve made up my mind, don’t confuse me with the facts?”

Public Policy Exceptions

The public policy exception to the employment-at-will doctrine provides that employees may not be terminated for reasons that are contrary to public policy. Public policy originates with legislative enactments that prohibit, for example, the discharge of employees on the basis of disability, age, race, color, religion, gender, national origin, pregnancy, whistleblowing, filing of discrimination or safety violation complaints with various agencies (e.g., the Occupational Safety and Health Administration), union membership, refusal to commit an unlawful act, breach of contract, or the organization’s failure to follow its own policies and procedures for termination of employment. Any attempt to limit, segregate, or classify employees in any way that would deprive any individual of employment opportunities on these bases is contrary to public policy.

Public policy also can arise as a result of judicial decisions that address those issues not covered by statutes, rules, and regulations. “[I]t can be said that public
policy concerns what is right and just and what affects the citizens of the state collectively. It is to be found in the state’s constitution and statutes and, when they are silent, in its judicial decisions.”

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Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy. Persons acting in good faith, who have probable cause to believe crimes have been committed, should not be deterred from reporting them by fear of a lawsuit by those accused.

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In those cases where state and federal laws do not address public policy concerns, not all courts concur with the use of judicial decisions as a means for determining public policy. A California court, for example, determined that a public policy exception to the at-will employment doctrine must be based on constitutional or statutory provisions rather than judicial decisions.

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Freedom from Discrimination

Employees have a right to be considered for a job based on their skills and qualifications for the jobs for which they are applying without discrimination. For example, a job applicant must not be discriminated against on the basis of age, race, creed, color, national origin, or religion.

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

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Equal Pay for Equal Work

The Equal Pay Act (EPA) of 1963 is essentially an amendment to the Federal Labor Standards Act that was passed to address wage disparities based on gender. The EPA prohibits gender discrimination in the payment of wages for women and men performing substantially equal work in the same establishment. Under the EPA, a lawsuit may be filed by the Equal Employment Opportunity Commission (EEOC) or by individuals on their own behalf. If a complainant is paid full back wages under EEOC supervision or if the EEOC takes legal action first, a private suit may not be filed.

The EPA is applicable wherever the minimum wage law is applicable and is enforced by the EEOC. The EPA requires that employees who perform equal work receive equal pay. There are situations in which wages may be unequal as long as they are based on factors other than gender, such as in the case of a formalized seniority system or a system that objectively measures earnings by the quantity or quality of production.

Refuse to Participate in Patient Care

Caregivers have a right to refuse to participate in certain aspects of patient care and treatment. This can occur when there is conflict with one’s cultural, ethical, and/or religious beliefs, such as the administration of blood or blood products, participation in elective abortions, and end-of-life issues such as disconnecting a respirator. However, a patient’s health must not be compromised in the attempt to honor staff rights. Questionable requests to decline to participate in certain aspects of a patient’s care should be referred to an organization’s legal counsel and/or the ethics committee for review and consultative advice.

Refusal to Participate in Elective Abortions Upheld

Caregivers have a right to refuse to participate in elective abortions and can abstain from involvement in abortions as a matter of conscience, religious beliefs, or moral conviction. In a Missouri case,
Doe v. Poelker,

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involving an indigent woman seeking an abortion at a public hospital, the city was ordered to obtain the services of physicians and personnel who had no moral objections to participating in abortions.

We stress, however, that the remedy is to be directed at the city officials acting as such and should declare the necessity to take certain official actions. It should not require that any present member of the staff of the public hospitals or any individual employee of the hospitals participate or assist in any way in the performance of abortions if, as a matter of conscience, he objects to so doing.

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The city also was required to pay the plaintiff’s attorneys’ fees because of the wanton disregard of the indigent woman’s rights and the continuation of a policy to disregard and/or circumvent the U.S. Supreme Court’s rulings on abortion.

Refusal to Participate in Therapeutic Abortion Insubordinate

In the attempt to honor staff rights, a patient’s health must not be compromised. The New York Supreme Court, Appellate Division in
Larson v. Albany Medical Center

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held that although a nurse has the right
to refuse to participate in an elective termination of pregnancy on grounds of freedom from religious discrimination in employment, the case before the court did not involve an elective procedure. The mother needed emergency care, and the nurses were asked by their nursing supervisor to assist in an “emergency” evacuation of a dead fetus. The nurses launched an argument about elective abortions, and the court ruled their action as insubordinate behavior.

Pharmacists Refusal to Fill Prescriptions

Some pharmacists’ religious beliefs prohibit abortion or the use of birth control. They believe that dispensing such medications to others is an infringement on their freedom of religion. There are others who believe that pharmacists have an obligation to fill all prescriptions and that refusing to fill them violates the patients’ freedom of conscience. The First Amendment protects individual free exercise of religion. The question here, “Does requiring pharmacists to fill prescriptions conflict with religious beliefs and violate their rights under the First Amendment?” Some say yes, because people whose religious beliefs prohibit birth control or abortion cannot freely exercise their religion if they are forced to dispense these medications. Others say no, because the patients’ need to obtain their medication outweighs the pharmacists’ rights.

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Some states have subsequently proposed legislation and passed laws designed to allow doctors and other direct providers of health care to refuse to perform or assist in an abortion, and hospitals to refuse to allow abortion on their premises. Now, the issue is expanding as pharmacists are refusing to fill prescriptions for both daily and emergency contraceptives.

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As each state often has different rulings on this issue, the reader should review applicable statutes in his or her state.

Question Patient Care

A caregiver has the right to question the care being rendered to a patient by another caregiver if there is reason to believe that the care is likely to be detrimental to the well-being of the patient. For example, if a caregiver believes that a particular order appears to be questionable, the caregiver has the responsibility to seek verification from the prescribing physician. If the prescribing physician believes the order to be correct and the caregiver still questions the order, the concern must be relayed to the employee’s supervisor for verification and further follow-up if necessary.

Case Studies

Paving Her Way to Heaven

The nurse-plaintiff in
Kirk v. Mercy Hosp. Tri-County

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was employed as a charge nurse with supervisory duties. A short time after one of her patients had been admitted to the hospital, the nurse diagnosed that the patient was suffering from toxic shock syndrome. The nurse believed that the physician would order antibiotics. After a period of time had passed without having received those orders from the physician, she discussed the patient’s situation with the director of nursing. The nurse was told by the director to document what had happened. She was told to report the facts and stay out of the matter.

The nurse discussed the patient’s condition and lack of orders with the chief of staff. Although the chief of staff took appropriate steps to treat the patient, the patient died. A member of the patient’s family had told the nursing director that the nurse-plaintiff offered to obtain the medical records. The nursing director was later told that the nurse-plaintiff had told the family member that the physician was “paving [the patient’s] way to heaven.” The director terminated the plaintiff.

After her termination, the nurse received a service letter from the hospital that directed her to refrain from making any further false statements about the hospital and its staff.

The trial court entered a summary judgment for the defendant, stating that there were no triable issues of fact, and there was no public policy exception to the nurse’s at-will termination. The nurse appealed.

The Missouri Court of Appeals held that the Nursing Practice Act provided a clear mandate of public policy that the nurses had a duty to provide the best possible care to patients. Public policy clearly mandates that a nurse has an obligation to serve the best interests of patients; therefore, if the plaintiff refused to follow her supervisor’s orders to stay out of a case where the patient was dying from a lack of proper medical treatment, there would be no grounds for her discharge under the public policy exception to the employment-at-will doctrine.

Pursuant to the Nursing Practice Act, the plaintiff risked discipline if she ignored improper treatment of the patient. Her persistence in attempting to get the proper treatment for the patient was her absolute duty. The hospital could not lawfully require that she stay out of a case that would have obvious injurious consequences to the patient. Public policy, as defined in case law, holds that no one can lawfully do that which tends to be injurious to the public or against the public good.

Ethical and Legal Issues

Describe the ethical and legal issues in this case.

Did the hospital violate the rights and responsibilities of the nurse? Explain your answer.

Would the nurse’s professional code of ethics support her actions in this case? Explain your answer.

Suggest Changing Physician

There are circumstances in which a caregiver has a right to suggest that a patient or patient’s family change to a different, more responsive physician. For example, in one case a patient began losing weight and having hallucinations. A nurse documented the patient’s difficulties and attempted on several occasions to call the patient’s physician. The physician failed to return the nurse’s calls. When the patient’s condition deteriorated further, the family contacted the nurse. After the nurse told the patient’s family about her concerns, a member of the patient’s family asked her what they should do. The nurse advised that she would reconsider their “choice of physicians.” The nurse was subsequently terminated because she had advised the patient’s family to consider changing physicians.

The nurse brought a lawsuit for wrongful discharge in violation of public policy. The language in the Nursing Practice Act of North Carolina and regulations of the Board of Nursing describe the practice of nursing as assessing a patient’s health, which entails a responsibility to communicate, counsel, and provide accurate guidance to clients and their families. The nurse’s comments that resulted in her termination were made in fulfillment of these responsibilities.

The North Carolina Court of Appeals held that the nurse stated a claim for wrongful discharge in violation of public policy. The nurse’s termination for fulfilling her responsibilities as a practicing nurse violated state public policy and was a factual question for jury determination. Although there may be a right to terminate at-will employment for no reason or for an arbitrary or irrational reason, there can be no right to terminate such employment for an unlawful reason or purpose that contravenes public policy.

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Freedom from Disruptive Behavior

Disruptive behavior includes verbal outbursts and physical threats.

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Civility is commonly recognized as improving safety in the healthcare workplace and includes hospitals, nursing facilities, physician offices, and other such healthcare entities. The results of a survey by VHA West Coast “show that disruptive behaviors lead to potentially preventable adverse events, errors, compromises in safety and quality, and patient mortality. Strategies to address disruptive behaviors should (1) prevent disruptive events from occurring, (2) deal with events in real time to prevent staff or patient harm, and (3) initiate post-event review, actions, and follow-up.”

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A disruptive physician is described as “one whose behavior is described as demeaning, aggressive, uncivil, or hostile to colleagues, patients or ancillary staff. The American Medical Association (AMA) has defined disruptive behavior as a style of interaction with physicians, hospital personnel, patients, family members, or others that interferes with patient care.”

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Bullying

Bullying is abusive conduct that includes threatening and or humiliating behaviors, such as name calling and personal insults. Such actions can lead to psychological harm. The Workplace Bullying Institute “is the first and only U.S. organization dedicated to the eradication of workplace bullying that combines help for individuals, research, books, public education, training for professionals-unions-employers, legislative advocacy, and consulting solutions for organizations.”

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The impact of bullying behaviors on the organization can include lower morale, reduced productivity, and increased absenteeism and turnover. This in turn can affect patient safety. Workplace bullying also leads to lawsuits, compensation for disability, loss of profits, negative impact on organizational reputation, and a corrosion of the patient to healthcare worker relationship. Employees, patients and families who witness behaviors that are not civil are concerned about how care can be impacted. For example, a physician who is openly critical of a
hospital administrator reviewer, such as discussed in Chapter 15,
Summary Case: Search for Truth, creates an environment that could have profound repercussions for the hospital, its staff, and indirectly its patients.

Sexual Harassment

Employees have a right to be free from
sexual harassment. Sexual harassment can be verbal or physical, and it includes a request for a sexual favor, sexual advances made as a condition of employment, unreasonably interfering with an employee’s work performance, and creating an intimidating or offensive
working environment. In 1980, the EEOC issued landmark sexual harassment guidelines that prohibit unwelcome sexual advances or requests that are made as a condition of employment. The guidelines also prohibit conduct that creates a hostile work environment. The U.S. Supreme Court held that a hostile work environment refers not only to conduct that is psychologically injurious but also to conduct that is perceived as abusive.

Treatment with Dignity and Respect

One’s dignity may be assaulted, vandalized, and cruelly mocked, but it cannot be taken away unless it is surrendered.

—Author Unknown

Without the feelings of respect, what is there to distinguish men from beasts?

—Confucius

Each employee has the right to be treated with dignity and respect in a fair and consistent manner by the employer. Employers have a responsibility to respond to employee complaints and concerns regarding their rights to be treated with dignity and respect. Furthermore, employers should take action without delay as to employee reports of an abusive work environment, as noted in the following
Reality Check.

Or Becomes an Abusive Environment

Dr. D is the director of surgery at Union Medical Center. He has long been recognized for his disruptive behavior and outbursts of anger in the OR. Carol, the VP of nursing, makes an appointment to speak with you (Daniel, the new CEO) about the abusive disposition and mood swings of Dr. D in the OR.

“Daniel, Dr. D has a history of name-calling and berating Roberta, the OR manager, in the presence of her staff. He fails to follow hospital policy and threatens that he is going to get her fired. Roberta has repeatedly spoken to Dr. D several times for his failure to follow presurgical hand-washing technique. His postsurgical infection rate is the highest in the OR. We have spoken to the Infection Control Committee several times about this. They keep telling me that they will talk to him and yet nothing seems to change. Sometimes I think they are afraid of him. The staff is fearful of Dr. D and they have been reluctant to come forward with their concerns. I am new to the hospital and had hoped that we could resolve this without your intervention. However, we do need your help. Dr. D is recalcitrant, mean-spirited, and will not change. Roberta is a hard-working and conscientious supervisor. Today, Dr. D. again told Roberta that he was going to get her fired before the week was out. You know, she is an extremely conscientious nurse with patients being her first priority and is well liked by her coworkers. I went in Roberta’s office earlier today and found her crying. She said she has put up with Dr. D for 5 years and just cannot take his abusive outbursts any longer and has decided to resign her position and leave.”

Daniel responds, “Carol, we are both new to this hospital, and such abusiveness by any physician to any staff member will not be tolerated. I plan to speak to Roberta myself and follow up with the surgeon, and if necessary, the medical board.”

—Anonymous

Discussion

If you were Daniel, how would you address this problem?

What procedures should be in place to handle disciplinary issues of this nature?

Would you talk to Roberta? What would you say?

Freedom from Intimidation

Employees have a right to be free from intimidation and veiled threats by managers, disgruntled physicians, patients, visitors, and fellow employees in the workplace. Employees have a right to be protected from the mistreatment by others regardless of their position in the healthcare setting. As noted in the following news clipping, physicians can be intimidating to both employees and patients.

Hospitals Crack Down on Tirades by Angry Doctors

At a critical point in a complex abdominal operation, a surgeon was handed a device that didn’t work because it had been loaded incorrectly … the surgeon slammed it down, accidentally breaking the technician’s finger.

The 2011 incident illuminates a long-festering problem that many hospitals have been reluctant to address: disruptive and often angry behavior by doctors. Experts estimate that 3 to 5 percent of physicians engage in such behavior, berating nurses who call them in the middle of the night about a patient … demeaning co-workers they consider incompetent or cutting off patients who ask a lot of questions.

—Sandra G. Boodman,
The Huffington Post, March 5, 2013

There is a tendency for those in power to abuse that power through threats, abuse, intimidation, and even retaliatory discharge, all of which are cause for legal action. Employees who become the targets of a vindictive supervisor often have difficulty proving a bad-faith motive. In an effort to reduce the probability of wrongful discharge, some states, such as Connecticut,

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Maine,

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Michigan,

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and Montana,

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have enacted legislation that protects employees from terminations found to be arbitrary and capricious. The Montana Supreme Court upheld state legislation that protects workers against arbitrary discharge, while limiting the damages they can win.

The National Labor Relations Act and other labor legislation illustrate the governmental policy of preventing employers from using the right of discharge as a means of oppression. … Consistent with this policy, many states have recognized the need to protect employees who are not parties to a collective bargaining agreement or other contract from abusive practices by the employer. …

Recently, those states have recognized a common-law cause of action for employees-at-will who were discharged for reasons that were in some way “wrongful.” The courts in those jurisdictions have taken various approaches: some recognizing the action in tort, some in contract.

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Dismissal of an employee shortly after a request for a grievance hearing regarding a salary discrepancy with another employee can raise an issue of liability for retaliatory discharge. The physician in
Jones v. Westside-Urban Health Center

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was found to have established a
prima facie case of retaliatory discharge in which the record indicated that he had been fired from the hospital 5 days after his request for a grievance hearing on an alleged salary discrepancy.

Privacy and Confidentiality

Employees have a right to privacy and confidentiality, such as information that the employer may become aware of as to an employee’s health status. Modern technology enables employers to monitor their employees’ activities through their computer site visits, emails, voicemail, and video monitoring (video monitoring is not permissible in bathrooms and locker rooms). Such monitoring is generally unregulated, and unless an organization’s policy specifically states otherwise, the employer may listen, watch, and read an employee’s workplace communications. Such information must be used wisely and discreetly without malice.

Employee rights often ride a fine line as related to privacy. As the following
Reality Check illustrates, it is sometimes difficult to know where to draw the line between corporate integrity and employee rights.

Your Mail has been Intercepted

The XYZ Corporation has decided to open all mail sent to employees who work in the field. A memorandum was sent to the field staff saying, “Sorry, your mail will be either opened or returned to the sender if it is delivered to your workplace. If the sender is from a healthcare organization, it will be opened to determine if its contents relate to XYZ’s business. If the mail is from any other person or place, it will be returned unopened to the sender. This action is necessary from a cost-savings standpoint. XYZ cannot afford to forward the on-average 60 pieces of mail that it receives each month addressed to field staff.” What happens to opened mail that is not XYZ’s business remains a mystery. What is it that drives an organization to make such decisions? Is it fear of competition, paranoia, distrust, or some other mysterious issue? The answer remains elusive.

Although it is legal for an organization to open all mail before sorting and delivering it, employees should be told that they should have no expectation of privacy and that they should not have anything personal sent to work that they don’t want others to see. Managers should not be allowed to open an employee’s mail indiscriminately, because the invasion of privacy will undermine employee morale. Policy should prohibit managers from opening employees’ personal mail without good reason.

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—Anonymous

Discussion

Discuss under what circumstances an organization should open an employee’s mail.

Discuss any legal and ethical concerns (e.g., right to privacy).

Describe what should happen to the mail of an employee that is opened and is not intended for the organization? What if that information is confidential in nature and is shared with others?

Is forwarding 60 envelopes a month to employees who work at remote sites in 50 states 5 days a week asking too much of an accrediting corporation that charges over $45,000 for a 5-day review of a hospital’s compliance with accreditation standards? Discuss your answer as to the impact such a policy can have on employee morale.

Trust and Organizational Harmony

Without trust, privacy and confidentiality become meaningless. The most vital resource in a healthcare organization is the staff. The CEO must assign responsibilities to both line and staff employees on the basis of capability. The CEO must recognize the differences and needs of each individual, develop their strengths, and provide guidance in times of weakness. Like a conductor in a symphony orchestra, the CEO must produce organizational harmony among the staff. The CEO sets the tone for building trust in the organization. Therefore, it is imperative that he or she be attuned to the needs of those in the front line, those employees who conduct the day-to-day business of the organization and support its mission.

Jack, the CEO of XYZ, has been working for 2 years in his position. Staff members have criticized his physical absence and his once-a-year appearance at employee luncheons. Except for the occasional memorandum drafted by other staff members, many employees at XYZ have become discouraged and distrustful of the top-tier vice presidents who were appointed by Jack to conduct business for XYZ. Employees are beginning to leave, and business is going elsewhere.

—Anonymous

Discussion

Discuss why the CEO must earn the respect and trust of his or her staff. Discuss why:

Without trust, one cannot lead.

Being heard and not seen is not leadership.

What should Jack do to build trust in the organization?

Family Medical Leave

Employees have a right to take a medical leave of absence under the
Family and Medical Leave Act of 1993 (FMLA), which was enacted to grant temporary medical leave to employees under certain circumstances. The act provides that covered employers must grant an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month period for one or more of the following reasons: the birth and care of an employee’s child; placement of an adopted or foster child with the employee; the care of an immediate family member (spouse, child, or parent) with a serious health condition; or inability to work because of a serious health condition. It is illegal to terminate health insurance coverage for an employee on FMLA leave. Following an FMLA leave, the employee’s job—or an equivalent job with equivalent pay, benefits, and other terms and conditions of employment—must be restored.

Whistleblowing

Employees have both a right and responsibility to report unethical conduct.
Whistleblowing has been defined as an act of someone “who, believing that the public interest overrides the interest of the organization he serves, publicly blows the whistle if the organization is involved in corrupt, illegal, fraudulent, or harmful activity.”

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As noted in the following news clippings, the number of whistleblowing cases and settlements has resulted in major payouts by healthcare corporations.

Drug Firm to Pay $2.2 Billion in Fraud Settlement

Johnson & Johnson will pay $2.2 billion to resolve civil and criminal allegations involving the marketing of off-label, unapproved uses for three prescription drugs, Justice Department officials announced Monday.

• • •

Monday’s settlement also will result in a significant payout for whistleblowers in three states—Pennsylvania, Massachusetts and California—who officials said will receive nearly $168 million of the government’s take.

—Brady Dennis with Sari Horwitz,
The Washington Post, November 5, 2013

Physician Whistle-Blowers can Sue Hospitals without Delay, Appeals Court Rules

Judges say a law enables California doctors to take immediate legal action against health centers suspected of retaliation.

A 2007 amendment to California’s whistle-blower protection law allows physicians lodging complaints about hospitals to sue the facilities for retaliating against them without the doctors first having to exhaust lengthy administrative remedies, a federal appeals court has ruled.

The ruling encourages more doctors to speak up about patient care concerns in health facilities, said Long X. Do, legal counsel for the California Medical Assn. The CMA wrote a friend-of-the-court brief in support of the doctor who is the plaintiff in the case.

—Alicia Gallegos,
American Medical News, September 3, 2012

Whistleblower Lawsuit Alleges Florida Hospital Filed Millions in False Claims

A whistleblower lawsuit based on insider information from a former Florida Hospital Orlando billing employee and a staff physician alleges that seven Adventist Health hospitals in Central Florida have overbilled the federal government for tens of millions of dollars in false or padded medical claims.

The suit claims Florida Hospital used improper coding for more than a decade to overbill Medicare, Medicaid and Tricare, all federal government payors. In addition, it alleges, the hospital commonly overbilled for a drug used, for example, in MRI scans and billed for computer analyses that were never performed.

—Marni Jameson,
Orlando Sentinel, August 8, 2012

According to the public policy exception, an employer may not rely on the employment-at-will doctrine as a basis for escaping liability for discharging an employee because of the doing of or the refusing to do a wrongful act. Moreover, statutes in several jurisdictions protect an employee from an employer’s retaliation for engaging in certain types of protected activities, such as whistleblowing.

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Healthcare organizations often describe their whistleblower policy in their compliance manuals. Compliance officers are responsible for providing information to employees regarding the organization’s compliance program. The policies provide reporting procedures that ensure anonymity for employees through, for example, the use of phone hotlines answered by third parties not affiliated with the organization. Organizations must not retaliate against employees for disclosing activities that they reasonably believe are in violation of public policy, such as fraudulent billing practices.

OSHA’s Whistleblower Protection program, for example, enforces the whistleblower provisions of more than twenty whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work-related injury, illness or fatality, or reporting a violation of the statutes.

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Although demotion, intimidation, reassignment, reduction in work hours, constructive discharge, and so on are prohibited by law, there are often long-term negative effects on one’s lifestyle, as noted in the following news clipping.

The Price Whistle-Blowers Pay for Secrets

“It’s a life-changing experience,” said John R. Phillips, founder of the law firm Phillips & Cohen and the man credited with devising the amendments that strengthened the government antifraud law, the False Claims Act, in 1986. “If you look at the field of whistle-blowers, you see a high degree of bankruptcies. You may find yourself unemployable. Home foreclosures, divorce, suicide and depression all go with this territory.”

—Paul Sullivan,
The New York Times, September 21, 2012

Safe Environment

Employees have a right to work in a safe environment, thus requiring the employer to provide appropriate safety conditions that includes providing the appropriate equipment (e.g., ventilation systems as required throughout the hospital, gowns, gloves, goggles) and signage posted as required in hazardous areas (e.g., isolation rooms for protection of both the employee and patient or specially marked storage areas for hazardous medical gas containers).

Unemployment Compensation

Employees have a right to unemployment compensation as well as worker’s compensation for injuries resulting from the employees work environment. The Division of Unemployment Insurance is committed to providing high-quality, accurate, courteous, and dependable service to claimants and employers in a secure and confidential environment that demands accountability, integrity, and fairness.

EMPLOYEE RESPONSIBILITIES

I believe that every right implies a responsibility; every opportunity, an obligation; every possession, a duty.

−John D. Rockefeller, Jr.

Employees are expected to adhere to their codes of professional ethics and to comply with their job-related duties and responsibilities as defined in their job description and the organization’s policies and procedures. Rights and responsibilities run parallel to one another. With every right, there is a corresponding duty; for example, although there is a right to expect respect from others, there is a corresponding duty and responsibility to give respect to the rights of others. The following sections describe a few of the many responsibilities required of healthcare employees (

FIGURE 11-1

).

Know Your Patient

When assigned a new patient be sure to reads pertinent medical records pertaining to the patient you have been assigned to care for and review the patient’s treatment plan prior to seeing the patient. Review all open orders that relate to the services that you will be responsible for providing the patient. Note any specific precautions relating to care of the patient that include any fall precautions, diet order changes, medication administration records, as appropriate. What precautions have you been asked to follow?

Educate and Encourage Patients to Ask Questions

Patients are often reluctant to ask questions about their care, especially in the hospital setting for fear of upsetting their physician or other caregivers.

The traditional paternalistic dynamic between patient and physician, though diminishing over time, looms as another barrier to patients asking questions. An asymmetry of power is inherent to the patient-physician relationship, not just because of differences in knowledge and experience but also because patients perceive that physicians can easily alter the level of service they provide.

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Because patients are often reluctant to ask questions about their care, organizations and caregivers should educate and encourage patients to speak up and ask questions about their care. Patients handbooks are
helpful in this respect and should be provided prior to admission, when possible. They can be a helpful educational tool to help prepare patients for their hospital stay.

The Joint Commission created its
Speak Up initiative in 2002, which encourages patients to become more involved in their care and treatment by emphasizing the importance of asking questions. The
Speak Up initiative provides the following suggestions for patients.

Speak Up…

If you don’t understand something or if something doesn’t seem right.

If you speak another language and would like a translator.

If you need medical forms explained.

If you think you’re being confused with another patient.

If you don’t recognize a medicine or think you’re about to get the wrong medicine.

If you are not getting your medicine or treatment when you should.

About your allergies and reactions you’ve had to medicines.

Pay attention…

Check identification (ID) badges worn by doctors, nurses, and other staff.

Check the ID badge of anyone who asks to take your newborn baby.

Don’t be afraid to remind doctors and nurses to wash their hands.

Educate yourself…

So you can make well-informed decisions about your care.

Ask doctors and nurses about their training and experience treating your condition.

Ask for written information about your condition.

Find out how long treatment should last, and how you should feel during treatment.

Ask for instruction on how to use your medical equipment.

Advocates (family members and friends) can help…

Give advice and support—but they should respect your decisions about the care you want.

Ask questions and write down important information and instructions for you.

Make sure you get the correct medicines and treatments.

Go over the consent form, so you all understand it.

Get instructions for follow-up care, and find out who to call if your condition gets worse.

Know your new medicine…

Find out how it will help.

Ask for information about it, including brand and generic names.

Ask about side effects.

Find out if it is safe to take with your other medicines and vitamins.

Ask for a printed prescription if you can’t read the handwriting.

Read the label on the bag of intravenous (IV) fluid so you know what’s in it and that it is for you.

Ask how long it will take the IV to run out.

Use a quality healthcare organization that…

Has experience taking care of people with your condition.

Your doctor believes has the best care for your condition.

Is accredited, meaning it meets certain quality standards.

Has a culture that values safety and quality and works every day to improve care.

Participate in all decisions about your care…

Discuss each step of your care with your doctor.

Don’t be afraid to get a second or third opinion.

Share your up-to-date list of medicines and vitamins with doctors and nurses.

Share copies of your medical records with your healthcare team.

Ask if there is a support group for people with your condition.

Tell your doctor and your family about your wishes for life-saving actions, like resuscitation.

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Caregivers, as well as patients, should be educated about The Joint Commission’s
Speak Up initiative. It is both relevant to their in-service education and can serve as a competency tool essential to their understanding of patient rights.

Be Compassionate

How far you go in life depends on you being tender with the young, compassionate with the aged, sympathetic with the striving and tolerant of the weak and strong. Because someday in your life you will have been all of these.

−George Washington Carver

The ability to show strength of character through compassion leads this list of employee responsibilities. Caregivers hold in their hands the gift to be instruments of God in the healing process. It is the compassionate caregiver who guides the patient as he or she struggles through illness, pain, and suffering. It is the compassionate caregiver who provides hope when there appears to be no hope.

Compassion for the Patient

Recently, I attempted to show a family member who was visiting my home, who works as a nurse, a short video of a man who most likely weighed over 500 pounds. As a popular singer, he performed his last concert and maybe his last song. The caregiver looking at the video, noticing the singer’s physical and medical condition in the video (e.g., an oxygen tank beside his wheelchair with tubing leading from the tank into his nostrils), abruptly turned away from the computer screen and ranted about how patients are so exasperating to work with and did not wish to watch the video. The caregiver proceeded to criticize the man, saying that he was responsible for his own obesity, making it difficult for caregivers to lift and move “people like him.” The singer had acknowledged in his public life that he knew he was unable to control his eating habits, which led to his early death. His message before singing the heartbreaking song was my purpose in showing the video to the caregiver. The message now goes further than this: the needs of the patient must be met with compassion by all caregivers who should be educated not to judge a patient based on his appearance or his weight. I asked, “Do you like your job?” She replied, “No, I don’t.” I then asked, “So, why did you choose a field that requires understanding and compassion?” Her response [to paraphrase] was, “I like the financial rewards of the profession.”

—Anonymous

Discussion

Discuss the various ethical issues as to how the selection of a profession can result in an unhappy caregiver that can negatively affect the patient’s care.

Describe what actions you would consider taking as a manager or coworker to make this a win-win scenario for the caregiver, the patient, and the healthcare entity.

Comply with State and Federal Regulations

The governing body and its agents are responsible for compliance with federal, state, and local rules and regulations regarding the operation of the organization. Depending on the scope of the wrong committed and the intent of the governing body, failure to comply with the requirements of regulatory bodies can subject board members and/or their agents to civil liability and, in some instances, to criminal prosecution.

Comply with Hospital Policy

Employees are required by an organization’s policies and procedures. The following
Reality Check illustrates what can happen when there is a failure to comply with hospital policy.

My Surgical Journey

I was prepped for surgery and transported to the OR, where I was placed in a corridor with multiple other patients on stretchers lined up against one side of the hallway waiting to be transported to their assigned OR room. I noticed various types of medical equipment lined up on the opposite side of the hallway. I am probably being a little too kind in my description of what I observed: I should say it was more like an obstacle course. The medical equipment was strewn in a disorganized way against the corridor wall. It was disturbing to see the equipment placed varying distances from the wall making it difficult for staff to navigate between patient stretchers and medical equipment. I thought to myself, as a volunteer fireman and carpenter by trade,
how would they ever transport me out of here in the event, for example, of an anesthesia gas explosion? But my scheduled surgery was my priority at that moment.

After what seemed like a lifetime, but was likely about 20 minutes, of lying on a stretcher in the OR corridor, I was slowly moved down the hallway by a transporter, who attempted to avoid hitting other stretchers and medical equipment on my way towards OR #1, which had been designated for cardiac surgery patients.

As I was lying face up looking at the corridor ceiling, I noticed when passing one set of fluorescent lights that there were several flies and what appeared to be a roach lying on the bottom of the plastic cover protecting the fluorescent lights from breakage. I thought to myself, “Well, at least they appear to be dead.”

During my journey down the corridor, I noticed physicians and nurses washing their hands at sinks prepping themselves for surgery. There was a sign above the sinks describing hand-washing techniques that staff must follow prior to participating in any surgical procedure. As I watched them scrubbing their hands, I noticed one staff member who walked up to the sink and, by my observation, appeared not to have followed the hospital’s hand-washing policy. I overheard a staff member comment as he walked away, “Oh, he thinks he is King Tut. He never follows protocol. I would love to see how much bacteria we would find growing on a petri dish if we cultured his hands.”

As the transporter moved me down the corridor, he abruptly stopped for a moment to allow surgical equipment being moved from OR #6 into the hallway and down the corridor. I noticed the equipment was placed in a position that partially blocked the fire exit. At that moment the exit door was opened by another staff member entering the OR suite, and I observed medical equipment that appeared to be stored on the exit stairwell landing. Not that I know much about hospitals, but it did seem odd that someone could enter the OR suite from a stairwell.

Finally, by the time I arrived in OR #1, designated for open-heart surgery, the staff prepared to transfer me from my stretcher to the surgical table. I was a bit groggy from preanesthesia sedation but was awake during the transfer and noticed several tears in the surgical table mattress pad exposing the foam, which was protruding from the pad. A staff member noticed my observation and quickly finished covering the mattress pad with an OR sheet just prior to me being transferred onto the table. The tears appeared to measure 6 to 8 inches in length. I thought to myself, “What patients laid on this mattress pad before me, and what body fluids seeped inside the mattress? Oh yes, of course, how long was this mattress collecting body fluids from other patients, and what might be growing inside it?” Looking up at the ceiling, I thought, “Wow, those air vents appear to be covered with black and green mold.”

Just prior to undergoing surgery I overheard one of the surgeons say, “I sure wish the hospital would get rid of those rusty lockers in the dressing room. And those showers should be used for showers and not as a storage area for clean surgical gowns and sterile gloves in cardboard boxes stored on the floor over shower drains. Where do they expect us to shower?” A surgical assistant replied, “Yes, you’re right. Even if there was nothing stored in the shower, there are no showerheads or knobs to turn them on. It defeats the purpose of maintaining sterile technique in the OR if you have to travel from the employee showers on the ground floor to the OR on the fourth floor. And those chairs we sit on in the men’s locker room should really be reupholstered. They are a mess, and the foam is coming out of them.” That was the last thing I remembered until after surgery.

My recovery from surgery was longer than I expected because I had developed a surgical site staph infection. By the time I got out of the hospital, I felt like I had been through a train wreck. After discussing my experiences in the OR suite with some friends and family, they encouraged me to discuss my concerns with the hospital. I said, “You’re right, and I want the best care possible rendered at our community hospital.” Not knowing whom to talk to first, I decided to provide my surgical journey observations to the hospital’s patient advocate in hopes that the issues in the OR suite would be addressed and the quality of care improved.

—Anonymous

Discussion

Identify the ethical and legal issues in this case.

Describe what your plan of action would be to prevent the recurrence of the issues identified. Include in your plan what hospital departments should be addressed in your plan.

If you were asked to write a response to the patient’s complaints, how would it read?

This patient, a carpenter and volunteer fireman, identified his observations based on his skills and life experiences. Describe how he might have described his journey through the OR suite if he had a different set of skills, education, and training.

It is noteworthy that the observations of the carpenter or any other individual are limited by what they observe. As a surveyor of an accrediting body one would look for an approved disaster plan to provide for adequate space, staff, supplies, equipment, blood products, and transportation to handle mass casualties; expired medications; a universal protocol to help prevent wrong site wrong patient surgery; verification that professionals are credentialed and licensed, as appropriate, to perform the scheduled surgery; proper
sterilization of surgical equipment and instruments; temperatures and humidity appropriately controlled; test tubes for cultures displaying expiration dates that have not expired; anesthesia gases and oxygen containers properly secured and stored; medical equipment properly maintained as required by the manufacturer; and the list goes on. In order to provide a safer environment, OR leadership should engage in walk-around inspections that would include, for example, the OR supervisor, infection control nurse, housekeeping, and engineering staff. For documentation and follow-up purposes, a checklist of surgical suite hazards should be required during inspections. Surgical suite inspection lists should be based on professional guidelines and feedback from staff and other hospital committee meetings. In order not to reinvent the wheel, examples of OR checklists can be easily found by conducting a web search.

Comply with Assigned Duties

Employees have a responsibility to comply with the responsibilities outlined in their job descriptions. Failure to do so can be hazardous to patient safety as well as lead to termination of the employee who fails to perform the duties required in a professional and acceptable manner.

Honor and Respect Patient Rights

Caregivers have a duty to honor a patient’s right to participate in decisions regarding his or her care, including the right to formulate advance directives and have those directives honored.

Recognizing and respecting patient rights directly affects the provision of care. Care, treatment, and services should be provided in such a way that respects and fosters the patient’s dignity, autonomy, positive self-regard, civil rights, and involvement in his or her care. Care, treatment, and services should also be carefully planned and provided with regard to the patient’s personal values, beliefs, and preferences.

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Maintain Confidentiality

The duty of employees and staff to maintain confidentiality encompasses both verbal and written communications. This requirement also applies to consultants, contracted individuals, students, and volunteers. Information about a patient, regardless of the method in which it is acquired, is confidential and should not be disclosed without the patient’s permission. Those who come into possession of the most intimate personal information about patients have both a legal and an ethical duty not to reveal confidential communications. The legal duty arises because the law recognizes a right to privacy. To protect this right, there is a corresponding duty to obey. The ethical duty is broader and applies at all times.

Healthcare professionals who have access to medical records have a legal, ethical, and moral obligation to protect the confidentiality of the information in the records. The communications between a physician and his or her patient and the information generated during the course of the patient’s illness are generally accorded the protection of confidentiality. Medical records, with proper authorization, may be used for the purposes of research, statistical evaluation, and education.

Compliance Officer and Confidentiality

The employee who decides to place confidence and trust in a corporate compliance officer must understand the following points, among others, prior to filing a complaint against any organizational practice, individual, and/or department within or entity owned by the organization:

The compliance officer is hired by and is responsible to the corporation by which he or she is hired.

Compliance officers often report directly to the organization’s corporate counsel and/or chief executive officer and/or board of directors/trustees.

The compliance officer is expected to abide by the laws of the land and follow the code(s) of ethics applicable to compliance officers in general and any ethical principles or codes of ethics that apply to his or her profession. For example, a compliance officer who is a lawyer is expected to adhere to those professional code(s) of ethics that apply to lawyers from both a professional and state licensing standpoint. Failure to do so can result in professional discipline and sanctions against the compliance officer.

Compliance officers are expected to maintain confidentiality of the names of employees who file complaints.

Organizations often have compliance hotlines to protect the identity of employees who file complaints.

Confidentiality is a Difficult Balancing Act

The compliance officer has a difficult balancing act in maintaining the confidentiality of employees, working for the organization, adhering to standards of ethical conduct, and abiding by applicable federal and state laws. This is no easy task, as Phil was about to learn.

Phil, having exhausted all other appeals, called Beth, the compliance officer, to speak with her about a decision that the human resources department had made that he believed was out of compliance with the Federal Equal Pay Act. The office assistant, Mary, stated, “Beth will not be in the office until next week.” Phil then scheduled a telephone conference with Beth for the following week. He asked Mary, “Will my telephone conference with Beth remain confidential?” Mary said, “Most certainly. Our office is here for you. Everything in our office remains confidential.”

The following week Phil called Beth to discuss his concern that certain professionals were performing the same work as he was and were getting paid more. He described the specifics of his concern. Beth asked, “Is it OK for me to reveal your name to human resources so that I can obtain the necessary records that I would need from them to see if you are being paid equally to others for the same work?” Phil agreed to Beth’s request.

During his discussion with Beth, Phil asked that his conversations with her remain confidential. Beth responded, “If you wanted confidentiality, then you should have asked for it before speaking to me.”

—Anonymous

Discussion

What lessons could employees learn from Phil’s experience?

If you were Phil, discuss how you would handle compliance issues in the future.

Adhere to Safe Practices

Caregivers have a responsibility to adhere to safe practices in order to minimize patient injuries. This responsibility requires employees to adhere to national patient safety goals (e.g., comply with the Centers for Disease Control and Prevention [CDC] handwashing guidelines, patient identification, verification of operative site), the purpose of which is to protect the health of the patient.

Failure to Comply with Hand Hygiene Guidelines

Mrs. Smith was a healthy woman until suddenly she experienced neck pain and needed surgery. She was admitted to a postsurgical care unit at a major teaching hospital. Upon entering her assigned four-bed room, she and her husband observed a bloody suction bottle hanging from a wall at the head of her assigned bed. The bed rails were rusting with dried body fluids from previous patients. They were uneasy about having a surgical procedure performed, but they decided the physician’s skills were more important than an unclean room. The morning following surgery, a physician entered the room with three residents and examined each of four postsurgical patients. The first patient examined was a postsurgical amputee, who was later diagnosed with a staph infection. Mrs. Smith was the fourth patient to be examined in the room. Even though each of the patients’ wounds had been examined and dressings changed, the physicians failed to change their gloves between patients. Following examination of Mrs. Smith, they proceeded to remove their gloves and tossed them in Mrs. Smith’s bedside wastebasket. All four patients contracted a staph infection. History repeated itself: CDC hygiene recommendations, though adopted by the hospital, were not followed, to the patients’ detriment.

—Anonymous

Discussion

Discuss the principles of ethics violated in this case.

Describe what values were violated and what action the hospital should take to reduce the likelihood of similar occurrences in the future.

Improving care quality will drive down costs. Quality care is cheaper to deliver than to heal the consequences of common medical errors, such as a break in infection-control protocol (e.g., failure to wash one’s hands between patients). The laboratory is well aware of the potential of false results in bacteriology when they cross contaminate petri dishes. As noted in the following
Reality Check, the patient is in a petri dish and caregivers must not break handwashing
protocols that allow foreign elements to contaminate the patient’s body.

The CDC has estimated that “nosocomial [hospital-acquired] bloodstream infections are a leading cause of death in the United States. If we assume a nosocomial infection rate of 5%, of which 10% are bloodstream infections, and an attributable mortality rate of 15%, bloodstream infections would represent the eighth leading cause of death in the United States.”

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It is believed that such infections have resulted in as many as 100,000 deaths and billions of dollars in additional healthcare costs. These numbers do not reflect nonhospital-acquired infections that have occurred in physicians’ offices. The serious nature of these numbers validates the importance of complying with sterile techniques through recommended handwashing and maintaining a sterile environment for patients.

Admit to Mistakes

Patients and families trust that their caregivers will admit to mistakes made during the delivery of patient care. Such responsibility is driven by ethical principles and doing good. The “Ethical principles—including beneficence, fiduciary responsibility, respect for autonomy, justice, and honesty—guide clinical practice and mandate reporting and disclosure. These principles guide safety efforts and must be espoused by administrators and providers.”

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Additionally, the ethical principles of beneficence (doing good) and nonmaleficence (preventing harm) are violated when errors are not reported or disclosed. These ethical principles, beneficence and nonmaleficence, shape caring nursing practice, and caring presupposes that nurses act in the best interests of patients. For example, sharing information and preventing harm to patients through truth telling, regardless of good or bad news, build relationships between elder residents and nursing home staff. Putting residents’ interests first represents nurse caring and characterizes relationships in which sharing information, rather than hiding it, surrenders nurses’ control related to withholding information. Thus, failure to disclose health care mistakes can be viewed from the perspective of provider control over the rights of patients or residents.

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The following
Reality Check is illustrative of the harm that can result from the failure of caregivers to accept responsibility for their mistakes and failure to listen to the patient’s concerns.

Letter from Patient to Caregiver

The body is a slave to its impulses. But the thing that makes us human is what we can control. After the storm, after the rush, after the heat of the moment has passed, we can cool off and clean up the messes we have made. We can try to let go of what was. Then again…

—Grey’s Anatomy

Dear Dr. XYZ,

I have been working in the medical field for many years and never thought I would be the object of a reprimand by a doctor like I was by you in what was supposed to be my medical appointment. The reason for the said appointment was to review my biweekly medication injections according to your nurse manager. That turned out not to be true. I only returned to your practice because of your skills and reputation as a very good physician. But this incident I find unconscionable in that your staff appeared to be more interested in protecting themselves, and I assume their jobs, instead of being concerned with me as a patient.

I was not afforded the opportunity by you, as your patient, to explain what occurred between November 21, 2017 and December 5, 2017 when I had my medication injections administered by your staff. I am therefore writing to you and trust that you will grant me the courtesy of reading this since I was not given the chance to relate it to you in person.

On 11/20/17 at 3:11 PM – I picked up my single-dose vials for my medication at my pharmacy. For some reason my prescription was later changed to multi-dose vials.

On 11/21/17 at 6:41 PM – I picked up the prescription from the pharmacy, which was in a multi-dose vial the evening before my appointment on 11/22/17 for an injection. I thought it was strange to change the prescription from single-dose vials to a multi-dose bottle.

On 11/22/17, I went for my urology appointment to receive the injection. When the staff member returned with the medication, I asked her which leg I should stand on. She said it doesn’t matter, that I could stand on both legs and further commented that it was not necessary to lean on either leg that was opposite the selected injection site.
However, I decided to stand on the opposite leg since all of the other staff members had advised me to stand on it. When the staff member administered the injection, it had substantially hurt more than the previous injections I had in your office. In addition, my clothes were wet from the injection site and the fluid was running down my leg.

On 12/5/17 when I went to your office for my bi-weekly injection. The nurse after a few questions left the treatment room to retrieve the syringe to inject the medication. She returned to the treatment room and informed me that there was no medication in the medication room locker for me. I stated that I had brought a multi-dose vial on my 11/22 visit and that there should be medication left in the bottle. She insisted that it was a single-dose vial. I began to wonder if she had injected me with the entire multi-dose bottle since all of the previous injections had been single doses. After again explaining to the staff member that it was a multi-dose bottle, she insisted it was a single dose and that she had administered the medication that day. She then stated that she would go back and look again.

Meanwhile, I called the pharmacy on my cell phone to verify with the pharmacist as to what dosage had been given to me. The pharmacist verified that I had picked up a multi-dose bottle of the medication on 11/21/17. While I was still on the phone with the pharmacist, the staff member returned to the treatment room. I asked if her if she would speak to the pharmacist. She refused and left the room, and eventually a manager came to the treatment room. I told her that wasn’t true, but my major concern was that in light of all the surrounding circumstances, including how I had been feeling since 11/22/17, I had been injected with an overdose. I had asked her to call you because I was anxious about possible being administered an overdose. Rather than calling you, an office supervisor called me while I was on my way to the pharmacy to obtain a copy of the prescription, which showed that I had picked up the medication on 11/21/17… the day before my 11/22/17 appointment. The pharmacist apologized to me for giving the wrong information to your office manager who had called the pharmacy outside my presence for fear she was wrong, which turned out to be the case.

As directed by the office manager, on December 12, 2017, I had blood drawn, and on the 13
th, I obtained the results, which were in the mid-normal range, which is unusual since it was taken so long after the overdose.

I was informed that you would see me the following week to discuss the medication, and that your staff had been told by you to document everything. A lawsuit never entered my mind, but I assume it did in your mind.

This should give you a better understanding of what I have gone through and how you, as my physician, should have shown some concern for me, as your patient, and at least listened to my concerns.

Wishing You Much Success, —Anonymous

Discussion

Discuss the caregiver’s approach to addressing the patient’s concerns.

Discuss how you, as a caregiver, would address the patient’s concerns.

Adhere to Professional Standards

Caregivers have a responsibility to maintain a professional attitude in the performance of their work. The operation of a hospital requires the coordination of a wide variety of disciplines and departments, each with different responsibilities that depend on each other. Thus, staff cooperation and communication are essential for ensuring professionalism in the provision of high-quality patient care.

Unprofessional conduct, incompatibility, and lack of cooperation in a hospital are appropriate considerations for discharging an employee or denying staff privileges. The ability to work with others is a reasonably definite standard proscribing the conduct on which discharge or other adverse action is based. Today’s healthcare environment has become increasingly complex. The operation of a hospital requires the coordination of numerous employees and departments, each with different responsibilities that build and depend on each other. Thus, staff cooperation and communication are essential to ensuring a high quality of patient care. Disruptive behavior in the workplace can affect the morale and teamwork of the staff, as well as cause actual harm to patients. A hospital’s evaluation of an employee or physician’s attitude and ability to work with others is not unduly vague and is directly related to the goal of good patient care.

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Maintain Professional Relationships

Employees are responsible for maintaining an appropriate professional relationship with patients, families, coworkers, and others who come into contact with the organization (e.g., consultants).

Shoot the Consultant

Justin, a new consultant, was assigned to review an organization’s human resources department and provide recommendations on how to improve processes and systems. As Justin was new to the job, Mel, a more seasoned consultant, was assigned to work with him. Justin was working on a preliminary report to be presented to the organization later that day. Judy, the organization’s coordinator assigned to work with Justin, was asked to provide additional information on its staffing process. Justin believed that the organization’s staffing processes were well done. Mel, whispering in Justin’s ear, out of Judy’s eyesight, said, “I disagree. These processes are not what we would expect to see in place, but then, this is your assignment. I am just here to evaluate you.” Justin understood his message. Justin described to Judy his concerns about human resources staffing processes as Mel stood in the back of the room watching their interaction. Judy turned to Mel and said, “Don’t you think Justin is wrong?” Mel quickly replied, “I am just an observer.” Judy left the room as Justin completed his report.

Later that afternoon Justin presented his report to the organization’s leadership. Justin made his suggestions for improvement. After his report, the CEO asked whether there were any questions regarding Justin’s report. Mel was sitting to the immediate left of Justin, and Judy was to the left of Mel. Judy, leaning over to look at Justin, pointing at him, said, “I could just shoot him.” After a few moments of silence, followed by a few goodbyes, Justin handed his report to the CEO. He, along with Mel, got up to leave the room. Judy, ignoring Justin, shook Mel’s hand and hugged him goodbye as she looked at Justin with contempt.

—Anonymous

Discussion

Assuming that Mel adequately explained his recommendations, discuss what other actions, if any, Justin might have taken to defuse Judy’s discontent.

What action should the CEO take regarding Judy’s apparent disrespect? Explain your answer.

Sexual Harassment

Employers have a responsibility to maintain a workplace that is free of sexual harassment. This not an easy task to achieve. Forms of sexual harassment include a request for sexual favors, demeaning comments, sexually explicit jokes, pinching and fondling of a coworker, sexually explicit jokes sent through email, and so on. Healthcare professionals must not breach their legal and ethical obligations through sexual harassment or illicit relationships with employees and/or patients. Engagement of health professionals in such affairs, even if the affairs are consensual, is morally wrong. Sexual harassment cases are often litigated in both civil and criminal arenas. Healthcare professionals finding themselves in such unprofessional relationships should seek help for themselves as well as refer their patients to other appropriate professionals. Besides being subject to civil and criminal litigation, healthcare professionals also are subject to having their licenses revoked for sexual improprieties.

Organizations should take action to prevent claims of sexual improprieties by training supervisory personnel to recognize and correct questionable behavior before it becomes a problem. Policy and procedures regarding sexual harassment should be included in an organization’s orientation programs. The following cases illustrate the pervasiveness of sexual improprieties by professionals in a variety of settings.

Nurse’s Relationship with Patient

A nurse’s sexual relations with a patient can give rise to disciplinary action resulting in the nurse’s loss of license. In
Heinecke v. Department of Commerce,

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a male nurse lost his license after having a sexual relationship with a patient, even though she was no longer a patient at the hospital where they met. The fact that the nurse resigned from the hospital and was living with the patient was not a sufficient defense to support such behavior.

Physician’s Inappropriate House Call

A hospital technologist in
Copithorne v. Framingham Union Hospital

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alleged that a staff physician raped her during the course of a house call. The technologist’s claim against the hospital had been summarily dismissed for lack of proximate causation. On appeal, the dismissal was found to be improper when the record indicated that the hospital had received notice of allegations that the physician had assaulted patients on and off the hospital’s premises. The hospital had instructed
the physician to have another individual present when visiting female patients and had instructed nurses to “keep an eye on him.” The physician’s sexual assault was foreseeable. There was evidentiary support for the proposition that failure to withdraw the physician’s privileges had caused the rape when the technologist asserted that it was the physician’s good reputation in the hospital that had led her to seek his services.

Avoid Relationships with a Patient’s Spouse

1. A psychiatrist shall not gratify his or her own needs by exploiting the patient. The psychiatrist shall be ever vigilant about the impact that his or her conduct has upon the boundaries of the doctor–patient relationship, and thus upon the well-being of the patient. These requirements become particularly important because of the essentially private, highly personal, and sometimes intensely emotional nature of the relationship established with the psychiatrist.

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The sexual relationship that a psychiatrist had with the spouse of a patient was found to be improper in
Richard v. Larry.

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California Civil Code Section 43.5, abolishing causes of action for alienation of affection, criminal conversation, and seduction of a patient over the age of consent, did not bar damages for emotional distress caused by the alleged professional negligence of the psychiatrist, who had sexual relations with the plaintiff’s wife. The psychiatrist owed a special duty to use due care for his patient’s health. The statute was not intended to lower the standard of care that psychiatrists owed their patients. Besides an action against the psychiatrist, allegations that the psychiatrist was an agent of the hospital stated a cause of action against the hospital.

The Bureau of Professional Medical Conduct had charged the petitioner in
Goldberg v. De Buono,

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a licensed physician and psychiatrist, with moral unfitness, gross negligence and incompetence, negligence on more than one occasion, and incompetence by reason of his alleged sexual relationship with a patient. After a hearing, a hearing committee of the State Board for Professional Medical Conduct sustained the specifications of moral unfitness, gross negligence, and negligence, and the committee recommended revocation of the petitioner’s license. The New York Supreme Court, Appellate Division, rejected the petitioner’s assertion that the committee erred in crediting the testimony of Patient A and her daughter. Issues of credibility, even as to witnesses with psychiatric illnesses, are exclusively for the administrative fact-finder to determine. The petitioner conceded his sexual relationship with Patient A, but contended that the physician–patient relationship had been terminated at the time the sexual relationship occurred. Inasmuch as the respondent’s medical expert testified that the relationship was not terminated and the petitioner’s relationship with Patient A constituted a serious deviation from accepted standards of practice, the court was satisfied that the committee’s determination was supported by substantial evidence.

Report Unethical Behavior

Caregivers have both a right and responsibility to report impaired, incompetent, and unethical colleagues in accordance with the legal requirements of each state. Unethical behavior includes conduct that threatens patient care, violation of state licensing provisions, and other applicable laws, rules, and regulations. Employees are responsible for maintaining appropriate professional relationships with patients, families, coworkers, and others with whom they may come into contact in the organization.

Protect Patients from Harm

Caregivers have an ethical and legal responsibility to protect patients from harm. The rules of ethics applicable to nurses, for example, specifically recognize a nurse’s obligation to safeguard not only patients’ health but their safety as well. These are not duties invented by courts of equity but rather tenets of ethical responsibility issued by the profession itself.

Report Patient Abuse

Caregivers have both a right and responsibility to report patient abuse. Statutes protect employees against retaliation for reporting patient abuse. An employer may not discharge an employee for fulfilling societal obligations or one who acts with a socially desirable motive.

Stand as a Patient Advocate

Patient advocate is a very broad term that encompasses a lot of different people doing a lot of different things.

45

All caregivers should consider themselves as patient advocates. It is not an easy task as the number of patients increases and the time allottable to each patient for quality care has diminished.

Even with the 15 minutes they may have for an appointment, by the time you factor in
the paper work, the exam, and the prescription refills, that leaves just a couple of minutes to educate the patient about the state of his health, which is woefully inadequate. It’s one of the reasons why it is said that at least one out of three geriatric patients don’t know what medications they are taking and why. On the flip side, tests and procedures are reimbursed by medical insurance at a substantially better rate, which is why you may find yourself getting more of those things and less of a doctor’s time reviewing your medical history, which would have been the more efficient way of figuring out what was going on in the first place, except for the fact that it’s time-intensive, which is exactly why they don’t do much of it. These are the problems that doctors know, but do not talk about with their patients because it’s an uncomfortable subject.

46

Thus, it is necessary for both caregivers and family members to engage in patient advocacy. Though unprepared to advocate due to a lack of knowledge of the workings of the healthcare system, caregivers themselves often understand their niche in the delivery of patient care but moving outside the scope of what they have been trained to do, they are often at a loss as to how to help others. Even trained advocates soon come to learn that advocacy is not a part-time job in helping others navigate through the complex maze of the healthcare system. The moral of the story is that both family and caregivers alike bear some responsibility to help guide the patient to better health and ultimately conquer his fears and ultimate journey home.

In many situations, nurses act as patient advocates. They not only are familiar with how care is delivered, they know the doctors and support staff who are treating the patients. Moreover, nurses are in a better position to educate the patients about their medical options, problems with their condition, medications, and explaining the patients’ needs to their caregivers. The nurse is trained to deal with a patient’s family members and keep them calm and informed. If the patient is receiving out-patient care or is going into the hospital for surgery (and may become mentally incapacitated), then a friend or family member who is equipped to represent the patient’s needs and desires should be selected by that patient to advocate for him or her. There is a designation form, which the patient advocate must sign accepting the designation. The advocate must educate him/herself about the patient’s medical condition, and maintain an updated list of doctors, physician assistants, nurse practitioners, medications, and appointments. The advocate must not be reticent about approaching the medical team to ask questions and avoid mistakes or to correct any records (e.g., medical history). If a family member advocate feels overwhelmed or unsure as to care decisions that must be made, he/she should contact the hospital’s ombudsperson.

Maintain Professional Competence

It is expected that each professional has a current understanding of one’s area of specialization and practice. Education has value and is a legal necessity in order to be in conformity with the national standard of care of one’s profession. Every professional is responsible for being current in his or her knowledge and skills. This comes by reading professional literature, attending continuing education programs, and mentoring.

U.S. Cancer-Care Delivery is “In Crisis”: Report

NEW YORK (Reuters)—Cancer treatment has grown so complex, many U.S. doctors can’t keep up with new information and are offering incorrect treatment, failing to explain options and leaving patients to coordinate their own care, according to a report released on Tuesday by the Institute of Medicine, part of the National Academy of Sciences. Treating the disease, which can require precisely matching a tumor’s molecular characteristics to a drug, has become so complicated that many physicians lack “core competencies in caring for patients with cancer,” the report concludes.

—Sharon Begley,
Reuters, September 10, 2013

47

Encourage Teamwork

Together we can do more and do it better as a team.

–Anonymous

None of us is as smart as all of us.

–Ken Blanchard

The delivery of high-quality patient care requires that caregivers work together as a team by
actively planning, collaborating, and coordinating each patient’s care needs. Success depends on teamwork, as noted, for example, in the following
Reality Check.

Teamwork Requires Community Input

Dr. White, the medical director of Anytown Hospital’s cancer center, had been working on a plan for a new cancer center for the community. Dr. White was particularly concerned with seeking input from community leaders as to their ideas for developing a model comprehensive treatment program for patients. After several visits to various well-respected programs in California, New York, and Texas at his own expense, he was certain he wanted to match and if possible surpass the excellence he found at these centers. Knowing that the administration had other projects in mind, his feeling was that there is room for more than one capital program at a time.

Bill, the director of a major corporation, recently visited the cancer center where his close friend Dr. White discussed his preliminary plans with him. Bill was impressed and joking laughed, “You have my vote. Count me in for a million dollars.” Dr. White held back his tears, saying, “You are serious, aren’t you?” Bill replied, “Yes I am. That is, on one condition.” Dr. White replied, “I am listening.” Bill continued, “There must be serious-minded community involvement, including cancer patients. Not token input, but valued community participation.” Dr. White continued, “We are on the same page.”

Bill, before leaving, said to Dr. White, “I am truly excited to be part of your dream to answer such a spiritual calling in the plans you shared with me today.”

—Anonymous

Discussion

Discuss the importance of involving community input when developing and reviewing new and existing care programs.

Consider and discuss what training you might provide community members interested in the planning process.

Teamwork is the ability to work together toward a common vision.

The ability to direct individual accomplishments toward organizational objectives.

It is the fuel that allows common people to attain uncommon results.

—Andrew Carnegie

Caregivers are responsible for working as a team and maintaining appropriate professional relationships with patients, families, coworkers, and others with whom they may come into contact in the organization. One hospital surveyor noted exceptional teamwork during a survey of the hospital-based pain management center, as noted in the following
Reality Check.

Multidisciplinary Approach to Patient Care

Bill visited a pain center where Dr. Jones, the medical director, had recently included a physical therapist on his pain management team. After several visits to the pain management program, Bill complimented the staff about their multidisciplinary approach to his care. Dr. Jones discussed with Bill how patient outcomes had improved over time, as treatment plans became more multidisciplinary. He went on to explain how patients are encouraged to ask questions of the caregiver.

Bill, before leaving, said to Dr. Jones, “I truly am getting individualized care and treatment in your pain center in a style worthy of the words, ‘quality care is alive and well here.’”

The multidisciplinary approach to patient care improves patient outcomes through improved planning and cooperation between caregivers. Patients undergoing treatment quickly recognize when caregiver decisions are based on a cooperative effort between caregivers who are committed to improving patient care. As notably written by Andrew Carnegie, “It marks a big step in a man’s development when he comes to realize that other men can be called in to help him do a better job than he can do alone.” And so it is in the care of patients, the success of quality patient care is dependent on teamwork.

—Anonymous

Helpful Advice

The following listing provides some additional helpful advice to caregivers for building a spirit of teamwork and improving the quality of patient care.

Build consensus: when solving patient care problems.

Do not say:

the physician is not here when he or she is.

the physician will soon be here when he or she has already left the building.

that this will not hurt when you know it will.

that you are busy when you are not.

Take responsibility: for caring and communicating with the patient and other caregivers. Include the patient in the decision-making process and take time to explain the risks, benefits, and alternatives to each course of treatment.

Listen: to what the patient is saying. In a hurried environment, the temptation is to interrupt the patient before he completes his thought.

Show respect and sensitivity: to each patient’s needs.

Patient’s decision-making capacity: Patients are human and have the frailties that all must someday endure.

Avoid demeaning and criticizing a patient’s wishes: because of his or her frail condition.

Family feelings: Remember your feelings and those of family may be different from those of the patient. It is, however, the patient who faces the consequences of his or her decisions. You are, therefore, responsible for considering the patient’s wishes sacred and protecting the patient from those who would disregard them.

Continue to improve competencies: Show me a good caregiver, and I will show you a person who not only provides good care but also provides it well and seeks ways to make it even better by improving his or her own competencies.

Patients can be challenging: to hospital staff. They are at times disrespectful or angry, often because they are in a place they do not wish to be. Hospitals are high-stress, demanding environments in which to work.

Patient handbooks and employee training: are tools in dealing with both the anxious and angry patient.

Patients, as well as employees, have rights and responsibilities. The responsibilities of patients and visitors should be described in the patient handbook.

The Caregiver’s Pledge

I will be compassionate.

I will not neglect my duties and responsibilities.

I will read instructions and follow protocols.

I will seek verification of questionable orders.

I will report concerns for patient safety (e.g., staffing concerns).

I will not assume responsibilities beyond my capabilities.

I will call for help when a patient’s medical needs suddenly change.

I will continuously improve my skills and participate in continuing education opportunities.

CHAPTER REVIEW

Employee rights include:

Fair treatment and employment at will

Freedom from discrimination

Equal pay for equal work

Refuse to participate in patient care

Question of patient care

Suggest changing physicians

Freedom from disruptive behavior

Freedom from sexual harassment

Treatment with dignity and respect

Freedom from intimidation

Privacy and confidentiality

Trust and organizational harmony

Family medical leave

Whistleblowing

Safe environment

Unemployment compensation

Employee responsibilities include:

Know your patient

Educate and encourage patients to ask questions

Be compassionate

Comply with state and federal regulations

Comply with hospital policy

Comply with assigned duties

Honor and respect patient rights

Maintain confidentiality

Adhere to safe practices

Admit to mistakes

Adhere to professional standards

Maintain professional relationships

Report unethical behavior

Protect patients from harm

Report patient abuse

Stand as a patient advocate

Maintain professional competence

Encourage teamwork

Helpful advice

The Caregiver’s Pledge

TEST YOUR UNDERSTANDING

Terminology

employment at will

Family and Medical Leave Act of 1993

sexual harassment

whistleblowing

REVIEW QUESTIONS

Describe the rights of employees.

Describe under what circumstances an employee has a right to refuse to participate in a patient’s procedure.

Does a nurse have a right to question the care being rendered to a patient? Explain your answer.

Is the employment-at-will concept appropriate in today’s society?

Describe the responsibilities of employees as described in this chapter.

Describe what caregivers can do to build a spirit of teamwork and improve the quality of patient care.

NOTES

1. U.S. Department of Labor, “Summary of the Major Laws of the Department of Labor: Workers’ Compensation.”
http://www.dol.gov/opa/aboutdol/lawsprog.htm#workerscomp (accessed August 6, 2018).

2.
Sides v. Duke Hospital, 328 S.E.2d 818 (N.C. Ct. App. 1985).

3. 44 A.L.R. 4th 1136 (1986).

4.
Sides v. Duke Hospital.

5.
Pierce v. Ortho Pharm. Corp., 417 A.2d 505, 509 (N.J. 1980).

6. Mont. Code Ann. § 39-2-904 (1989).

7. LeRoy H. Schramm, “Montana Employment Law and the 1987 Wrongful Discharge from Employment Act: A New Order Begins,” Montana Law Review 51 (1990): 94–125.

8.
Palmateer v. International Harvester Co., 421 N.E.2d 876, 878 (Ill. 1981).

9.
Joiner v. Benton Community Bank, 411 N.E.2d 229, 231 (Ill. 1980).

10.
Gantt v. Sentry Ins., 824 P.2d 680, 687–688 (Cal. 1992).

11. U.S. Equal Opportunity Employment Commission, “About EEOC: Overview.”
http://www.eeoc.gov/eeoc/index.cfm (accessed August 6, 2018).

12.
Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975).

13.
Ibid. at 547.

14.
Larson v. Albany Medical Center, 676 N.Y.S. 2d 293 (N.Y. App., 1998).

15. Kenneth R. Baker, “Refusal to Fill Prescriptions Under Conscience Clauses,” Drug Topics (June 22, 2018).
http://www.drugtopics.com/legal-news/refusal-fill-prescriptions-under-conscience-clauses (accessed August 6, 2018).

16. National Conference of State Legislatures, “Pharmacist Conscience Clauses: Laws and Information.”
http://www.ncsl.org/issues-research/health/pharmacist-conscience-clauses-laws-and-information.aspx (accessed August 6, 2018).

17.
Kirk v. Mercy Hosp. Tri-County, 851 S.W.2d 617 (Mo. Ct. App. 1993).

18.
Deerman v. Beverly Cal. Corp., 518 S.E.2d 804 (N.C. App. 1999).

19. The Joint Commission, “Sentinel Event Alert: Behaviors That Undermine a Culture of Safety,” (July 9, 2008).
https://www.jointcommission.org/assets/1/18/SEA_40.PDF (accessed August 6, 2018).

20. Alan H. Rosenstein and Michelle O’Daniel, “A Survey of the Impact of Disruptive Behaviors and Communication Defects on Patient Safety,” The Joint Commission Journal 34 (August 2008): 464–471.
http://www.jointcommissionjournal.com/article/S1553-7250(08)34058-6/abstract (accessed August 6, 2018).

21. George Anderson, “The Joint Commission’s ‘Disruptive Physician’ Standards Spawn a Cottage Industry of Questionable Providers [blog],” (October 31, 2010).
https://angerblog.wordpress.com/2009/10/ (accessed August 6, 2018).

22. Workplace Bullying Institute [website].
http://www.workplacebullying.org (accessed August 6, 2018).

23. Conn. Gen. Stat. Ann. A4 31–51m(a) (West 1987).

24. Me. Rev. Stat. Ann. 26, A4A4 831–840 (West 1987).

25. Mich. Comp. Laws Ann. A4A4 15.361–369 (West 1981).

26. Mont. Code Ann. A4 39-2-901 (1987).

27.
Pierce v. Ortho Pharm. Corp., 417 A.2d 505, 509 (N.J. 1980).

28. 760 F. Supp. 1575 (D.C. Ga. 1991).

29. Alexander Hamilton Institute, “Mail Policy Considerations: Maintaining the Right to Open Employee Mail,” BusinessManagement Daily (November 9, 2001).
http://www.legalworkplace.com/maintaining-right-open-employee-mail-pla.aspx (accessed August 6, 2018).

30. Ralph Nader, Peter Petkas, and Kate Blackwell,
Whistleblowing: The Report of the Conference of Professional Responsibility (New York: Bantam; 1972); see also Annotation, 99 A.L.R. Fed. 778.

31. Annotation, 99 A.L.R. Fed. 775.

32. U.S. Department of Labor, Occupational Safety and Health Administration, “The Whistleblower Protection Programs.”
http://www.whistleblowers.gov (accessed August 6, 2018).

33. Timothy J. Judson, Allan S. Detsky, and Matthew J. Press, “Encouraging Patients to Ask Questions How to Overcome ‘White-Coat Silence’,” Journal of the American Medical Association 309 (June 12, 2013): 2325–2326.

34. The Joint Commission, “Speak Up About Your Care.”
https://www.jointcommission.org/speakup.aspx (accessed August 6, 2018).

35. The Joint Commission, Comprehensive Manual for Hospitals 2018 (January, 2018), at R-1.
https://www.jcrinc.com/2018-comprehensive-accreditation-manuals/(accessed August 6, 2018).

36. Richard P. Wenzel and Michael B. Edmond, “The Impact of Hospital-Acquired Bloodstream Infections,” Emerging Infectious Diseases 7 (March/April 2001).
http://wwwnc.cdc.gov/eid/article/7/2/70-0174.htm (accessed August 6, 2018).

37. Zane Robinson Wolf and Rhonda G. Hughes, “Error Reporting and Disclosure.” In
Patient Safety and Quality: An Evidence-Based Handbook for Nurses, R.G. Hughes, editor (Rockville, MD: Agency for Healthcare Research and Quality, 2008).
https://www.ncbi.nlm.nih.gov/books/NBK2652/ (accessed August 6, 2018).

38.
Ibid.

39.
Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (2002).

40.
Heinecke v. Department of Commerce, 810 P.2d 459 (Utah 1991).

41.
Copithorne v. Framingham Union Hospital, 520 N.E.2d 139 (Mass. 1988).

42. American Psychiatric Association, “The Principles of Medical Ethics, With Annotations Especially Applicable to Psychiatry” (Arlington, VA: Author, 2010).
http://psychresidency.ucsd.edu/my-residency/Documents/10.0%20Ethical%20Guidelines (accessed August 6, 2018).

43.
Richard v. Larry, 243 Cal. Rptr. 807 (Cal. Ct. App. 1988).

44.
Goldberg v. De Buono, 711 N.Y.S.2d 81 (N.Y. App. Div. 2000).

45. Vik Rajan, “Patient Advocates: Helping Caregivers Get Healthcare Answers,” AgingCare.
https://www.agingcare.com/articles/patient-advocate-155385.htm (accessed August 6, 2018).

46.
Ibid.

47. Sharon Begley, “U.S. Cancer-Care Delivery Is ‘in Crisis’: Report,” Reuters Health News (September 10, 2013).
http://uk.reuters.com/article/2013/09/10/us-usa-health-cancer-idUKBRE9891EI20130910?feedType=RSS&feedName=healthNews (accessed August 6, 2018).

CHAPTER 12

Patient Consent

… No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person.

—
Union Pacific Ry. Co. v. Botsford

1

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Discuss informed consent and how it applies the patient’s right to self-determination.

Describe how various codes of professional ethics address a patient’s right to informed consent and self-determination.

Explain and give examples of verbal, written, and implied consent.

Describe under what circumstances statutory consent can be inferred.

Describe how caregivers can determine a patient’s capacity to consent and what action should be taken if the patient is unable to consent to recommended care choices.

Describe what factors the courts could take into consideration when determining the adequacy of consent.

Explain why a patient has a right to refuse treatment.

Understand the importance of state interests when a parent refuses lifesaving treatment for a child.

INTRODUCTION

Consent is the 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 him- or herself. Consent changes touching that otherwise would be nonconsensual to touching that is consensual. Consent can be either express or implied.

Express consent can take the form of either a verbal agreement or can be accomplished through the execution of a written document authorizing medical care.

Implied consent is determined by some act of silence, which raises a presumption that consent has been authorized.

Consent must be obtained from the patient or from a person authorized to consent on the patient’s behalf before any medical procedure can be performed. Every individual has a right to refuse to authorize a touching. This chapter reviews many of the issues surrounding consent in the healthcare setting.

INFORMED CONSENT

Surgery to Ease Pain Sounded Really Simple

To Beth Jersey, it sounded like a no-brainer. …

“If I knew what could have happened, I’d never had had the surgery. To go from shots to surgery was probably stupid.”

Other people’s experiences, she observed, are no substitute for a careful consideration of the possible risks and benefits of surgery.

—Sandra G. Boodman,
The Washington Post, July 4, 2017

2

Informed consent is a legal concept that provides that a patient has a right to know the potential risks, benefits, and alternatives of a proposed procedure. In order for consent to be effective, the physician should provide the patient both verbally and in writing the following:

An explanation and discussion with the patient as to his or her illness or injury.

A description of the proposed treatment, as well as alternative treatment options.

The risks, benefits, and consequences of each treatment option.

The risks, benefits, and prognosis if treatment is refused.

The American College of Surgeons (ACS), in its
Statements on Principles, aptly describes informed consent as follows:

Informed consent is more than a legal requirement. It is a standard of ethical surgical practice that enhances the surgeon/patient relationship and that may improve the patient’s care and the treatment outcome. Surgeons must fully inform every patient about his or her illness and the proposed treatment. The information must be presented fairly, clearly, accurately, and compassionately. The surgeon should listen carefully to understand the patient’s feelings and wishes and should answer all questions as accurately as possible.

3

The ACS
Statement of Principles provides that informed consent conducted by the surgeon with the patient should include:

The nature of the illness and the natural consequences of no treatment.

The nature of the proposed operation, including the estimated risks of mortality and morbidity.

The more commonly known complications, which should be described and discussed. The patient should understand the risks as well as the benefits of the proposed operation. The discussion should include a description of what to expect during the hospitalization and posthospital convalescence.

Alternative forms of treatment, including nonoperative techniques.

A discussion of the different types of qualified medical providers who will participate in their operation and their respective roles.

4

The right to be free of unwanted medical treatment has long been recognized in this country. An “individual’s right to make decisions vitally affecting his private life according to his own conscience … is difficult to overstate … because it is, without exaggeration, the very bedrock on which this country was founded.”

5

The right to control the integrity of one’s own body spawned the doctrine of informed consent.

6
The United States Supreme Court has held that a competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment.

7

Informed consent is predicated on the duty of the physician to disclose to the patient sufficient information to enable the patient to evaluate a proposed medical or surgical procedure before submitting to it. Informed consent requires that a patient have a full understanding of that to which he or she has consented. An authorization from a patient who does not understand to what he or she is consenting is not effective consent.

Unreported Robot Surgery Injuries Open New Questions for FDA

When Sheena Wilson, 45, underwent robotic surgery for a hysterectomy in May, she didn’t know the Intuitive Surgical Inc. system used by her doctor was previously tied to a variety of injuries for the same procedure.

Her rectum was badly burned in the operation, said Wilson, a mother of two from Parlin, New Jersey. Now she is on long-term disability, fearful of losing her job and facing a third corrective surgery, she said in a telephone interview.

“If I had known there were other people who had injuries, I would never have done this surgery,” said Wilson, who has filed suit against Intuitive and her doctor. “Whatever they have in place is not working.”

—Robert Langreth,
Bloomberg News, December 30, 2013

8

Hospitals generally do not have an independent duty to obtain informed consent or to warn patients of the risks of a procedure to be performed by a physician who is not an agent of the hospital. It is the treating physician who has the education, expertise, skill, and training necessary to treat a patient and determine what information a patient should have in order to give informed consent. From a paternalistic point of view, some physicians have had a tendency toward providing the patient information he/she wants the patient to know. The degree to which this can occur can vary depending on the tendencies and influences of, for example, the patient, family, friends of the patient, as well as personal biases and motives, such as financial motivations. There are well publicized incidents where the motivation for performing unnecessary procedures such as cardiac cauterizations and placing stents into multiple patients who were not candidates for these procedures—as noted in the news clipping here—indicates. It should be noted here that more current cases are pending before the courts.

9
According to
USA Today, one “study found that tens of thousands of times each year, patients undergo surgery they don’t need.”

10

Cardiologist Places Unnecessary Coronary Stents

A federal jury convicted a retired Eastern Shore cardiologist Tuesday of healthcare fraud and related charges for placing unnecessary coronary stents in the arteries of dozens of patients, then billing private and public insurers hundreds of thousands of dollars for the procedures.

—Tricia Bishop,
The Baltimore Sun, July 26, 2011

11

Both hospitals and physicians have an ever-expanding role to provide patient information beyond the traditional pre-printed consent forms that are generated and generalized for specific procedures.

Although there are common risks across the various age groups, the risks for patients undergoing a specific invasive procedure can vary based on a patient’s general health status and the concerns associated with one’s age. Each patient should be provided with a listing of the common health risks associated with the invasive procedure the patient is consenting to undergo. The experiences and outcomes of patients who have undergone a suggested procedure should be reviewed with the patient. The patient’s hopes as to what the surgery will accomplish and the likelihood of success should be discussed. For example, if the patient was a runner, what is the likelihood that the surgery will bring the patient to a level where running is possible again.

Informed consent should include information about patient outcomes associated with the suggested procedure, as well as the costs associated with the procedure. Recognizing age and educational differences, the information provided to a patient should be tailored and described in terms of what the patient can understand.

CODES OF ETHICS

The first American Medical Association Code of Medical Ethics was written in 1847. Section I of the 1998–1999 edition, titled “Fundamental Elements of the Patient–Physician Relationship,” provides “the patient
has the right to receive information from physicians and to discuss the benefits, risks, and costs of appropriate treatment alternatives.” Because the American Medical Association is an organization composed of experts in the field of medicine, its code of ethics and the duties of physicians prescribed therein should be understood to reflect the standard of care of the profession on the issue of informed consent. Social policy does not accept the “paternalistic” view that the physician may remain silent because divulgence might prompt the patient to forgo needed therapy.

The American Dental Association Code of Ethics also reflects the standard of care for the dental profession. Part III, Section 1, of the American Dental Association Code of Ethics, titled “Principle: Patient Autonomy,” provides “the dentist has a duty to respect the patient’s rights to self-determination and confidentiality,” and Section 1A provides that “the dentist should inform the patient of the proposed treatment, and any reasonable alternatives, in a manner that allows the patient to become involved in treatment decisions.” These American Medical Association and American Dental Association ethical standards embrace the doctrine of informed consent.

The American Nurses Association code of ethics for nurses provides in part in Provision 1.4 the following as to a patient’s right to self-determination:

Patients have the moral and legal right to determine what will be done with their own person; to be given accurate, complete, and understandable information in a manner that facilitates an informed judgment; to be assisted with weighing the benefits, burdens, and available options in their treatment, including the choice of no treatment; to accept, refuse, or terminate treatment without deceit, undue influence, duress, coercion, or penalty; and to be given necessary support throughout the decision-making and treatment process.

12

PROOF OF CONSENT

Consent can be verbal, written, or implied. The law requires verbal or written consent for the intentional touching that involves medical or surgical procedures. Consent can also be implied in emergency situations.

Oral consent is as binding as written consent. There is no legal requirement that a patient’s consent be in writing; however, oral consent is more difficult to corroborate.

Written consent provides visible proof of a patient’s wishes. Because the function of a written consent form is to preserve evidence of informed consent, the nature of the treatment, the risks, benefits, and consequences involved should be incorporated into the consent form. States have taken the view that consent, to be effective, must be “informed consent.” An informed consent form should include the following elements:

The nature of the patient’s illness or injury

The name of the proposed procedure or treatment

The purpose of the proposed treatment

The risks and probable consequences of the proposed treatment

The probability that the proposed treatment will be successful

Any alternative methods of treatment along with their associated risks and benefits

The risks and prognosis if no treatment is rendered

An indication that the patient understands the nature of any proposed treatment, the alternatives, the risks involved, and the probable consequences of the proposed treatment

The signatures of the patient, physician, and witnesses

The date the consent is signed

Healthcare professionals have an important role in the realm of informed consent. They can be instrumental in averting major lawsuits by being observant as to a patient’s doubts, changes of mind or confusion, or misunderstandings expressed by a patient regarding any proposed procedures he or she is about to undergo.

Implied consent can be assumed when immediate treatment is required to preserve the life of a patient or to prevent an impairment of the patient’s health and it is impossible to obtain the consent of the patient or representative legally authorized to consent for him or her, an emergency exists, and consent is implied. This privilege to proceed in emergencies without consent is accorded to physicians because inaction at this time may cause greater injury to the patient and would be contrary to good medical practice; however, if possible, consultation should be undertaken before a procedure is commenced, and every effort must be made to document the medical need for proceeding with treatment without consent. The patient’s record should clearly indicate the nature of the threat to life or health, its immediacy, and its magnitude.

Unconscious patients are presumed under law to approve treatment that appears to be necessary. It is assumed that such patients would have consented if they were conscious and competent; however, if a patient expressly refuses to consent to certain
treatment, such treatment may not be instituted after the patient becomes unconscious. Similarly, conscious patients suffering from emergency conditions retain the right to refuse consent. If a procedure is necessary to protect one’s life or health, every effort must be made to document the medical necessity for proceeding with medical treatment without consent. It must be shown that the emergency situation constituted an immediate threat to life or health.

In
Luka v. Lowrie,

13
involving a 15-year-old boy whose left foot had been run over and crushed by a train, consultation by the treating physician with other physicians was an important factor in determining the outcome of the case. On the boy’s arrival at the hospital, the defending physician and four house surgeons decided that it was necessary to amputate the foot. The court said that it was inconceivable that had they been present, the parents would have refused consent in the face of a determination by five physicians that amputation would save the boy’s life. Thus, despite testimony at the trial that the amputation may not have been necessary, professional consultation before the operation supported the assertion that a genuine emergency existed and could have implied consent.

Consent also can be implied in nonemergency situations. For example, a patient may voluntarily submit to a procedure, implying consent, without any explicitly spoken or written expression of consent. In the Massachusetts case of
O’Brien v. Cunard Steam Ship Co.,

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a ship’s passenger who joined a line of people receiving injections was held to have implied his consent to a vaccination. The rationale for this decision is that individuals who observe a line of people and who notice that injections are being administered to those at the head of the line should expect that if they join and remain in the line they will receive an injection. The plaintiff entered the line voluntarily. The plaintiff had opportunity to see what was taking place at the head of the line and could have exited the line but chose not to do so. The jury appropriately determined this to be consent to the injection. The
O’Brien case contains all of the elements necessary to imply consent to a voluntary act: The procedure was a simple vaccination. The proceedings were visible at all times, and the plaintiff was free to withdraw up to the instant of the injection.

Whether a patient’s consent can be implied is frequently asked when the condition of a patient requires some deviation from an agreed-on procedure. If a patient expressly prohibits a specific medical or surgical procedure, consent to the procedure cannot be implied. The same consent rule applies if a patient expressly prohibits a particular extension of a procedure even though the patient voluntarily submitted to the original procedure.

STATUTORY CONSENT

The age of consent is the minimum age at which a person is considered to be legally competent to consent to medical care. Many states have adopted legislation concerning emergency care. An emergency in most states eliminates the need for consent. When a patient is clinically unable to give consent to a lifesaving emergency treatment, the law implies consent on the presumption that a reasonable person would consent to lifesaving medical intervention; this is defined as
statutory consent. When an emergency situation does arise, there may be little opportunity to contact the attending physician, much less a consultant. The patient’s records, therefore, must be complete with respect to the description of the patient’s illness and condition, the attempts made to contact the physician as well as relatives, and the emergency measures taken and procedures performed. If time does not permit a court order to be obtained, a second medical opinion, when practicable, is advisable.

Case Studies

Patient Emergency—Favor Preserving Life

Any glimmer of uncertainty as to a patient’s desires in an emergency situation should be resolved “in favor of preserving life.” The patient in
Matter of Hughes

15
signed a standard blank hospital form titled “Refusal to Permit Blood Transfusion.” There was no indication on the form that the consequences of her refusal had been explained to her in the context of the elective surgical procedure she was about to undergo. The form should have contained an unequivocal statement that under any and all circumstances, blood is not to be used, and an acknowledgment that the consequences of the refusal were fully explained. The form should fully release the physician, all medical personnel, and the hospital from liability should complications arise from the failure to administer blood, thereby resolving any doubt as to the physician’s responsibility to his patient. If Hughes had refused to sign such a form, her physician could then have decided whether to continue with Hughes’s treatment or to aid her in finding a physician who would carry out her wishes.

The court emphasized that this case arose in the context of elective surgery. This was not an emergency situation where the physician and patient did not have time to discuss fully the potential risks, benefits, and alternatives of the planned surgery, and the conflict arising over the patient’s religious beliefs. Patients have an obligation to make medical preferences known to the treating physician, including the course to follow if life-threatening complications should arise. This protects the patient’s right to freedom of religion and self-determination. In addition, it is helpful to the hospital when faced with the dilemma of trying to preserve life whenever possible and honoring the patient’s wishes to forgo life-sustaining treatment.

Ethical and Legal Issues

Describe the relevant ethical principles violated in this case.

Describe the relevant legal issues in this case. What actions could the parties to this lawsuit have taken beforehand to prevent this case from becoming a legal issue?

CAPACITY TO CONSENT

A patient is considered competent to make medical decisions regarding his or her care unless a court determines otherwise. Generally speaking, medical personnel make the determination of a patient’s decision-making capacity. The clinical assessment of decision-making capacity should include the patient’s ability to understand the risks, benefits, and alternatives of a proposed test or procedure; evaluate the information provided by the physician; express his or her treatment options/plan; and voluntarily make decisions regarding his or her treatment plan without undue influence by family, friends, or medical personnel.

If a patient is unable to make decisions by reason of age or incapacity, a patient-appointed decision maker may “substitute his or her judgment” on behalf of the patient. Before declaring an individual incapacitated, the attending physician must find with a reasonable degree of medical certainty that the patient lacks capacity. A notation should be placed in the patient’s medical record describing the cause, nature, extent, and probable duration of incapacity. Before withholding or withdrawing life-sustaining treatment, a second physician must confirm the incapacity determination and make an appropriate entry on the medical record before honoring any new decisions by a healthcare agent.

Case Studies

Lack of Consent and Patient Death

Four siblings, in
Riser v. American Medical Int’l, Inc.,

16
brought a medical malpractice action against Dr. Lang, a physician who performed a femoral arteriogram on their 69-year-old mother, who died due to the procedure.

Riser had been admitted to Hospital A experiencing impaired circulation in her lower arms and hands. She had multiple medical diagnoses, including diabetes mellitus, end-stage renal failure, and arteriosclerosis. Her physician, Dr. Sottiurai, ordered bilateral arteriograms to determine the cause of the patient’s impaired circulation. Hospital A could not accommodate Sottiurai’s request, and Riser was transferred to Dr. Lang, a radiologist at Hospital B. Lang performed a femoral arteriogram rather than the bilateral brachial arteriogram ordered by Sottiurai. The procedure seemed to go well, and the patient was prepared for transfer back to the hospital; however, shortly after the ambulance departed the hospital, the patient suffered a seizure in the ambulance and was returned to Hospital B. Riser’s condition deteriorated, and she died 11 days later. The plaintiffs claimed in their lawsuit that Riser was a poor risk for the procedure. The district court ruled for the plaintiffs, awarding damages in the amount of $50,000 for Riser’s pain and suffering and $100,000 to each of Riser’s children. Lang appealed.

The Louisiana Court of Appeal held that Lang failed to obtain consent from the patient. Riser was under the impression that she was about to undergo a brachial arteriogram, not a femoral arteriogram. Two consent forms were signed; neither form authorized the performance of a femoral arteriogram. O’Neil, one of Riser’s daughters, claimed that her mother said, following the arteriogram, “Why did you let them do that to me?”

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Ethical and Legal Issues

Describe how the physician violated his professional duty to the patient.

Should the hospital have intervened and prevented the femoral arteriogram? Explain your answer.

ADEQUACY OF CONSENT

A physician should provide as much information about treatment options as is necessary based on a patient’s personal understanding of the physician’s explanation of the risks of treatment and the probable consequences of the treatment. The needs of each patient can vary depending on age, maturity, and mental status.

Some courts have recognized that the condition of the patient may be considered to determine whether the patient has received sufficient information to give consent. The individual responsible for obtaining consent must weigh the importance of giving full disclosure to the patient against the likelihood that such disclosure will seriously and adversely affect the condition of the patient.

When questions do arise as to whether adequate consent has been given, some courts take into consideration the information that is ordinarily provided by other physicians. A physician must reveal information to his or her patient just as a skilled practitioner of good standing would provide under similar circumstances. A physician must disclose to the patient the potential of death, serious harm, and other complications associated with a proposed procedure.

The physician has the ultimate responsibility of providing the patient informed consent according to the Supreme Court of Pennsylvania, where it held that “a physician may not delegate his or her obligation to provide sufficient information in order to obtain a patient’s informed consent. Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent. The duty to obtain the patient’s informed consent belongs solely to the physician.”

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Failure To Inform—Alternative Procedures

The operation you get often depends on where you live. One patient underwent a mastectomy only to learn that a less destructive alternative procedure was available in a region near her home. The procedure, a lumpectomy, has the same survival rate as a mastectomy. The patient claims that the surgeon never informed her about the alternative.

Discussion

Describe the ethical and legal issues involved in failing to discuss alternative treatments with a patient.

Should a physician describe every possible alternative treatment procedure with his or her patient? Explain your answer.

Competent Patient

A competent adult patient’s wishes concerning his or her person may not be disregarded. The court in
In re Melideo

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held that every human being of adult years has a right to determine what shall be done with his or her own body and cannot be subjected to medical treatment without his or her consent. When there is no compelling state interest that justifies overriding an adult patient’s decision, that decision should be respected. State interests include preserving life, preventing suicide, safeguarding the integrity of the medical profession, and protecting innocent third parties.

Spouse

The patient in
Greynolds v. Kurman

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suffered a transient ischemic attack, a sudden loss of neurological function caused by vascular impairment to the brain. He was taken to an emergency department. Because of the patient’s prior medical history, which included transient ischemic attacks, he was at high risk for a stroke. After receiving the results of noninvasive tests, Dr. Rafecas, a consulting physician, ordered a cerebral angiogram. Dr. Kurman performed the angiogram, and the patient suffered a stroke during the procedure that left him severely disabled.

The patient and his wife filed a medical malpractice action against Rafecas and Kurman, asserting that Rafecas had negligently recommended the procedure and that Kurman had performed the procedure without obtaining informed consent. The court of appeals held that the evidence was sufficient to support a judgment in favor of the patient and his wife.

The jury needed to determine that the risks involved in the cerebral angiogram were not disclosed, that the risks involved in the procedure materialized and caused the stroke, and that a reasonable person in the position of the patient would have decided against having the angiogram had the risks associated with the procedure been disclosed.
The jury concluded that the patient did not consent to the angiogram because he “was not … capable of comprehending the consent form” and further noted that Kurman should have sought consent from the next of kin, specifically the spouse. Given the evidence of the patient’s condition when he signed the consent forms, his past medical history, and his increased risk of suffering complications during an angiogram, the court found that evidence supported a finding of lack of informed consent.

Parental Consent

Parents generally have the right to authorize medical care for minor children, generally under the age of 18. Consent laws for minors often vary from state to state and should be referenced as necessary. Children who are emancipated have a right to make their own medical care decisions. Although parents may have a right to refuse medical care in certain instances, such refusal is reportable by the caregiver to the state if such refusal can result in harm to the child.

Case Studies

Parents Refuse Treatment

When parents in
In re Guardianship of L.S.

21
refused to consent to medically necessary care for their minor child based on their religious convictions, the trial court appointed the hospital as a temporary guardian to make decisions to provide medically necessary, lifesaving treatment for the child. The evidence presented to the trial court in the form of an affidavit from a hospital physician stated that the parents were refusing medically necessary blood transfusions, that the child would require blood transfusions to survive, and that the child was unable to respond to this risk. The trial court reasonably concluded from this information that the child was at risk of substantial and immediate physical harm. The trial court’s decision to appoint a temporary guardian was based on the child’s best interest and protected the state’s interest in the welfare of children within the state.

In the midst of an emergency, the district court was confronted with the task of balancing the competing interests of the child, the parents, the hospital, and the state. Throughout the proceedings, the district court took numerous steps to protect the interests of the child and the parents, including requiring notice and a hearing within 24 hours after the original order, allowing the parents time to obtain counsel before reaching a final determination.

“Substantive due process guarantees that no person shall be deprived of life, liberty, or property for arbitrary reasons.” The due process clause of the Fourteenth Amendment protects those liberty interests that are deemed fundamental and are “deeply rooted in this Nation’s history and tradition.” Certain family privacy rights, including the parent–child relationship, have therefore been recognized as fundamental rights. The Nevada Supreme Court adopted a “reasonableness test” to address family privacy cases involving “competing interests within the family.”

Although a parent has a fundamental liberty interest in the “care, custody, and management” of his or her child, that interest is not absolute. “The state also has an interest in the welfare of children and may limit parental authority,” even permanently depriving parents of their children; therefore, although the parents have a parental interest in the care of their son, both the state and L.S. have an interest in preserving the child’s life. As L.S. is unable to make decisions for himself, the state’s interest is heightened. The parents’ liberty interest in practicing their religion must also give way to the child’s welfare. Hence, the district court found that the parents’ refusal to consent to treatment put L.S.’s life at substantial risk. Additionally, the state has an interest in protecting “the ethical integrity of the medical profession” and in allowing hospitals the full opportunity to care for patients under their control, especially when medical science is available to save that patient’s life.

Here, the child’s interest in self-preservation and the state’s interests in protecting the welfare of children and the integrity of medical care outweigh the parents’ interests in the care, custody, and management of their children, as well as their religious freedom. The combined weight of the interests of the child and the state are great and therefore mandate interference with parental rights.

The Supreme Court of Nevada affirmed the order of the district court appointing Valley Hospital as temporary guardian.

Consent by Minors

Parental consent is not required when a minor is married or otherwise emancipated. Most states have enacted statutes making it valid for married and emancipated minors to provide effective consent. Several courts have held the consent of a minor to be sufficient authorization for treatment in certain situations. In any specific case, a court’s determination that the consent of a minor is effective and that parental consent is unnecessary will depend on such factors as the minor’s age, maturity, mental status, and emancipation and the procedure involved, as well as public policy considerations.

The courts have held, as a general proposition, that the consent of a minor to medical or surgical treatment is ineffective and that the physician must secure the consent of the minor’s parent or someone standing
in loco parentis; otherwise, he or she will risk liability. Although
parental consent should be obtained before treating a minor, treatment should not be delayed to the detriment of the child. The various states have laws allowing children to be treated without consent in order to protect the minor (e.g., provision of emergency care, protect the minor from child abuse, abortion, treat venereal diseases) and safeguard the public health of the community (e.g., communicable diseases).

Incompetent Patients

The attending physician, who is in the best position to determine if a patient is incompetent, should become familiar with his or her state’s definition of legal incompetence. In any case in which a physician doubts a patient’s capacity to consent, the consent of the legal guardian or next of kin should be obtained. If there are no relatives to consult, application should be made for a court order that would allow the procedure. It may be the duty of the court to assume responsibility of guardianship for a patient who is
non compos mentis. The most frequently cited conditions indicative of incompetence are mental illness, mental retardation, senility, physical incapacity, and chronic alcohol or drug abuse.

A person who is mentally incompetent cannot legally consent to medical or surgical treatment; therefore, consent of the patient’s legal guardian must be obtained. When no legal guardian is available, a court that handles such matters must be petitioned to permit treatment.

Subject to applicable statutory provisions, when a physician doubts a patient’s capacity to consent, even though the patient has not been judged legally incompetent, the consent of the nearest relative should be obtained. If a patient is conscious and mentally capable of giving consent for treatment, the consent of a relative without the consent of the competent patient would not protect the physician from liability.

Guardian

Consent of the patient ordinarily is required before treatment. When a patient is either physically unable or legally incompetent to consent and no emergency exists, consent must be obtained from a person who is empowered to consent on the patient’s behalf. A guardian is an individual who by law is invested with the power and charged with the duty of taking care of a patient by protecting the patient’s rights and managing the patient’s estate.
Guardianship is often necessary in those instances in which a patient is incapable of managing or administering his or her private affairs because of physical and/or mental disabilities or because he or she is under the age of majority.

Temporary Guardian

The courts can grant temporary guardianship if it is determined necessary for the well-being of the patient.

Case Studies

Physician and Administrator File for Temporary Guardianship

The court in
In re Estate of Dorone granted temporary guardianship.

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In this case, the physician and administrator petitioned the court on two occasions for authority to administer blood. A 22-year-old male patient brought to the Hospital Center by helicopter after an automobile accident was diagnosed as suffering from an acute subdural hematoma with a brain contusion.

It was determined that the patient would die unless he underwent a cranial operation. The operation required the administration of blood, to which the parents would not consent because of their religious beliefs. After a hearing by telephone, the court of common pleas appointed the hospital’s administrator as temporary guardian, authorizing him to consent to the performance of blood transfusions during emergency surgery. A more formal hearing did not take place because of the emergency situation that existed. Surgery was required a second time to remove a blood clot, and the court once again granted the administrator authority to authorize administration of blood. The superior court affirmed the orders, and the parents appealed. The Pennsylvania Supreme Court held that the judge’s failure to obtain direct testimony from the patient’s parents and others concerning the patient’s religious beliefs were not in error when death was likely to result from withholding blood. The judge’s decisions granting guardianship and the authority to consent to the administration of blood were considered absolutely necessary in the light of the facts of this case. Nothing less than a fully conscious contemporary decision by the patient himself would have been sufficient to override the evidence of medical necessity.

Ethical and Legal Issues

Should a hospital act to save a patient’s life if he or she has not given written consent to a procedure?

What types of monetary awards should the court give the plaintiff, if any? Why?

RIGHT TO REFUSE TREATMENT

The individual’s right to make decisions vitally affecting his private life according to his own conscience … is difficult to overstate … because it is, without exaggeration, the very bedrock on which this country was founded.

—
Wons v. Public Health Trust

23

Adult patients who are conscious and mentally competent have the right to refuse medical care to the extent permitted by law, even when the best medical opinion deems it essential to life. A patient’s right to make decisions regarding his own health care is addressed in the Patient Self-Determination Act of 1990.

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The act provides that each person has a right under state law (whether statutory or as recognized by the courts of the state) to make decisions concerning his or her medical care, including the right to accept or refuse medical or surgical treatment.

A competent patient’s refusal to consent to a medical or surgical procedure must be adhered to, whether the refusal is grounded in lack of confidence in the physician, fear of the procedure, doubt as to the value of a particular procedure, or mere whim. The U.S. Supreme Court stated that the “notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment” and the “logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.”

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The common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment.

The question of liability for performing a medical or surgical procedure without consent is separate and distinct from any question of negligence or malpractice in performing a procedure. Liability can be imposed for a nonconsensual touching of a patient, even if the procedure improved the patient’s health.

The courts perform a balancing test to determine whether or not to override a competent adult’s decision to refuse medical treatment. The courts balance state interests, such as preservation of life, protection of third parties, prevention of suicide, and the integrity of the medical profession, against a patient’s rights of bodily integrity and religious freedom. The most frequently used state right to intervene in a patient’s decision-making process is for the protection of third parties. In
In re Fetus Brown,

26
the state of Illinois asserted that its interest in the well-being of a viable fetus outweighed the patient’s right to refuse medical treatment. The state argued that a balancing test should be used to weigh state interests against patient rights. The appellate court held that it could not impose a legal obligation on a pregnant woman to consent to an invasive medical procedure for the benefit of her viable fetus.

Adult patients who are conscious and mentally competent have the right to refuse medical care to the extent permitted by law even when the best medical opinion deems it essential to life. Such a refusal must be honored whether it is grounded in religious belief or straightforward objection to the procedure. Every person has the legal right to refuse to permit a touching of his or her body. Failure to respect this right can result in a legal action for assault and battery. If a patient refuses consent, every effort should be made to explain the importance of the procedure. Coercion through threat, duress, or intimidation must be avoided.

A hospital generally has no common-law right or obligation to thrust unwanted medical care on a patient who, having been sufficiently informed of the consequences, competently and clearly declines such care. A patient’s common-law right of bodily self-determination is entitled to respect and protection. Before a patient leaves a healthcare facility against medical advice, every attempt should be made to have a release form completed (

FIGURE 12-1

) and included in the patient’s permanent record.

All reasonable steps should be taken to (1) inform the patient of the benefits and risks of treatment and (2) secure the patient’s written informed consent to refuse examination and treatment. If the patient refuses to sign the “refusal to consent form,” documentation of a patient’s refusal of care should be placed in the patient’s medical record.

Refusal of Care Based on Religious Beliefs

As part of their religious beliefs, Jehovah’s Witnesses generally have refused the administration of blood, even in emergency situations. Case law over the past several decades has developed to a point where any person, regardless of religious beliefs, has the right to refuse medical treatment.

Case Studies

A Mother’s Right, a Child’s Death

Harrell, a Jehovah’s Witness, was 6 months pregnant when physicians discovered a life-threatening blood condition that could rapidly deteriorate, placing both her life and the life of the fetus in jeopardy. Because of her religious beliefs, Harrell objected to a blood transfusion. After an emergency hearing during which the Harrells could not summon an attorney, the court ruled that a blood transfusion could be given to Harrell if it was necessary to save the life of the fetus and that after the child was born a blood transfusion could be given to the child if necessary to save the child’s life. The Harrells appealed. The child was delivered by cesarean section and died 2 days later. No blood transfusion was given to Harrell or to the child. As a result, the hospital and the state claimed that the
appeal of the trial court’s order was moot. Because of the hospital’s serious misunderstanding about its standing to bring such proceedings, the Florida District Court of Appeal addressed the issue as capable of repetition yet evading review.

The Florida constitution guarantees that a competent person has the constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one’s health. The state has a duty to ensure that a person’s wishes regarding medical treatment are respected. That obligation serves to protect the rights of the individual from intrusion by the state unless the state has a compelling interest great enough to override this constitutional right (e.g., protection of innocent third parties).

Harrell argued that the hospital should not have intervened in her private decision to refuse a blood transfusion. She claimed that the state had never been a party in this action, had not asserted any interest, and that the hospital had no authority to assume the state’s responsibilities.

The Florida District Court of Appeal concluded that a healthcare provider must not be forced into the position of having to argue against the wishes of the facility’s own patient. Patients do not lose their right to make decisions affecting their lives when they enter a healthcare facility. A healthcare provider’s function is to provide medical treatment in accordance with the patient’s wishes and best interests, not supervene the wishes of a competent adult. A healthcare provider must comply with the wishes of a patient to refuse medical treatment unless ordered to do otherwise by a court of competent jurisdiction. A healthcare provider cannot act on behalf of the state to assert state interests. When a healthcare provider, acting in good faith, follows the wishes of a competent and informed patient to refuse medical treatment, the healthcare provider is acting appropriately and cannot be subjected to civil or criminal liability.

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Ethical and Legal Issues

Is the Florida District Court of Appeal’s conclusion binding in all states?

Do you think the hospital made the correct decisions in this case? Discuss your answer.

Case Studies

Mother Refuses Blood, Spouse Disagrees

What would you do if a patient, a Jehovah’s Witness, signs a consent form refusing a blood transfusion and her husband, who is not a Jehovah’s Witness, consents to a blood transfusion to save his wife’s life?

The plaintiff, Bonita Perkins, in
Perkins v. Lavin,

28
was a Jehovah’s Witness. She gave birth to a baby at the defendant’s hospital. After going home, she began hemorrhaging and returned to the hospital. She specifically informed the defendant’s employees that she was not to be provided any blood or blood derivatives, and she signed a form to that effect:

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I request that no blood or blood derivatives be administered to [plaintiff] during this hospitalization, notwithstanding that such treatment may be deemed necessary in the opinion of the attending physician or his assistants to preserve life or promote recovery. I release the attending physician, his assistants, the hospital, and its personnel from any responsibility whatever for any untoward results due to my refusal to permit the use of blood or its derivatives.

Because of the plaintiff’s condition, it became necessary to perform an emergency dilation and curettage. She continued to bleed, and her condition deteriorated dramatically. Her blood count dropped, necessitating administration of blood products as a lifesaving measure. Her husband, who was not a Jehovah’s Witness, consented to a blood transfusion, which was administered. The plaintiff recovered and filed an action against the defendant for assault and battery. The plaintiff’s claim as to assault and battery was sustained.

The plaintiff specifically informed the defendant that she would consider a blood transfusion an offensive contact. Although both parties have noted that the plaintiff’s husband provided his consent for the transfusion, the defendant
has not argued that his consent was sufficient to overcome plaintiff’s direction that she was not to receive a transfusion. The plaintiff submitted sufficient evidence to the trial court to establish that there was, at least, a genuine issue as to whether the defendant intentionally invaded her right to be free from offensive contact. Because of the plaintiff’s recognition that the defendant acted to save her life, a jury may find that she is entitled to only nominal damages.

Ethical and Legal Issues

Should the court be the ultimate decision maker when there is a dispute over whether or not a lifesaving measure should be administered to a nonconsenting patient?

Should a parent have the right to refuse a lifesaving treatment (e.g., transfusion) for a minor? Explain.

Case Studies

Mother Refuses Treatment, Spouse Agrees

Vega, a Jehovah’s Witness, executed a release requesting that no blood be administered to her during her hospitalization. Vega’s husband also signed the release. She delivered a healthy baby. After the delivery, Vega bled heavily. Her obstetrician, Dr. Sood, recommended a dilation and curettage (D&C) to stop the bleeding. Although Vega agreed to permit Sood to perform the D&C, she refused to allow a blood transfusion. Before undergoing the procedure, she signed a second release refusing any transfusions and releasing the hospital from liability. Despite the D&C, Vega continued to hemorrhage.

Because Sood and the other physicians involved in Vega’s care believed that it was essential that she receive blood in order to survive, the hospital requested that the court issue an injunction that would permit the hospital to administer blood transfusions. The trial court convened an emergency hearing at the hospital and appointed Vega’s husband as her guardian. At the hearing testimony, Vega’s husband testified that, on the basis of his religious beliefs as a Jehovah’s Witness, he continued to support his wife’s decision to refuse transfusions and believed that she would take the same position if she were able to participate in the hearing.

The court, relying on the state’s interests in preserving life and protecting innocent third parties, granted the hospital’s request for an injunction permitting it to administer blood transfusions. Vega was given blood transfusions. She recovered and was discharged from the hospital.

Vega sued, arguing that if her refusal of blood transfusions interfered with certain state interests, it should be the state itself, not a private hospital, that asserts state’s interests. The hospital responded that because it was charged with Vega’s care it had a direct stake in the outcome of the controversy and was a proper party to bring the action.

The hospital had a legitimate interest in receiving official guidance in resolving the “ethical dilemma” it faced: whether to practice medicine by trying to save a patient’s life despite that patient’s refusal to consent to treatment or to practice medicine in accordance with the patient’s wishes and likely watch the patient die, knowing nonetheless that it had the power to save her life. The hospital had conflicting interests and was in the role not of opposing its patient but of a party seeking the court’s guidance in determining its obligations under the circumstances.

Vega claimed that the state’s interest in the welfare of her child is not sufficiently compelling as to outweigh her interest in refusing blood transfusions. Vega maintained that the trial court’s injunction, issued at the behest of the hospital, violated her common-law right of self-determination, her federal constitutional right to bodily self-determination, her federal constitutional right to free exercise of religion, and her state constitutional right of religious liberty. The court concluded that, under the circumstances of this case, the issuance of the injunction, followed by the administration of blood transfusions, violated Vega’s common-law right of bodily self-determination.

Although the hospital’s interests are sufficient to confer standing in this case, they are not sufficient to take priority over Vega’s common law right to bodily integrity, even when the assertion of that right threatens her own life. The hospital had no common-law right or obligation to thrust unwanted medical care on a patient who, having been sufficiently informed of the consequences, competently and clearly declined that care. The hospital’s interests were sufficiently protected by Vega’s informed choice, and neither it nor the trial court was entitled to override that choice. Vega’s common-law right of bodily self-determination was entitled to respect and protection.

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Ethical and Legal Issues

What would you do if a patient refused a blood transfusion and the spouse agreed with her decision, knowing that a blood transfusion may be necessary to save her life?

Should a hospital challenge a patient’s refusal of lifesaving blood transfusions?

Are Teens Old Enough for Life/Death Decisions?

When Skagit County Superior Court Judge John Meyer came to work he expected to be hearing a few small matters.

Instead, he made a decision in a case that he said has “perhaps more profound interest and implication than any matter I have ever heard on the bench.”

Meyer decided Wednesday to allow 14-year-old Dennis Lindberg of Mount Vernon to refuse blood transfusions—based on his religious beliefs.

It’s a case that brings into sharp relief the tensions in laws and ethics over whether adolescents should be able to make such serious health-care decisions for themselves.

—Janet I. Tu,
The Seattle Times, November 30, 2007

Competent adolescents have the right to deny treatment according to Skagit County Superior Court Judge John Meyer when he had to decide if a 14-year-old patient with leukemia had the right to refuse a blood transfusion. The patient, Dennis Lindberg, a Jehovah’s Witness, had denied the transfusion based on his religious beliefs.

Ethics experts and Jehovah’s Witness officials said such a court case is unusual these days. Most cases involving transfusions stem from surgical cases, and current policy at Children’s is to inform parents that while the hospital will do everything it can to avoid transfusions, it will not let a child die for want of blood, said Dr. Doug Diekema, an ethics consultant there.

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Judge John Meyer’s decision should by no means be applied as a standard for all similar cases involving a minor patient’s right to refuse treatment. The courts of various jurisdictions may have reached a different decision than that of Judge Meyer of the Skagit County Superior Court. In future cases of this sort, no court can use a customized cookie cutter approach to stamp out decisions because every case is composed of a different set of facts and circumstances to which the law must be applied. It seems to be an oxymoron to prohibit minors from obtaining treatment for most medical conditions without first obtaining parental consent on the one hand and on the other hand allowing the minor to deny lifesaving treatment. It is unclear how the courts will respond to the same or similar cases as they arise in other jurisdictions.

Interestingly, Dr. James L. Bernat wrote in
Neurology Today, a publication of the American Academy of Neurology:

One memorable experience in which I performed an ethics consultation on a minor patient whose Jehovah’s Witness parents refused consent for blood transfusion yielded an unexpected outcome. After the bioethics committee requested and obtained a court order mandating treatment, rather than being angry or resentful with us for superseding their parental authority through the judiciary, the parents were relieved that their child would survive. It became clear to us in retrospect that they felt compelled to refuse blood transfusions on behalf of their child for them to remain true to their religious beliefs.

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CHAPTER REVIEW

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.

Forms of consent

Express

Verbal

Written

Implied

Presumption that consent has been authorized

Informed consent

Legal concept that provides that a patient has a right to know

Risks

Benefits

Alternatives of a proposed procedure

Informed consent is predicated on the duty of the physician to disclose to the patient sufficient information to enable the patient to evaluate a proposed medical or surgical procedure before submitting to it.

Statutory consent

Age of consent

Emergency consent

Generally presumed when immediate action is required to prevent death or permanent impairment of a patient’s health

Documentation justifying the need for treatment

Capacity to consent

Individuals incompetent to give consent

No relatives or other parties from whom consent can be obtained

Application should be made for a court order that would allow a needed procedure.

Adequacy of consent

Requires that consent be informed consent.

Varies depending on age, maturity, and mental status.

Competent patient

Spouse

Parental consent

Consent by minors

Incompetent patients

Guardian

Right to refuse treatment

Often based on religious beliefs.

Complexities occur when the consent for a minor’s treatment is involved.

Generally because states interests are at issue, as in the case of a minor.

Patients refusing care should be requested to sign a release form.

Documentation should be placed in the patient’s medical record as to their refusal of treatment.

TEST YOUR UNDERSTANDING

Terminology

consent

express consent

guardianship

implied consent

informed consent

oral consent

statutory consent

written consent

REVIEW QUESTIONS

Discuss informed consent and how it applies the patient’s right to self-determination.

Describe what information the patient should be provided prior to consenting to a recommended treatment.

Describe how various codes of professional ethics address a patient’s right to informed consent and self-determination.

Explain and give examples of verbal, written, and implied consent.

Describe the purpose of statutory consent.

Describe under what circumstances statutory consent to treatment can be inferred.

Discuss why is it important to assess a patient’s decision-making capacity.

Describe what factors the courts could take into consideration when determining the adequacy of consent.

Can a patient give consent and then withdraw it? Discuss your answer.

Explain why a patient has a right to refuse treatment.

NOTES

1.
Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).

2. Sandra G. Boodman, “Arthritis Surgery Sounded Like a Breeze. So Why Was She in More Pain?” The Washington Post (July 1, 2017).
https://www.washingtonpost.com/national/health-science/arthritis-surgery-sounded-like-a-breeze-so-why-was-she-in-more-pain/2017/06/30/022a9b96-4a05-11e7-9669-250d0b15f83b_story.html?utm_term=.965600c21d0f (accessed August 7, 2018).

3. American College of Surgeons, “Statements on Principles: A. Informed Consent.”
https://www.facs.org/about-acs/statements/stonprin#iia (accessed August 7, 2018).

4. American College of Surgeons, “Statements on Principles.”

5.
Wons v. Public Health Trust, 500 So. 2d 679, 687 (Fla. Dist. Ct. App. 1987), aff’d 541 So. 2d 96 (Fla. 1989).

6.
In re Duran, 769 A.2d 497 (Pa. 2001).

7.
Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990).

8. Robert Langreth, “Unreported Robot Surgery Injuries Open New Questions for FDA,” Bloomberg News (December 30, 2013).
https://bangordailynews.com/2013/12/31/health/unreported-robot-surgery-injuries-open-new-questions-for-fda/ (accessed August 7, 2018).

9. WSAZ News, “UPDATE: Appeals Court Overturns Judge’s Acquittal of Ashland Cardiologist.” (July 10, 2018).
http://www.wsaz.com/content/news/Ashland–399034251.html (accessed August 7, 2018).

10. Peter Eisler and Barbara Hansen, “Doctors Perform Thousands of Unnecessary Surgeries.”
https://www.usatoday.com/story/news/nation/2013/06/18/unnecessary-surgery-usa-today-investigation/2435009/ (accessed August 7, 2018).

11. Tricia Bishop, “Eastern Shore Doctor Convicted of Criminal Charges in Stent Case,” The Baltimore Sun (July 26, 2011).
http://www.baltimoresun.com/health/bs-md-mclean-guilty-20110726-story.html (accessed August 7, 2018).

12. American Nurses Association.
Code of Ethics for Nurses With Interpretive Statements (Washington, DC: Author, 2001).
https://www.nursingworld.org/practice-policy/nursing-excellence/ethics/code-of-ethics-for-nurses/ (accessed August 7, 2018).

13.
Luka v. Lowrie, 136 N.W. 1106 (Mich. 1912).

14.
O’Brien v. Cunard Steam Ship Co., 28 N.E. 266 (Mass. 1891).

15.
Matter of Hughes, 611 A.2d 1148 (N.J. Super Ct. 1992).

16.
Riser v. American Medical Int’l, Inc., 620 So. 2d 372 (La. Ct. App. 1993).

17.
Ibid. at 380.

18.
Shinal v. Steven Toms, J-106-2017, at 40 (June 20, 3017).

19.
In re Melideo, 390 N.Y.S.2d 523 (N.Y. Sup. Ct. 1976).

20.
Greynolds v. Kurman, 632 N.E.2d 946 (Ohio Ct. App. 1993).

21.
In re Guardianship of L.S., No. 38242 (Nev. 2004).

22.
In re Estate of Dorone, 534 A.2d 452 (Pa. 1987).

23.
Wons v. Public Health Trust, 500 So. 2d 679, 687 (Fla. Dist. Ct. App. 1987), aff’d 541 So. 2d 96 (Fla. 1989).

24. Public Law 101-508, November 5, 1990, sections 4206 and 4751 of the Omnibus Budget Reconciliation Act.

25.
Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 269 (1990).

26.
In re Fetus Brown, 689 N.E.2d 397 (Ill. App. Ct. 1997).

27.
Harrell v. St. Mary’s Hosp., Inc., 678 So. 2d 455 (Fla. Dist. Ct. App. 1996).

28.
Perkins v. Lavin, 648 N.E.2d 839 (Ohio App. 9 Dist. 1994).

29.
Ibid. at 840.

30.
Stamford Hosp. v. Vega, 674 A.2d 821 (Conn. Super. Ct. 1996).

31. Carol M. Ostrom, The Seattle Times (November 29, 2007).
http://seattletimes.com/html/health/2004041765_transfusion29m.html (accessed August 7, 2018).

32. James L. Bernat, “Ask the Neuroethicist: What If Your Patients Refuse Blood Tranfusions Due to Religious Beliefs?” Neurology Today 11 (May 19, 2011): 27–28, 30–31.

CHAPTER 13

Patient Abuse

Love and knowledge led upwards to the heavens, but always pity brought me back to earth; cries of pain rever-berated in my heart of children in famine, of victims tortured, and of old people left helpless. I long to alleviate the evil, but I cannot, and I too suffer. This has been my life; I found it worth living.

—Bertrand Russell (adapted)

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Understand the pervasiveness of abuse.

Identify the signs of abuse.

Describe the reporting requirements for abuse.

INTRODUCTION

Love and knowledge led upwards to the heavens, but always pity brought me back to earth; cries of pain reverberated in my heart of children in famine, of victims tortured, and of old people left helpless. I long to alleviate the evil, but I cannot, and I too suffer. This has been my life; I found it worth living.

—Bertrand Russell (adapted)

Patient abuse refers to the mistreatment or neglect of individuals in the healthcare setting. Abuse often occurs to those who are most vulnerable and dependent on others for care (e.g., patients diagnosed with dementia and Alzheimer’s disease, those who are physically weak). Abuse is not limited to an institutional setting and may occur in the patient’s home. Abuse can take many forms—physical, psychological, medical, financial, and so forth. It is not always easy to identify because injuries can often be attributed to other causes. This chapter reviews child and senior abuse in a variety of settings.

CHILD ABUSE

An abused child is generally defined as a person younger than 18 years of age whose parent or other person legally responsible for his or her care inflicts on that child, or allows to be inflicted, physical injury by nonaccidental means that causes or creates a substantial risk of death, serious or protracted disfigurement, protracted impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily organ; commits, or allows to be committed, a sex offense against that child; and/or allows, permits, or encourages the child to engage in an act considered unlawful. An abused child is one who may have suffered intentional serious mental, emotional, sexual, and/or physical injury inflicted by a parent or other person responsible for the child’s care. The United States Code defines a
child abuse crime as “a crime committed under any law of a State that involves the physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child by any person.”

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Some states extend the definition to include a child suffering from starvation. Other states include moral neglect in the definition of abuse. Others mention immoral associations; endangering a child’s morals; and the location of a child in a disreputable place or in association with vagrant, vicious, or immoral persons.

Child abuse continues to be of serious concern throughout the nation, as noted by Jerry Milner, the associate commissioner of the Children’s Bureau, Department of Health and Human Services, in a report titled
Child Maltreatment 2016.

The national estimate of children who received a child protective services investigation response or alternative response increased 9.5 percent from 2012 (3,172,000) to 2016 (3,472,000).

The number and rate of victims have fluctuated during the past 5 years. Comparing the national rounded number of victims from 2012 (656,000) to the national estimate of victims in 2016 (676,000) shows an increase of 3.0 percent.

Three-quarters (74.8%) of victims were neglected, 18.2 percent were physically abused, and 8.5 percent were sexually abused.

2

It is estimated that 1,750 children died of abuse and neglect at a rate of 2.36 children per 100,000 children in 2016.

3
The full document describing child maltreatment in 2016 is available from the website of the Children’s Bureau in the Administration on Children, Youth and Families, the Administration for Children and Families within the U.S. Department of Health and Human Services (HHS), which addresses this important issue in many ways.

As noted in the following news clipping, the horrors of child abuse continue seemingly unabated.

Mother Gets 99 Years for Beating, Gluing Daughter: Has the Us Had It with Bad Parents?

Elizabeth Escalona, a 23-year-old mother of five, was sentenced to 99 years in prison after severely beating her daughter and gluing the girl’s hands to a wall. The sentence is one sign that society—and the courts—are taking child abuse more seriously.

A 99-year prison sentence for a 23-year-old Dallas mother who admitted she had acted like a “monster” when gluing her daughter’s hands and beating her into a coma last year suggests that society and the courts are taking a harsher view of neglectful, abusive, and violent parents, experts say.

—Patrik Jonsson,
The Christian Science Monitor, October 13, 2012

Such instances of abuse as described in the news clipping cited above is but one of many that have appeared in newspapers across the country with no end in sight. Recently, “A grand jury report found that Roman Catholic priests had abused more than 1,000 children in Pennsylvania over a period of 70 years. Some church officials say the report reiterates issues that have already been addressed, but details suggest otherwise.”

4
Such reports describe the importance of healthcare providers recognizing and reporting suspicion of child abuse as provided in the various state laws.

Reporting Abuse

The U.S. Code describes a state’s reporting requirements for child abuse as follows:

In each State, an authorized criminal justice agency of the State shall report child abuse crime information to, or index child abuse crime information in, the national criminal history background check system. A criminal justice agency may satisfy the requirement of this subsection by reporting or indexing all felony and serious misdemeanor arrests and dispositions.

5

Child abuse statutes have been enacted by the states to protect abused children and provide civil immunity for those making or participating in good-faith reports of suspected child abuse. Most states also provide immunity from criminal liability. The New York State Social Services Law provides that “[a]ny person, official, or institution participating in good faith in the making of a report, the taking of photographs, or the removal or keeping of a child pursuant to this title shall have immunity from any liability, civil or criminal, that might otherwise result by reason of such actions.”

6
Even in states that do not provide immunity, it is unlikely that anyone making a good-faith report of suspected child abuse would be subject to criminal liability. State laws generally specify what persons are required to report suspected child abuse that comes before them in their official capacities. In some states, failure to report a case of suspected child abuse carries criminal penalties as well as civil liability for the damages resulting from such failure.

7

Child Abuse Fears Must Be Reported by Doctors, but Some Cases Pose Dilemmas

… As she turned her head on the way out the door, I noticed minor swelling around her eye. When I asked about it, she said, without hesitation, “Oh, my father hit me.” Like all pediatricians, I am mandated by law to report any concern of child abuse …

Day after day, she begged me to rescind the report …

This spring, I received a message from her. She’d be home from college in the summer, she wrote. Could she shadow me at work as she explored a possible career in health care?

Her e-mail gave me hope.

—Ilana Sherer,
The Washington Post, August 15, 2011

Most states protect the persons required to report cases of child abuse. In a few states, certain identified individuals who are not required to report instances of child abuse, but who do so, are protected. Child abuse laws may or may not provide penalties for failure to report. Those in the healthcare setting who are required to report or cause a report to be made when they have reasonable cause to suspect that a child has been abused include the following: administrators, physicians, interns, registered nurses, chiropractors, social service workers, psychologists, dentists, osteopaths, optometrists, podiatrists, mental health professionals, and volunteers in residential facilities.

Detecting Abuse

What constitutes an abused child is difficult to determine because it is often impossible to ascertain whether a child was injured intentionally or accidentally. An individual who reports child abuse should be aware of the physical and behavioral indicators of abuse and maltreatment that appear to be part of a pattern (e.g., bruises, burns, broken bones). In reviewing the indicators of abuse and maltreatment, the reporter does not have to be absolutely certain that abuse or maltreatment exists before reporting. Rather, abuse and maltreatment should be reported whenever they are suspected, based on the existence of the signs of abuse and maltreatment and
in light of the reporter’s training and experience. Behavioral indicators include, but are not limited to, substantially diminished psychological or intellectual functioning, failure to thrive, no control of aggression, self-destructive impulses, decreased ability to think and reason, acting out and misbehavior, or habitual truancy. Such impairment must be clearly attributable to the unwillingness or inability of the person responsible for the child’s care to exercise a minimum degree of care toward the child.

Good-Faith Reporting

Any report of suspected child abuse must be made with a good-faith belief that the facts reported are true. The definition of good faith as used in a child abuse statute may vary from state to state; however, when a healthcare practitioner’s medical evaluation indicates reasonable cause to believe a child’s injuries were not accidental, and when the healthcare practitioner is not acting from a desire to harass, injure, or embarrass the child’s parents, making the report will not result in liability.

Statutes generally require that when a person covered by a statute is attending a child and suspects child abuse, the staff member must report such concerns. Typical statutes provide that an oral report be made immediately, followed by a written report.

The criminal and civil risks for healthcare professionals lie not in
good-faith reporting of suspected incidents of child abuse but in failing to report such incidents. Most states have legislated a variety of civil and criminal penalties for failure to report suspected child abuse incidents. New York, for example, provides:

8

Any person, official, or institution required by this title to report a case of suspected child abuse or maltreatment who willfully fails to do so shall be guilty of a Class A misdemeanor.

Any person, official, or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure.

Immunity and Good-Faith Reporting

A minor child and his mother brought an action for damages against physicians for failing to diagnose disease and filing erroneous child abuse reports in
Awkerman v. Tri-County Orthopedic Group.

9
The Wayne County Circuit Court granted the physicians’ motions for partial summary judgment, and the plaintiffs appealed. The Michigan Court of Appeals held that the child abuse reporting statute provides immunity to persons who file child abuse reports in good faith even if the reports were filed because of negligent diagnosis of the cause of the child’s frequent bone fractures, which was eventually diagnosed as osteogenesis imperfecta. The court of appeals also held that damages for shame and humiliation were not recoverable pursuant to Michigan statute. Immunity from liability did not extend to damages for malpractice that may have resulted from the failure to diagnose the child’s disease as long as all the elements of negligence were present.

Child Abuse Can Be Elusive

Child abuse is not always obvious to the caregiver and can unfortunately go undetected to the detriment of the child. I learned this early on in my training. I was a first-year resident at General Medical Center and was on tour in the hospital’s pediatric unit with Peggy, the unit charge nurse. As we walked down the corridor, I noticed a young child in room 106 in a full leg cast, which had been placed in traction. I asked Peggy what had happened to the patient. Peggy said, “Oh, that’s Gracie. Poor thing. She broke her femur tripping over a toy in her home.” I thought to myself,
that’s a major injury for tripping over a toy. I questioned Peggy further, and she told me that she knew where I was leading by my questions, saying, “Oh, you can be assured that Gracie has not been abused. She has the sweetest mother and father. Although they are divorced, one of her parents is here every day. I even questioned the mother, and she assures me it was an accident.”

I had an uneasy feeling about the mother’s story and decided to visit the radiology department to review Gracie’s X-rays with the radiologist on duty. I walked into the imaging reading room where I found three radiologists reviewing various imaging studies. I introduced myself as a first-year resident to Dr. Patrick Williams, the medical director of radiology. I asked Dr. Williams, “Do you have time to review Gracie’s X-rays with me?” The radiologist replied, “No problem. What is Gracie’s last name?” I told him, and he pulled up Gracie’s X-rays electronically on a computer screen. As soon
as he pulled up the X-rays he said, “Oh yes, Gracie has a compound fracture of the femur.” He was very patient as he thoroughly reviewed with me Gracie’s case. He pointed out the compound fracture of the femur with the computer cursor. I asked him, “Do you think the injury could have occurred from Gracie tripping over a toy at home on a plush carpet?” He replied, “That would be highly unlikely.” He called over one of his partners and said, “Does this patient’s injury look like she tripped over a toy?” Looking at me, the second radiologist said, “Is this what you were told?” I said, “Well, yes, I was.” He grimaced and said, “I have been reading imaging studies for over 20 years. It is highly unlikely that Gracie’s compound fracture of her left femur is the result of her tripping over a toy.” The third radiologist in the room commented, “Definitely not caused by a slip on a toy.”

Following my review with the radiologists, I called Peggy and asked if she had time to review Gracie’s medical record with me after lunch. Peggy replied, “Sure thing, I will see you after lunch.”

After lunch, I went to the pediatric unit. Upon arriving on the unit, I was greeted by Peggy and Caroline, a hospital social service worker. Caroline said, “I contacted child welfare in the county in which Gracie resides. They informed me that Gracie was an active child abuse case, which they have been following for the past 6 months. They thanked me for the information and will be in the hospital late this afternoon to follow up.”

The lesson here for every caregiver is to be continuously observant as to the signs and symptoms of abuse. Caregiver in-service education programs should include the procedures for reporting suspected abuse according to applicable laws and an organization’s policies and procedures.

—Pediatric resident

Discussion

Discuss what lessons the caregiver can learn from the resident’s observations and persistence in learning more about the cause of Gracie’s injury.

Assume you are the hospital’s director of in-service education. Explain what steps you might take to reeducate staff as how to identify and report suspicions of child abuse.

For emphasis, it should be noted that the criminal and civil risks for healthcare professionals do not lie in good faith reporting of suspected incidents of child abuse, but in failing to report such incidents. Most states have legislated a variety of civil and criminal penalties for failure to report suspected child abuse incidents. Penalties are “in the form of either fines or jail time or both, on mandatory reporters who fail to report cases of suspected child abuse and neglect as required by the reporting laws. State laws also may impose penalties on any person who knowingly makes a false report of abuse or neglect.”

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SENIOR ABUSE

People at their weakest are often treated the worst.

—Nina Santucci

Senior abuse is the harmful treatment of older people and includes abandonment; emotional, financial (e.g., financial exploitation, theft or misuse of a senior individual’s money or property by a person in a position of trust), verbal, mental, sexual, or physical abuse; corporal punishment; and involuntary restraint and seclusion. Neglect is the failure to provide the care necessary to prevent physical harm (e.g., the failure of staff to turn a patient periodically to prevent pressure sores) or mental anguish.

A
USA Today review of 2 years of inspection records (between 2000 and 2002) for more than 5,300 assisted-living facilities in seven states found that what should be havens for senior persons may in reality be exposing them to deadly risks. The study indicates that medication errors and poor staff training resulted in many of the injuries identified.

11
Although the rates of abuse are generally underreported,

12
“The American Psychological Association estimates that “4 million older Americans are victims of physical, psychological or other forms of abuse and neglect.”

13

Those statistics may not tell the whole story. For every case of elder abuse and neglect reported to authorities, experts estimate as many as 23 cases go undetected. The quality of life of older individuals who experience abuse is severely jeopardized, as they often experience worsened functional and financial status and progressive dependency, poor self-rated health, feelings of helplessness and loneliness and increased psychological distress. Research also suggests that older people who have been abused tend to die earlier than those who have not been
abused, even in the absence of chronic conditions or life-threatening disease.

14

The Centers for Medicare & Medicaid Services (CMS) is the federal agency responsible for reviewing the effectiveness of state surveys. CMS evaluates the performance of state surveyors by conducting federal surveys in which federal surveyors resurvey a nursing facility recently inspected by state surveyors. The results of the two surveys are compared as to the deficiencies identified between the two surveys.

15

Federal comparative surveys can find two types of understatement: (1) missed deficiencies, which can occur when a state surveyor fails to cite a deficiency altogether, or (2) cases where state surveyors cite deficiencies at too low a level. In May 2008, we reported that a substantial proportion of federal comparative surveys conducted from fiscal years 2002 through 2007 identified missed deficiencies that either had the potential to or did result in harm, death, or serious injury to nursing home residents.

16

There is no shortage of case stories as to the abuse of patients in nursing facilities. Both print and broadcast news are replete with stories of elder abuse and neglect. On Long Island, nine nursing home employees were charged following investigation of a resident’s death. As CBS 2’s Jennifer McLogan reported, “of the nine employees charged, seven of them were arrested in connection with the October 2012 death of 72-year-old patient Aurelia Rios. Licensed professional Kethlie Joseph is charged with criminally negligent homicide and administrator David Fielding is accused of an alleged cover-up.”

17

On January 10, 2014, in an editorial titled
A Welcome Emphasis on Elder Abuse, the
News Tribune writes, “Examples of elder abuse in the headlines range from baffling to horrifying: from the lonely old widower conned out of his life savings by a pretty young woman to the invalid grandmother found restrained to her bed, covered in bedsores and filth.”

18
There is an endless stream of headlines and news stories as to how widespread and pervasive senior abuse is, as the following examples show:

The California Attorney General has estimated that 200,000 elderly Californians are abused each year.

19

At the age of 90, actor Mickey Rooney bravely shared the shame and humiliation of elder abuse with members of Congress and the entire country. “For years I suffered silently, unable to muster the courage to seek the help I knew I needed,” Rooney told a Senate subcommittee,

20
describing how a family member withheld food and medicine and meddled in his personal finances. Rooney, who passed away in 2014, died impoverished despite a decades-long career that should have left him, according to some estimates, a multi-millionaire.

21

Like many Americans, Mary Kantorowski has been ordered to leave her home, but it’s not a bank telling her to get out—it’s her own son.

22

More than 1 in 4 cases of possible sexual and physical abuse against nursing home patients apparently went unreported to police, says a 2017 government audit that faults Medicare for failing to enforce a federal law requiring immediate notification. The Health and Human Services inspector general’s office issued an “early alert” Monday on preliminary findings from a large sampling of cases in 33 states.

23
Auditors scoured hospital, nursing home, and billing records and identified 134 cases spanning 2015 to 2016 in which emergency room records indicated possible sexual or physical abuse or neglect. In 28% of the cases, investigators could find no evidence in hospital records that the incident was reported to local law enforcement.

24

King County, Washington, prosecutor Page Ulrey prosecuted the case of Jasmine Kassim, now serving 75 months in prison for bilking five seniors out of more than $1 million.

25
“A study done a number of years ago found that victims of abuse, neglect and exploitation are three times more likely to die a premature death. I have seen that a lot in my cases. Victims are so demoralized and devastated by financial exploitation that they often deteriorate, and many of my victims are dead before we get to trial,” says Ulrey.

In a case described as “horrific” by the Georgia Attorney General, an unlicensed elder housing complex that was created specifically to prey on elderly and disabled adults was condemned after 7 residents were rescued from the facility. The abuse was discovered because members of the community alerted authorities after they encountered some of the residents begging for food. Residents reported that the operators of the facility “would give them injections of psychotropic medications and various prescriptions” yet did not provide them with basic necessities despite the fact that the facility’s operators took the patients’ social security benefit payments. “The residents reported they did not receive any other psychological or medical care” from the facility’s 3-person staff.

26

Trending: Abuse of patients shown on social media: “Imagine doing the research to place your
elderly father in a nursing home. You look at the ratings online, you talk to neighbors, and you think you’ve found a good placement. Everything seems to be going well. Then you get a phone call from the nursing home administrator, reporting something shocking. A nursing home worker has taken a humiliating photo of your father, partially undressed and covered in excrement, and shared it on the social media application Snapchat or Instagram with a crude caption.”

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Reporting Senior Abuse

Most states have enacted statutes mandating the reporting of senior abuse. In general, senior abuse is less likely to be reported than child abuse. Physical and emotional neglect, as well as verbal and financial abuse, are perceived as the most prevalent forms of senior abuse. Seniors often fail to report incidents of abuse because they fear retaliation and not being believed. Threats of placement in a nursing home or shame that a family member is involved often prevent senior citizens from seeking help.

Kansas statute 39-1402, for example, requires healthcare providers and other individuals in positions of public trust to report suspected abuse, neglect, or exploitation of older adults. The statute obligates the following persons to report elder abuse:

Any person who is licensed to practice any branch of the healing arts, a licensed psychologist, a licensed master level psychologist, a licensed clinical psychotherapist, a chief administrative officer of a medical care facility, an adult care home administrator or operator, a licensed social worker, a licensed professional nurse, a licensed practical nurse, a licensed marriage and family therapist, a licensed clinical marriage and family therapist, licensed professional counselor, licensed clinical professional counselor, registered alcohol and drug abuse counselor, a teacher, a bank trust officer and any other officers of financial institutions, a legal representative or a governmental assistance provider who has reasonable cause to believe that a resident is being or has been abused, neglected or exploited, or is in a condition which is the result of such abuse, neglect or exploitation or is in need of protective services, shall report immediately such information or cause a report of such information to be made in any reasonable manner to the department on aging …

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Kansas governor Sam Brownback signed into law H.B. 2504, which imposes strict penalties against those who commit elder abuse. “Attorney General Derek Schmidt says elderly residents will have new protections against fraud and financial abuse under a new state law. … The law is aimed at protecting people 70 and older who are victims of financial abuse. People convicted of large-scale abuse could be sentenced to more than 40 years in prison.”

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Signs of Abuse

Hidden Camera

Gale … wasn’t prepared for the rough treatment and cruel taunts she says her ailing mother suffered at the nursing home. She cried as a nurse’s aide chastised her mother for failing to straighten her arthritic-stricken legs. And she watched in disbelief as an assistant jerked her mother off her rubber bed pad and pushed her into the bed’s metal rails. All of these images were caught … by a “granny cam”—a camera hidden in her mother’s room.

—Deborah Sharp,
USA Today, September 14, 1999

Signs of senior abuse or neglect of a senior include the following:

Physical Abuse

bruises, black eyes, welts, lacerations, and rope marks

bone fractures, broken bones, and skull fractures

open wounds, cuts, punctures, untreated injuries in various stages of healing

sprains, dislocations, and internal injuries/bleeding

broken eyeglasses/frames, physical signs of being subjected to punishment, and signs of being restrained

laboratory findings of medication overdose or underutilization of prescribed drugs

an elder’s report of being hit, slapped, kicked, or mistreated

an elder’s sudden change in behavior

the caregiver’s refusal to allow visitors to see an elder alone

Sexual Abuse

bruises around the breasts or genital area

unexplained venereal disease or genital infections

unexplained vaginal or anal bleeding

torn, stained, or bloody underclothing

elder’s report of being sexually assaulted or raped

Emotional or Psychological Abuse

being emotionally upset or agitated

being extremely withdrawn and noncommunicative or nonresponsive

unusual behavior usually attributed to dementia (e.g., sucking, biting, rocking)

an elder’s report of being verbally or emotionally mistreated

Neglect

dehydration, malnutrition, untreated bed sores, and poor personal hygiene

unattended or untreated health problems

hazardous or unsafe living condition/arrangements (e.g., improper wiring, no heat, or no running water)

unsanitary and unclean living conditions (e.g., dirt, fleas, lice on person, soiled bedding, fecal/urine smell, inadequate clothing)

an elder’s report of being mistreated

Abandonment

the desertion of an elder at a hospital, a nursing facility, or other similar institution

the desertion of an elder at a shopping center or other public location

an elder’s own report of being abandoned

Financial or Material Exploitation

sudden changes in bank account or banking practice, including an unexplained withdrawal of large sums of money by a person accompanying the elder

the inclusion of additional names on an elder’s bank signature card

unauthorized withdrawal of the elder’s funds using the elder’s ATM card

abrupt changes in a will or other financial documents

unexplained disappearance of funds or valuable possessions

substandard care being provided or bills unpaid despite the availability of adequate financial resources

discovery of an elder’s signature being forged for financial transactions or for the titles of his/her possessions

sudden appearance of previously uninvolved relatives claiming their rights to an elder’s affairs and possessions

unexplained sudden transfer of assets to a family member or someone outside the family

the provision of services that are not necessary

an elder’s report of financial exploitation

Self-Neglect

dehydration, malnutrition, untreated or improperly attended medical conditions, and poor personal hygiene

hazardous or unsafe living conditions/arrangements (e.g., improper wiring, no indoor plumbing, no heat, no running water)

unsanitary or unclean living quarters (e.g., animal/insect infestation, no functioning toilet, fecal/urine smell)

inappropriate and/or inadequate clothing, lack of the necessary medical aids (e.g., eyeglasses, hearing aids, dentures)

grossly inadequate housing or homelessness

30

Documentation

Caregivers who suspect abuse are expected to report their findings. Symptoms and conditions of suspected abuse should be defined clearly and objectively. The abuse of senior individuals is not a localized or isolated problem. Unfortunately, it permeates our society.
Behind Closed Doors, a landmark book on family violence, stated that the first national study of violence in American homes estimated that one in two homes was the scene of family violence at least once a year.

31

We have always known that America is a violent society. … What is new and surprising is that the American family and the American home are perhaps as much or more violent than any other single institution or setting (with the exception of the military, and only then in the time of war). Americans run the greatest risk of assault, physical injury and even murder in their own homes by members of their own families.

32

It is difficult to determine the extent of senior abuse because the abused are reluctant to admit that their children or loved ones have assaulted them. Unfortunately, the abuse of senior persons remains hidden from the public, and the findings of the Senate’s 1991 report on this subject are as current today as when they were first published. At that time, the Senate Select Committee on Aging reported the following:

Senior abuse is less likely to be reported than child abuse.

Physical violence, including negligence, and financial abuse appear to be the most common
forms of abuse, followed by abrogation of basic constitutional rights and psychological abuse.

Most instances of senior abuse are recurring events rather than one-time occurrences.

Victims are often 75 years of age or senior, and women are more likely to be abused than men.

Senior people are often ashamed to admit that their children or loved ones abuse them, or they may fear reprisals if they complain.

Many middle-aged family members, finally ready to enjoy time to themselves, are resentful of a frail and dependent senior parent.

The majority of the abusers are relatives.

33

The plaintiffs in
In re Estate of Smith v. O’Halloran

34
instituted a lawsuit in an effort to improve deplorable conditions in many nursing homes. The court concluded that:

The evidentiary record … supports a general finding that all is not well in the nation’s nursing homes and that the enormous expenditures of public funds and the earnest efforts of public officials and public employees have not produced an equivalent return in benefits. That failure of expectations has produced frustration and anger among those who are aware of the realities of life in some nursing homes, which provide so little service that they could be characterized as orphanages for the aged.

35

Surveyors of healthcare organizations should look for signs of patient abuse by watching for the following:

Physician’s order for restraints

Time-limited orders

The number of patients that are physically restrained

The types of restraints being used

Whether or not the restraints are applied correctly

How often restrained patients are observed by the staff

Signs of overmedication

Signs of mental and physical abuse of patients

Signs of harassment, humiliation, or threats from staff or patients

Whether patients are comfortable with the staff

The numbers of patients with bruises or other injuries

Evidence of patient neglect or patients left in urine or feces without cleaning

Case Studies

Wanton Neglect of Residents

The defendant in
State v. Cunningham,

36
the owner and administrator of a residential care facility, housed 30 to 37 mentally ill, intellectually disabled, and senior residents. The Iowa Department of Inspections and Appeals conducted various surveys at the defendant’s facility between October 1989 and May 1990. All of the surveys except for one resulted in a $50 daily fine assessed against the defendant for violations of the regulations.

On August 16, 1990, a grand jury filed an indictment charging the defendant with several counts of wanton neglect of a resident in violation of Iowa Code section 726.7 (1989), which provides, “A person commits wanton neglect of a resident of a health care facility when the person knowingly acts in a manner likely to be injurious to the physical, mental, or moral welfare of a resident of a health care facility. … Wanton neglect of a resident of a health care facility is a serious misdemeanor.”

The district court held that the defendant had knowledge of the dangerous conditions that existed in the healthcare facility but willfully and consciously refused to provide or to exercise adequate supervision to remedy or attempt to remedy the dangerous conditions. The residents were exposed to physical dangers and unhealthy and unsanitary physical conditions and were grossly deprived of much-needed medical care and personal attention. The conditions were likely to and did cause injury to the physical and mental well-being of the facility’s residents. The defendant was found guilty on five counts of wanton neglect. The district court sentenced the defendant to 1 year in jail for each of the five counts, to run concurrently. The district court suspended all but 2 days of the defendant’s sentence and ordered him to pay $200 for each count, plus a surcharge and costs, and to perform community service. A motion for a new trial was denied, and the defendant appealed.

The Iowa Court of Appeals held that there was substantial evidence to support a finding that the defendant was responsible for not properly maintaining the nursing facility, which led to prosecution for wanton neglect of the facility’s residents. The defendant was found guilty of knowingly acting in a manner likely to be injurious to the physical or mental welfare of the facility’s residents by creating, directing, or maintaining hazardous conditions and unsafe practices; fire hazards and circumstances impeded safety from fire. The facility was not properly maintained
(e.g., findings included broken glass in patients’ rooms, excessive hot water in faucets, dried feces on public bathroom walls and grab bars, insufficient towels and linens, cockroaches and worms in the food preparation area, no soap available in the kitchen, at one point only one bar of soap and one container of shampoo found in the entire facility). Dietary facilities were unsanitary and inadequate to meet the dietary needs of the residents. There were inadequate staffing patterns and supervision in the facility, and improper dosages of medications were administered to the residents.

37

The defendant argued that he did not “create” the unsafe conditions at the facility. The court of appeals disagreed. The statute does not require that the defendant create the conditions at the facility to sustain a conviction. The defendant was the administrator of the facility and responsible for the conditions that existed.

Ethical and Legal Issues

Do you agree with the court’s finding? Discuss your answer.

Discuss how both ethics and the law are intertwined in this case.

Case Studies

Abuse of Residents

The operator of a nursing facility appealed an order by the Department of Public Welfare revoking his license because of resident abuse in
Nepa v. Commonwealth Department of Public Welfare.

38
Substantial evidence supported the department’s finding. Three former employees testified that the nursing facility operator had abused residents in the following incidents:

He unbuckled the belt of one of the residents, causing his pants to drop, and then grabbed a second resident, forcing them to kiss. (Petitioner’s excuse for this behavior was to shame the resident because of his masturbating in public.)

On two occasions he forced a resident to remove toilet paper from a commode after she had urinated and defecated in it. (Denying that there was fecal matter in the commode, the petitioner made the excuse that this would stop the resident from filling the commode with toilet paper.)

He verbally abused a resident who was experiencing difficulty in breathing and accused him of faking as he attempted to feed him liquids.

39

The nursing facility operator claimed that the findings of fact were not based on substantial evidence and that even if they were, the incidents did not amount to abuse under the code. The defendant attempted to discredit the witnesses with allegations from a resident and another employee that one of his former employees got into bed with a resident and that another had taken a picture of a male resident while in the shower and had placed a baby bottle and a humiliating sign around the neck of another resident. The court was not impressed. Although these incidents, if true, were reprehensible, they were collateral matters that had no bearing on the witnesses’ reputation for truthfulness and therefore could not be used for impeachment purposes. The court held that there was substantial evidence supporting the department’s decision and that the activities committed by the operator were sufficient to support revocation of his license:

We believe Petitioner’s treatment of these residents as found by the hearing examiner to be truly disturbing. These residents were elderly and/or mentally incapacitated and wholly dependent on Petitioner while residing in his home. As residents, they are entitled to maintain their dignity and be cared for with respect, concern, and compassion.

Petitioner testified that he did not have adequate training to deal with the patients he received who suffered from mental problems. Petitioner’s lack of training in this area is absolutely no excuse for the reprehensible manner in which he treated various residents. Accordingly, DPW’s order revoking Petitioner’s license to operate a personal care home is affirmed.

40

Ethical and Legal Issues

Do the facts of this case support the court’s finding? Discuss your answer.

Discuss why senior citizens are often reluctant to report abuse.

Case Studies

Abusive Search

A nurse in
People v. Coe

41
was charged with a willful violation of the public health law in connection with an allegedly abusive search of an 86-year-old resident at a geriatric center and with the falsification of business records in the first degree. The resident, Mr. Gersh, had heart disease and difficulty in expressing himself verbally. Another resident claimed that two $5 bills were missing. Nurse Coe assumed that Gersh had taken them because he had been known to take things in the past. The nurse proceeded to search Gersh, who resisted. A security guard was summoned, and another search was undertaken. When Gersh again resisted, the security guard slammed a chair down in front of him and pinned his arms while the defendant nurse searched his pockets, failing to retrieve the two $5 bills. Five minutes later, Gersh collapsed in a chair gasping for air. Coe administered cardiopulmonary resuscitation but was unsuccessful, and Gersh died.

Coe was charged with violation of the New York Penal Law for falsifying records because of the defendant’s “omission” of the facts relating to the search of Gersh. These facts were considered relevant and should have been included in the nurse’s notes regarding this incident. “The first sentence states, ‘Observed resident was extremely confused and talks incoherently. Suddenly became unresponsive …’ This statement is simply false. It could only be true if some reference to the search and the loud noise was included.”

42
A motion was made to dismiss the indictment at the end of the trial.

The court held that the search became an act of physical abuse and mistreatment, that the evidence was sufficient to warrant a finding of guilt on both charges, and that the fact that searches took place frequently did not excuse an otherwise illegal procedure:

43

It may well be that this incident reached the attention of the criminal justice system only because, in the end, a man had died. In those instances which are equally violative of residents’ rights and equally contrary to standards of common decency but which do not result in visible harm to a patient, the acts are nevertheless illegal and subject to prosecution. A criminal act is not legitimized by the fact that others have, with impunity, engaged in that act.

Ethical and Legal Issues

With the number of senior abuse cases occurring so frequently, discuss why society waits for extreme violence to occur before preventative actions are taken.

Having studied ethics and the moral breakdown that appears to have occurred in society, what steps do you believe can be taken to reverse the trend of violence faced by our seniors?

Case Studies

Forcible Administration of Medications

The medical employee in
In re Axelrod

44
sought review of a determination by the commissioner of health that she was guilty of resident abuse. Evidence showed that the employee, after a resident refused medication, “held the patient’s chin and poured the medication down her throat.”

45
There was no indication or convincing evidence that an emergency existed that would have required the forced administration of the medication. The court held that substantial evidence supported the commissioner’s finding that the employee had been guilty of resident abuse.

Ethical and Legal Issues

Discuss the ethical and legal ramifications of this case.

What sentence should the employee receive? Why?

What message should the court be sending to other potential abusers of patients?

Intimidation of Abusive Resident/Disciplinary Overkill

A difficult and abusive 80-year-old resident of a veteran’s home in
Beasley v. State Personnel Board

46
slapped the face of an aide who was assisting him. The resident, referring to his inability to have sex, said that he might as well have his penis cut off. The aide, Beasley, stated that she said to the resident if he did not behave, then she might accommodate him. A nursing supervisor who passed by at that moment noted that a nursing assistant and a hospital aide who were standing nearby laughed and did nothing to intervene. Beasley was fired, and the other
two employees were suspended for 10 days. After the state board upheld the punishments, the three employees went by mandate to the superior court, where Beasley’s dismissal was ruled too severe. The trial court found that action against the nursing assistant and hospital aide, although harsh, was within discretion.

On appeal, the court held that Beasley’s comments did not constitute misconduct, and the veterans’ home nursing assistant and hospital aide did not commit actionable conduct by “sort of laughing.” When this incident was viewed in its context and in light of the whole record, it did not support the state personnel board’s finding that Beasley’s attitude toward patients was poor.

Case Studies

Deficient Care

In
Montgomery Health Care Facility v. Ballard,

47
three nurses testified that the facility was understaffed. “One nurse testified that she asked her supervisor for more help but that she did not get it.”

48
A nursing home resident, Mrs. Stovall, expired as the result of multiple infected bedsores. The estate of the patient brought a malpractice action against the nursing home. First American Health Care, Inc., is the parent corporation of the Montgomery Health Care Facility, a nursing home. The trial court entered a judgment on a jury verdict against the home, and an appeal was taken. The Alabama Supreme Court held that reports compiled by the Alabama Department of Public Health concerning deficiencies found in the nursing home were admissible as evidence. Evidence showed that the care given to the deceased was deficient in the same ways as noted in the survey and complaint reports, which indicated that deficiencies in the home included:

Inadequate documentation of treatment given for decubitus ulcers; 23 patients found with decubitus ulcers, 10 of whom developed those ulcers in the facility; dressings on the sores were not changed as ordered; nursing progress notes did not describe patients’ ongoing conditions, particularly with respect to descriptions of decubitus ulcers; ineffective policies and procedures with respect to sterile dressing supplies; lack of nursing assessments; incomplete patient care plans; inadequate documentation of doctor’s visits, orders, or progress notes; am care not consistently documented; inadequate documentation of turning of patients; incomplete “activities of daily living” sheets; “range of motion” exercises not documented; patients found wet and soiled with dried fecal matter; lack of bowel and bladder retaining programs; [and] incomplete documentation of ordered force fluids.

49

From a corporate standpoint, the parent corporation of the nursing facility could be held liable for the nursing facility’s negligence, where the parent company controlled or retained the right to control the day-to-day operations of the home. The defendants had argued that the punitive damage award of $2 million against the home was greater than what was necessary to meet society’s goal of punishing them. The Alabama Supreme Court, however, found the award was not excessive. “The trial court also found that because of the large number of nursing home residents vulnerable to the type of neglect found in Mrs. Stovall’s case, the verdict would further the goal of discouraging others from similar conduct in the future.”

50

Ethical and Legal Issues

Could any legislation be enacted or policies, procedures, rules, and regulations be implemented as proactive measures to prevent this type of widespread abuse? Describe your answer.

Do you agree with the court that the award will discourage others from similar behavior? Explain.

Abusers Abused

Abusers themselves may suffer from alcohol or drug abuse. Sometimes the abusers were abused themselves as children. The abuser may be emotionally unstable. Sometimes, the caregiver can no longer cope with a stressful situation and does not know where to turn for help.

PREVENTION OF SENIOR ABUSE

Recently, a Georgia law was passed requiring in-depth employment background checks to aid in the prevention of senior abuse by healthcare workers. The Georgia law requires nursing facilities and other long-term care workers to submit to extensive background
checks. The “Georgia Long-Term Care Background Check Program” will take effect on October 1, 2019.

Georgia law requires that owners of personal care homes, assisted living communities, private home care providers, and community living arrangements have a criminal records check prior to the issuance of a license or permit. Also, administrators/directors/managers of personal care homes and assisted living communities must also have a criminal records check. The criminal records checks consist of a Georgia Crime Information Center (GCIC) and Federal Bureau of Investigation (FBI) fingerprint check and the owners and administrators/directors/managers must receive a satisfactory determination from the Department of Community Health (DCH). The determination is based on the criminal history information DCH receives from the GCIC and FBI and is evaluated against the various disqualifying crimes in O.C.G.A. §§ 31-2-9 (owners) and 31-7-254 (administrators/directors/managers). O.C.G.A. § 31-7-259(d) requires personal care home employees to have a GCIC background check; however, fingerprinting is not mandatory.

51

Covered Georgia employers in the care-taking industry should comply with the new law and ensure that:

Each application form provided by a covered facility to an applicant conspicuously state: “FOR THIS TYPE OF EMPLOYMENT, STATE LAW REQUIRES A NATIONAL AND STATE BACKGROUND CHECK AS A CONDITION OF EMPLOYMENT”; and

Personnel records for covered entities include evidence of each employee’s satisfactory determination, registry check, and licensure check, as applicable.

52

Healthcare providers can help prevent the next scam by deceitful and immoral persons by providing educational materials to family members that includes:

Avoid isolating elders.

Stay in touch with your elders.

Keep elders active.

Encourage elders to attend religious services and community activities.

Don’t allow elders to live with someone who is known to be abusive or violent.

Be wary of caregivers or friends needing financial help, or those who have issues with illicit drugs.

Elders should be aware of their own financial affairs.

Don’t allow a caretaker or family member to impulsively alter an elder’s will or add their names to financial accounts or land titles.

Inform elders to be wary of solicitations from the telephone, internet, or mail.

53

Provide education to the community by providing information such as that provided by Medicare where it describes detailed information about every Medicare and Medicaid and certified nursing home in the country.

54

Look Closer, See Me

Donna Fannin read the poem “Look Closer, See Me” to every nursing assistant class she ever taught. This wonderful poem was found among the meager belongings of an 89-year-old nursing home patient in Scotland following her death. It has been widely published since then. It is a reminder to us all that our bodies and relationships continue to change, and some day, many of us will experience what she has felt.

55

Look Closer, See Me

Look Closer, See Me

What do you see, people, what do you see?

What are you thinking, when you look at me

A crabby old woman, not very wise.

Uncertain of habit, with far-away eyes,

Who dribbles her food and makes no reply.

When you say in a loud voice “I do wish you’d try!”

Who seems not to notice the things that you do.

And forever is losing a stocking or shoe.

Who, unresisting or not; lets you do as you will.

With bathing and feeding, the long day to fill.

Is that what you’re thinking, is that what you see?

Then open your eyes, you’re not looking at me.

I’ll tell you who I am as I sit here so still!

As I rise at your bidding, as I eat at your will.

I’m a small child of 10 with a father and mother,

Brothers and sisters, who loved one another.

A young girl of 16 with wings on her feet,

Dreaming that soon now a lover she’ll meet.

A bride soon at 20 – my heart gives a leap,

Remembering the vows that I promised to keep.

At 25 now I have young of my own

Who need me to build a secure happy home.

A woman of 30, my young now grow fast,

Bound to each other with ties that should last.

At 40, my young sons have grown and are gone,

But my man’s beside me to see I don’t mourn.

At 50 once more babies play around my knee,

Again we know children, my loved one and me.

Dark days are upon me, my husband is dead,

I look at the future, I shudder with dread.

For my young are all rearing young of their own.

And I think of the years and the love that I’ve known.

I’m an old woman now and nature is cruel,

‘Tis her jest to make old age look like a fool.

The body is crumbled, grace and vigor depart,

There is now a stone where I once had a heart.

But inside this old carcass, a young girl still dwells,

And now and again my battered heart swells.

I remember the joy, I remember the pain,

And I’m loving and living life over again.

I think of the years all too few – gone too fast,

And accept the stark fact that nothing can last.

So open your eyes, people, open and see,

Not a crabby old woman, LOOK CLOSER, SEE ME.

—Anonymous

CHAPTER REVIEW

Patient Abuse

Mistreatment or neglect of individuals who are under the care of a healthcare organization.

Abuse is not limited to an institutional setting and may occur in an individual’s home as well as in an institution.

Signs of abuse include:

Physical (e.g., sexual), psychological, medical, financial

Difficult to identify because injuries can be attributed to other causes

Child Abuse

Defined as a child under the age of 18 who has suffered intentional serious mental, emotional, sexual, and/or physical injury inflicted by a parent or other person responsible for the child’s care.

Reporting child abuse.

All states have enacted various child abuse statutes to provide civil immunity for those making or participating in good-faith reports of suspected child abuse.

Detecting child abuse.

Individuals who report child abuse should be aware of the physical and behavioral indicators of abuse and maltreatment that appear to be part of a pattern (e.g., bruises, burns, broken bones).

Caregivers must report the suspicion of child abuse with good-faith motives.

Caregivers are immune from liability for good-faith reporting.

Senior Abuse

Seniors often fail to report incidents of abuse because they fear retaliation and not being believed.

Most states have enacted statutes mandating the reporting of senior abuse.

Signs of elder abuse:

Unexplained or unexpected death; broken bones; sudden and unexpected emotional outbursts, agitation, or withdrawal; bruises, welts, discoloration, or burns; absence of hair; dehydration and malnourishment without an illness-related cause; hesitation to talk openly; implausible stories; and unusual or inappropriate bank account activity.

Reporting elder abuse

Caregivers who suspect abuse are expected to report their findings. Symptoms and conditions of suspected abuse should be defined clearly and objectively.

Signs of abuse should be accurately and thoroughly documented.

Senior abuse is less likely to be reported than child abuse.

Cases of elder abuse include:

Neglect

Physical abuse

Abusive search

Forcible administration of medications

Intimidation

Deficient care

Prevention of abuse and family education.

Look Closer, See Me

A poem close to many hearts and interpreted as “don’t see through the patient, see the patient you are treating.”

TEST YOUR UNDERSTANDING

Terminology

child abuse crime

good-faith reporting

patient abuse

senior abuse

REVIEW QUESTIONS

What is patient abuse?

Discuss common signs of abuse of both children and seniors.

Describe what a caregiver should do when he or she suspects another unrelated person, caregiver, or family member has been abusing a patient.

Discuss the importance of accurate and complete documentation of suspected abuse.

Describe what good-faith reporting means.

Discuss why patients are often reluctant to complain about their abusers and caregivers.

When a healthcare provider reports abuse, should the accuser’s identity be revealed to the accused? Explain your answer.

Should caregivers be disciplined for reporting abuse if it proves to be false? Explain your answer.

Discuss the patient poem “Look Closer, See Me.”

NOTES

1. Title 42 U.S. Code, Chapter 67 § 5119c (3).

2. U.S. Department of Health & Human Services, Administration for Children and Families, Administration on Children, Youth and Families, Children’s Bureau, Child Maltreatment 2016.
https://www.acf.hhs.gov/sites/default/files/cb/cm2016 (accessed August 8, 2018).

3.
Ibid.

4. Michael Barbaro, “A Culture of Secrecy That Perpetuated Abuse: A Sweeping Report Issued by a Grand Jury in Pennsylvania Sheds New Light on the Systemic Nature of Sexual Abuse in the Catholic Church,” The New York Times “The Daily” (August 16, 2018).

5. Title 42 U.S. Code, Chapter 67, Subchapter VI § 5119 (a).

6. N.Y. Soc. Serv. Law A4 419 (McKinney 1992).

7.
Ibid.

8.
Ibid.

9. 373 N.W.2d 204 (Mich. Ct. App. 1985).

10. “Penalties for Failure to Report and False Reporting of Child Abuse and Neglect,” Child Welfare Information Gateway (August 2015).
https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/report/.

11. “Havens for Elderly May Expose Them to Deadly Risks,” USA Today, May 25, 2004, at 1.

12. “Elder Abuse in Residential Long-Term Care: An Update to the 2003 National Research Council Report,” Journal of Applied Gerontology (July 19, 2013).
http://journals.sagepub.com/doi/10.1177/0733464813492583.

13. American Psychological Association, “Elder Abuse and Neglect: In Search of Solutions.”
http://www.apa.org/pi/aging/resources/guides/elder-abuse.aspx (accessed August 8, 2018).

14.
Ibid.

15. U.S. Government Accounting Office, Nursing Homes: Some Improvement Seen in Understatement of Serious Deficiencies, but Implications for the Longer-Term Trend Are Unclear. GAO-10-434R Nursing Home Understatement Update (April 8, 2010).
http://www.gao.gov/new.items/d10434r (accessed August 8, 2018).

16.
Ibid.

17. CBS New York/AP, “9 Arrested in L.I. Nursing Home Probe Following Patient’s Death,” (February 11, 2014).
http://newyork.cbslocal.com/2014/02/11/9-arrested-in-l-i-nursing-home-probe-following-patients-death/ (accessed August 8, 2018).

18. “A Welcome Emphasis on Elder Abuse,” The News Tribune (January 10, 2014).
http://www.bellinghamherald.com/opinion/article22220976.html (accessed August 8, 2018).

19. Arthur Meirson, “Prosecuting Elder Abuse: Setting the Gold Standard in the Golden State,” Hastings Law Journal 60 (2008): 431, 434.

20.
Herb Weisbaum, “Financial Abuse Costs Elderly Billions,”
NBCNews.com
http://www.nbcnews.com/id/41992299/ns/business-consumer_news/t/financial-abuse-costs-elderly-billions/ (accessed August 8, 2018).

21. Gary Baum and Scott Feinburg, “Tears and Terror: The Disturbing Final Years of Mickey Rooney,” The Hollywood Reporter (October 21, 2015).
http://www.hollywoodreporter.com/features/mickey-rooneys-final-years-833325/ (accessed August 8, 2018).

22. Kevin Spak, “Man Tries to Evict His 98-Year-Old Mom,” Newser (February 17, 2012).
http://www.newser.com/story/139942/man-tries-to-evict-his-98-year-old-mom.html (accessed August 8, 2018).

23. U.S. Department of Health and Human Services, Office of the Inspector General, “Early Alert: The Centers for Medicare & Medicaid Services Has Inadequate Procedures to Ensure That Incidents of Potential Abuse or Neglect at Skilled Nursing Facilities Are Identified and Reported in Accordance With Applicable Requirements (A-01-17-00504)” [Memorandum] (August 24, 2017).
https://oig.hhs.gov/oas/reports/region1/11700504 (accessed August 8, 2018).

24. “Report: Abuse at Nursing Homes Often Unknown to Police” (August 29, 2017).
http://www.newser.com/story/247863/report-abuse-at-nursing-homes-often-unknown-to-police.html (accessed August 8, 2018).

25. Brenda Craig, “Washington State Tough on Elder Fraud.”
http://www.lawyersandsettlements.com/articles/financial-elder-abuse/interview-financial-elder-abuse-19203.html#.U1fuLcYgvG4 (accessed August 8, 2018).

26. Andy Miller, “‘Horrific’ Elder Abuse Case Highlights Crackdown on Unlicensed Facilities,” Georgia Health News (January 16, 2018).

‘Horrific’ elder abuse case highlights crackdown on unlicensed facilities

27. Sen. Chuck Grassley, “Social Media Abuse in Nursing Homes: Tips for Caregivers,” The Medium Corporation.
https://medium.com/@ChuckGrassley/social-media-abuse-in-nursing-homes-tips-for-caregivers-945a0ac8324e.

28. Kansas State Legislature, “Article 14. Reporting Abuse, Neglect or Exploitation of Certain Persons,” KS § 39-1402.
http://www.kslegislature.org/li_2016/b2015_16/statute/039_000_0000_chapter/039_014_0000_article/039_014_0002_section/039_014_0002_k/ (accessed August 8, 2018).

29. Greg Palmer/Associated Press, “Kansas Elder Abuse Measure Becomes Law,” The Kansas City Star (April 22, 2014).
http://www.wibw.com/home/headlines/Kansas-Elder-Abuse-Measure-Becomes-Law-256157141.html (accessed August 8, 2018).

30. National Center on Elder Abuse, “Types of Abuse.”
https://ncea.acl.gov/faq/abusetypes.html (accessed August 8, 2018).

31. Richard J. Gelles, Murray A. Strauss, and Suzanne K. Steinmetz,
Behind Closed Doors: Violence in the American Family (Garden City, NY: Anchor Press/Doubleday, 1980).

32.
Ibid.

33. Special Committee on Aging, United States Senate, An Advocate’s Guide to Laws and Programs Addressing Elder Abuse: An Information Paper, Serial No. 102-I. (October 1991).
https://www.aging.senate.gov/imo/media/doc/reports/rpt891 (accessed August 9, 2018).

34. 557 F. Supp. 289 (D. Colo. 1983).

35.
Ibid. at 293.

36.
State v. Cunningham, 493 N.W.2d 884 (Iowa Ct. App. 1992).

37.
Ibid. at 887–888.

38.
Nepa v. Commonwealth Department of Public Welfare, 551 A.2d 354 (Pa. Commw. Ct. 1988).

39.
Ibid. at 355.

40.
Ibid. at 357.

41.
People v. Coe, 501 N.Y.S.2d 997 (N.Y. Sup. Ct. 1986).

42.
Ibid. at 1001.

43.
Ibid.

44.
In re Axelrod, 560 N.Y.S.2d 573 (N.Y. App. Div. 1990).

45.
Ibid.

46.
Beasley v. State Personnel Board, 178 Cal. Rptr. 564 (Cal. Ct. App. 1981).

47.
Montgomery Health Care Facility v. Ballard, 565 So. 2d 221, 224 (Ala. 1990).

48.
Ibid. at 224.

49.
Ibid. at 223–224

50.
Ibid. at 226.

51. Georgia Department of Community Health, “Georgia Background Check Program.”
https://dch.georgia.gov/georgia-background-check-program (accessed August 9, 2018).

52. Emily S. Borna and Todd Van Dyke, “Georgia Targets Elder Abuse With Tough New Long-Term Care Background Check Law,”
JacksonLewis.com (May 11, 2018).
https://www.jacksonlewis.com/publication/georgia-targets-elder-abuse-tough-new-long-term-care-background-check-law (accessed August 9, 2018).

53.
Christine Traxler, “Elder Abuse Prevention,” Nursing Home Abuse Center (January 24, 2018).
https://www.nursinghomeabusecenter.com/elder-abuse/prevention/ (accessed August 9, 2018).

54.
Medicare.gov, Nursing Home Compare.
https://www.medicare.gov/nursinghomecompare/search.html? (accessed August 17, 2018).

55. Anonymous. “Look Closer, See Me Poem”
https://nursing.uc.edu/advantage/aging_with_dignity/Look_Closer_See_Me/look_closer_see_mepoem.html (accessed August 9, 2018).

CHAPTER 14

Patient Rights and Responsibilities

Freedom makes a huge requirement of every human being. With freedom comes responsibility.

—Eleanor Roosevelt

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Describe and understand patient rights.

Describe and understand patient responsibilities.

Explain how rights and responsibilities are tethered together and are not mutually exclusive but equally important.

INTRODUCTION

This chapter provides an overview of the rights and responsibilities of patients. Every person possesses certain rights guaranteed by the Constitution and its amendments, including freedom of speech, religion, and the right not to be discriminated against on the basis of race, creed, color, or national origin. In addition, citizens have a variety of rights and responsibilities as provided for in federal, state, and local laws that are not in conflict with the Constitution. The Supreme Court has interpreted the Constitution as also guaranteeing certain other rights not expressly mentioned, such as the right to privacy and self-determination and the right to accept or reject medical treatment.

A professional relationship between the physician and the patient is essential for the provision of proper medical care. Both staff and patients should be aware of and understand not only their own rights and responsibilities but also the rights and responsibilities of one another.

PATIENT RIGHTS

Patients of the various states have certain rights and protections guaranteed by state and federal laws and regulations. Patients have a right to receive a clear explanation of tests, diagnoses, prescribed medications, prognoses, and treatment options.

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Most federal, state, and local programs specifically require, as a condition for receiving funds under such programs, an affirmative statement on the part of the organization that it will not discriminate. For example, the Medicare and Medicaid programs specifically require affirmative assurances by healthcare organizations prohibiting discrimination.

The continuing trend of consumer awareness, coupled with increased governmental regulations, makes it advisable for caregivers to understand the scope of patient rights. The Patient Self-Determination Act of 1990 (PSDA)

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describes the rights of patients to make their own healthcare decisions. Healthcare organizations may no longer passively permit patients to exercise their rights but must educate patients as to their rights. The PSDA provides that each individual has a right under state law (whether statutory or as recognized by the courts of the state) to make decisions concerning his or her medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives.

Patient rights may be classified as either legal, those emanating from law, or human statements of desirable ethical principles such as the right to be treated with dignity and respect. The rights of patients discussed here do not exist in a vacuum without limitations. They are tethered to moral obligations and responsibilities that have their roots in the law, ethics, moral principles, and religious values. To kill another human being, for example, is wrong, and punishment will follow if the life of another is taken.

The
Code of Federal Regulations, Chapter 42, provides for the promotion and protection of patient rights, as noted in the
Conditions of Participation (42 CFR § 482.13
):

A hospital must protect and promote each patient’s rights.

(a)

Standard: Notice of rights
—(1) A hospital must inform each patient, or when appropriate, the patient’s representative (as allowed under State law), of the patient’s rights, in advance of furnishing or discontinuing patient care whenever possible.

(2) The hospital must establish a process for prompt resolution of patient grievances and must inform each patient whom to contact to file a grievance. The hospital’s governing body must approve and be responsible for the effective operation of the grievance process and must review and resolve grievances, unless it delegates the responsibility in writing to a grievance committee. The grievance process must include a mechanism for timely referral of patient concerns regarding quality of care or premature discharge to the appropriate Utilization and Quality Control Quality Improvement Organization. At a minimum:

The hospital must establish a clearly explained procedure for the submission of a patient’s written or verbal grievance to the hospital.

The grievance process must specify time frames for review of the grievance and the provision of a response.

In its resolution of the grievance, the hospital must provide the patient with written notice of its decision that contains the name of the hospital contact person, the steps taken on behalf of the patient to investigate the grievance, the results of the grievance process, and the date of completion.

A variety of patient rights are presented here, many of which are required to meet the
certification of the Joint Commission, and
Medicare Conditions of Participation, Title 42 Conditions of participation for hospitals should not be considered exhaustive as to their rights. The various states have laws that address the rights of patients such as California, where Title 22 and other California laws address patient rights.

22 CCR § 70707

§ 70707. Patients’ Rights.

(a) Hospitals and medical staffs shall adopt a written policy on patients’ rights.

(b) A list of these patients’ rights shall be posted in both Spanish and English in appropriate places within the hospital so that such rights may be read by patients. This list shall include but not be limited to the patients’ rights to:

(1) Exercise these rights without regard to sex, economic status, educational background, race, color, religion, ancestry, national origin, sexual orientation, disability, medical condition, marital status, registered domestic partner status, or the source of payment for care.

(2) Considerate and respectful care.

(3) Knowledge of the name of the licensed healthcare practitioner acting within the scope of his or her professional licensure who has primary responsibility for coordinating the care, and the names and professional relationships of physicians and nonphysicians who will see the patient.

(4) Receive information about the illness, the course of treatment and prospects for recovery in terms that the patient can understand.

(5) Receive as much information about any proposed treatment or procedure as the patient may need in order to give informed consent or to refuse this course of treatment. Except in emergencies, this information shall include a description of the procedure or treatment, the medically significant risks involved in this treatment, alternate courses of treatment or nontreatment and the risks involved in each and to know the name of the person who will carry out the procedure or treatment.

(6) Participate actively in decisions regarding medical care. To the extent permitted by law, this includes the right to refuse treatment.

(7) Full consideration of privacy concerning the medical care program. Case discussion, consultation, examination and treatment are confidential and should be conducted discreetly. The patient has the right to be advised as to the reason for the presence of any individual.

(8) Confidential treatment of all communications and records pertaining to the care and the stay in the hospital. Written permission shall be obtained before the medical records can be made available to anyone not directly concerned with the care.

(9) Reasonable responses to any reasonable requests made for service.

(10) Leave the hospital even against the advice of members of the medical staff.

(11) Reasonable continuity of care and to know in advance the time and location of appointments as well as the identity of persons providing the care.

(12) Be advised if the hospital/licensed healthcare practitioner acting within the scope of his or her professional licensure proposes to engage in or perform human experimentation affecting care or treatment. The patient has the right to refuse to participate in such research projects.

(13) Be informed of continuing healthcare requirements following discharge from the hospital.

(14) Examine and receive an explanation of the bill regardless of source of payment.

(15) Know which hospital rules and policies apply to the patient’s conduct while a patient.

(16) Have all patients’ rights apply to the person who may have legal responsibility to make decisions regarding medical care on behalf of the patient.

(17) Designate visitors of his/her choosing, if the patient has decision-making capacity, whether or not the visitor is related by blood, marriage, or registered domestic partner status, unless:

(A) No visitors are allowed.

(B) The facility reasonably determines that the presence of a particular visitor would endanger the health or safety of a patient, a member of the health facility staff, or other visitor to the health facility, or would significantly disrupt the operations of the facility.

(C) The patient has indicated to the health facility staff that the patient no longer wants this person to visit.

(18) Have the patient’s wishes considered for purposes of determining who may visit if the patient lacks decision-making capacity and to have the method of that consideration disclosed in the hospital policy on visitation. At a minimum, the hospital shall include any person living in the household.

(19) This section may not be construed to prohibit a health facility from otherwise establishing reasonable restrictions upon visitation, including restrictions upon the hours of visitation and number of visitors.

(c) A procedure shall be established whereby patient complaints are forwarded to the hospital administration for appropriate response.

(d) All hospital personnel shall observe these patients’ rights.

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Right to Know One’s Rights

Patients have a right at the time of admission to be provided in writing a copy of their rights and responsibilities. The patient’s rights and responsibilities are documented in a statement most often referred to as
The Patient’s Bill of Rights. Access to a copy of a patient rights and responsibilities should be available to the general public when so requested. A limited random sample of three hospitals in two states revealed that staff members were often reluctant and suspicious as to why a copy of the patient’s bill of rights was being requested. All three hospitals would not provide a copy on site. One hospital reluctantly provided a copy via email after a second visit.

Right to Explanation of One’s Rights

Patients have a right to receive an explanation of their rights and responsibilities. The rights of patients must be respected at all times. Each patient is an individual with unique healthcare needs. The patient has a right to make decisions regarding his or her medical care, including the decision to discontinue treatment, to the extent permitted by law.

Right to Exercise Rights

The
Code of Federal Regulations, Chapter 42 § 482.13(b), provides that patients have a right to exercise their rights:

(b)
Standard: Exercise of rights.

(1) The patient has the right to participate in the development and implementation of his or her plan of care.

(2) The patient or his or her representative (as allowed under State law) has the right to make informed decisions regarding his or her care. The patient’s rights include being informed of his or her health status, being involved in care planning and treatment, and being able to request or refuse treatment. This right must not be construed as a mechanism to demand the provision of treatment or services deemed medically unnecessary or inappropriate.

(3) The patient has the right to formulate advance directives and to have hospital staff and practitioners who provide care in the hospital comply with these directives, in accordance with § 489.100 of this part (Definition), § 489.102 of this part (Requirements for providers), and § 489.104 of this part (Effective dates).

(4) The patient has the right to have a family member or representative of his or her choice and his or her own physician notified promptly of his or her admission to the hospital.

Right to Ask Questions

Because communication is a cornerstone of patient safety and quality care, every patient has the right to receive information in a manner he or she understands. Effective communication allows patients to participate more fully in their care. Patient understands what is being said about his or her care, treatment, and services, that patient is more likely to fulfill critical health care responsibilities.

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The patient has a right to ask questions and caregivers have a responsibility to listen. A Joint Commission standard provides:

The hospital has a written policy that defines patient responsibilities, including but not limited to the following:

Asking questions or acknowledging when he or she does not understand the treatment course or care decision.

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Caregivers must not become dismissive or trivialize the importance of a patient’s opinion as to the cause of his or her medical complaints and ailments. Although a patient may be anxious, the questions asked should not be disregarded.

Attributed to Socrates, the classical Greek philosopher, is the
Socratic method of teaching and learning by asking and answering questions. Patients have the right to ask questions regarding their care from entry to the hospital through the time of departure. Questions regarding care should include, for example, “I saw blood in my IV tubing. Is this okay? Is it infiltrating?” or “My wound dressing seems wet. Is this okay? Should the dressing be changed?” Patients should not hesitate to ask for:

clarification of a caregiver’s instructions

interpretation of a caregiver’s handwriting

instructions for medication usage (e.g., frequency, dosing, drug–drug or drug–food interactions, contraindications, side effects)

clarification of a physician’s diet orders

explanation of the treatment plan

a copy of the organization’s handwashing policy

a description of the hospital’s procedures to prevent wrong-site surgery

consultations and second opinions

accurate and complete discharge instructions

verification that their advance directives are on file (e.g., living will)

confirmation that contact information for the patient’s surrogate decision maker is on file in the event the patient becomes incapacitated and cannot make healthcare decisions

This listing is a sampling of the many questions that patients have a right to ask during the course of their care and treatment. As the information available to physicians for patient care increases, the more important it is for the patient to ask about treatment options and suggested treatment plan. Dr. Ranit Mishori explains in “Don’t Let a Hospital Make You Sick,” “The problem is not that we have an epidemic of negligent doctors. Rather, it’s that the health-care system has grown so complicated that there is a greater chance than ever of things falling through the cracks. Another problem is that hospitals produce massive amounts of data, including lab and X-ray reports, medication lists, doctors’ orders, and dietary restrictions. It is easier than ever for critical communications to get lost, and hospitals often don’t have thorough backup systems.”

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Sandra G. Boodman, a reporter for
The Washington Post writes in an article, “Doctors talk to doctors happily,” but “it’s sometimes hard to get them to listen to patients.” She hoped that such a conversation might lead to an answer that could help spring her from the hospital or at least enable doctors to investigate—or to rule out—a potential disease and get to the bottom of her medical problem.

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Right to Complain

Patients have a right to file a complaint when they are dissatisfied with their care and treatment. Some caregivers have in the past objected to notifying patients of
unanticipated medical outcomes. They claim that such a practice encourages complaints and can lead to lawsuits. Ultimately the governing body is responsible for establishing a complaint resolution process that it can delegate to a designated complaint resolution committee.

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The following
Reality Check describes how a hospital surveyor was met with resistance to a new accreditation requirement during an educational conference that provided patients have a right to be informed about unanticipated outcomes, sometimes described as medical mistakes or medical errors.

Afraid To Ask Questions

Consultants met resistance at a recent educational conference as to a patient’s right to ask questions and right to be informed about unanticipated outcomes, as described next.

The patient and his or her family have the right to have complaints reviewed by the hospital.

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The hospital provides the patient or surrogate decision-maker with the information about the following:

Outcomes of care, treatment, and services that the patient needs in order to participate in current and future healthcare decisions.

Unanticipated outcomes of the patient’s care, treatment, and services that are sentinel events as defined by The Joint Commission. This information is provided by the licensed independent practitioner responsible for managing the patient’s care, treatment, and services, or his or her designee.

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Hillary was the lead consultant assigned to speak at a state-sponsored conference. The purpose of the conference was to review new accreditation standards designed to encourage patients to ask questions about their care. They were scheduled to be effective on January 1. Hillary scheduled four consultants to speak with her on a variety of topics. Rebecca, one of the more junior of the consultants, addressed the right of patients to know and ask questions. She spoke about the newly designed program that would require healthcare providers to encourage patients to
speak up and ask questions about any concerns they may have regarding their care. Discussion was also held as to each patient’s right to complain. Following her presentation, Rebecca asked for questions from the audience. One participant said, “I really don’t understand the need for this standard. Patients don’t seem to have a problem complaining.” Rebecca began to flounder as she attempted to continue answering the questions of what was to be a generally disgruntled person. Hillary listened intently but said nothing.

Jerome, a more experienced consultant, raised his hand. After being recognized by Rebecca, he responded, “Many patients are not afraid to ask questions and complain when they believe things are not going right. These often are ambulatory patients who can leave a particular provider if they become dissatisfied. Other, more seriously ill inpatients may fear some sort of retaliation if they complain. This is often the case in long-term care facilities.” A caregiver in the audience strongly disagreed. Jerome said, “I realize this is not the case with all patients. This fear can often arise, however, with an elderly person or extremely ill individual who is too weak and feels vulnerable and fearful of offending the caregiver, believing that his or her care could be less than desirable if he or she asks too many questions or complains. Seniors have sometimes been abused at home or under the care of third parties and are often not willing to risk confrontation.”

Figuring a picture is worth a thousand words, Jerome had asked for an overhead projector and proceeded to show some newspaper clippings illustrating why some patients have developed a fear to ask questions. After the session was over, the audience member who had raised the issue approached Jerome and said, “Not all caregivers are like the ones you displayed!” Jerome said, “I agree. I tried to illustrate for you why some patients are fearful.” Jerome thought to himself that this caregiver was too combative to continue the discussion.

Discussion

Do you agree with Jerome’s attempt to help Rebecca by responding to the concern of the contentious caregiver?

What approach would you have taken in responding to a persistent quarrelsome caregiver? Explain your answer.

In another
Reality Check, the patient’s complaint was not addressed.

My Question Disregarded

As I was lying on a minor surgery table waiting for my physician to arrive in the treatment room I noticed a Joint Commission sign lying sideways on a countertop. The title on the sign read “Speak Up.” Although it was lying behind several other documents and pieces of medical equipment, I recognized the title on the sign. Its purpose is to encourage patients to ask questions about their care. The sign is also a reminder to the physician to ask patients if they have any questions about their care.

As I was thinking about the difficulty in reading the sign, a physician came into the room with an individual I believed to be a student in training to assist him. There were no introductions. I felt like I was just part of an assembly line. The physician sat on a swivel chair directly behind me and said, “You haven’t been here in 3 years.” I commented that it had not seemed that long. He then asked the student to inject the site on my chest to numb it for a biopsy. I decided to test out the sign and “Speak Up.”

I asked the student, smiling, as to what her credentials were to administer the injection. She seemed annoyed that I asked the question and did not answer me and proceeded with the injection. I was sort of embarrassed having asked the question. To break the silence, I pointed out the Joint Commission “Speak-Up” sign in the corner of the room is difficult to read. The physician said, “Oh, that. That is Dr. R’s sign.” I thought to myself,
I would think it would apply to everyone in the office.

The physician seemed to conduct a somewhat cursory exam, after which he completed the biopsy. He then left the room instructing the student to give me care instructions. The student walked to the exit door, turned around and verbally gave me rapid-fire instructions and left the room before I could ask her a question. As I reflect back on the care and treatment I received, it was a bit amusing with me still lying on the treatment table with my mouth half open starting to ask a question as the door closed.

—Patient

Discussion

Identify the ethical issues in this case.

What action should the patient take, if any, to notify the director of the practice of his experience? Note: The physician advertised in a local magazine that her practice is
Joint Commission accredited.

Right to Emergency Care

Emergency care is well recognized as a patient right. Although regulations and court decisions recognize the right to emergency care, disparaging remarks have been made by some caregivers who resent treating patients they consider nonurgent or emergent in their care needs, as noted in the
Reality Check.

Your Dad is an Example of Why Healthcare Costs are Excessively High

My dad lived in a small country town in southwest Pennsylvania. While visiting with him, I noticed that he was having some difficulty breathing.

He had been a heavy smoker most of his life. In addition, he was exposed to the secondary smoke from a country bar that would seep through our floorboards from two stories below. Because of the severity of his breathing difficulty, I convinced him to go to the hospital emergency department. It was a Sunday, and it was his only option.

After undergoing a physical examination, a variety of blood tests, and chest X-rays, the emergency department physician came out to greet me and took the liberty to say, “Well, your dad is okay. There is nothing wrong with him. It is people like your dad that raise the costs of health care. They run to the emergency department with every little problem.” Needless to say, I was shocked but relieved that Dad was okay. I said nothing to the physician out of respect for my dad, but I hope the physician is reading these words today.

Unfortunately, relief was short-lived. Dad received a call the following day. He was asked to follow up with his family physician because the radiologist noted a shadow on his chest X-ray. Dad called me in New York and asked what I thought. I attempted to reassure him but, knowing his history of smoking, I kept silent as the sadness invaded my body.

Dad was diagnosed with lung cancer. Although Dad refused chemotherapy, he did agree to radiation treatments. Mom relayed to me how his big event of the week was when he returned home from his treatments he would say, “Those cookies they gave me were actually pretty good.” Yes, there are a lot of compassionate people who work in the hospital, but there are a few that give it a bad name.

—Administrator

Take Time to Educate

I had to make an emergency room visit a couple weeks ago. While I was there for heart problems, I was told that they believed I had a blood clot and decided to order some imaging studies.

Next thing I know, a male nurse came to my room with discharge papers, telling me. “They couldn’t find a blood clot.” I was relieved to hear that I did not have a blood clot but was disturbed that a doctor never took the time to talk to me or share that information with me. I also noticed on my discharge papers that I had a potassium deficiency. I asked the nurse about it and she said, “Oh, don’t worry. It’s no big deal. Eat a banana. They are full of potassium.”

I saw my cardiologist a few days later because my condition was worsening, and when I told him about my experience in the emergency room, he was very upset that no one bothered to contact him about the fact that his cardiology patient was in the emergency room.

I guess I’m okay … I am on potassium supplements now and have to have follow-up with periodic blood work to check my potassium levels. My heart rate has not changed much, but the ECG and Holter monitor were negative.

—Patient

Discussion

What would be your expectations of the nurse and physician if you were the patient?

Do you believe this to be a typical encounter in an emergency department? Explain your answer.

Right to Admission

Whether a person is entitled to admission to a particular hospital depends on the statute establishing that hospital. Government hospitals, for example, are by definition organizations of some unit of government; their primary responsibility is to provide service to the population within the jurisdiction of that unit. Military hospitals, for example, have been established to care for those persons who are active members of the military. Veterans hospitals were established to care for veterans. Although the public in general has no legal right of admission, government hospitals and their employees owe a duty to extend reasonable care to those who present themselves for assistance and need immediate attention. With respect to such persons, government hospitals are subject to the same rules that apply to private hospitals, as noted in the following case.

Right to Examination and Treatment

Patients have a right to expect the physician will conduct an appropriate history and physical examination based on the patient’s presenting complaints. The assessment is the process by which a physician investigates the patient’s state of health, looking for signs of trauma and disease. It sets the stage for accurately diagnosing the patient’s medical problems, which leads to an agreed-upon treatment plan. A cursory assessment can lead to a misdiagnosis and inappropriate treatment plan. As reported by Karen Asp in
Shape Magazine, “It took almost my whole life to get the right diagnosis because no one person had asked me enough questions.”

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Primary care physicians often refer complex patients, such as those with autoimmune diseases with multiple systems failure, to specialists when their disease processes become too complex for them to treat. Unfortunately, challenging patients are often sent on a seemingly endless, discouraging journey from specialist to specialist. The patient can feel as though he or she is on a merry-go-round, answering the same routine questions by consulting physicians, residents, and medical students. Medical students may be ill-equipped to conduct an adequate history and physical on patients with multiple diagnoses. Patients trapped in the referral merry-go-round become discouraged to find that they often know more about their disease processes than many of the caregivers to whom they have been referred for help, as noted in the letter to the patient’s physician in the following
Reality Check.

The Merry-Go-Round—Letter To My Doctor

When I went to your office, it was with great hopes that someone was finally going to piece together all of the bizarre symptoms I have been experiencing over the past several months and get to the cause of my pain. I was quite frankly shocked by how I was treated as a patient—especially one experiencing a health crisis.

A medical student examined me and wrote my history and current health problems on the pages of a small yellow sticky pad. You were not in the room when he examined me, and then I saw you for approximately 10 minutes.

You took the card of my New York doctor and said you were going to call him, and then you said you would call me regarding what you thought the next steps should be.

I called you on Friday because my local doctor said that you had not called, and I was told you were on vacation. I asked that you call me. You never did. I called you yesterday again, but you did not answer, nor did you return my call.

On Monday, I received a letter—from a medical student, I assume. Although I empathize with the demands on your time, I have never seen a handwritten letter like the one I received, informing me of the same test results I had provided to you prior to my appointment with you. You never mentioned the liver enzyme elevations or my February test done in New York. Moreover, no mention was made regarding any plan to help me alleviate immediate problems.

Doctor, I am not a complainer or a person with a low pain tolerance. Since moving here, I’ve had fainting episodes, severe chest pain and pressure, leg and arm pain and stiffness, congestion on the left side when the pain kicks in, and by 3 p.m. I have to go home and lie down because I’m so weak and tired. I cannot continue to exist like this. It is not normal.

If you’re too busy and don’t want to take me as a patient, you will not offend me. Frankly, I need attention now to get these things resolved. Testing my cholesterol in a month will not address the problem. I’ve been treated for that for 3 years.

Please call or write to me so I can get another doctor if I have to.

—Patient

[The physician never responded.]

Discussion

The physician never responded to the patient’s letter of desperation. Discuss what you would suggest the patient should do.

Describe the legal and ethical and issues that appear in the correspondence.

As the patient continues on her merry-go-round, discuss what you would advise her to do.

Right to Know Caregivers

Patients have a right to know the names and positions of the caregivers who will care for them while in the hospital. Patients should know who is treating them by name, discipline, role, and responsibility in their care plan. Caregivers should identify themselves to patients by name and discipline.

Right to Informed Consent

Patients have a right to receive a full explanation of treatment options in order to make an informed decision prior to consenting to a proposed procedure or treatment. The physician has responsibility to provide the patient informed consent that includes the risks, benefits, and alternatives of each procedure or treatment option. The right to receive information from the physician includes information about the illness, the suggested course of treatment, and the prospects of recovery in terms that can be understood.

The physician must objectively balance the risks and benefits of each treatment option. This balancing act can lead to a dilemma where the physician’s recommended procedure differs from the procedure the patient is willing to accept. Pressing a patient to undergo an unwanted procedure is a form of
paternalism that could represent a failure to respect the patient’s right of self-determination.

Right to Refuse Treatment

Case Studies

Stroke Patient Refused Treatment

For example, the patient plaintiff in
Stoick v. Caro Community Hospital

12
brought a medical malpractice action against a government physician alleging the physician determined that she was having a stroke and required hospitalization but refused to hospitalize her. The plaintiff’s daughter-in-law called the defendant, Caro Family Physicians, P.C., where the patient had a 1:30 p.m. appointment. She was told to take the patient to the hospital. On arriving at the hospital, there was no physician available to see the patient, and a nurse directed her to Dr. Loo’s clinic in the hospital. On examination, Loo noted right-sided facial paralysis, weakness, dizziness, and an inability to talk. He told the patient that she was having a stroke and that immediate hospitalization was necessary. Loo refused to admit her because of a hospital policy that only the patient’s family physician or treating physician could admit her. The plaintiff went to see her physician, Dr. Quines, who instructed her to go to the hospital immediately. He did not accompany her to the hospital. At the hospital, she waited approximately 1 hour before another physician from the Caro Family Physicians arrived and admitted her. Loo claimed that he did not diagnose the patient as having a stroke and that there was no bad faith on his part.

The court of appeals reversed, holding that the plaintiff did plead sufficient facts constituting bad faith on the part of Loo. His failure to admit or otherwise treat the patient was a ministerial act for which governmental immunity does not apply and might be found by a jury to constitute negligence.

Ethical and Legal Issues

Discuss the legal and ethical issues in this case.

If you were the chief executive officer, discuss what action you would take to prevent similar occurrences in the emergency department.

Right to Execute Advance Directives

Patients have a right to execute advance directives. A patient who becomes incapacitated or unable to make decisions on his or her own behalf has a right to appoint a surrogate decision maker to make decisions on his or her behalf. Each patient at the time of admission should be queried to determine if they have executed advance directives and if a designated decision maker has been identified. Patients who have formerly executed advance directives should file a copy with the hospital and primary care physician.

Right to Have Special Needs Addressed

Patients who have language barriers or hearing or vision impairments have a right to special help to have their needs addressed in order to ensure proper care. Many healthcare organizations maintain a list of employees with various language competencies and sign-language skills in order to provide patients with high-quality care.

Right to Choose Physician(s)

Generally, patients have a right to choose their treating physician. However, in urgent and emergent cases, there may be no time to identify the physician of choice because of life-threatening injuries, such as may occur in an automobile accident. In an elective
surgical case, for example, after choosing a surgeon, the patient has the right to expect that the chosen operating surgeon will actually perform such surgery to which the patient has consented. Such was not the case in
Perna v. Pirozzi

13
where, after signing a consent form, the patient was operated on by another surgeon in the same practice. The court had to “determine whether that substitution, even when the 2 surgeons are engaged in a group practice, constitutes malpractice, a battery, or both.”

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The point is that a patient has the right to know who will operate and the consent form should reflect the patient’s decision. Where a competent patient consents to surgery by a specific surgeon of his choice, the patient has every right to expect that surgeon, not another, to operate.

15

As with most legal cases, such as in
Perna v. Pirozzi, issues of professional ethics can arise. In this case, the Judicial Council of the American Medical Association states that, “To have another physician operate on one’s patient without the patient’s knowledge and consent is a deceit.”

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Right to Trust Caregivers

Patients have a right to trust the caregivers who provide their care. Forty-three-year-old William McCormack found that where trust should be at its peak cannot always be presumed. When he had his appendix removed in 2013 and the hospital bill was settled, he at least could feel at ease knowing his appendix was removed in time and that was one less medical problem he would have to concern himself with in the future. That unfortunately was mistaken trust in this case. The pathology report showed the appendix had not been removed, and no one informed him that he still had an appendix. Specimens sent to pathology for microscopic examination must be labeled as to the tissue being sent for review by a pathologist. This is in accordance with national standards and hospital practice. What happened here was a failure to follow up and let the patient know that tissue had been removed, but it was not his appendix.

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In a different case, 18-month-old Josie King suffered third-degree burns after she had crawled into a hot bath at home. She was taken to a hospital, where she died of dehydration despite the mother’s concern that Josie was dehydrated.

What Josie King’s Story Should Teach Us

She died despite the fact that her mother raised her concerns with hospital staff about Josie being denied liquids and being administered narcotics as she watched her daughter deteriorate.

…

While reading about little Josie’s story, a familiar feeling came over me: frustration. Despite more information being available to the public than ever, we are still encouraged to trust medical personnel with little question. Josie’s story underscores a reality that we are too often encouraged to forget: doctors and nurses are just human and make mistakes.

—Maria Andreu,

nj.com
, September 21, 2009

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Misdiagnosed: What To Do When Your Doctor Doesn’t Know What You Can Do

Knowing how and why diagnoses are missed might help you steer your own doctor in the right direction. Here are some steps you can follow:

Keep detailed records

Come prepared to ask the right questions

Be assertive

Be honest

Explore new avenues

Trust your gut

In the absence of a diagnosis, treat your symptoms

—Mary A. Fischer,
AARP Newsletter, July/August 2011

Right to Patient Advocacy Services

Joint Commission standards provide that the “patient has the right to access protective and advocacy services.”

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Most organizations have adopted policies and procedures to address patient complaints. A patient generally addresses patient concerns. Access to a patient advocate is often described in patient handbooks. Patient advocacy services should be available to both patients and families. Many states have mandated by legislation the establishment of ombudsman and patient advocacy programs. In fulfilling their commitments and obligations to patients, healthcare executives function
as moral advocates and models. Being a model means that decisions and actions will reflect personal integrity and ethical leadership that others will seek to emulate.

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Patient advocacy by all caregivers should be considered a routine responsibility. Caregivers are closest to observing the care being rendered to the patient and are more aware of when things are not going right. Intervention earlier in a patient’s care is more important than watching a bad scenario in a patient’s care unfold.

Right to Have Spiritual Needs Assessed and Addressed

Today I will take the time to be happy and will leave my footprints and my presence in the hearts of others.

—Author Unknown

Patients have a right to chaplaincy services and to have their spiritual needs assessed and addressed. The purpose of a pastoral care program is to affirm the valuable role of spiritual care as an integral part of a patient’s healing process. Accordingly, the program will make available to patients and their families spiritual support while they are in the hospital, in accordance with their wishes. The hospital supports the role of the clergy and pastoral care volunteers as important members of the healing team.

A multi-faith chapel as well as televised services are available in many hospitals. Some hospitals provide spiritual devotions and reflections that are broadcast daily. Music and meditation are often provided as an adjunct for pain management and stress reduction at the bedside.

Chaplains are often available as a first call option for ethics consultations. The hospital chaplain coordinates liaison between patient and area clergy. Consultations with the patient care team contribute to the holistic care of patients, family, and staff through assessment, pastoral conversation, and other interventions. Caregivers often refer patients to a chaplain for:

patients/families/caregivers who are experiencing life-changing events

patients who lack effective social, psychological, or spiritual support

patients who have complicated personal relationships

patients who express spiritual or religious concerns

patients who are in a remorseful state of mind

patients who express hopelessness, worthlessness, anger, or depression

patients who receive news of life-threatening conditions

families at times of death of the patient

Hospital pastoral care departments should provide a patient information brochure at the time of admission that describes the services offered. For example, an introductory statement to such a brochure could be worded to include:

When a loved one is hospitalized—or when you require hospitalization yourself—it is perfectly normal to feel anxious, worried, and sometimes overwhelmed.

We know how you feel. At times like this, it’s good to have a helping hand. The hospital’s pastoral care department is here to help you cope with the emotional struggle associated with hospitalization.

No matter what your religious affiliation, a representative of the pastoral care department is always available to offer spiritual and emotional support.

Someone will lend an ear and offer comforting words. He or she will help you draw on your spiritual strength in these times of need.

Services offered by a chaplaincy program should:

offer pastoral support to patients and their families at time of crisis, which may include prayer, scripture reading, and counseling

provide for enhanced communications between patients, their families, and hospital personnel

be available to clinical staff by providing counseling and support during or after emotional emergency situations

provide appropriate referrals to the social service department, the local clergy, and community agencies as needed

Spiritual Assessments

Patient spiritual assessments based on the care setting should include or consider the patient’s:

current religious affiliation

place of worship, contact name, and phone number

description of areas of spiritual concerns (e.g., loss of meaning of life, unresolved grief, resentment over past experiences, confusion about current religious practices, guilt, feelings of abandonment, fears)

Right to Ethics Consultation

Patients’ rights in many hospitals allow for patients and/or families to access an ethics committee for consultation when faced with challenging treatment decisions that involve ethical dilemmas. Dilemmas often arise when two or more choices have some degree of a negative outcome. Conflict can arise when there is a difference of opinion between families and care providers, or when the family is unsure
about what course of treatment is best for the patient. Ethics committee consultation can provide an objective perspective. Ethics committees are consultative in nature. Recommendations of an ethics committee should not be considered as binding. Ethics consultations are helpful, for example, when making end-of-life decisions.

Right to Choose Treatment

Patients have the right to choose the medical care they wish to receive. They have a right to know their treatment options and to accept or refuse care. As medical technology becomes more advanced, care decisions become more complicated to make. Should I have the surgery? Do I want to be maintained on a respirator? Frequently, these decisions involve not only medical questions but moral and ethical dilemmas as well. What has the greater value, the length of life or the quality of life? What is the right choice? Although patients have a right to make their own care and treatment decisions, they often face conflicting religious and moral values in their decision-making process. Often, it is difficult to make a choice when two roads may seem equally desirable.

Right to Try Experimental Drugs

Patients now have the right to try experimental drugs in the research stage that do not yet have FDA approval for trials. The House of Representatives passed a bill on March 21, 2018, that gives terminally ill patients the right to try unproven experimental treatments. President Trump stated that if “There’s good progress made with a certain drug. We’re going to make it possible for that patient to get that drug. And maybe it’s going to work. It’s hope.”

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It’s an interesting ethical dilemma that a healthy, unborn child with his or her full life ahead cannot choose life over death, because of his or her inability to make such a decision based on developmental factors, and yet the adult patient facing the end of life now has the right to try an unproven experimental drug to extend his or her life for an uncertain future or in some states to choose death by assisted suicide. A troubling ethical dilemma at best. Is this a paradox, a contradiction of right and wrong reasoning? And thus, we have the ultimate ethical dilemma in constitutional law and the rights of the individual that traverses the spawning of life to the end of life. At best,
divisive and
controversial issues continue to work their way through state legislatures and court systems, and ultimately to those who sit on the United States Supreme Court, while Congress is at an impasse in creating any new legislation that may upset their respective contingences.

Right to Timely Response to Care Needs

Patients have a right to have their care needs addressed within a reasonable time frame. Delay in responding to patient needs can place a patient’s life at risk.

Right to Receive Quality Care

Healthcare professionals are expected to monitor the quality of each patient’s care beginning with the history and physical, followed by the development of the treatment plan, and ultimately the delivery of care to the patient. The patient has a right to expect that the quality of care rendered will be based on best practices recognized by the medical profession.

Right to Compassionate Care

I would suggest if you don’t see me, don’t come to see me.

—Daniel

Patients have a right to receive considerate and compassionate care from caregivers. There appears to be less time for compassion in the practice of medicine than at the turn of the 20th century. Providers of care seem to have taken the assembly-line approach to patient care with little thought to the need to help alleviate patient fears. Dr. Robert E. Rakel, Department of Family Medicine at Baylor College of Medicine in Houston, wrote, “It has been said that more mistakes in medicine are made by those who do not care than by those who do not know.”

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The caring function of family medicine emphasizes our personalized approach to health care and our commitment to understanding the patient as a person, respecting the person as an individual, and showing compassion for his or her discomfort. Compassion, from the word
patior, literally means “to suffer with,” to share in another’s distress and to be moved to give relief. Compassion reflects the physician’s willingness to share the patient’s anguish and to attempt to understand what the sickness means to that person.

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It seems with the progress of medicine there has at the same time been a decline in compassion for the patient. Patients fill out numerous forms prior to their visit to the physician’s office and yet the caregiver often fails to read the information the patient has provided, as noted in the preceding
Reality Check.

Why Must I Fear

During the past 5 years, I have filled out numerous standardized forms that ask questions that have been repeatedly asked by a wide variety of physician specialists and other caregivers. I’ve been told that my most recent specialist had great credentials. He came highly recommended. I grew more hopeful as I drove to his office during the early morning rush hour in a metropolitan city. I would finally meet someone who cared and understood my disease processes. As I walked into his office, I noted that my medical chart was lying on the desk in front of him. The sight of it on his desk comforted me, thinking that he had actually read my answers. His staff had said he wanted the chart several weeks prior to my appointment because he needed time to familiarize himself with my case. I soon realized several minutes into the conversation that he had not reviewed my medical chart. The forms that I had so painstakingly completed, hoping for an answer to my illness, had not been read. He inquired as to what medications I was taking. My husband accompanied me that day and noticed that the list of medications was laid in front of him; he didn’t hesitate to point that out to the physician. The doctor asked questions within a predetermined range—one was, “What is your pain on a scale of 1 to 10?” How do I answer that? I am off your scale. I cannot remember not being in pain for the past 5 years. I sometimes wonder what it must have been like to be pain free. I don’t know that feeling anymore. Hello, is anyone out there?

Eventually, I was admitted to the hospital for the first time. My nerve endings felt frayed, my stomach churned, my worries were multiplying, and my thoughts turned to, “Is it time to get more bad news?” I was extremely ill. The waiting area in the admissions office was uncomfortable and uninviting. Privacy was minimal and soft music was nonexistent. I wondered what was going to happen to me.

Things got worse when I was finally admitted to a room. I was in an unfamiliar room with drab, nondescript walls, and I was dependent upon people who barely had the time to dispense medications. The physicians and other staff members were rushing about, engaged in their everyday tasks. No one seemed to have time for me.

Confusion set in, and the fear of being in a strange place triggered fear. Unfamiliar people looked at me, touched me, and asked me the same questions over and over again. The questioning seemed never ending. I wondered, “Do these people ever talk to each other?” The surroundings were sterile and unfriendly, adding to my uneasy feelings.

Why can’t healthcare facilities be more compassionate and patient friendly? Why must I worry about complaining and fear retribution? Provisions should be made for a serene environment with calming colors and carefully chosen people to gently ease answers from a frightened patient. More attention is needed in making a patient’s room a calm and inviting place, which would help to soothe and carry the patient through troubling times.

—Patient

Discussion

In what way did the physician show a lack of concern for the patient’s needs?

Describe how hospitals can provide a compassionate and comforting environment for patients.

Ms. Ying Tai Choi’s daughter, Ching Cheung, described how a hospice nurse failed to stay and care for her 85-year-old mother during the last hour of her life. The hospice had promised to be there for Cheung’s mother and to provide the care she needed as she passed from this life to the next. They were not there. The nurse left Choi and her daughter during the final hour of need.

Terminal Neglect for Hospice Patients?

Ying Tai Choi lay on a hospital bed arranged in the living room of her daughter’s house. A pulse oximeter pinged intermittent warning about her mother’s oxygen levels. She heaved for breath sometimes and panted at others. Sounds of gurgling and congestion came from her throat. The skin behind her fingernails was turning dark.

“She is leaving soon,” the hospital nurse told Choi’s daughter.

Then the nurse left the house and drove away. …

…

“Everyone later said they are ‘sorry,’” Cheung said. “But what is ‘sorry’? That is just another word.”

—David A. Fahrenthold,
The Washington Post, May 4, 2014

Reading this news clipping, one quickly realizes that not much has changed over the years. This is unfortunately the real world in which we live. The article is so descriptive of how humanity fails itself over and over again. It was as timely in the 20th century as it is now in the 21st century. Although compassion is not so easily taught to an adult as it is to a child, the struggle and the need to bring life to the study of ethics and the law are clearly borne out in this article.

Right to Respect

The right to respect is a common right enjoyed by patients, families, and caregivers. Respect is more than a two-way street. It is not just about what is right for you and me but requires respect of all persons regardless of culture and religious beliefs.

Right to Pain Management

I am locked in a prison of pain, where doctors hold the key. Why can’t they think beyond the box and develop a cure for me?

—Nina Santucci

Pain is the body’s way of alerting the patient that something is not quite right.
Pain management is the process whereby caregivers work with the patient to determine the cause of pain and develop a pain control treatment plan. The process involves educating the patient as to the importance of pain management in the healing process. With current treatments, pain can often be prevented or at least be better controlled.

Patients have a right to have a pain assessment and management of any pain identified. A
pain rating scale is a visual tool often used to help patients describe their pain level. It helps the caregiver know how well treatment is working and whether change in the treatment plan is necessary. The pain assessment scale is a tool often used because of its ease of use in performing a task. Just as important as the severity of pain are its locations and type (e.g., burning sensation, throbbing, dull, stabbing, numbing, sharp, shooting). A diagram of the body should be used so the patient can more easily identify the various locations of his or her pain. The severity of pain can be described to the physician to assist in diagnosing and treating the patient. All patients have a right to:

a pain control treatment plan developed with the caregiver

alternative and/or complementary strategies included in the pain management plan that might help improve the efficacy of traditional treatment options (e.g., pain medications), for example, acupuncture, imagery, meditation, reiki (ancient Japanese touch therapy)

inclusion of family and caregivers in the decision-making process

an explanation of the medications, anesthesia, or other treatments planned

an explanation of the risks, benefits, and alternatives (e.g., acupuncture) to suggested treatment(s)

request changes in treatment if pain persists

refuse pain treatment(s) recommended

receive pain medication in a timely manner

Privacy and Confidentiality

Patients have a right to expect that their healthcare information will be kept private and confidential as required by law. A copy of the hospital’s privacy practices should be provided to patients at the time of admission and include provisions protecting patient information from unauthorized access. Hospitals that wish to participate in Medicare reimbursement must provide the patient with privacy as noted in the Condition of Participation.

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Caregivers must be careful not to discuss any aspect of a patient’s case with others not involved in the case. Written permission must be obtained before a patient’s medical record can be made available to anyone not associated with the patient’s care.

The
Health Insurance Portability and Accountability Act (45 CFR 164.520) provides that patients have a right to receive a “Notice of Privacy Standards.”

The HIPAA Privacy Rule gives individuals a fundamental new right to be informed of the privacy practices of their health plans and of most of their health care providers, as well as to be informed of their privacy rights with respect to their personal health information. Health plans and covered health care providers are required to develop and distribute a notice that provides a clear explanation of these rights and practices. The notice is intended to focus individuals on privacy issues and concerns, and to prompt them to have discussions with their health plans and health care providers and exercise their rights.

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The issues of confidentiality and privacy have both ethical and legal implications. Caregivers must safeguard each patient’s right to privacy and the right to have information pertaining to his or her care kept confidential.

Disclosures Permitted

Patient information (e.g., diagnoses, anesthesia history, surgical and other invasive procedures, drug allergies, medication usage, lab test results, and imaging studies) may be disclosed to other providers who may be caring for the patient to provide safe healthcare treatment. The following list describes some of the ways a healthcare provider may disclose medical information about a patient without his or her written consent.

Disclosure of information to third-party payers so the providers of care bill for services rendered

Disclosure of information necessary to render care and treatment

Disclosure of information as may be required by a law enforcement agency

Disclosure of information as may be required to avert a serious threat to public health or safety

Disclosure of information as required by military command authorities for their medical records

Disclosure of information to worker’s compensation or similar programs for processing of claims

Disclosure of information in response to a subpoena for a legal proceeding

Disclosure of information to a coroner or medical examiner for purposes of identification

Limitations on Disclosures

Some of the individual rights a patient has regarding disclosure of access to his or her medical information are as follows:

Right to request restrictions or limitations regarding information used or disclosed about one’s treatment.

Right to an accounting of nonstandard disclosures: The patient has a right to request a list of the disclosures made of information released regarding his or her care.

Right to amend: If a patient believes that medical information regarding his or her care is incorrect or incomplete, he or she has a right to request that the information be corrected.

Right to inspect and copy medical information that may be used to make decisions about one’s care.

Right to file a complaint with the provider, or the Secretary of the Department of Health and Human Services in Washington, D.C., if a patient believes his or her privacy rights have been violated.

Right to a paper copy of a notice pertaining to patients.

Right to know of restrictions on rights. Any restrictions on a patient’s visitors, mail, telephone, or other communications must be evaluated for their therapeutic effectiveness and fully explained to and agreed upon by the patient or patient representative.

In addition to HIPAA, the Code of Federal Regulations provides that:

(1) The patient has the right to the confidentiality of his or her clinical records.

(2) The patient has the right to access information contained in his or her clinical records within a reasonable time frame. The hospital must not frustrate the legitimate efforts of individuals to gain access to their own medical records and must actively seek to meet these requests as quickly as its record keeping system permits.

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The U.S. Department of Health and Human Services also states on its website that:

Most of us believe that our medical and other health information is private and should be protected, and we want to know who has this information. The Privacy Rule, a Federal law, gives you rights over your health information and sets rules and limits on who can look at and receive your health information. The Privacy Rule applies to all forms of individuals’ protected health information, whether electronic, written, or oral. The Security Rule is a Federal law that requires security for health information in electronic form.

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A lack of patient privacy was discovered when hospital records were discovered online. “The breach at Stanford Hospital in Palo Alto, Calif., exposed the names and diagnoses of 20,000 patients who visited the hospital’s emergency department between March 1, 2009, and Aug. 31, 2009.”

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In another instance, which came on the heels of its first Health Insurance Portability and Accountability Act (HIPAA) privacy rule, “the Department of Health and Human Services (HHS) has doled out a $1 million fine against Massachusetts General Hospital for a data breach involving 192 patients being treated for infectious diseases.”

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Ucla Workers Snooped in Spears Medical Records

UCLA Medical Center is taking steps to fire at least 13 employees and has suspended at least 6 others for snooping in the confidential medical records of pop star Britney Spears during her recent hospitalization in its psychiatric unit, a person familiar with the matter said Friday.

…

“Each member of our workforce, which includes our physicians, faculty, employees, volunteers and students, is responsible to ensure that medical information is only accessed as required for treatment, for facilitating payment of a claim or for supporting our health care operations,” chief compliance and privacy officer Carole A. Klove wrote in an e-mail to all employees.

—Charles Ornstein,
Los Angeles Times, March 15, 2008

The limitations of space and financial constraints make it difficult to continuously preserve a patient’s right to privacy in many hospital settings (e.g., emergency departments). Even so, healthcare organizations have a responsibility to provide for a reasonable amount of privacy for patients.

Phlebotomist Discloses Patient Information at Public Tavern

The phlebotomist, in
Bagent v. Blessing Care Corp.,

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revealed the results of a patient’s pregnancy test to the patient’s sister at a public tavern. Although the hospital attempted to have the case dismissed for the phlebotomist’s breach of confidentiality, invasion of privacy, and the negligent infliction of emotional distress, the appeals court determined that there were triable issues of fact precluding dismissal of the case. It was asserted that the phlebotomist had been trained to maintain the confidentiality of patient information and that she knew that she had violated the patient’s rights.

Patient information can also be shared with insurance carriers for billing purposes. Patients should be notified as to those research activities that may involve their personal information.

Right to Freedom from Abuse and Harassment

Patients have the right to receive care in a safe setting, free from mental, physical, sexual, or verbal abuse and neglect, exploitation, and harassment. According to the Medicare Conditions of Participation for hospitals: “The patient has the right to be free from all forms of abuse or harassment.”

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In addition to this right, patients have a right to access protective and advocacy services including notifying government agencies as to neglect and/or abuse. The Joint Commission provides in its standards that “the patient has the right to be free from neglect; exploitation; and verbal, mental, physical, and sexual abuse.”

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Right to Know Hospital’s Adverse Events

The Florida Supreme Court ruled in the cases
Florida Hospital Waterman, Inc., etc. v. Teresa M. Buster, et al. and
Notami Hospital of Florida, Inc., etc. v. Evelyn Bowen, et al.

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that hospitals under Amendment 7 (approved by the voters on November 2, 2004, and codified as Article X, Section 25 of the Florida Constitution) must reveal their records of past acts of malpractice that have been performed at the hospital. In Florida, patients now have a right to know about, ask for, and/or receive records about adverse medical incidents that have occurred at the hospital.

Amendment 7 to the Florida Constitution reads in part:

Section 25. Patients’ right to know about adverse medical incidents.

(a) Patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.

(b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.

Right to Discharge

Patients have a right to be discharged and not be detained in a healthcare setting merely because of an inability to pay for services rendered. An unauthorized detention of this nature could subject the offending organization to charges of false imprisonment. Although patients have a right not to be held against their will, there are circumstances in which reasonable detainment can be justified (e.g., a minor may be released only to a parent or authorized guardian).

Discharge Orders

When discharging a patient, a physician should issue and sign all discharge orders. If there is no need for immediate care, the patient should be advised to seek follow-up care with his or her family physician. The American Medical Association states in a 2012 report on
Physician Responsibilities for Safe Patient Discharge from Health Care Facilities that “Physicians’ ethical obligation to promote the well-being of patients includes the obligation to collaborate with other health care professionals to develop discharge plans that are safe for patients. The discharge plan should be developed without regard to the patient’s socioeconomic status, immigration status, or other clinically irrelevant considerations.”

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Case Studies

Release from Hospital Contraindicated

The patient-plaintiff in
Somoza v. St. Vincent’s Hospital

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was admitted to the hospital during the 29th week of her pregnancy. Dr. Gutwein, a resident, was caring for the patient, although she had been admitted by her private attending physician, Dr. Svesko. The results of a sonogram were abnormal, and the radiologist recommended a follow-up sonogram. Despite the abnormal sonogram and various findings on the physical examinations, Dr. Svesko decided to release the plaintiff because her pain had subsided. Dr. Gutwein signed an order discharging the patient from the hospital, not questioning Dr. Svesko’s decision despite being familiar with both the sonogram findings and some key observations found on internal examinations by Dr. Svesko. Four days later, the patient returned to the hospital suffering severe pain and soon thereafter delivered twin girls diagnosed as suffering from cerebral palsy. The patient became a plaintiff bringing a medical malpractice action against the hospital and Dr. Svesko arising out of the premature birth of the twins. The defendants filed a motion for summary judgment, which was denied, and the defendants appealed.

The New York State Supreme Court, Appellate Division, held that there were material issues of fact as to whether the mother’s symptoms exhibited during her physical assessment contraindicated her release from the hospital. Dr. Sherman, an expert witness for the plaintiff testified that the plaintiff’s discharge was “a departure from good and accepted medical practice. The resident clearly had an obligation to examine even a private patient in the face of a changing cervix and not just to discharge her pursuant to some attending physician’s order.”

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A hospital whose staff carries out a physician’s order may be held responsible where the hospital staff knows, or should know, that the orders are clearly contraindicated by normal practice.

Ethical and Legal Issues

Discuss how both the hospital and caregivers failed both legally and ethically in caring for the patient.

Discuss how you would work with caregivers in general to prevent similar incidents from occurring in the future.

Right to Transfer

Patients have a right to be transferred when the admitting hospital is unable to address a patient’s care needs. This is required when a hospital does not, for example, have a neurosurgeon on staff when such is required for a serious head injury. For this reason, it is imperative that hospitals execute transfer agreements for services they do not offer with other healthcare organizations.

Transfer agreements help ensure the smooth transfer of a patient from one facility to another when such is determined appropriate by the attending physician(s). Generally speaking, a transfer agreement is a written document that sets forth the terms and conditions under which a patient may be transferred from a facility unable to treat a patient’s particular ailment to a facility that can provide the kind of care crucial to the patient’s recovery.

Transfer agreements should be written in compliance with and reflect the provisions of the many federal and state laws, regulations, and standards affecting healthcare organizations. The parties to a transfer agreement should be particularly aware of applicable federal and state regulations.

Patients also have a right to choose a receiving facility, whenever possible. The Medicaid patient in
Macleod v. Miller

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was entitled to an injunction preventing his involuntary transfer from a nursing home. The patient had not been accorded a pretransfer hearing, as was required by applicable regulations. In addition, it was determined that the trauma of transfer might result in irreparable harm to the patient. The appeals court remanded the case to the trial court with directions to enter an order prohibiting the defendants from transferring the plaintiff pending exhaustion of his administrative remedies.

Right to Access Medical Records

The courts have taken the view that patients have a legally enforceable interest in the information contained in their medical records and therefore have a right to access their records. Some states have enacted legislation permitting patients access to their records. Patients may generally have access to review and/or obtain copies of their records, X-rays, and laboratory and diagnostic tests. Access to information includes that maintained or possessed by a healthcare organization and/or a healthcare practitioner who has treated or is treating a patient. Organizations and physicians can withhold records if it is determined that the information could reasonably be expected to cause substantial and identifiable harm to the patient (e.g., for patients in psychiatric facilities, institutions for the mentally disabled, alcohol and drug treatment programs).

Right to Access Lab Reports

The Department of Health and Human Services (HHS) released a statement on February 3, 2014, that strengthens the right of patients to access their lab test reports.

As part of an ongoing effort to empower patients to be informed partners with their health care providers, the Department of Health and Human Services (HHS) has taken action to give patients or a person designated by the patient a means of direct access to the patient’s completed laboratory test reports.

“The right to access personal health information is a cornerstone of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule,” said Secretary Kathleen Sebelius. “Information like lab results can empower patients to track their health progress, make decisions with their health care professionals, and adhere to important treatment plans.”

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Some hospitals have made it easier for patients to access their lab results by either hard copy or through electronic access.

Hospital Peer-Review Materials Discoverable: Patient’s Right to Know

Florida voters, in November 2004, adopted the “Patients’ Right to Know About Adverse Medical Incidents” amendment to Florida’s constitution (“Amendment 7”). In a medical malpractice action in which the plaintiffs sought the production of documents relating to the investigation of the decedent’s death and any medical incidents of negligence, neglect, or default of any healthcare provider who rendered services to the decedent, the trial court properly held that the Patient’s Right to Know Amendment to the state constitution was self-executing and allowed for the discovery during the course of litigation. The patient should have been provided with information and documents that emanate from the self-policing processes of healthcare providers; however, the court’s retroactive application of the amendment was found to be improper.

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Right to Know Third-Party Care Relationships

Patients have a right to know the hospital’s relationships with outside parties that may influence their care and treatment. These relationships may be with educational institutions, insurers, and other caregivers.

Right to Know Hospital Charges

Patients have a right to transparency when requesting information about hospital emergency room, outpatient, and inpatient treatment charges. The North Carolina Senate is considering a bill titled the Health Care Cost Reduction and Transparency Act to be effective, which is intended to allow patients to compare treatment costs among different providers. Hospitals and ambulatory surgical facilities would be required to annually provide financial information for their 50 most common episodes of care to the North Carolina Health Information Exchange (Exchange), which allows free public access to its most current information. The Act is intended to allow patients to compare treatment costs among different providers.

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As noted in the
Reality Check, hospital charges are necessarily transparent.

Hospital Charges Not So Transparent

I traveled to Florida for a continuing education program on patient care in my specialty. I unfortunately forgot my asthma inhaler. When I got off the plane after landing and not knowing where to go, as I was new to the area and it was late evening, I decided to go to a local hospital emergency department for a prescription. I was in no distress but was concerned that I had forgotten my inhaler. I unfortunately made the mistake of believing that an emergency room was an appropriate place to go for help and advice when traveling. I sat in a hallway, had my temperature and blood pressure taken, and inhaled some albuterol. My visit from beginning to end was about 20 minutes.

Upon returning home, I received an emergency room bill in excess of $3,000, so now I was distressed. Although I have an insurance policy, there is a $2,000 deductible that I was responsible to pay. I decided to request more detail on my bill. After a less than pleasant experience with the billing department, I decided also to request a copy of my medical record. For a hospital that claimed transparency on its website, it took me 6 weeks and several annoying phone conversations with hospital staff to obtain the billing information and a copy of what turned out to be an 18-page barely readable computerized medical record that listed yes and no answers to questions I was never specifically asked. I couldn’t believe it and said to my husband, “Wow, the bill says $27.00 for the medication and I have to pay $2,973 to inhale it.”

In summary, I discovered there was no transparency that the hospital publicized on its website. Transparency is an overused platitude that has little meaning. For me, I totally understand the U.S. citizen’s frustration with the healthcare system.

—Anonymous

Right to Know Medical Errors

In one article in the
Journal of the American Medical Association, the authors stated, “Physicians may not be providing the information or emotional support that patients seek following harmful medical errors. Physicians should strive to meet patients’ desires for an apology and for information on the nature, cause, and prevention of errors. Institutions should also address the emotional needs of practitioners who are involved in medical errors.”

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Right to a Safe Healing Environment

Patients have a right to a safe and healing environment. Hospitals that wish to participate in Medicare reimbursement must provide the patient with a safe environment as noted in the Condition of Participation, where it states: “The patient has the right to receive care in a safe setting.”

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Natalie L. Birkelien of the James Madison University in Harrisonburg, Virginia, in her article “A Strategic Framework for Improving the Patient Experience in Hospitals,” states that:

Provision of timely and responsive care creates an empathetic hospital environment that is patient–centered focused on quality of care and service experience. A hospital’s environment is a combination of the physical and psychosocial settings the organization created through clinical and process measures. Although consumers place highest value on human interaction and quality care outcomes, the physical facility does play an important role in customers’ impressions.

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Hospitals have historically been characterized by a lack of provision for ventilation. Dr. W. G. Wylie, writing in 1877, said he favored this type of building, but he advocated that it be a temporary structure only, to be destroyed when it became infected. As noted in the 2007 congressional hearing presented below, the Walter Reed Army Medical Center eventually became an unclean environment for its patients.

Is Bureaucracy to Blame for Walter Reed Shame?

March 5, 2007 1:00 PM ET

Heard on Day to Day

Alex Chadwick

Congressional hearings begin today about the treatment of soldiers at Walter Reed Army Medical Center. Philip Carter, former Army officer and military affairs writer, blames the scandal on the bureaucratic culture of the United States Armed Forces.

Transcript

MADELEINE BRAND, host:

From the studios of NPR West, this is DAY TO DAY. I’m Madeleine Brand.

I’m Alex Chadwick. Coming up, a former Army officer says shabby conditions at medical facilities for veterans are a direct result of the culture of the military.

BRAND: First though, in Washington lawmakers talked with soldiers and family members today as they began hearings into those conditions at the Walter Reed Medical Center. Walter Reed hit the news last month after a series of articles in the Washington Post about deplorable conditions for wounded troops.

Today’s hearings are taking place at the hospital. Co-chairman John Tierney, a Democrat from Massachusetts, laid out some of the issues.

Congressman JOHN TIERNEY (Democrat, Massachusetts): These are not new or sudden problems. Rats and cockroaches don’t burrow and infest overnight. Mold and holes in ceilings don’t occur in a week. And complaints of bureaucratic indifference have been reported for years.

CHADWICK: Soldiers testified, including specialist Jeremy Duncan. He praised the actual medical treatment he received for his injuries, including a fractured neck. But, he said, the physical facilities were horrifying.

Mr. JEREMY DUNCAN (Soldier): The conditions in the room in my mind were just—it was unforgivable for anybody to deliver—it wasn’t fit for anybody to live in a room like that. I know most soldiers have—you know, just coming out of recovery have weaker immune systems. The black mold can do damage to people. The holes in the walls—I wouldn’t live there even if I had to.”

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Six years after treating its last patients, the former Walter Reed Army Medical Center in Washington, D.C., is on the verge of demolition to make way for a new 3.1-million sq ft mixed-use development.

Early next year, NorthStar Contracting Group, Baltimore, is scheduled to begin the year-long process of demolishing the 2.7 million sq ft hospital complex, the operations of which were consolidated with the National Naval Hospital in Bethesda, Md., under the 2005 Base Realignment and Closure program.

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Hospitals are often not always the cleanest of environments and there comes a time that that they need to be replaced. Because of this, physicians often discharge their patients as soon as possible after surgery—not because of financial reasons, but due to the uncleanliness of the hospital environment.

Right to Be Free from Restraints and Seclusion

The
Code of Federal Regulations, Chapter 42 CFR § 482.13(e), provides that patients have a right to exercise their rights:

(e)

Standard: Restraint or seclusion.
All patients have the right to be free from physical or mental abuse, and corporal punishment. All patients have the right to be free from restraint or seclusion, of any form, imposed as a means of coercion, discipline, convenience, or retaliation by staff. Restraint or seclusion may only be imposed to ensure the immediate physical safety of the patient, a staff member, or others and must be discontinued at the earliest possible time.

(1)
Definitions.

(i) A

restraint
is –

(A) Any manual method, physical or mechanical device, material, or equipment that immobilizes or reduces the ability of a patient to move his or her arms, legs, body, or head freely; or

(B) A drug or medication when it is used as a restriction to manage the patient’s behavior or restrict the patient’s freedom of movement and is not a standard treatment or dosage for the patient’s condition.

(C) A restraint does not include devices, such as orthopedically prescribed devices, surgical dressings or bandages, protective helmets, or other methods that involve the physical holding of a patient for the purpose of conducting routine physical examinations or tests, or to protect the patient from falling out of bed, or to permit the patient to participate in activities without the risk of physical harm (this does not include a physical escort).

(ii)
Seclusion
is the involuntary confinement of a patient alone in a room or area from which the patient is physically prevented from leaving. Seclusion may only be used for the management of violent or self-destructive behavior.

(2) Restraint or seclusion may only be used when less restrictive interventions have been determined to be ineffective to protect the patient, a staff member, or others from harm.

(3) The type or technique of restraint or seclusion used must be the least restrictive intervention that will be effective to protect the patient, a staff member, or others from harm.

(4) The use of restraint or seclusion must be –

(i) In accordance with a written modification to the patient’s plan of care; and

(ii) Implemented in accordance with safe and appropriate restraint and seclusion techniques as determined by hospital policy in accordance with State law.

(5) The use of restraint or seclusion must be in accordance with the order of a physician or other licensed independent practitioner who is responsible for the care of the patient as specified under § 482.12(c) and authorized to order restraint or seclusion by hospital policy in accordance with State law.

(6) Orders for the use of restraint or seclusion must never be written as a standing order or on an as needed basis (PRN).

(7) The attending physician must be consulted as soon as possible if the attending physician did not order the restraint or seclusion.

(8) Unless superseded by State law that is more restrictive—

• • •

[71 FR 71426, Dec. 8, 2006, as amended at 75 FR 70844, Nov. 19, 2010; 77 FR 29074, May 16, 2012]

WHICH RIGHT IS THE GREATER GOOD?

Which right is the greater good? Freedom from restraints or a safe and sterile environment.

Over-Surveyed VS. Under-Surveyed

Surveyor A and Surveyor B

Accolades for scoring restraints while demoralizing those who concentrate on infection control observations.

The tragedy of how surveyors survey the improper use of restraints and the environmental risks of infections to patients is reviewed in this
Reality Check.

Both are important but to have one right suffer by over-attention to another which is financially costlier to the detriment to patients and their quality of life, when time is limited during the actual survey, often 1 to 5 days, leaves little room for argument. Here to concentrate on restraints while less attention is given to infection control issues is staggering in both the human and financial costs. It is a tragic black mark on the survey process. The old Walter Reed Hospital is well aware of its failures to close the hospital and replace it with a new plant.

One evaluation you score too often, and next evaluation you don’t score enough.

—Anonymous

PATIENT RESPONSIBILITIES

Patients also have the obligation to take on certain responsibilities. The hospital defines these responsibilities and then relays them to the patient. When patients understand and accept their responsibilities, the concept of the patient as a partner in care becomes a dynamic component of the patient’s episode of care.

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Patients have responsibilities as well as rights. One cannot exist without the other in an orderly society. Various patient responsibilities are described next.

Patients’ Responsibilities—Avoiding Putting Others at Risk

At one extreme, we see and hear news reports about a tuberculosis patient who travels the world, potentially infecting someone else, or about a person with AIDS who passes on his disease intentionally.

…

In the United States, we have an obligation not to harm others either through intentional or unintentional means. It’s our responsibility to act in such a way that we keep others from being infected or injured. In some cases, there are laws that speak to this responsibility, warranting eventual arrest or a lawsuit. In others, it’s simply common sense or even the golden rule.

—Trisha Torrey,
About.com Guide, April 8, 2010

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Maintain a Healthy Lifestyle

Living a healthy lifestyle involves both a right and a responsibility. Each person must take responsibility for living well through exercise, diet, stress control, and maintaining positive social relationships, which will be rewarded with a richer and fuller life that should better prepare people for whatever health obstacles the future may hold. Recognizing what is right and what is wrong for one’s health is not enough; it must be recognized
and practiced.

Keep Appointments

Patients have a responsibility to promptly notify caregivers whenever they are unable to keep a scheduled appointment. Failure to notify caregivers of a cancellation means longer delays for other patients, who may be finding it difficult to schedule appointments with physicians.

Maintain Current Medication Records

Patients have a responsibility to maintain a current accurate record of their medications, including dosages, route of administration, and frequency. Drug allergies should be included on the list. Medication records should be reviewed periodically to be sure the listing is current. A copy should be provided to treating physicians and treating facility.

A comprehensive list of medications should include all prescription medications, herbals, vitamins, nutritional supplements, over-the-counter drugs, vaccines, diagnostic and contrast agents, radioactive medications, parenteral nutrition, blood derivatives, and intravenous solutions (hereafter referred to collectively as medications).
Over-the-counter drugs and dietary supplements are not currently considered by many clinicians to be medications and thus are often not included in the medication record. As interactions can occur between prescribed medication, over-the-counter medications or dietary supplements, all medications and supplements should be part of a patient’s medication history and included in the reconciliation process, which in turn creates the potential for error.

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Accurately Describe Symptoms

Patients have a responsibility to accurately describe symptoms, family history, the location and severity of pain.

Provide Full and Honest Disclosure of Medical History

Patients have a responsibility to provide full disclosure of all information relevant to one’s medical condition, medical complaints, symptoms, location and severity of pain, previous pain control concerns, past illnesses, treatments, surgical or other invasive procedures, hospitalizations, medications, and allergies. Information provided must be accurate, timely, and complete. Selectivity in the information provided to the physician or hospital for whatever the reason can lead caregivers down the wrong path when treating the patient. The court of appeal in
Fall v. White

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affirmed the superior court’s ruling that the patient had a duty to provide the physician with accurate and complete information and to follow the physician’s instructions for further care or tests.

Why Would My Patient Not Tell Me the Truth?

Several months ago, I nearly collided with one of my patients at the subway entrance. She was so busy lighting a cigarette that she didn’t even notice me. I, on the other hand, was shocked to see her mid-drag. A mere 2 days earlier, she had been sitting in my office telling me how she hadn’t smoked in more than 6 months.

… in a survey of pregnant women, urine tests for tobacco byproducts revealed that 34 percent of women who said they didn’t smoke actually did.

—Daphne Miller,
The Washington Post, March 15, 2011

Report Sudden Changes in Health Status

Relay to caregivers unexpected changes in your health status. Make it known whether you clearly understand the plan of care. Ask questions to seek clarification of concerns when in doubt about the plan of care.

Case Studies

Rights and Responsibilities Conflict

Several months after having stomach surgery, Vicki Marsingill called her surgeon, Dr. O’Malley, complaining of abdominal pain and nausea. O’Malley advised Marsingill to go to the emergency room and offered to meet her there, but Marsingill said she felt better and declined to go.

O’Malley left it up to Marsingill whether to seek emergency room treatment. O’Malley informed Marsingill that the doctors in the emergency room would probably take X-rays and insert a nasogastric tube to relieve the pressure in her stomach. After hearing that she would likely need to have a nasogastric tube inserted if she went to the emergency room, Marsingill ended the call, telling O’Malley that she was feeling better.

Later that night, Marsingill’s husband found her unconscious on the bathroom floor. Paramedics rushed her to the hospital, where an emergency operation later revealed that she had experienced an intestinal blockage, but by then the obstruction had caused Marsingill to go into shock. She suffered brain damage and partial paralysis.

Marsingill sued O’Malley, claiming that he lacked the skill and knowledge to advise her properly and that the information he gave her over the telephone did not allow her to make an intelligent treatment decision.

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Section 8.08 of the AMA Code of Medical Ethics addresses the duty of disclosure, providing, “The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an intelligent choice.” Marsingill’s experts maintained that O’Malley had violated Section 8.08 by failing to give her enough information to make an intelligent choice about whether to seek emergency room treatment. O’Malley acknowledged that Section 8.08
applied to his conduct—that he did have an obligation to give Marsingill enough information so that she could make an intelligent choice as to whether she should go to the emergency room.

Marsingill’s proposed instruction by the judge to the jury would have required the jury to decide the sufficiency of O’Malley’s communications from the standpoint of a reasonable patient in Marsingill’s position. The trial court rejected the proposed “reasonable patient” instruction.

O’Malley acquiesced in Marsingill’s decision not to go to the emergency room. In the context of a preexisting patient–physician relationship involving postoperative care, a physician’s recommendation to do nothing in the face of threatening symptoms is the equivalent of a treatment recommendation and should be accompanied by a duty of disclosure.

A physician’s acquiescence in a patient’s decision not to seek treatment in the same circumstances should likewise be regarded as equivalent to a treatment recommendation subject to the same duty.

The superior court deprived Marsingill of her right to have the jury decide the issue directly from the standpoint of a reasonable patient, and the case was remanded for a new trial on Marsingill’s claim for breach of the duty to provide sufficient information to allow her to make an intelligent treatment choice.

The appellate court ruled that the jury should have been instructed to use the reasonable patient standard to determine whether O’Malley gave Marsingill sufficient information about her condition and treatment choices. On remand, the jury must be instructed to decide the claim from the standpoint of a reasonable patient.

There will always be an endless number of “what-if” scenarios. In the end, this question remains: What should one do, knowing that whatever decision is made there will always be some doubt as to whether the decision made was the right one? Armed with the knowledge in this book, the reader will be a more effective caregiver and better able to make critical healthcare decisions.

Ethical and Legal Issues

Explain the court’s reasoning for remanding this case back to the trial court.

Discuss how you would assess the failure of both the patient and physician as to their rights and responsibilities in this case.

Adhere to the Treatment Plan

Adhere to and follow the treatment plan recommended. Accept responsibility for the consequences of failing to adhere to the caregiver’s instructions. Refrain from self-administration of medications not prescribed by the physician, as well as those you may have brought to the hospital with you. Most importantly, follow the physician’s instruction in the self-administration of medications. “Medical noncompliance has been identified as a major public health problem that imposes a considerable financial burden upon modern health care systems. There is a large research record focusing on the understanding, measurement, and resolution of noncompliance, but it is consistently found that between one-third and one-half of patients fail to comply with medical advice and prescriptions.”

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The failure of a patient to follow a physician’s plan of care can lead to frustration on the part of the caregiver. Patients who, for example, fail to follow a physician’s medication orders for blood pressure medication can lead to erratic spikes in the patient’s blood pressure. Should this information come to the doctor’s attention, the physician may become less empathetic with patients who complain their blood pressure is out of control. The responsibility for good care rests with both the caregiver, in relating to the patient the importance of complying with the treatment plan, and the patient, who bears a responsibility to comply with the physician’s instructions. Ultimately, patient care outcomes can improve if patients adhere to their prescribed treatment plans. Caregivers need to understand the potential for noncompliance and address those concerns when developing treatment plans. This is especially important with seniors and patients with cognitive disorders.

When in Doubt, Seek a Second Opinion

When in doubt, seek a second opinion. Participate in marking the site of a surgical or other invasive procedure. Communicate to staff your care preferences, including who you have selected as a decision maker in the event you become incapacitated and unable to make decisions for yourself.

Stay Informed

Understand caregiver instructions. Consider the following case where a patient had been sedated during the performance of a colonoscopy at an endoscopy
center. He decided to drive himself home against medical advice. Claims against the clinic and a nurse were dismissed with respect to fatal injuries that the patient received during a one-car collision. The trial court correctly ruled that the nurse had no duty to prevent the patient from leaving its premises once she repeatedly warned the patient not to drive. The nurse was justified in relying upon the patient’s false representations that he had a friend available to drive him home. She was not required to keep the patient in a gown in the recovery room once she learned the truth, and she was not required to use other options to prevent him from driving, such as putting him in a taxicab, putting him in a hotel, calling the police, admitting him to the hospital, personally driving him home, taking his keys away from him, or physically restraining him. The center and the nurse owed no legal duty to the patient to do more than warn him that he should not drive. The center is not an insurer of the patient’s safety. The patient acted recklessly in ignoring the advice he was given and suffered the consequences. The circuit court correctly found no duty to ensure that no patient drives after the procedure.

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Ask Questions

The necessity and responsibility to ask questions cannot be overstated. A knowledgeable patient is a good patient. If you are unsure of a caregiver’s instructions, be sure to seek clarification and a written copy of the proposed treatment plan. Ask questions and seek clarification when in doubt about the plan of care. Patients have a responsibility to ask questions and understand explanations. Such questions include: “What is this medication for?” “What diet am I on?” “Since you are going to change my dressing, did you wash your hands?”

Follow Discharge Instructions

The patient has the responsibility to follow up on physician instructions. Patients are not always reliable about following up on physician and/or hospital discharge instructions. Both hospitals and physicians are advised to have a follow-up process for their patients. The process should include a written discharge plan that is signed by the patient. A copy of which should be provided to the patient. Tom A. Augello, in his article “Diagnostic Failures Prompt Referral Changes,” writes:

When we looked at that and we thought about our referrals, we have actually quite a few and that’s not unusual. We have 500 physicians, 17 locations, 350,000 patients, but each one of those referrals is an opportunity for an error. As Jessica mentioned, CRICO highlighted our need to really look at closing the loop on referrals, particularly making sure that when a referral is made that there is appropriate work done to ensure that the referral actually did happen.

• • •

To the complaint that this puts all the onus on the PCP and not the specialist or the patient him or herself, Dr. Lopez sympathized. But he said the system is designed only to involve the referring PCP when a high-priority referral is overdue. He said most of the specialties and their staffs in the Atrius Health system are integrated within the sites and within the electronic record system. So the specialty staff shares the monitoring of the referrals and does the initial patient follow-up.

According to the experience of professional liability experts, patients are not reliable partners to ensure the referral is completed. The courts and juries often put the responsibility for follow-up on the physician who made the referral in the first place.

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Treat Caregivers with Respect

Disrespect often lies at the boardroom door. Board members often deflect attention from themselves for their failures to lead. Caregivers often feel the burn-out when expectations from leadership are to do more with fewer hands. It is tied to the push by government and board leadership to produce high-quality care in less time for less money. CEOs find themselves caught in the middle of numerous ethical dilemmas, a financial war that is an extension of the board’s policy to do less with more. When things go wrong, the board points its finger away from itself and directly at the CEO, whom it appointed to carry out its policies. “Words such as ‘burnout’ are often employed by medical institutions to shift blame to doctors for their emotional distress while deflecting attention from unsafe working conditions. When doctors are punished with loss of residency positions or hospital privileges for occupationally-induced mental health conditions, they can become even more hopeless and desperate.”

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Respect the Rights of Other Patients

Be considerate of the rights of other patients (e.g., noise control, no-smoking rules, respect for the rights and property of others).

Show Compassion for Caregivers

Suddenly, Unexpectedly, He Grabs My Shirt. “Don’t Let Me Die!” He Says, Spraying Me with Blood.

He turns with effort, his yellow eyes searing into mine.

∙ ∙ ∙

Hours later, my pager beeps again. It’s the head nurse once more, summoning me back to “pronounce him dead.”

∙ ∙ ∙

“The family is waiting to see you,” she says, as if I should’ve known.

∙ ∙ ∙

The woman I take to be the deceased’s mother reaches into a purse on the floor and unfurls a rumpled handkerchief. She buries her face in it.
Memento mori, the ancient Romans said. Remember that you will die. This scene will be a permanent meditation throughout the rest of my career.

—Richard E. Cytowic,
Washingtonian, March 2014

The public has an obligation to demonstrate the same respect, compassion, and empathy toward physicians as the public has come to expect for itself. These compassionate men and women have been committing suicide at such an alarming rate that there is a documentary soon to be released to bring awareness of the growing problem. Dr. Pamela Wible, a family practitioner, has researched the problem and found that: “patient deaths hurt doctors; malpractice suits push them over the edge; academic distress kills a medical student’s dreams; assembly-line medicine kills doctors because a caring compassionate doctor can’t take care of a complex patient in 15 minutes. He may be fired for lack of productivity or inefficiency.”

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They don’t seek help when they need it because they fear retaliation or loss of privacy; long, stressful work hours breed post-traumatic stress syndrome.

ADVISORY COMMISSION DESCRIBES PATIENT RESPONSIBILITIES

A 1997 report to the president by the Advisory Commission on Consumer Protection and Quality in the Health Care Industry clearly describes patient responsibilities:

In a health care system that protects consumers’ rights, it is reasonable to expect and encourage consumers to assume reasonable responsibilities. Greater individual involvement by consumers in their care increases the likelihood of achieving the best outcomes and helps support a quality improvement, cost-conscious environment. Such responsibilities include:

Take responsibility for maximizing healthy habits, such as exercising, not smoking, and eating a healthy diet.

Become involved in specific health care decisions.

Work collaboratively with health care providers in developing and carrying out agreed upon treatment plans.

Disclose relevant information and clearly communicate wants and needs.

Use the health plan’s internal complaint and appeal processes to address concerns that may arise.

Avoid knowingly spreading disease.

Recognize the reality of risks and limits of the science of medical care and the human fallibility of the health care professional.

Be aware of a health care provider’s obligation to be reasonably efficient and equitable in providing care to other patients and the community.

Become knowledgeable about his or her health plan coverage and health plan options (when available) including all covered benefits, limitations and exclusions, rules regarding use of network providers, coverage and referral rules, appropriate processes to secure additional information, and the process to appeal coverage decisions.

Show respect for other patients and health workers.

Make a good-faith effort to meet financial obligations.

Abide by administrative and operational procedures of health plans, health care providers, and government health benefit programs.

Report wrongdoing and fraud to appropriate resources or legal authorities.

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TEAMWORK AND PROFESSIONAL RELATIONSHIPS

Teamwork is the ability to work together toward a common vision.

The ability to direct individual accomplishments toward organizational objectives.

It is the fuel that allows common people to attain uncommon results.

—Author Unknown

A multidisciplinary approach to patient care improves patient outcomes through a planning and cooperative effort between caregivers and patients. As notably written by Andrew Carnegie, “It marks a big step in a man’s development when he comes to realize that other men can be called in to help him do a better job than he can do alone.” The success in improving quality patient care is dependent on teamwork. In order to provide seamless care, from admission to discharge, patients and caregivers
together must work closely as a team.

Employees are responsible for maintaining appropriate professional relationships with patients, families, coworkers, and others with whom they may come into contact in the organization: “When patients experience a well-coordinated journey through the hospital and see staff members working in teams across departments, they feel the hospital is focused on caring for them.”

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CHAPTER REVIEW

Patient Rights:

Know Their Rights

Explanation of Rights

Exercise Rights

Ask Questions

File a Complaint

Emergency Care

Admission

Examination and Treatment

Know Caregivers

Refuse Treatment

Execute Advance Directives

Have Special Needs Addressed

Choose Physician(s)

Trust Caregivers

Patient Advocacy Services

Have Spiritual Needs Assessed and Addressed

Ethics Consultation

Choose Treatment

Try Experimental Drugs

Timely Response to Care Needs

Receive Quality Care

Compassionate Care

Respect

Pain Management

Privacy and Confidentiality

Freedom from Abuse and Harassment

Know Hospital’s Adverse Events

Discharge

Transfer

Access Medical Records

Know Third-Party Care Relationships

Know Hospital Charges

Know Medical Errors

Safe Healing Environment

Freedom from Restraints and Seclusion

Patient Responsibilities

Maintain a Healthy Lifestyle

Keep Appointments

Maintain Current Medication Records

Accurately Describe Symptoms

Provide Full and Honest Disclosure of Medical History

Report Sudden Changes in Health Status

Adhere to the Treatment Plan

When in Doubt, Seek a Second Opinion

Stay Informed

Ask Questions

Follow Discharge Instructions

Treat Caregivers with Respect

Respect the Rights of Other Patients

Show Compassion for Caregivers

Advisory commission describes patient responsibilities

Teamwork and a multidisciplinary approach to patient care of paramount importance to providing patient care

TEST YOUR UNDERSTANDING

Terminology

Health Insurance Portability and Accountability Act (HIPAA)

pain

pain management

pain rating scale

Patient’s Bill of Rights

Socratic method of teaching and learning

teamwork

REVIEW QUESTIONS

Discuss the various rights of patients discussed in this chapter.

Discuss the various responsibilities of patients discussed in this chapter.

Describe why a patient’s responsibilities are as important as his or her rights.

Explain the importance of patient rights and responsibilities from both an ethical and legal point of view.

Discuss the importance of living a healthy lifestyle.

Describe patient responsibilities as reported in the 1997 report to the president by the Advisory Commission on Consumer Protection and Quality in the Health Care Industry.

Describe the importance in teamwork in the provision of quality patient care.

NOTES

1. State of New York, Department of Health, “Your Rights as a Hospital Patient in New York State.”
https://www.health.ny.gov/publications/1449/ (accessed August 10, 2018).

2. 42 U.S.C. 1395cc(a)(1).

3. 22 CA ADC § 70707 Patients’ Rights. Barclay’s Official California Code of Regulations.
https://govt.westlaw.com/calregs/Document/ID94FF500A39711E08822C131FF5E2170?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)&bhcp=1 (accessed August 10, 2018).

4. The Joint Commission, 2018 Comprehensive Accreditation Manual for Hospitals, RI-6.
https://www.jointcommission.org/accreditation/hospitals.aspx (accessed August 11, 2018).

5. The Joint Commission, 2018 Comprehensive Manual for Hospitals, RI.02.01.01 at RI-19.

6. Dr. Ranit Mishori, “Don’t Let Hospitals Make You Sick,” Parade (February 8, 2009).

7. Sandra G. Boodman, “Bonded by Blood,” The Washington Post (February 25, 2014).

8. The Joint Commission, 2018 Comprehensive Manual for Hospitals, RI.01.07.01 at RI-16.

9. The Joint Commission, 2018 Comprehensive Accreditation Manual for Hospitals, RI.01.07.01 at RI–15.

10. The Joint Commission, 2018 Comprehensive Accreditation Manual for Hospitals, RI.01.02.01at RI-6.

11. Karen Asp, “Is Your Dr. Missing the Mark?” Shape Magazine (March 2013).

12.
Stoick v. Caro Community Hospital, 449 N.E.2d 628 (Ind. Ct. App. 1983).

13.
Perna v. Pirozzi, 92 NJ 446, 457 A.2d 431 (1983).

14.
Ibid. at 451.

15.
Ibid. at 466.

16.
Ibid. at 466, Footnotes.

17. Richard Liebson, “Bronxville Man Sues Lawrence Hospital Center Doc After Appendix ‘Mulligan,’” The Journal News (April 10, 2014).
http://www.lohud.com/story/news/local/westchester/2014/04/09/bronxville-man-sues-hospital-doc-appendix-mulligan/7514765/ (accessed August 10, 2018).

18. Maria Andreu, “What Josie King’s Story Should Teach Us,”
nj.com (September 21, 2009).
http://www.nj.com/parenting/maria_andreu/index.ssf/2009/09/what_josie_kings_story_should.html (accessed August 10, 2018).

19. The Joint Commission, 2018 Comprehensive Manual for Hospitals, RI.01.07.03, at RI-16.

20. American College of Healthcare Executives, “ACHE Code of Ethics.”
http://www.ache.org/ABT_ACHE/code.cfm (accessed August 10, 2018).

21. Robert Pear, “House Passes Bill That Would Give Patients Access to Experimental Drugs,” The New York Times (March 21, 2018).
https://www.nytimes.com/2018/03/21/us/politics/house-passes-right-to-try-bill.html (accessed August 10, 2018).

22. Robert E. Rakel, “Compassion and the Art of Family Medicine: From Osler to Oprah.” Journal of the American Board of Family Medicine, 13 (2000).
http://www.medscape.com/viewarticle/405817_2 (accessed August 10, 2018).

23.
Ibid.

24. 42 CFR § 482.

25.
HHS.gov, “Notice of Privacy Practices for Protected Health Information” [45 CFR 164.520].
http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/notice.html (accessed August 10, 2018).

26. 42 CFR § 482.13b, Condition of participation: Patient’s rights.

27.
HHS.gov, “Your Rights Under HIPAA.”
https://www.hhs.gov/hipaa/for-individuals/guidance-materials-for-consumers/index.html (accessed August 10, 2018).

28. Ryan Jaslow, “Patient Privacy in Spotlight after Hospital Records Spotted Online,” CBS News (September 9, 2011).
https://www.cbsnews.com/news/patient-privacy-in-spotlight-after-hospital-records-posted-online/ (accessed August 10, 2018).

29.
“Mass General Takes $1 Million Hit for Losing 193 Patient Records,” InfoSecurity Group [blog] (February 25, 2011).
http://www.infosecurity-magazine.com/view/16228/mass-general-takes-1-million-hit-for-losing-193-patient-records/ (accessed August 10,2018).

30.
Bagent v. Blessing Care Corp., 844 N.E.2d 649 (Ill. App. 2006).

31. 42 CFR § 482.

32. The Joint Commission, 2018 Comprehensive Accreditation Manual for Hospitals, RI.0.06.03 at RI-13.

33.
Florida Hospital Waterman, Inc., etc. v. Teresa M. Buster, et al. and Notami Hospital of Florida, Inc., etc. v. Evelyn Bowen, et al., Supreme Court of Florida, No. SC06-912 (March 6, 2008).

34. American Medical Association, Report of the Council on Ethical and Judicial Affairs (2012).
https://www.ama-assn.org/sites/default/files/media-browser/public/about-ama/councils/Council%20Reports/council-on-ethics-and-judicial-affairs/ceja-5a12 (accessed August 10, 2018).

35. 596 N.Y.S.2d 789 (N.Y. App. Div. 1993).

36.
Ibid. at 791.

37. 612 P.2d 1158 (Colo. Ct. App. 1980).

38.
HHS.gov, “HHS Strengthens Patients’ Rights to Access Lab Test Reports.”
https://www.hhs.gov/about/news/2014/02/03/hhs-strengthens-patients-right-to-access-lab-test-reports.html [archived URL].

39.
Florida Hosp. Waterman, Inc. v. Buster, 932 So.2d 344 (Fla. App. 2006).

40. General Assembly of North Carolina, Health Care Cost Reduction and Transparency Act of 2013.
http://www.ncga.state.nc.us/Sessions/2013/Bills/Senate/HTML/S473v3.html (accessed August 10, 2018).

41. Thomas H. Gallagher, Amy D. Waterman, Alison G. Ebers, Victoria J. Fraser, and Wendy Levinson, “Patients’ and Physicians’ Attitudes Regarding the Disclosure of Medical Errors,” Journal of the American Medical Association, 289 (2003): 1001–1007.
https://jamanetwork.com/journals/jama/fullarticle/196045 (accessed August 11, 2018).

42. 42 CFR § 482.

43. Natalie L. Birkelien, “A Strategic Framework for Improving the Patient Experience in Hospitals,” Journal of Health Care Management, 62 (July/August 2017) at p. 257.

44. Alex Chadwick, “Is Bureaucracy to Blame for Walter Reed Shame?” NPR.org (March 5, 2007).
https://www.npr.org/templates/story/story.php?storyId=7713650 (accessed August 10, 2018).

45. Jim Parsons, “Demolition Marks Turning Point for Decommissioned Hospital Site,” ENR MidAtlantic (October 2, 2017).
https://www.enr.com/articles/42877-demolition-marks-turning-point-for-decommissioned-hospital-site (accessed August 10, 2018).

46. The Joint Commission, 2018 Comprehensive Accreditation Manual for Hospitals, at RI-1.

47. Tricia Torrey, “Your Responsibilities As a Patient,” VeryWell Health (May 20, 2018).
https://www.verywellhealth.com/patients-responsibilities-2615386 (accessed August 11, 2018).

48. “Maintaining a Medication List in the Medical Record,”

MagMutual.com.

https://www.magmutual.com/maintaining-medication-list-medical-record (accessed August 11, 2018).

49.
Fall v. White, 449 N.E.2d 628 (Ind. Ct. App. 1983).

50.
Marsingill v. O’Malley, 58 P.3d 495 (2002).

51. Jenny L. Donovan, “Patient Decision Making: The Missing Ingredient in Compliance Research,” International Journal of Technology, 11 (Summer 1995): 433–455.
https://www.cambridge.org/core/journals/international-journal-of-technology-assessment-in-health-care/article/patient-decision-making-the-missing-ingredient-in-compliance-research/BA587A5553FB54EAFF9237FDB93602CC (accessed August 11, 2018).

52.
Young v. Gastro-Intestinal Center, Inc., No. 04-595 (Ark. 2005).

53. Tom A. Augello, “Diagnostic Failures Prompt Referral Changes,” CRICO (January 1, 2009).
https://www.rmf.harvard.edu/Clinician-Resources/Article/2009/Diagnostic-Failures-Prompt-Referral-Changes.

54. Pamela Wible, “What I’ve Learned from My Tally of 757 Doctor Suicides,” The Washington Post (January 13, 2018).
https://www.washingtonpost.com/national/health-science/what-ive-learned-from-my-tally-of-757-doctor-suicides/2018/01/12/b0ea9126-eb50-11e7-9f92-10a2203f6c8d_story.html?utm_term=.ca851dd290af (accessed August 11, 2018).

55.
Ibid.

56. President’s Advisory Commission on Consumer Protection and Quality in the Health Care Industry. “Chapter 8: Consumer Bill of Rights and Responsibilities,” in Consumer Responsibilities (July 17, 1998).
https://archive.ahrq.gov/hcqual/ (accessed August 11, 2018).

57. Natalie L. Birkelien, “A Strategic Framework for Improving the Patient Experience in Hospitals,” Journal of Healthcare Management 62 (July/August 2017): 250–259.

CHAPTER 15

Summary Case: Search for Truth

“There is nothing,” says Plato, “so delightful as the hearing or the speaking of truth”—for this reason there is no conversation so agreeable as that of the man of integrity, who hears without any intention to betray, and speaks without any intention to deceive.

—Thomas Sherlock

LEARNING OBJECTIVES

Upon completion of this chapter, the reader will be able to:

Explain how the spoken word may not always clearly describe the intent of the message.

Describe how values are intertwined in the communication process and how they can be instrumental in changing the course of one’s journey through life.

INTRODUCTION

To laugh often and love much; to win the respect of intelligent persons and the affection of children; to earn the approbation of honest citizens and endure the betrayal of false friends; to appreciate beauty; to find the best in others; to give of one’s self; to leave the world a bit better, whether by a healthy child, a garden patch or a redeemed social condition; to have played and laughed with enthusiasm and sung with exultation; to know even one life has breathed easier because you have lived—this is to have succeeded.

—Bessie Anderson Stanley

The Pillars of Moral Strength describes how virtues and values, or lack thereof, shape each individual’s moral character. What is it that sets each individual apart one from another? In the final analysis, it is the degree and worth a person assigns to the virtues, the values and the sacrifice he or she is willing to make to be the person he or she aspires to be. If we do not possess the courage to do what is right, all other virtues begin to crumble, and our lives lose purpose. The virtues and values listed on the pillars of moral strength described in Chapter 1 are not merely words, but they do define who we are, who we become.

The following case has been adapted from a true-life event. It is presented here to provide the reader with a better understanding of communications, human conflict, and the real world of working relationships. This closet drama is intriguing in that it arises out of the complex and diversified affairs of humanity.

My words fly up, my thoughts remain below: Words without thoughts never to heaven go.

—William Shakespeare

Communication is the exchange of thoughts, messages, or information through speech, signals, writing, or behavior. It is the art and technique of using words effectively to impart information or ideas. The process of communication includes both verbal and nonverbal messages. Communication requires a sender, a message, and an intended recipient, the receiver.

Communications can be transmitted verbally through words, which are the tools of thought. The more words you thoroughly understand, the more effectively you can articulate your thoughts and ideas to other people. The sender of information can also transmit a message through body language, posture, gestures, facial expressions, and eye contact. Clothing styles, hairstyles, and tone of voice are forms of nonverbal communication.
Nonverbal communication
has been called the silent language and plays a key role in the day-to-day communications process. During face-to-face communication, body language and the tone of one’s voice play a significant communications role, and they may have greater impact on the listener than the intended content of the spoken words.

Both managers and employees tend to perceive each new experience as reinforcing preconceived notions and biases and, at the same time, screen out those things that do not strengthen their ideas or individual conceptions of the real world. There is a tendency to make value judgments from one’s own perspective and to evaluate all new knowledge according to its positive or negative impact on preconceived beliefs.

The sender’s personal filters and the receiver’s personal filters may vary based on different religious beliefs, cultures, regional traditions, gender, race, and more—all of which may alter the intended meaning of the message. Barriers to effective communication include
noise interferences: (1) environmental (e.g., disruption of communication by a barking dog); (2) physiological impairment (e.g., deafness, blindness, pain); (3) semantic (e.g., “coke” could refer to coal, cocaine, or a beverage); (4) syntactical (e.g., mistakes in grammar); (5) organizational (e.g., corporate policies on grievance procedures that differ from the employee handbooks); (6) cultural (e.g., stereotyping the followers of a particular religion because of extremists); and (7) psychological (e.g., stress, fear, anger, or sadness that may cause someone to lose focus in the moment and thus distort effective communications). A person’s personal beliefs, lack of motivation, personality conflicts, and resistance to change often prevent the parties to a conversation from effectively communicating with one another.

For communication between two people to be effective, each person must recognize and seek to overcome barriers that prevent it. It should be remembered that with each new person added to a conversation, the barriers to effective communications become more complex.

The chart in

FIGURE 15-1

is helpful in understanding the communications process that unfolds in the following case drama. Healthcare professionals, regardless of their field of training, will undoubtedly face similar issues during their career. This drama ends with a variety of thought-provoking questions.

CASE: CODE OF SILENCE

Characters

Athens Medical Center (AMC):

Ms. Ophelia Cicero: AMC, survey coordinator and tour guide

Inspection/Survey Team:

Mr. Daniel Marcus: Administrative survey reviewer

Mr. Damon Antonio: Nurse reviewer

Ms. Margaret Galeria: Nurse trainee

Dr. Machiavelli: Physician reviewer

Magistrate and Counselors (Advisers):

Magistrate: Hearing officer

Counselor Hadrian: Counsel representing Marcus

Counselor Luke: Counsel representing Dr. Machiavelli and Antonio

Health Review Council (HRC):

Responsible for surveying (inspecting) and evaluating the patient quality of care.

Mr. Bruce Verus: Marcus’s manager

Ms. Carol Titus: Mr. Verus’s manager

Settings

Rome: Marcus’s hometown

Courtroom of the Chief Magistrate: Site of the hearing in Athens

Pelopidas Street Inn: Hotel where the reviewers lodged

Background

Marcus worked for the Health Review Council (HRC), whose mission was to review the quality of patient care in healthcare settings from Maine to California—Alaska to Puerto Rico. He traveled much of the time, writing, consulting, educating, and reviewing the quality of care rendered to patients. His travels took him to hundreds of health centers in villages and cities. In order to have some semblance of family life, he stayed at various inns during his travels. He sacrificed family life to serve a call and a mission to help improve the quality of patient care by encouraging each health center to set higher standards and to practice state-of-the-art medicine—to fly with eagles. Marcus encouraged caregivers to dare to dream, to become possibility optimists and not impossibility pessimists.

Marcus collected numerous practices from the centers he visited, sharing them throughout his travels. He spent 15 years traveling, reviewing patient care centers, and organizing the information that he had gathered solely to share that information with his colleagues, the HRC’s leadership as well as the health centers he visited. He encouraged the brightest and best to freely share best practices for improving the health of the people. His belief was that healthcare organizations should provide such information freely to all healthcare providers. Discovering Marcus’s work in collecting and sharing best practices, HRC eventually strategized a way to monetize those practices through subscription fees to the organizations it surveyed. Eventually, Marcus discovered a way to prod HRC to provide the information freely to the healthcare providers.

As politics began to change in Rome and Athens with the appointment of new and inexperienced members to the HRC, Marcus watched as leadership turned back the clock by implementing decisions long abandoned by the previous leadership. He struggled in making a decision to leave his position, where he was certain he made an enduring difference. Marcus, however, decided to pursue his passion for writing. He describes here the defining moments that led him at the end of the day to give notice to the HRC of his decision to leave, a fortuitous decision for him. Those defining moments that led to Marcus’s ultimate decision to leave his employment with the HRC followed a long and mysterious flow of events, some of which were revealed during a hearing before the chief magistrate in Athens, where the drama begins and ends.

Events of Sunday, October 2

[Counselor Hadrian prepares to question Mr. Antonio regarding his October 2 arrival at the Pelopidas Street Inn in Athens.]

Magistrate: Counselor Hadrian, you may proceed with your questioning.

Counselor Hadrian: Magistrate, for the record, this complaint was filed on behalf of Marcus, who was withdrawn from his review of the AMC on Pelopidas Street in Athens.

Magistrate: Counselor Hadrian, you may proceed.

Counselor Hadrian: I would like to call Mr. Antonio to the stand.

Magistrate: So granted.

[Counselor Hadrian calls Mr. Antonio to the witness stand.]

Counselor Hadrian: Could you please state your full name?

Mr. Antonio: Damon.

Counselor Hadrian: Who is your employer?

Mr. Antonio: The Health Review Council.

Counselor Hadrian: Where is the council located?

Mr. Antonio: Washington, DC.

Counselor Hadrian: What is your position with the council?

Mr. Antonio: I am a nurse reviewer.

Counselor Hadrian: Could you describe what you do as a nurse reviewer for the HRC?

Mr. Antonio: I review the quality of patient care provided to patients in various healthcare sittings.

Counselor Hadrian: Mr. Antonio, could you describe to the magistrate what can happen to a center if it should fail to meet the required standards as predetermined by the HRC?

Mr. Antonio: It can lose its Medicaid and Medicare reimbursement funding.

Counselor Hadrian: Do you review centers in a particular region of the United States?

Mr. Antonio: No, I am not assigned to any particular region of the country.

Counselor Hadrian: How long have you been reviewing health centers with the HRC?

Mr. Antonio: Approximately 7 years.

Counselor Hadrian: Are you aware of how many years Marcus was employed by the HRC?

Counselor Luke: Objection.

Magistrate: I will allow the question if he knows the answer.

[The magistrate, looking at Mr. Antonio.]

Magistrate: You may answer the question if you know the answer, Mr. Antonio.

Mr. Antonio: Over 16 years.

Counselor Hadrian: Prior to October 2, had you ever worked with Dr. Machiavelli?

Mr. Antonio: Yes, the previous week.

Counselor Hadrian: Do you know how long Dr. Machiavelli had worked for the Health Review Council at that time?

Counselor Luke: Objection.

Magistrate: Again, I will allow the question if he knows the answer.

[The magistrate looks at Mr. Antonio.]

Magistrate: You may answer the question if you know the answer, Mr. Antonio.

Mr. Antonio: A year and a half.

Counselor Hadrian: Who was assigned as team leader during that review?

Mr. Antonio: I was.

Counselor Hadrian: Did you inspect AMC with Dr. Machiavelli and Marcus?

Mr. Antonio: Yes.

Counselor Hadrian: Do you know who was assigned to lead that team?

Mr. Antonio: Yes, it was Dr. Machiavelli.

Counselor Hadrian: Based on his length of service, do you believe it was logical to appoint Dr. Machiavelli as team leader?

Mr. Antonio: Well, it didn’t make sense. I thought it was strange.

Counselor Luke: Objection, Magistrate. He can’t speak to that decision.

Magistrate: Objection sustained. That will be stricken from the record. Counselor Hadrian, you may call a witness who can address that issue at a later time. You may proceed with your questioning.

Counselor Hadrian: Do you recall the dates of that review?

Mr. Antonio: No.

Counselor Hadrian: Would an itinerary from that trip refresh your recollection?

Mr. Antonio: Yes.

Counselor Hadrian: Magistrate, I would like to approach Mr. Antonio with what has been labeled Exhibit A, the October assignment sheet for Marcus.

Magistrate: You may proceed.

[Counselor Hadrian hands Exhibit A to Mr. Antonio.]

Counselor Hadrian: Do you recognize this document?

Mr. Antonio: Yes.

Counselor Hadrian: What do you recognize Exhibit A to be?

Mr. Antonio: The October assignment sheet for Marcus.

Counselor Hadrian: Looking at Exhibit A, is it a fair and accurate representation of the health center to which you were assigned to work?

Mr. Antonio: Yes.

Counselor Hadrian: Does this refresh your recollection as to your work assignment?

Mr. Antonio: Yes, it does.

Counselor Hadrian: What were the dates of your assignment in Athens?

Mr. Antonio: October 3 through 7.

Counselor Hadrian: What health center were you assigned to review?

Mr. Antonio: AMC on Pelopidas Street.

Counselor Hadrian: Does Marcus’s itinerary reflect which health reviewers were assigned to review the AMC on Pelopidas Street?

Mr. Antonio: Yes. It does.

Counselor Hadrian: Could you read the names and titles of those health reviewers listed on the assignment sheet?

Mr. Antonio: Yes, Mr. Marcus, administrator reviewer. Dr. Machiavelli, physician reviewer. Damon, nurse reviewer. Ms. Galeria, nurse review trainee.

Counselor Hadrian: Were the individuals listed on Marcus’s assignment sheet present during the week that you reviewed patient care at the AMC?

Mr. Antonio: Yes, they were.

Counselor Hadrian: Can you tell the magistrate where you stayed in Athens?

Mr. Antonio: Yes, the Pelopidas Street Inn.

Counselor Hadrian: Is that on the same street where AMC is located?

Mr. Antonio: Yes, it is.

Counselor Hadrian: When did you arrive at the inn?

Mr. Antonio: On Sunday, October 2.

Counselor Hadrian: Do you recall what time of day you arrived?

Mr. Antonio: I don’t recall the time. I know it was in the afternoon.

Counselor Hadrian: Was it two o’clock or three o’clock?

Counselor Luke: I object, Mr. Antonio has already answered this question. He doesn’t know what time he arrived.

Magistrate: Objection sustained.

Counselor Hadrian: Upon your arrival at the inn, did you observe Marcus in the lobby area?

Mr. Antonio: Yes, I did. I had just exited the lobby elevator and he was sitting at a table.

Counselor Hadrian: What was he doing at the table?

Mr. Antonio: He was having a lunch, as I recall.

Counselor Hadrian: Did you have a conversation with him?

Mr. Antonio: Yes, I walked past the registration desk to greet him.

Counselor Hadrian: Do you recall that conversation?

Mr. Antonio: Yes.

Counselor Hadrian: Could you describe your conversation with Marcus?

Mr. Antonio: I said, “Marcus, I haven’t seen you in a long time. How are you doing?”

Counselor Hadrian: And what, if anything, was his response?

Mr. Antonio: He said he was doing well and asked how I was.

Counselor Hadrian: Was there any further conversation?

Mr. Antonio: Yes. I asked about how his wife was feeling.

Counselor Hadrian: Why did you ask about his wife?

Mr. Antonio: She had some medical problems.

Counselor Hadrian: And what was his response?

Mr. Antonio: As I recall, he said she was doing fine.

Counselor Hadrian: Was there a time during your conversation with Marcus when you asked him if he knew or had ever reviewed health centers with Dr. Machiavelli?

Mr. Antonio: Yes, I asked him if he knew or ever worked with Dr. Machiavelli.

Counselor Hadrian: Had you ever worked with Marcus before?

Mr. Antonio: Yes.

Counselor Hadrian: Did you enjoy working with Marcus?

Counselor Luke: I object to the question, Your Honor. I see no relevance for asking this question.

[The magistrate hesitating for a moment and then looking toward Counselor Hadrian.]

Gossip May Put an Evil Eye on People

“Gossip changes the way we view people, but it also changes the way we literally see a person,” said Lisa Barrett, … a psychology professor at Northeastern University, in an interview. “Gossip reaches all the way down into our visual system.”

—Christian Torres,
The Washington Post, June 6, 2011

1

Magistrate: Counselor Hadrian?

Counselor Hadrian: Your Honor, I will establish the relevance of that question as I continue my questioning.

Magistrate: I will allow the question. Mr. Antonio, you may respond.

Mr. Antonio: Yes, I enjoyed working with him.

Counselor Hadrian: What, if anything else, did you say?

Mr. Antonio: I don’t recall.

Counselor Hadrian: Let me refresh your recollection. Do you recall saying that Dr. Machiavelli was a physician health reviewer?

Mr. Antonio: Yes, I did say that.

Counselor Hadrian: Do you recall saying Dr. Machiavelli was a retired admiral?

Mr. Antonio: Yes, I did say that.

Counselor Hadrian: Were you ever in the military?

Mr. Antonio: Yes, I was. Well, actually, I am now in the Air Force Reserves.

Counselor Hadrian: And what is your rank?

Mr. Antonio: Captain.

Counselor Hadrian: Since you were rushing to check in, why was this information so important?

Mr. Antonio: Well, I was trying to establish if Marcus knew Dr. Machiavelli.

Counselor Hadrian: What was Marcus’s response?

Mr. Antonio: Excuse me, what is the question?

Counselor Hadrian: What was Marcus’s response to your question as to whether or not he knew Dr. Machiavelli?

Mr. Antonio: He said that he did not recall ever meeting him.

Counselor Hadrian: Did he say anything else?

Mr. Antonio: Yes, he asked me why I had asked that question.

Counselor Hadrian: Did you answer his question?

Mr. Antonio: No.

Counselor Hadrian: And why did you not answer his question?

Mr. Antonio: I told him that I had just worked with Dr. Machiavelli the previous week and that I would like to know his impression of him at the end of the AMC review.

Counselor Hadrian: What role did you play in your previous health center review with Dr. Machiavelli?

Mr. Antonio: I was the team leader in charge of the overall review.

Counselor Hadrian: You stated that you had just worked with Dr. Machiavelli, is that correct?

Mr. Antonio: Yes.

Counselor Hadrian: And you are referring to the week prior to the AMC review?

Mr. Antonio: Yes.

Counselor Hadrian: Was there any other conversation that you recall from this brief encounter with Marcus?

Mr. Antonio: No, not to my recollection.

Counselor Hadrian: So, your conversation was somewhat short, is that correct?

Mr. Antonio: Yes, it was.

Counselor Hadrian: So, was it less than, or more than, 5 minutes in length?

Counselor Luke: I object, Your Honor. That question has already been answered.

Magistrate: I will allow the question. You may answer the question, Mr. Antonio.

Mr. Antonio: Less than 5 minutes.

Counselor Hadrian: Was it less than 4 minutes?

Counselor Luke: Again, I object, Your Honor. Mr. Antonio has already answered that question.

Magistrate: Objection sustained.

Counselor Hadrian: So, Mr. Antonio. We have established that you spoke to Marcus for less than 5 minutes. You asked how Marcus he was doing. Is that right?

Mr. Antonio: Yes.

Counselor Hadrian: You had not seen Marcus in a long time, yet you spent your brief moments asking Marcus to provide you with his opinion about Dr. Machiavelli. Is that correct?

Counselor Luke: I object, Your Honor; that question has already been answered.

Magistrate: Objection overruled. I will allow the witness to answer.

Mr. Antonio: Well, uh, my previous survey had just ended, and I was curious to see how Marcus would view Dr. Machiavelli’s survey style.

Counselor Hadrian: So, did you yourself or any other team member have an issue with his survey style?

Counselor Luke: I object, Your Honor.

Magistrate: Objection sustained. You may proceed, Counselor.

Counselor Hadrian: So, you were happy to see that Marcus was on the review?

Mr. Antonio: Yes.

Counselor Hadrian: And why was that?

Mr. Antonio: I had worked with him before. He has always been pleasant to work with, and I enjoyed his professional stature, survey knowledge and experience, as well as his sense of humor.

Counselor Hadrian: Did you meet up with Marcus later that day to discuss old times, anything?

Mr. Antonio: No, I did not.

Counselor Hadrian: So, you had not seen Marcus in some time, you always enjoyed surveying with him, and yet you did not meet with him later in the day. And, your third question was to ascertain his impression of Dr. Machiavelli at the end of the survey review. Is that correct?

Mr. Antonio: Yes, I guess, about the third question.

Counselor Hadrian: Did you have any other questions at that time?

Mr. Antonio: No, I just told him I had to check in.

Counselor Hadrian: Is it safe to assume that if your previous survey went well you would be delighted to tell Marcus about your experience, while conducting that survey?

Counselor Luke: I object, Your Honor. That question has already been answered.

Magistrate: I will allow the question. You may answer the question, Mr. Antonio.

Mr. Antonio: Well, I felt he had sort of a military style of reviewing. It seemed as though he thought he had some sort of right to be in charge when I had worked with him the previous week.

Counselor Hadrian: But he was not the team leader. Is that correct?

Mr. Antonio: That is correct.

Counselor Hadrian: You were the team leader at that survey. Is that correct?

Mr. Antonio: Yes, and I think he resented that.

Counselor Hadrian: And why do you believe he resented that?

Mr. Antonio: Partially because I was at a lower rank and in a different branch of the military. Also, I was thinking that he was having difficulty in adapting to civilian life.

Counselor Hadrian: So, on the week we are talking about here, Dr. Machiavelli is now the team leader? Is that correct?

Mr. Antonio: Yes.

Counselor Hadrian: Were you concerned about Dr. Machiavelli being in charge?

Mr. Antonio: Yes, well, sort of.

Counselor Hadrian: Was Marcus a friend?

Mr. Antonio: Well, yes, I guess you could say that.

Counselor Hadrian: A good friend?

Counselor Luke: Magistrate, I object. The question has been asked and answered.

Magistrate: I will allow the question. Counselor Hadrian, you may proceed.

Counselor Hadrian: Did you consider Marcus a trusted colleague with whom you enjoyed working?

Mr. Antonio: Yes, I did.

Counselor Hadrian: And, to your knowledge, he thought the same of you?

Mr. Antonio: Yes.

Counselor Hadrian: Yet you foresaw there might be problems on this review?

Counselor Luke: Magistrate, I object to the form of the question.

Magistrate: Your objection is overruled. Counselor Hadrian, you may proceed with your questioning.

Counselor Hadrian: Mr. Antonio, you stated that you and Marcus had a good working relationship, yet you failed to warn your friend of a possible problem ahead during this review. Is that correct?

Counselor Luke: Magistrate, I object.

Magistrate: I will allow the question.

Mr. Antonio: Could you repeat the question?

Counselor Hadrian: I am still trying to understand what was so important in asking Marcus, whom you had not seen in a long time, to give you his opinion of Dr. Machiavelli, a coworker who Marcus had not previously met at the end of the hospital review? It sounds as though you lost control of that review and forfeited your leadership role to Dr. Machiavelli at the time. Is that correct?

Counselor Luke: Magistrate, I object. Counselor Hadrian is badgering my client.

Magistrate: Objection sustained. Counselor Hadrian, do you wish to reword that question?

Counselor Hadrian: No. I have no further questions at this time, but reserve the right to recall Mr. Antonio to the witness stand.

Magistrate: Granted. We will take a short recess.

[Counselor Hadrian questions Marcus regarding Day 3 of the AMC review.]

Counselor Hadrian: Before we proceed, could you please verify if the testimony previously provided by Mr. Antonio is, to your recollection, fair and accurate?

Marcus: Yes, it was.

Counselor Hadrian: Thank you. Could you please describe for the magistrate what occurred on the afternoon of Wednesday, October 5?

Marcus: Yes, I can. I would like to refer to my notes.

Counselor Hadrian: Magistrate, I would like to place into evidence the notes that Marcus is going to refer to as he describes what occurred on the afternoon of Wednesday, October 5.

Magistrate: You may proceed.

Counselor Hadrian: Marcus, how long have you been working for the Health Review Council?

Marcus: Approximately 15 years.

Counselor Hadrian: Could you please describe for the magistrate what occurred on the afternoon of Wednesday, October 5?

Marcus: Yes, I can. At approximately 12:50 p.m., Dr. Machiavelli asked what activity I had planned to review for the afternoon.

Counselor Hadrian: And what did you say?

Marcus: I said, since none of the reviewers asked for a complex medical case, I was planning to ask the health center’s staff for such a case to review.

Counselor Hadrian: What, if anything else, did you say to Dr. Machiavelli at that time?

Marcus: I asked if that was okay with him.

Counselor Hadrian: And what did he say?

Marcus: He said, “That sounds like a good idea.”

Counselor Hadrian: Then what happened?

Marcus: Ophelia Cicero, the survey coordinator and my AMC guide, opened the door to the room where I had just finished eating lunch with my colleagues. She entered the room and inquired if I had a particular patient care case in mind that I would like to review.

Counselor Hadrian: And what did you say?

Marcus: I said yes, and suggested a complex medical case.

Counselor Hadrian: What is the responsibility of the health center guide?

Marcus: The guide is responsible for leading me to each patient care area. Ophelia also had a scribe with her who was assigned to take notes on all conversations.

Counselor Hadrian: Did Ms. Cicero locate the type of case you requested?

Marcus: Yes, Ophelia said that she had such a case. She escorted me to the patient care unit where the patient had been admitted.

Counselor Hadrian: Did you review the patient’s record?

Marcus: Yes, the charge nurse searched for the patient’s record that I planned to review and brought it to me.

Counselor Hadrian: Is that part of the patient care review process?

Marcus: Yes, it is.

Counselor Hadrian: Then what happened?

Marcus: I was introduced to the staff nurse assigned to care for the patient.

Counselor Hadrian: Then what happened?

Marcus: The staff nurse reviewed the record with me.

Counselor Hadrian: What questions, if any, did you ask her?

Marcus: I asked her for some preliminary information about the patient, which included the patient’s age and diagnosis.

Counselor Hadrian: How did the nurse respond?

Marcus: She answered my questions, providing me with the patient’s admitting information, results of diagnostic tests, and medical problems.

Counselor Hadrian: Did you ask any other questions?

Marcus: Yes. While reviewing the patient’s lab results, I noticed that some tests were out of the normal range. I asked whether any of the patient’s lab results helped to identify the patient’s medical conditions.

Counselor Hadrian: So that is part of the Health Review Council’s expectations of you?

Marcus: Yes, it is.

Counselor Hadrian: What was the nurse’s response?

Marcus: A bit nervous, she said that she could not answer my questions as to how the abnormal lab results were being addressed. A nurse manager in the room where I was reviewing the patient’s record asked if I would like to speak to Dr. Caesar, the patient’s physician.

Counselor Hadrian: What was your response?

Marcus: I said, sure, provided he is available and not too busy caring for other patients.

Counselor Hadrian: Then what happened?

Marcus: Dr. Caesar was summoned. Upon entering the room, he stood inside the doorway, at which time I introduced myself. He appeared somewhat disturbed that he had been interrupted in his work.

Counselor Hadrian: In your opinion, why do you believe Dr. Caesar was disturbed?

Counselor Luke: Objection, Magistrate. I see no relevance to this question. It is mere speculation as to why the physician was disturbed.

Magistrate: I will allow the question. Marcus, you may proceed with your response.

Marcus: It is normal, in general, for physicians to be anxious when questioned by a reviewer from the HRC. Reviewers are not always the highlight of a physician’s or any other caregiver’s day. To be questioned about a patient’s care can be intimidating.

Counselor Hadrian: Then what happened?

Marcus: Well, he introduced himself and he asked what questions I had, and what kind of physician I was.

Counselor Hadrian: What was your response?

Marcus: I stated that I was not a physician and that I just had a few questions about the care of his patient.

Counselor Hadrian: What questions did you ask?

Marcus: I asked Dr. Caesar if the patient’s lab results revealed any other disease processes that needed to be addressed than what the patient was admitted for.

Counselor Hadrian: What was his response?

Marcus: He said that he was there only to treat the patient’s immediate needs and not all of the patient’s complex medical problems.

Counselor Hadrian: Then what happened?

Marcus: I let the remaining questions pass and asked if it would be okay if I visited with his patient.

Counselor Hadrian: What did he say?

Marcus: He said that would be fine and started to leave the room.

Counselor Hadrian: Then what happened?

Marcus: I asked Dr. Caesar if he would first ask the patient if it would be okay for me to interview him.

Counselor Hadrian: And how did Dr. Caesar respond?

Marcus: He said, “That’s not necessary.”

Counselor Hadrian: Then what happened?

Marcus: He quickly left the conference room and walked down the hallway to the patient’s room.

Counselor Hadrian: Did you follow Dr. Caesar down the hallway?

Marcus: Yes, I did. The scribe who recorded her observations of the review followed us.

Counselor Hadrian: Did you follow Dr. Caesar into the patient’s room?

Marcus: No, I waited for him to return to the hallway.

Counselor Hadrian: Then what happened?

Marcus: Dr. Caesar returned and said, “I had to awaken the patient. She is willing to talk with to you.”

Counselor Hadrian: Then what happened?

Marcus: I entered the patient’s room and walked toward the patient’s bed. Dr. Caesar stood with his back to the wall facing the patient’s bed. The scribe had also followed me into the room and stood by Dr. Caesar, taking notes.

Counselor Hadrian: Then what happened?

Marcus: Dr. Caesar asked me if I wanted him to leave. I said he was welcome to stay if he wished.

Counselor Hadrian: Did he remain in the room?

Marcus: Yes, and I began to introduce myself to the patient. As I began to introduce myself, the patient interrupted, “I know who you are.” I asked, “How do you know?” She said with a smile, “My husband is a nurse. He works here. He told me you might be coming.”

Counselor Hadrian: Then what happened?

Marcus: I said that I had only a few questions that I would like to ask her. She said okay. I asked about her care at AMC. She stated that she was receiving excellent care. After some discussion about her care, the patient repeated that she was getting very good care at the hospital.

Counselor Hadrian: Then what happened?

Marcus: I thanked her for her time and for speaking to me. I began to leave the patient’s room, at which time Dr. Caesar said he would like to say something.

Counselor Hadrian: And what did you reply?

Marcus: I said that would be fine.

Counselor Hadrian: What did Dr. Caesar say?

Marcus: He began to describe to the patient her disease process in such way as to provide her with little hope to survive. I was shocked and bewildered by his comments. I looked at the patient, observing that she was traumatized and saddened.

Counselor Hadrian: Then what happened?

Marcus: I said, “You will be okay.”

Counselor Hadrian: Why were you bewildered?

Marcus: The patient had been under Dr. Caesar’s care in the hospital for 2 weeks. I was perplexed as to why Dr. Caesar would turn a benign interview into a hostile approach as to the patient’s unfortunate prognosis. The timing of that statement was inappropriate and added nothing to the interview but more stress for the patient.

Counselor Hadrian: Were you telling the patient that she would be okay clinically?

Marcus: No, I was not referring to her clinical condition. I was responding to the emotional status of the patient at the time.

Counselor Hadrian: Then what happened?

Marcus: I thanked the patient again and left the room.

Counselor Hadrian: Then what happened?

Marcus: Dr. Caesar quickly followed me to the doorway, somewhat agitated, and said, “Don’t you ever tell my patients they will be okay.”

Counselor Hadrian: Please continue.

Marcus: A nurse asked if we could move the conversation down the hall, away from the patient’s doorway, at which time Dr. Caesar asked me again, “What kind of physician are you?”

Counselor Hadrian: So, he had asked you this question on several occasions: “What kind of physician are you?”

Marcus: Yes, and I restated that I was not a physician. I attempted to calm him down, extended my hand, and thanked him for his time.

Counselor Hadrian: Did he shake your hand?

Marcus: Yes, he did. I guess I caught him off guard when I extended my hand. I don’t think he was expecting that.

Counselor Hadrian: Then what happened?

Marcus: He turned suddenly and walked away.

Counselor Hadrian: Were any nurses listening to you during the time you were in the hallway with Dr. Caesar?

Marcus: Yes, the scribe was taking notes, and the unit’s nurse manager was present. She said that this was unusual behavior by Dr. Caesar.

Counselor Hadrian: Then what happened?

Marcus: At that point, Ophelia had arrived and led me back up the hallway, with the scribe following closely behind. As we walked down the hall Ophelia asked what had happened, and I described the scene to her. Ophelia then asked the scribe, “Why didn’t you intervene? I knew from the minute Dr. Caesar entered the chart review room he was going to be a problem. I should have stayed with you, Marcus. I would never have let him get away with that. But while you were reviewing the chart, I was called to another unit where he had had a problem with a staff nurse earlier in the day.”

Counselor Hadrian: Did the scribe respond to Ms. Cicero?

Marcus: Yes, she said that she didn’t think she needed to get involved.

Counselor Hadrian: Did the scribe say anything else to you?

Marcus: Yes, she later asked me if I thought she should have intervened.

Counselor Hadrian: And what did you say to her?

Marcus: I told her no, and that if she intervened it might have inflamed the situation. She had to work at AMC after I left, and I didn’t think she needed a poor working relationship with Dr. Caesar.

Counselor Hadrian: Do you now regret, in retrospect, her not intervening?

Counselor Luke: Magistrate, I strongly object. We are talking about what happened, not what Marcus wishes had occurred.

Magistrate: Objection sustained. Counselor Hadrian, do you have any further questions at this time?

Counselor Hadrian: Not at this time, but I will most likely recall Marcus to the witness stand.

Magistrate: I understand. We will take a short break at this time. Counselor Luke and Counselor Hadrian, I would like to see you in my chambers.

Events of Thursday Morning, October 6

The most striking contradiction of our civilization is the fundamental reverence for truth, which we profess and the thorough-going disregard for it, which we practice.

—Vilhjalmur Stefansson

[Magistrate hearing continues with Counselor Hadrian questioning Mr. Antonio.]

Counselor Hadrian: Did you know if Marcus had ever previously reviewed patient care at AMC?

Mr. Antonio: To my knowledge, he had not.

Counselor Hadrian: Did Marcus ever say to you if he knew any employee on the staff of AMC?

Mr. Antonio: No, he did not.

Counselor Hadrian: Did you and your colleagues brief the AMC’s leadership each morning on your previous day’s findings?

Mr. Antonio: Yes, we did.

Counselor Hadrian: What is the purpose of briefings?

Mr. Antonio: The reviewers describe to the health center’s leadership the previous day’s observations, possible written citations, as well as opportunities for improving patient care.

Counselor Hadrian: Do you recall the substance of Marcus’s report on Thursday morning, which would be the beginning of the fourth day of your review of AMC?

Mr. Antonio: I don’t recall.

Counselor Hadrian: Do you recall if he was complimentary in his observations on the previous day’s activities?

Mr. Antonio: I am sure he was, yes. But I don’t recall the specifics. As with all the reviews that I worked on with Marcus, he was sensitive to recognizing the good things he observed. We all did that.

Counselor Hadrian: How much time is generally allotted to each health reviewer to present at the morning briefings?

Mr. Antonio: Generally, 10 minutes.

Counselor Hadrian: Is that time set in stone?

Mr. Antonio: No, it is not.

Counselor Hadrian: Did the reviewers stick to the time allotted?

Mr. Antonio: No.

Counselor Hadrian: Did you stick to your time limit?

Mr. Antonio: Not always.

Counselor Hadrian: Did Dr. Machiavelli stick to his time limit?

Mr. Antonio: Not always. He had a habit of going off on tangents and yet criticized others for doing so.

Counselor Hadrian: So, there were days that you stuck to your schedule and there were days that you did not. Is that correct?

Mr. Antonio: Yes, that is correct.

Counselor Hadrian: And why didn’t you always stick to your time allotment?

Mr. Antonio: It depended on the number of observations I had to report.

Counselor Hadrian: Were there any other factors as to why a reviewer may have gone over his or her allotted time to present his or her report?

Mr. Antonio: Yes, it depended on how many times Dr. Machiavelli interrupted to add something in an attempt to clarify or relate a personal experience to emphasize what information a reviewer was relaying.

Counselor Hadrian: In your experience, have you ever observed a health reviewer say, “I pass” and say nothing more?

Mr. Antonio: No.

Counselor Hadrian: So, reviewers generally have something to say?

Mr. Antonio: Yes, most health reviewers have something to say.

Counselor Hadrian: Do you recall Marcus reporting on a physician’s disruptive behavior Thursday morning, October 6th?

Mr. Antonio: Yes, that I do remember.

Counselor Hadrian: Do you recall the physician’s name?

Mr. Antonio: Yes, I do.

Counselor Hadrian: And what was his name?

Mr. Antonio: Dr. Caesar.

Counselor Hadrian: Could you summarize what Marcus reported? Question withdrawn. Mr. Antonio, can you describe what events occurred that ultimately resulted in Marcus reporting the disruptive behavior of Dr. Caesar to the hospital’s leadership that morning?

Counselor Luke: Objection. Counsel has not established the physician was disruptive.

Magistrate: Objection sustained.

Counselor Hadrian: Let me reword that. Can you describe what Marcus reported at the Thursday morning leadership briefing?

Mr. Antonio: He reviewed with us what he observed during a review of a patient’s care on Wednesday the 6th.

Counselor Hadrian: Is reviewing a patient’s care part of the review inspection process?

Mr. Antonio: Yes, it is.

Counselor Hadrian: So, you would say that reviewing a patient’s care is a fairly important aspect of the review process?

Mr. Antonio: Yes, very much so.

Counselor Hadrian: Would you say that Marcus was within his right to review the patient’s case?

Mr. Antonio: Yes, that is the main purpose of our reviews. That’s what we are trained to do.

Counselor Hadrian: Could you describe the kinds of activities that occur during a case review?

Mr. Antonio: Yes. The reviewer selects a case for review. Staff members who participate in the patient’s care are interviewed. In complex medical cases the staff will often refer to the patient’s medical record in order to more accurately respond to the reviewers’ questions. If the staff experiences difficulty in answering the questions, the patient’s physician, if available, would be asked to help in answering the reviewers’ questions.

Counselor Hadrian: Do you recall if Marcus talked about his conversation with Dr. Caesar?

Mr. Antonio: Yes, he did. He described Dr. Caesar’s unprofessional conduct during the interview with both himself and the patient.

Counselor Hadrian: In what way was Dr. Caesar unprofessional to Marcus?

Mr. Antonio: Following Marcus’s interview with the patient, Dr. Caesar told him not to ever tell any of his patients that they would be okay.

Counselor Hadrian: In order to save time here, have you read the transcript of Marcus’s testimony?

Mr. Antonio: Yes.

Counselor Hadrian: Is Marcus’s description of what occurred on Wednesday afternoon in the patient’s room a fair and accurate representation of what he reported on Thursday morning to the AMC leadership?

Mr. Antonio: Yes, it is accurate to my recollection.

Counselor Hadrian: When this incident began to unfold, do you recall who Marcus reported was in the patient’s room with him?

Mr. Antonio: Yes, there was Marcus, Dr. Caesar, the patient, and the scribe.

Counselor Hadrian: Why did, if you know, Marcus report the incident with Dr. Caesar on Thursday morning?

Mr. Antonio: He was concerned this might be a pattern with Dr. Caesar, but he said perhaps he’d just had a bad day or had been very busy. If there was a pattern of bad behavior in his record, it needed to be addressed.

Counselor Hadrian: Did you see Ms. Cicero, during the Thursday morning briefing, lean toward Marcus and whisper something to him?

Mr. Antonio: Yes.

Counselor Hadrian: Did you ever learn what Ms. Cicero said?

Mr. Antonio. Yes, at Thursday’s luncheon. Marcus told the nurse trainee and myself.

Counselor Hadrian: And what did he say?

Mr. Antonio: He said she whispered, “Good job. Your presentation was fair and well balanced.”

Counselor Hadrian: And what did you think of her comments?

Mr. Antonio: I just told Marcus she was right.

Counselor Hadrian: Meaning?

Mr. Antonio: That Marcus was very diplomatic in his approach to a delicate matter. He really left it up to the AMC’s leadership to determine how to handle the matter. He could have reported the incident to the Health Review Council but chose a more diplomatic route.

Counselor Hadrian: If Marcus had reported the incident to a council manager, what do you think the manager would have said to him?

Mr. Antonio: “Good job, Marcus. I am pleased that you presented this incident at the leadership meeting. This way it cannot be swept under a rug.”

Counselor Hadrian: Interesting comment, Mr. Antonio. Do you think certain leaders in an organization would do such a thing?

Counselor Luke: Objection, Counselor Hadrian is asking an opinion about organizations in general.

Magistrate: Objection sustained. Counselor Hadrian, please stick to the facts of this case before me.

[Counselor Hadrian acknowledges the magistrate’s admonition.]

Counselor Hadrian: Do you believe that one often gets an answer to a question by the way he or she words or asks a question?

Mr. Antonio: Yes, I do.

Counselor Hadrian: Do you believe that the tone in one’s voice and the way a question is presented will influence the listener?

Mr. Antonio: Yes.

Counselor Hadrian: So, the listener could draw the conclusion he or she wanted or thought was intended?

Mr. Antonio: Yes.

Counselor Hadrian: So, if Dr. Machiavelli had reported Marcus’s encounter with Dr. Caesar to the HRC, the response he received from the council might have been different than if Marcus reported this incident, or let’s say, even you?

Mr. Antonio: Yes, of course. I first of all saw no reason for Dr. Machiavelli to have, well, to be blunt, to have gotten involved and offer his two cents.

Counselor Hadrian: If you had reported Marcus’s encounter with Dr. Caesar to the council, based on your previous reviews with Dr. Machiavelli, do you think you might have presented the incident differently than he would have?

[Mr. Antonio hesitates for a time that seems like forever, and the magistrate waits patiently for an answer.]

Mr. Antonio: Yes, I do. Everyone is different.

Counselor Hadrian: Do you recall if Marcus spent an inordinate amount of time reporting on his encounter with Dr. Caesar?

Mr. Antonio: No, he had a long report but presented it within a reasonable amount of time.

Counselor Hadrian: Do you think Dr. Machiavelli would agree with you?

Mr. Antonio: No.

Counselor Hadrian: And why is that?

Mr. Antonio: It was just an observation. Well, he did comment later that the morning briefings had to be shortened.

Counselor Hadrian: As the reviewers presented their reports that morning, were there ever interruptions by Dr. Machiavelli?

Mr. Antonio: Yes, he generally had a few of his own personal stories that he added to the conversation.

Counselor Hadrian: Had he interrupted your report and made further comments?

Mr. Antonio: Yes, on several occasions that morning.

Counselor Hadrian: Did he interrupt Marcus on Thursday morning?

Mr. Antonio: Not as I recall.

Counselor Hadrian: Do you recall Dr. Machiavelli being uneasy and fidgeting in his chair as Marcus presented his report?

[Mr. Antonio again hesitates. The magistrate appears uneasy and ready for a break.]

Magistrate: Mr. Antonio, could you please answer the question?

Mr. Antonio: Yes, I do recall that Dr. Machiavelli was uneasy, actually a bit rude in his facial expressions.

Counselor Hadrian: Where were you sitting at the time Marcus presented his report?

Mr. Antonio: I was sitting at the head of the table with Ms. Galeria and other members of the organization’s leadership.

Counselor Hadrian: So you could actually see Dr. Machiavelli’s facial expressions, let’s say, in a face-to-face manner?

Mr. Antonio: That is correct.

Counselor Hadrian: Are you aware if anyone else in the AMC’s leadership observed Dr. Machiavelli’s mannerisms?

Mr. Antonio: Yes. The table was oval in shape and I could easily see that the leadership must have been wondering why Dr. Machiavelli seemed so disengaged with Marcus.

Counselor Hadrian: So you were actually sitting where the organization’s leadership could observe Dr. Machiavelli’s behavior?

Counselor Luke: Objection, this question has already been answered.

Magistrate: Objection overruled. Mr. Antonio, you may proceed with your answer.

Mr. Antonio: Yes, I was.

Counselor Hadrian: Did Ms. Galeria also note his behavior?

Mr. Antonio: Yes.

Counselor Hadrian: Are you aware as to whether or not Marcus was distracted by his behavior?

Mr. Antonio: I believe so, but I noticed he tried not to look in the direction where Dr. Machiavelli was seated. Actually, I’m sure it must have been distracting to him. I know it was distracting to me.

Counselor Hadrian: Did Marcus mention to you whether or not the AMC’s leadership had noted Dr. Machiavelli’s behavior?

Mr. Antonio: Yes, according to Marcus, Ophelia said, “Dr. Machiavelli appeared to be somewhat disengaged with you. He didn’t do this with any of the other reviewers.”

Counselor Hadrian: So, Marcus pretty much felt the same way?

Mr. Antonio: Yes, he remarked that he had never met Dr. Machiavelli and could not understand his behavior.

Counselor Hadrian: Do you agree that Dr. Machiavelli’s behavior was out of line in that setting?

Mr. Antonio: Yes, without question.

Counselor Hadrian: Magistrate, I have no further questions at this time.

Events of Thursday Luncheon, October 6

[After a short recess, Counselor Hadrian recalls Mr. Antonio to the witness stand.]

Counselor Hadrian: Returning to that afternoon luncheon on Thursday, where did you have lunch?

Mr. Antonio: In the AMC’s library.

Counselor Hadrian: Did there come a time at lunch that Marcus again asked why you had asked him for his impression of Dr. Machiavelli at the end of the survey?

Mr. Antonio: Yes.

Counselor Hadrian: Was Dr. Machiavelli in the room when this conversation took place?

Mr. Antonio: No.

Counselor Hadrian: Do you know where he was?

Mr. Antonio: I am not sure. He had left the room. I think he went to speak to the CEO.

Counselor Hadrian: Did you answer Marcus’s question?

Mr. Antonio: I told Marcus I did not want to get in the middle of this.

Counselor Hadrian: Mr. Antonio, reflecting back to Sunday in the Pelopidas Street Inn, don’t you think you already placed yourself in the middle?

Counselor Luke: Objection.

Magistrate: I will allow the question. You can answer the question, Mr. Antonio.

Mr. Antonio: Well, uh, well, I didn’t think this would happen.

Counselor Hadrian: What did you expect to happen? Dr. Machiavelli would give Marcus a hard time?

Mr. Antonio: Well, I didn’t expect it to go this far.

Counselor Hadrian: Far? What do you mean?

Mr. Antonio: Well, Dr. Machiavelli had a bit of, uh, uh …

Counselor Hadrian: Uh, uh, what?

Mr. Antonio: I just didn’t think Dr. Machiavelli would be so hard on Marcus.

Counselor Hadrian: I see. So, it sounds like he gave you some problems during a previous review?

[Mr. Antonio hesitates as the magistrate stares at him. Even the magistrate guards seem mesmerized by the hearing. Counselor Hadrian, getting impatient, asks the question again.]

Counselor Hadrian: Mr. Antonio, could you please answer the question?

Mr. Antonio: Could you please repeat the question?

Counselor Hadrian: Did you have a previous encounter with Dr. Machiavelli at a previous health center review?

Mr. Antonio: Well, yes, I did.

Counselor Hadrian: And you are referring to the health center review that took place the week prior to the one that was being conducted at AMC?

Mr. Antonio: Yes, I am.

Counselor Hadrian: Were you happy or unhappy with Dr. Machiavelli’s behavior at that review, that is, the review prior to the AMC review?

Mr. Antonio: I was not totally happy.

Counselor Hadrian: So, again, you chose to allow Marcus to walk into the minefield?

Counselor Luke: I object to this line of questioning.

Magistrate: Objection …

[Before the magistrate can say “sustained” or “overruled,” Counselor Hadrian breaks in.]

Counselor Hadrian: I withdraw my question.

Magistrate: Withdrawal noted. You may proceed.

Counselor Hadrian: And now that Dr. Machiavelli was in charge of the review at AMC, you thought his style would match his name and that he might have met his match in Marcus. Is that right?

Counselor Luke: Objection, he is leading the witness.

Magistrate: Objection sustained.

Counselor Hadrian: What, if anything else, did Marcus say to you about you being placed in the middle of something?

Mr. Antonio: He just kept asking me, in the middle of what? He was trying to prod an answer out of me.

Counselor Hadrian: And you refused to give an answer. Is that correct?

Mr. Antonio: Yes.

Counselor Hadrian: Did he say anything else that you recall?

Mr. Antonio: Uh, no, uh, I mean I don’t recall.

Counselor Hadrian: Did he refresh your memory?

Mr. Antonio: What do you mean?

Counselor Hadrian: Going back to your conversation with Marcus on the first day in the inn lobby, did he ask again at lunch on Thursday why you wanted to know what he thought of Dr. Machiavelli on the last day of the Athens review?

Mr. Antonio: Yes, he did.

Counselor Hadrian: And you replied you would tell him on Friday at the end of the Athens review. Is that correct?

Mr. Antonio: Yes.

Counselor Hadrian: So, previously, on the record, Marcus said he never met Dr. Machiavelli. Is that correct?

Mr. Antonio: Yes.

Counselor Hadrian: So, you knew that there was something Marcus should know, but you sort of let him walk into the middle of a minefield and find out for himself. And you call yourself his friend. Is that correct?

Counselor Luke: Magistrate, I have already objected to this question!

Magistrate: I will allow the question. I believe I see where Counselor Hadrian is leading, and we need to hear it. You may answer the question, Mr. Antonio.

Mr. Antonio: Well, I wouldn’t put it that way.

Counselor Hadrian: How would you put it?

Counselor Luke: I object.

Magistrate: Objection overruled. You may answer the question.

Mr. Antonio: I just did not want to get involved. I did not expect Dr. Machiavelli would be so rude to Marcus.

Counselor Hadrian: What else did Marcus say during that luncheon?

Mr. Antonio: He said Dr. Machiavelli was not responsive to him except that Dr. Machiavelli shifted around in his chair with inappropriate body language during the morning sessions when he presented his daily report to the Athens leadership. He said, “I don’t even know him. Why is he doing that?”

Counselor Hadrian: Do you recall anything else that Marcus might have said regarding Machiavelli’s body language?

Mr. Antonio: No.

Counselor Hadrian: Let me refresh your memory. Do you recall Marcus saying to you and Ms. Galeria that the Athens staff sensed that Dr. Machiavelli appeared to be disengaged with him the morning he made his reports and that Dr. Machiavelli did not do this with any of the other health reviewers?

Mr. Antonio: Yes, I believe I answered that before. I recall that.

Counselor Hadrian: Do you recall if anyone else was present in the room during this conversation?

Mr. Antonio: Yes, as you just said, Ms. Galeria, the nurse trainee.

Counselor Hadrian: Did she participate in this conversation?

Mr. Antonio: No.

Counselor Hadrian: Magistrate, I may wish to call Ms. Galeria to the witness stand at a later date.

Magistrate: Understood.

Counselor Hadrian: Before we proceed, do you recall if, earlier during the Thursday luncheon, Marcus gave you some sort of CD?

Mr. Antonio: Yes, he did.

Counselor Hadrian: In general, do you recall what was contained on that disc?

Mr. Antonio: Yes, Marcus had collected thousands of pages of best practices over the years that he shared with reviewers and the health centers he reviewed.

Counselor Hadrian: Could you describe for the magistrate why Marcus collected and distributed those practices?

Mr. Antonio: Yes, I think so. It was sort of a mission with him to share best practices so that healthcare organizations did not have to waste valuable time “reinventing the wheel.” He believed that human resources should be used wisely, and if organizations were willing to share with one another, everyone benefited.

Counselor Hadrian: Are you aware of anyone else in your career who has embarked on such a project?

Mr. Antonio: No, I am not. Marcus is the only reviewer that I am aware of.

Counselor Hadrian: Since, as you well know, Marcus is no longer with the HRC, has it come to your attention that the council is now sharing such or similar information freely, sort of borrowing the idea from Marcus?

Mr. Antonio: Yes, I am aware that this has occurred.

Counselor Hadrian: About this disc, did Marcus provide you with any specific instructions as to with whom it should or should not be shared?

Mr. Antonio: Yes.

Counselor Hadrian: What was his request?

Mr. Antonio: He requested that we use these disc files for personal reference. He asked that they not be shared with others at this time. He was in the process of editing them and wanted to share a copy with us.

Counselor Hadrian: Did you agree to his request?

Mr. Antonio: Yes, I did.

Counselor Hadrian: Are you aware that Ms. Galeria received a copy of the disc?

Mr. Antonio: Yes.

Counselor Hadrian: Did she agree to Marcus’s request?

Mr. Antonio: Yes, she did. We both agreed.

Counselor Hadrian: Do you recall shortly after the AMC review that a member of the HRC used certain files from that disc during a conference call with all of your colleagues in Rome to improve the quality of the conference call?

Mr. Antonio: Yes, I recall that; however, I did not provide a copy to anyone at the council.

Counselor Hadrian: Was Marcus credited with providing that information in any way?

Mr. Antonio: No, he was not. Not that I am aware of.

Counselor Hadrian: Do you know who provided the disc to the leadership at the HRC?

Mr. Antonio: No, I am not aware of how the council obtained a copy of the disc.

Counselor Hadrian: Did the information on this disc serve to improve your approach in conducting health center reviews?

Mr. Antonio: Yes, definitely.

Counselor Hadrian: Mr. Antonio, do you recall anything else that Marcus asked you at the Thursday lunch?

Mr. Antonio: No.

Counselor Hadrian: Let me refresh your memory. Did Marcus ask you again, and I quote: “Mr. Antonio, you asked for my impression of Dr. Machiavelli on Sunday, before I ever met him, and now you don’t want to answer as to why you asked that question?”

Counselor Luke: I object; this question has been asked and answered many times over.

Counselor Hadrian: I am setting the background for my next question.

Magistrate: Objection overruled. Mr. Antonio, you may proceed.

Mr. Antonio: Yes, he did say that.

Counselor Hadrian: And how did you respond?

Mr. Antonio: I said I didn’t want to get in the middle of it. I suggested that he sit down with Dr. Machiavelli and talk to him.

Counselor Hadrian: And what did Marcus say?

Mr. Antonio: He said, the middle of what? He said he’d tried on several occasions to speak to Dr. Machiavelli, but he was nonresponsive.

Counselor Hadrian: Did Marcus relate to you his attempts at conversation with Dr. Machiavelli in an elevator at the Pelopidas Street Inn?

Mr. Antonio: Yes, he said that his last attempt to have a casual conversation with Dr. Machiavelli was on the elevator on Tuesday evening at the inn after that day’s review.

Counselor Hadrian: And did Marcus describe how Dr. Machiavelli responded?

Mr. Antonio: He said that Dr. Machiavelli failed to respond and that he got off on a floor just below his, walked away, never said good night, never acknowledged that he, Marcus, was in the elevator. He said that Dr. Machiavelli just got off the elevator and walked away, with the elevator doors closing behind him.

Counselor Hadrian: In other words, he ignored Marcus’s attempt at any conversation?

Counselor Luke: Objection, Your Honor—he is leading the witness.

Magistrate: Objection sustained.

Counselor Hadrian: Does Dr. Machiavelli appear to have a hearing problem that you are aware of?

Mr. Antonio: Oh no, quite the opposite.

Counselor Hadrian: Could you describe the size of that elevator?

Counselor Luke: I object, Your Honor. I see no relevance to this line of questioning.

Magistrate: Let us see where this is going. Overruled. Mr. Antonio, you may answer the question.

Mr. Antonio: It was small. Six people, and it would have been crowded.

Counselor Hadrian: So, even if Dr. Machiavelli was hard of hearing, he most likely heard Marcus’s comment.

Mr. Antonio: Yes.

Events of Thursday Late Afternoon, October 6

The withholding of truth is sometimes a worse deception than a direct misstatement. There is an idiom in truth which falsehood never can imitate.

—Lord Napier

[Counselor Hadrian recalls Mr. Antonio to the witness stand to testify regarding events of late afternoon on Thursday, October 6. Counselor Hadrian’s first questions of Mr. Antonio at this time have to do with Marcus having just finished the fourth day of his 5-day review in Athens and returning to the conference room assigned by the AMC as home base for the health reviewers. Both the morning briefings with AMC leadership and the afternoon debriefings with the reviewers were being held there. But as Marcus headed back to the conference room shortly before that evening’s debriefing, he observed his colleagues Mr. Antonio and Ms. Galeria scurry past him, avoiding eye contact, as if they just wanted to get out of AMC. Marcus thought that was strange, and he supposed that there must not be an afternoon debriefing after all.]

Counselor Hadrian: Mr. Antonio, following lunch on Thursday, did you again see Marcus before leaving AMC?

Mr. Antonio: Yes.

Counselor Hadrian: And when was that?

Mr. Antonio: I saw him at the end of the day.

Counselor Hadrian: And where were you when you saw him?

Mr. Antonio: I had just left the conference room where we normally met for our afternoon exit briefing.

Counselor Hadrian: And who was with you?

Mr. Antonio: Ms. Galeria.

Counselor Hadrian: Did you and Ms. Galeria leave together without Marcus?

Mr. Antonio: Yes.

Counselor Hadrian: With whom did you leave at the end of the day to return to the Pelopidas Street Inn on Monday, Tuesday, and Wednesday?

Mr. Antonio: We all left together.

Counselor Hadrian: Who are “we”?

Mr. Antonio: The nurse trainee, Marcus, Dr. Machiavelli, and myself.

Counselor Hadrian: So you and Ms. Galeria left on Thursday without Marcus and Dr. Machiavelli?

Mr. Antonio: Yes.

Counselor Hadrian: And why was that?

Counselor Luke: Magistrate, I object. I fail to see any relevance to this question.

Magistrate: Overruled. You may answer the question.

Mr. Antonio: Dr. Machiavelli said he talked to Mr. Verus and they planned a conference call with Marcus.

Marcus: Who is Mr. Verus?

Mr. Antonio: He is Marcus’s manager at the HRC home office.

Counselor Hadrian: So, you generally meet as a team at the end of each day to debrief and review the team’s findings?

Mr. Antonio: Yes.

Counselor Hadrian: On Thursday, October 6, you did not have such a meeting?

Mr. Antonio: No.

Counselor Hadrian: Ah, so you walked past Marcus on Thursday with Ms. Galeria, and you saw Marcus coming toward the two of you. Is that correct?

Mr. Antonio: Yes.

Counselor Hadrian: And were you in the hallway when you spotted him, or someplace else?

Mr. Antonio: We were in an office area when we passed him in a small aisle between desks.

Counselor Hadrian: Did he ask where you were going?

Mr. Antonio: I don’t recall.

Counselor Hadrian: And you never acknowledged that you saw him. Is that correct?

Mr. Antonio: Well, what could I say?

Counselor Hadrian: I am asking the questions. You are to answer them. Magistrate, could you please instruct the witness as to protocol.

Magistrate: Mr. Antonio, answer the questions. I don’t want a cat-and-mouse game before me.

Mr. Antonio: I did not acknowledge him.

Counselor Hadrian: How far apart were you when you walked by him?

Mr. Antonio: A few feet.

Counselor Hadrian: Did you make eye contact with him?

Mr. Antonio: No, I did not.

Counselor Hadrian: But you knew he was walking in your direction?

Mr. Antonio: Yes. I knew he was walking towards me.

Counselor Hadrian: So, you knew that a confrontation was awaiting Marcus when he met up with Dr. Machiavelli?

Counselor Luke: Objection.

Magistrate: Overruled. Please continue, Counselor.

Counselor Hadrian: You knew Marcus was about to be ambushed when he walked into the conference room.

Mr. Antonio: Uh—

Counselor Luke: Objection, Your Honor.

Magistrate: Objection sustained. Counselor Hadrian, please tone down your question a few notches.

Counselor Hadrian: Were you aware that Dr. Machiavelli was waiting for Marcus to return from his day’s activities?

Mr. Antonio: Yes, I was.

Counselor Hadrian: And what else did you know?

Mr. Antonio: That Mr. Verus maneuvered to have Marcus removed from the review.

Counselor Hadrian: Maneuvered?

Mr. Antonio: Oh, uh, I mean planned.

Counselor Hadrian: So, you knew that your “friend” was going to be facing an early removal from the review. Is that correct?

Mr. Antonio: Yes, I did.

Counselor Hadrian: You considered Marcus your friend earlier in the week. Are you still friends?

Mr. Antonio: I assume so.

Counselor Hadrian: Do you think your assumption is accurate?

Counselor Luke: Objection, the question has been asked and answered.

Magistrate: Objection sustained.

Counselor Hadrian: So, who held the higher military rank, you or Dr. Machiavelli?

Mr. Antonio: Dr. Machiavelli.

Counselor Hadrian: Mr. Antonio, were you intimidated by Dr. Machiavelli because of his rank?

[Mr. Antonio was in fact intimidated, but he does not wish to reveal that to the magistrate.]

Mr. Antonio: No.

Counselor Hadrian: Let me reword that question. Because of Dr. Machiavelli’s previous service as an admiral, do you believe you failed to respond to Marcus when he kept asking you why you wanted his opinion of Dr. Machiavelli? Did you feel like you were in the middle, like you were between a rock and a hard place?

Counselor Luke: Objection.

Magistrate: What is the basis for your objection?

Counselor Luke: Objection withdrawn.

Magistrate: Mr. Antonio, you may answer the question.

Mr. Antonio: Well, yes. He had a higher rank—substantially higher rank.

Counselor Hadrian: I have no more questions at this time.

Events of Thursday Evening, October 6

[Marcus is recalled to the witness stand.]

Counselor Hadrian: When you arrived back to the conference room, how did Dr. Machiavelli greet you?

Marcus: There was no greeting, really. He just said, “Follow me. We have to go to another room for a conference call with Mr. Verus. We can’t make a conference call from the phone in this room.”

Counselor Hadrian: Then what happened?

Marcus: I asked, “What conference call?”

Counselor Hadrian: How did Dr. Machiavelli respond to your question?

Marcus: He disregarded the question.

Counselor Hadrian: Then what happened?

Marcus: We walked into a small conference room, probably 9 feet by 11 feet, that had a small, circular conference table with four chairs around it and a telephone in the middle.

Counselor Hadrian: Then what happened?

Marcus: Dr. Machiavelli placed a phone call to Mr. Verus, who was sitting in his office waiting.

Counselor Hadrian: Who is Mr. Verus?

Marcus: Mr. Verus is my supervisor at the council office.

Counselor Hadrian: You may continue.

Marcus: Mr. Verus stated that he was removing me the from the AMC review until he conducted an investigation.

Counselor Hadrian: Did he ever explain to you what he was investigating?

Marcus: No, he did not. I asked if it had something to do with me reporting Dr. Caesar’s behavior.

Counselor Hadrian: What was his response?

Marcus: He just reiterated that he had to conduct some sort of investigation. I assumed it had to do with my reporting Dr. Caesar at the Thursday morning briefing with the Athens leadership.

Counselor Hadrian: Did not answer your question?

Marcus: No, he did not give an answer. Basically, he said he was my manager, end of story. I think he needed time to make up something from whole cloth.

Counselor Hadrian: What do you mean by
whole cloth?

Marcus: He had to fabricate an answer; he did not have a clear answer ready. He had to come up with something.

Counselor Hadrian: Do you know if Mr. Verus was an officer in the military?

Marcus: Yes, he was.

Counselor Hadrian: What branch of the service was he in?

Marcus: He was in the Army.

Counselor Hadrian: Did he have a higher rank than Dr. Machiavelli?

Marcus: No, he did not. He was a captain.

Counselor Hadrian: Did you ask any other questions as to why you were being removed from this review?

Marcus: Yes, I asked Mr. Verus why I would be removed from a review at the end of the fourth day of a 5-day survey, especially in light of the fact that the fifth day was truly only a half-day of reviewing and one half-day having lunch and preparing the final report.

Counselor Hadrian: And what did he say?

Marcus: He said he is the supervisor, and that it is his decision.

Counselor Hadrian: Did Mr. Verus describe how he was going to go about his investigation?

Marcus: He said that he wanted to talk to the CEO, but she had gone on vacation after the review. He said that, after her return from vacation, he would get back to me within 2 weeks.

Counselor Hadrian: Did Mr. Verus get back to you?

Marcus: No, he did not. As a matter of fact, I learned later from Ophelia that the CEO at AMC had resigned her position as CEO. I assume that is one of the reasons she was said to be on vacation.

Counselor Hadrian: Do you doubt that Mr. Verus actually ever spoke to the CEO?

Marcus: Yes, I have my doubts. But then, I don’t know. There is no written record of any discussion that I am aware of.

Counselor Hadrian: Did he tell you why he wanted to talk to the CEO?

Marcus: No, he did not.

Counselor Hadrian: How did you learn that the CEO resigned?

Marcus: Ophelia Cicero, my guide at AMC, related this information to me after I had returned home.

Counselor Hadrian: Did Ms. Cicero contact you, or did you contact her?

Marcus: She e-mailed me on my corporate e-mail and asked that I call her. She said that she preferred not to communicate through e-mail.

Counselor Hadrian: Did she include a telephone number in the e-mail?

Marcus: Yes, she provided me with her direct line at AMC, as well as her cell phone number.

Counselor Hadrian: Do you have any notes of that telephone conversation?

Marcus: Yes.

[Counselor Hadrian speaks to the magistrate.]

Counselor Hadrian: Magistrate, I would like to show these papers to the witness.

Magistrate: Request granted.

Counselor Hadrian: Do you recognize these papers?

Marcus: Yes.

Counselor Hadrian: What do you recognize them to be?

Marcus: These are the notes I took during the phone conversation I had with Ophelia.

Counselor Hadrian: Magistrate, I would like to have these notes marked as Exhibit B and have Marcus read them into the record.

[The following notes are read by Marcus and entered into the record.]

Notes of the Conversation with Ophelia

Marcus, first of all, I want to thank you. I want you to know it was a pleasure to work with you. You have a wonderful way of putting people at ease and of politely gleaning information from them. You were able to determine from your questions the quality of care we offer here at the Athens Health Center. When I think of the book If Disney Ran Your Hospital
and the fact that you went over and beyond in customer service … I saw that in you. I have a report somewhere here on my desk from staff feedback and how well you related to them—you should see it. I am off to a meeting right now, but I will share it with you later.

Your presentation regarding Dr. Caesar was fair and well balanced during the Thursday morning session.

The team leader was less than polite to you. He was disengaged with you, but he did not act this way with the other health reviewers. Other staff members commented on this behavior.

On Friday morning I was told you would not be back. Dr. Machiavelli never mentioned a thing about you or why you were not there. Health reviewers were coming and going all week, so I don’t think anyone thought anything about it. I was very disturbed about the whole thing. If anybody asks me, you will get a good report.

A Mind Is a Terrible Thing to Change

A politician may be able to survive cavorting with prostitutes, sexting with coeds and comingling with interns, but heaven forbid he should change his mind—the transgression that trumps all compassion.

Or thinking.

After all, thinking can lead to that most dangerous territory for a politician—doubt—and, inevitably, the implication that dare not be expressed: “I could be wrong.”

—Kathleen Parker,
The Washington Post, June 12, 2011

2

Events of December 27–29 Educational Conference

[Counselor Hadrian continues to question Marcus regarding his early dismissal from participating in the review at the AMC by Mr. Verus, who claimed he wanted to investigate Marcus’s encounter with Dr. Caesar. This seems to be a typical shoot-the-messenger investigation.]

Counselor Hadrian: Did there come a time when you approached Mr. Verus and asked him for the results of his investigation?

Marcus: Yes, I did, at noon on the first day of the annual training conference, December 27–29.

Counselor Hadrian: Up until that time, did you have any feedback from Mr. Verus as to the results of his investigation?

Marcus: No, I did not. That’s why I decided to contact him at the conference.

Counselor Hadrian: Did you ever provide information as to what occurred at the AMC to Mr. Verus prior to the conference?

Marcus: Yes, I did.

Counselor Hadrian: In what form did you relate that information?

Marcus: I relayed the information in the form of several memoranda to Mr. Verus on the date of my encounters with Dr. Caesar, Health Care Council reviewers, and AMC staff.

Counselor Hadrian: Could you explain to the magistrate why you wrote memoranda to Mr. Verus the day he removed you from the AMC review?

Marcus: I wanted to get across the facts of my experience with Dr. Caesar and not depend on recollection at a later date, which turned out to be
much later. I simply did not wish to be accused of making up a story.

Counselor Hadrian: During the investigation, did you ever meet your accusers in the same room, in the presence of Mr. Verus or any other leadership member, to ask them questions?

Marcus: No.

Counselor Hadrian: How would you describe the investigation?

Marcus: It was somewhat amorphous.

Counselor Hadrian: So you would suggest that it was trumped up?

Counselor Luke: Objection, Counselor Hadrian is leading the witness.

Magistrate: Objection sustained.

Counselor Hadrian: So when you saw Mr. Verus at the December educational conference, what was the essence of your conversation?

Marcus: I told Mr. Verus that his mysterious investigation had gone on for several months and that I would like to know what was going on.

Counselor Hadrian: And what did he say?

Marcus: He said, “You’re right, I should have gotten back to you sooner. Well, let’s see—I’ve got a half-hour slot for you on the 29th at 3:00.”

Counselor Hadrian: How did you respond?

Marcus: I asked for more time and an earlier meeting, but he said he was too busy and didn’t have time for me.

Counselor Hadrian: So, repeat for the record, please. On what day of the conference was this that you spoke with Mr. Verus about wanting to meet with him concerning the investigation?

Marcus: It was on December 27, at noon, on the first day of the conference.

Counselor Hadrian: So you eventually did meet with Mr. Verus.

Marcus: Yes.

Counselor Hadrian: Where did he meet with you?

Marcus: He met me in a small conference room at the hotel.

Counselor Hadrian: Was he alone?

Marcus: No, his manager, Ms. Titus, was also there.

Counselor Hadrian: Why was Ms. Titus there?

Marcus: I am not sure, other than to provide Mr. Verus support. She added nothing to the discussion.

Counselor Hadrian: What happened at this half-hour meeting?

Marcus: Mr. Verus provided me with a five-page document that he wanted me to sign. It appeared to have been hastily written during the conference.

Counselor Hadrian: So Mr. Verus gave you 30 minutes to sign a five-page document. Is that correct?

Marcus: Yes.

Counselor Hadrian (handing the document to Marcus): Is this the document he wanted you to read, digest, and sign in less than 30 minutes?

Marcus: Yes.

Counselor Hadrian: Magistrate, I would like to mark this document into evidence as Exhibit C.

Magistrate: So ordered.

Counselor Hadrian: Marcus, could you read the contents of Exhibit C?

Marcus: Yes.

[Marcus reads Exhibit C into the record.]

Counselor Hadrian: As you read from Exhibit C, you recommended that the hospital purchase a car wash to help pay for a dental clinic. What is that about?

Marcus: Some physicians, nurses, and myself were brainstorming ideas on how to prevent the pediatric dental clinic at AMC from closing due to the lack of funding.

Counselor Hadrian: So, these five pages sound as though someone was pulling snippets of communications out of context and placing his or her spin on the communications that you were having with staff at the hospital. Is that correct?

Counselor Luke: Objection, he is leading the witness.

Magistrate: I will allow the question. Marcus, you may answer the question.

Marcus: Yes, that is correct. He said that I had to sign the document before returning to work. I said, “This was supposed to have been a review of your investigation, but instead, I am handed a five-page document and told I have to sign it here and now.”

Counselor Hadrian: Then what happened?

Marcus: I said, “I need more time to review what you have written here.” He then asked how much time I needed, and I said 21 days to prepare a response.

Counselor Hadrian: Then what happened?

Marcus: I noticed that his supervisor, Ms. Titus, who had claimed she was there just to observe, shook her head “no” at Mr. Verus. He then said to me, “Can you get back to me by Friday?”

Counselor Hadrian: Then what happened?

Marcus: I said it was already Wednesday afternoon and that I needed at least the weekend. He looked over at Ms. Titus again, and she gave him a reluctant nod okay.

Counselor Hadrian: The document also notes that you suggested holding a car wash. For clarification purposes, could you explain in more detail why you suggested a car wash?

Counselor Luke: Objection, this has nothing to do with this hearing.

Magistrate: Objection overruled. Since it was important enough to place in the five-page report, it is important enough to discuss. You may continue, Marcus.

Marcus: We were talking about fundraising in one of the AMC’s clinics, as I recall. They were concerned that they might have to close it due to lack of funds, and we got into a discussion of how to save the clinic. I said that, in life, there is something everybody can do in order to fund healthcare projects. When I reviewed health centers, I would often say that all age groups and people from all walks of life have something to offer. For example, kids could organize car washes, nursing home patients could knit sweaters for selling in gift shops, and there are so many other things that people could do to raise funds. It was an example of what can be done when you’re considering closing programs that benefit the community. The statement was taken out of context, and honestly, Dr. Machiavelli and friends didn’t understand that.

Counselor Hadrian: I have no more questions for Marcus at this time. I would like to call Dr. Caesar to the witness stand.

Magistrate: We will take a 15-minute break. Counselors, I would like to speak with you in my chambers.

[Following the break, the magistrate and counselors return to the hearing. Counselor Hadrian questions Dr. Caesar about one of his patients whose care was reviewed by Marcus.]

Magistrate: Counselor Hadrian, you may continue.

Counselor Hadrian: At some point, were you told that Marcus was reviewing a case of yours?

Dr. Caesar: Yes, I was.

Counselor Hadrian: Do you recall who told you?

Dr. Caesar: One of the staff nurses.

Counselor Hadrian: Were you invited by the nurse to attend the review?

Dr. Caesar. Yes, I was.

Counselor Hadrian: Did you go to the conference room?

Dr. Caesar: Yes, I did.

Counselor Hadrian: Did Marcus at any time introduce himself to you as a physician?

Dr. Caesar: No, he did not.

Counselor Hadrian: Did there come a time when Marcus asked about the care of one of your patients?

Dr. Caesar: Yes, he did.

Counselor Hadrian: Did you object to his questions?

Dr. Caesar: No, I did not.

Counselor Hadrian: Were you aware that such questions are part of the process of reviewing the quality of health care at AMC?

Dr. Caesar: Yes, I was aware but not of the protocol as to how the reviewers could go about the process in only 5 days.

Counselor Hadrian: Are you more understanding now of what Marcus’s role was in this process?

Dr. Caesar: Yes, I am.

Counselor Hadrian: Did there come a time when Marcus asked to speak to one of your patients?

Dr. Caesar: Yes.

Counselor Hadrian: Did Marcus talk to your patient?

Dr. Caesar: Yes, he did.

Counselor Hadrian: What happened after he spoke to your patient?

Dr. Caesar: I asked if I could say something.

Counselor Hadrian: What did you say to the patient?

Dr. Caesar: I was blunt with the patient as to the serious nature of her prognosis.

Counselor Hadrian: How did the patient react?

Dr. Caesar: She started to break down and got teary-eyed.

Counselor Hadrian: Then what happened?

Dr. Caesar: Marcus told the patient that she would be okay.

Counselor Hadrian: Then what happened?

Dr. Caesar: I quickly followed Marcus out of the room, stopped him, and told him to never tell my patients that they would be okay.

Counselor Hadrian: Did there come a time when the nurse asked that you and Marcus step away from the entrance to the patient’s room?

Dr. Caesar: Yes, she did not want to upset the patient.

Counselor Hadrian: Why were you disturbed with Marcus?

Dr. Caesar: Well, I was upset that Marcus had said to my patient that she would be okay. But that was only because I thought he was speaking clinically about my patient.

Counselor Hadrian: So, you now understand that Marcus was not speaking as to your clinical skills or competence?

Dr. Caesar: That is correct.

Counselor Hadrian: So his departing words were … ?

Dr. Caesar: He thanked me for my time.

Counselor Hadrian: Did he extend his hand and say thank you?

Dr. Caesar: Yes, he did.

Counselor Hadrian: Did the nurses ever explain to you that Marcus was not a physician?

Dr. Caesar: Yes, they explained that to me the following day. Honestly, I can’t believe that this was taken to such an extreme. I thought it was over. I had no clue this was a continuing saga. I don’t understand why no one ever spoke to me. After all, it was just the two of us that spoke to one another.

Counselor Hadrian: Let’s back up a minute. Let me paraphrase here: you said that you were never aware that Marcus was being investigated because of this incident?

Dr. Caesar: I never knew there was an investigation. No one ever asked me any questions about our interactions, and I have since apologized to Marcus for my failure to recognize that he was not a physician and was merely getting a general picture of my patient’s satisfaction with her care.

Counselor Hadrian: Are you aware that Marcus resigned his position as a result of this incident, because of the wall of silence surrounding this mystery investigation?

Dr. Caesar: No, I was never aware that there was an investigation. I thought our interaction was over the day I left that unit. No one ever spoke to me.

Counselor Hadrian: Did Marcus ever contact you regarding the incident?

Dr. Caesar: Yes, he did.

Counselor Hadrian: Did you ever receive an e-mail, Dr. Caesar?

Dr. Caesar: Yes, I did.

Counselor Hadrian: Were there several e-mails back and forth between you and Marcus?

Dr. Caesar: Yes, there were several e-mails.

Counselor Hadrian (handing copies of the e-mails to Dr. Caesar): Are these the e-mails that were exchanged between you and Marcus?

Dr. Caesar: Yes, they are.

Counselor Hadrian: Magistrate, I would like to mark these e-mails into evidence as Exhibits D, E, and F.

Magistrate: So ordered. You may proceed.

Counselor Hadrian: The e-mails by date and time are as follows:

EXHIBIT D December 19 (8:24 a.m.)

Dr. Caesar:

As you may or may not know, as a result of your treatment of me during my survey at your hospital, I never again worked for the HRC. Isn’t it sad how you found it necessary to be so rude to me? I hope each time you look in the mirror that you always remember that day. I was never anything but polite toward you and compassionate toward your patient. I hope that someday you will find the strength to apologize. And as I said, I was not a doctor and was not judging your clinical skills. Why you kept asking if I was a doctor was a mystery to me. Maybe you had me mixed up with the HRC team leader, who was a physician. Even though I found you rude on that one occasion, I do wish you much success.

Sincerely,

Marcus

EXHIBIT E December 19 (10:15 a.m.)

Dear Marcus,

Thank you for contacting me. We have so many interactions in life, good and bad; although this case was obviously the latter, it is a rare opportunity to try to clear the air and, perhaps, for me to apologize. Based on what you wrote, that may not be possible, but I would like to try. If you would be willing to send me a phone number, I would like to talk to you about it. I will be watching my e-mail all day, and I offer to telephone you at any time you prefer.

Even though it has been a year, I remember you, that day, and my patient’s case very well. My patient struggled with a potentially life-threatening condition that had baffled many of my colleagues, and to add to it, she was the wife of a colleague of mine. At that time, we were uncertain if she would improve (the condition frequently leads to long-term disability and is associated with high mortality). The comment that I remember most clearly was to the effect of “Don’t worry, you will be okay.” I am paraphrasing, of course.

That’s a completely understandable and considerate thing to say to a sick person in the hospital. However, it would not be an appropriate comment coming from a physician (which I was told by a nurse on the floor that you were). That, along with your confident demeanor (an attribute) and your probing me with questions regarding different possible diagnoses (asked in a manner similar to my old attending physicians), increased my anxiety to the point that I assumed you were criticizing me as a physician. That’s when I snapped at you not to tell my patients they would be okay. To be honest, I would snap at any medical student or resident who made a remark like yours, and it would be justified, but what I said to you was certainly not.

Regardless of all that, I’m sorry, and if you would be so kind as to send a contact number, I will call you promptly.

Take care, and like your comment to me, I do wish you the very best,

Dr. Caesar

EXHIBIT F December 19 (11:28 a.m.)

Dear Dr. Caesar,

I truly was happy to see your quick response. It was important for me to let you know that I was never for a moment judging your clinical skills. I have always taken pride in working well with physicians. When I left my hospital as administrator in __________, both my physicians and nurses wore black armbands wanting me to stay. I have read about your successful career and just wanted you to know a little more about me and that I was not a gotcha-type administrator reviewer. I have always been an out-of-the-box-type guy seeing the tough world in which physicians must practice.

I would be eager to speak with you on a happier note. My home number is _____-_____-_____.

Again and again, I appreciate your nice comments.

Sincerely,

Marcus

Counselor Hadrian: So, Dr. Caesar, did there come a time that you called Marcus?

Dr. Caesar: Yes, the same day the e-mails were written.

Counselor Hadrian: Do you recall the substance of that conversation?

Dr. Caesar: Yes, I do.

Counselor Hadrian: Could you summarize it for the magistrate?

Dr. Caesar: Yes, I can. On the same day that Marcus and I corresponded through e-mails, I called Marcus and said, “You can have an interaction with someone for 10 minutes, and there are high stakes to be paid in those 10 minutes. I must tell you that 36 hours after you left, I never heard anything about our conversation regarding my patient. I am so sorry you went through all of this. Actually, we need people like you working in our medical societies. Our conversation just shows what can happen in a high-stakes environment. There are occasions, there are times, when I have interactions that are antithetical to why I went into medicine. If I learned anything in medicine, it is that life is short. Marcus, if you ever need a letter or anything else to clear this up, I will be happy to do anything I can.” That is close to what I told him, and like I said, I just can’t believe this has gone on for so long. No one ever talked to me. I can’t for the life of me believe that a reviewer was removed from a survey from doing his job. You know, I teach ethics, and I find this behavior totally unethical.

Counselor Hadrian: During your telephone conversation, did you ever ask Marcus if he wanted you to send a letter on his behalf?

Dr. Caesar: Yes, I did.

Counselor Hadrian: How did Marcus respond to your suggestion?

Dr. Caesar: He said that it was not necessary, and he thanked me for the offer.

Counselor Hadrian: Thank you, Dr. Caesar. Thank you. Magistrate, I would like to summarize at this point.

Magistrate: You may proceed.

Counselor Hadrian: In summary, there was no investigation that included Marcus, or Ms. Cicero, or Dr. Caesar. The notes of the scribe were never forthcoming and were apparently misplaced or destroyed. The positive feedback about Marcus from the staff at AMC to Ms. Cicero can no longer be located. There is no evidence of a written conversation between the CEO and Mr. Verus. The memo that was once offered to Marcus by Mr. Verus and was supposedly from the CEO was never provided. In fact, Ms. Titus claims that it never existed. The investigation, in my opinion, was completely fabricated, and a snowball started to roll downhill at the HRC. The new leadership apparently was brought into an incident that they were not willing to understand. They relied on staff managers who wished that Marcus would just disappear. They had to cover themselves. They made an unfortunate decision cloaked in a “code of silence.” The truth was made so convoluted by the old leadership that the new leadership had no clue what to do and could only rely on what was being rehearsed and presented to them. The old leadership had one mission, and that was, to protect what I consider their own frustrating incompetent behavior. It is unfortunate that the HRC’s leadership never admitted to their wrongdoing.
(Pause) Magistrate, this is a case of “don’t confuse me with facts.” I have no more questions.

Magistrate: Counselor Luke, do you have any witnesses or documents to bring forth?

Counselor Luke: No, I do not.

Magistrate: Counselor Hadrian, you may sum up your thoughts.

Counselor Hadrian: In summary, I will be brief as to the HRC’s handling of this case. The council’s practice of strict arbitrary rulings and secretive proceedings is unconscionable. An organization whose goal it is to help ensure the quality of health care throughout the nation has failed to ensure the rights of its own employees, in this case, Mr. Marcus. The council became confused and buried in its own morass of poor decision making. It lacked the ability to see the light of day. The council’s attitude,
I have already made up my mind. Don’t confuse me with the facts, is appalling. It is an indictment as to the trustworthiness of this organization’s leadership. I find in this case no good-faith attempt by the HRC to clear Marcus’s good name. It is a sad day when an organization fails to live up to its own supposed ethical standards.

Magistrate: Having listened to the testimony as to what occurred during this hearing, I need no further review, nor do I wish to waste our time here, for I have heard enough. I hereby strongly reprimand the leadership of the HRC for failing to ferret out the truth. Based on what I have heard, I do not believe the full truth will ever be heard. Furthermore, the real issue should have been related to the quality of care rendered to the patient, which HRC failed to address. Marcus was focused on patient care and not on a
car wash. This incident does not bode well for an organization whose mission is to determine compliance with standards that are designed to improve the quality of patient care.

To seek for the truth, for the sake of knowing the truth, is one of the noblest objects a man can live for.

—William Ralph Inge

Socrates—The Test Of Three

Keep this philosophy in mind the next time you hear or repeat a rumor.

In ancient Greece (469–399 BC), Socrates was widely lauded for his wisdom. One day the great philosopher came upon an acquaintance who ran up to him excitedly and said, “Socrates, do you know what I just heard about one of your students?”

“Wait a moment,” Socrates replied. “Before you tell me, I’d like you to pass a little test. It’s called the Test of Three.”

“Three?”

“That’s right,” Socrates continued. “Before you talk to me about my student, let’s take a moment to test what you’re going to say. The first test is Truth. Have you made absolutely sure that what you are about to tell me is true?”

No,” the man said. “Actually, I just heard about it.”

“All right,” said Socrates. “So, you don’t really know if it’s true or not. Now let’s try the second test, the test of Goodness. Is what you are about to tell me about my student something good?”

“No, on the contrary …”

“So,” Socrates continued, “you want to tell me something bad about him even though you’re not certain it’s true?”

The man shrugged, a little embarrassed.

Socrates continued. “You may still pass, because there is a third test—the filter of Usefulness. Is what you want to tell me about my student going to be useful to me?”

“No, not really …”

“Well,” concluded Socrates, “if what you want to tell me is neither True nor Good nor even Useful, why tell it to me at all?”

The man was defeated and ashamed. This was the reason Socrates was a great philosopher and held in such high esteem.

3

DISCUSSION

Describe the ethical and legal issues in this closet drama as they relate to the various characters.

Describe the virtues and values in play.

Describe why you think there was a breakdown in communications between Dr. Caesar and Marcus.

In light of the fact that 70% of diagnoses are made as the result of lab tests, would you expect Marcus to inquire what the lab results had revealed about the patient’s state of health?

Describe your overall impression of this case, and how you would have handled it if you were Marcus.

After considering yourself in the position of each character in this closet drama, describe which role you would have chosen to play. Explain your choice of character.

How would you describe the culture of the Health Review Council?

Using the communications process in

FIGURE 15-2

, how would you describe the values of each character in this case?

TEST YOUR UNDERSTANDING

Terminology

body language

communication

noise interferences

nonverbal communication

NOTES

1. Christian Torres, “Gossip Influences Visual Attention,” The Washington Post (June 6, 2011).
https://www.washingtonpost.com/national/science/gossip-influences-visual-attention/2011/05/24/AGe2sZKH_story.html?utm_term=.19ff427e4b44 (accessed August 13, 2018).

2.
Kathleen Parker, “A Defense of Flip-Floppery,” The Washington Post (June 12, 2011).
https://www.washingtonpost.com/opinions/a-defense-of-flip-floppery/2011/06/10/AGccbLPH_story.html?utm_term=.350ebc75329c (accessed August 13, 2018).

3.
Sixwise.com, “How to Handle a Rumor: The Test of Three.”
http://www.sixwise.com/pages/fun/rumor.htm (accessed August 13, 2018).

Glossary

Abandonment
Unilateral severance by the physician of the professional relationship between himself or herself and the patient without reasonable notice at a time when the patient still needs continuing care.

Abortion
Premature termination of pregnancy at a time when the fetus is incapable of sustaining life independent of the mother.

Acquired Immune Deficiency Syndrome (AIDS)
A disease caused by the human immunodeficiency virus (HIV), in which the immune system becomes severely compromised due to viral activity.

Active euthanasia
The intentional commission of an act that results in death, such as providing a patient a lethal dose of a medication, usually undertaken in order to hasten the end stage of a terminal illness or prevent prolongation of chronic pain or physical or mental deterioration in a nonterminal but incurable condition.

Ad litem
A Latin term meaning “for the suit.” A
guardian ad litem is a person appointed by a court to defend a legal action on the part of a child or incapacitated person. A
guardian ad litem is specifically appointed for the purposes of a suit.

Administrative law
Laws that determine how public authorities are organized and the powers, duties, and functions of each particular authority. It governs their relationship with each other and with citizens and nongovernmental bodies and lays out the rights and liabilities of officials in order to ensure efficient, economical, and just administration.

Admissibility (of evidence)
Refers to the issue of whether a court, applying the rules of evidence, is bound to receive or permit introduction of a particular piece of evidence.

Advance directives
Written instructions expressing one’s healthcare wishes in the event that he or she becomes incapacitated and is unable to make such decisions.

Advanced practice nurse
A registered nurse who has an advanced education beyond that of a registered nurse. APRNs include nurse practitioners, clinical nurse specialists, nurse anesthetists, and nurse midwives. They often play a critical role as primary care providers for patients who live in remote areas or have difficulty obtaining a primary care physician. APRNs are certified by a nationally recognized professional organization in their nursing specialty or meet other criteria established by a board of nursing that sets education, training, and experience requirements.

Adverse drug reaction
An unusual or unexpected response to a normal dose of a medication; an injury caused by the use of a drug in the usual, acceptable fashion.

Affidavit
A voluntary statement of facts, or a voluntary declaration in writing of facts, that a person swears to be true before an official authorized to administer an oath.

Agency for Healthcare Research and Quality (AHRQ)
A federal agency created to address the ethical and legal issues related to flaws in the delivery of health care. AHRQ is charged with researching ways to improve the quality of health care, reduce its costs, and broaden access to essential services.

Agent
An individual who has been designated by a legal document to make decisions on behalf of another individual; a substitute decision maker.

Americans with Disabilities Act (ADA)
Federal act that bars employers from discriminating against disabled persons in hiring, promotion, or other provisions of employment.

Appellant
Party who appeals the decision of a lower court to a court of higher jurisdiction.

Appellee
Party against whom an appeal to a higher court is taken.

Applied ethics
The application of normative theories to practical moral problems, such as abortion, euthanasia, and assisted suicide.

Artificial insemination
The process by which sperm is placed into the reproductive tract of a female, for the purpose of impregnating the female by using means other than sexual intercourse.

Artificial nutrition and hydration
Providing food and liquids, such as intravenous feedings, when a patient is unable to eat or drink.

Assault
Intentional act that is designed to make the victim fearful and produces reasonable apprehension of harm.

Assembly-line medicine
A system of medical care modeled after factory work that emphasizes provider productivity over personalized attention in patient care.

Attestation
Act of witnessing a document in writing.

Autonomy
Right of an individual to make his or her own independent decisions.

Battery
Intentional touching of one person by another without the consent of the person being touched.

Beneficence
Describes the principle of doing good, demonstrating kindness, and helping others.

Best evidence rule
Legal doctrine requiring that primary evidence of a fact (such as an original document) be introduced or that an acceptable explanation be given before a copy can be introduced or testimony given concerning the fact.

Bill of Rights
The first 10 amendments to the Constitution, which were added to protect the rights of citizens. The amendments included the rights to privacy, equal protection, and freedom of speech and religion.

Bioethics
The ethical subfield that addresses a diversity of issues, including the nature of life and death, what sort of life is worth living, how we distinguish between assisted suicide and murder, how we should treat people who are especially vulnerable, and the responsibilities that we have toward other human beings.

Body language
Information or attitudes conveyed through posture, gestures, facial expressions, and eye contact.

Borrowed servant doctrine
Refers to a situation in which an employee is temporarily placed under the control of someone other than his or her primary employer. It may involve a situation in which an employee is carrying out the specific instructions of a physician. The traditional example is that of a nurse employed by a hospital who is “borrowed” and under the control of the attending surgeon during a procedure in the operating room. The temporary employer of the borrowed servant can be held responsible for the negligent acts of the borrowed servant under the doctrine of
respondeat superior. This rule is not easily applied, especially if the acts of the employee are for the furtherance of the objectives of the employer. The courts apply a narrow application if the employee is fulfilling the requirement of his or her position.

Breach of duty
Failure to meet a prevailing standard of care.

Burden of proof
Requirement that the plaintiff’s attorney show that the defendant violated a legal duty by not following an acceptable standard of care and that the plaintiff suffered injury because of the defendant’s breach. If the evidence presented does not support the allegations made, the case is dismissed. The burden of proof in a criminal case requires that evidence presented against the defendant must be proven beyond a reasonable doubt by the prosecuting attorney.

Captain-of-the-ship doctrine
A doctrine making the physician responsible for the negligent acts of other professionals because he or she had the right to control and oversee the totality of care provided to the patient.

Cardiopulmonary resuscitation
A lifesaving method used by caregivers to restore heartbeat and breathing.

Case citation
Describes where a court’s opinion in a particular case can be located. It identifies the parties in the case, the text in which the case can be found, the court writing the opinion, and the year in which the case was decided. For example, the citation
Bouvia v. Superior Court (Glenchur), 225 Cal. Rptr. 297 (Ct. App. 1986), is described as follows:

Bouvia v. Superior Court (Glenchur) identifies the basic parties involved in the lawsuit.

225 Cal. Rptr. 297 identifies the case as being reported in volume 225 of the California Reporter at page 297.

Ct. App. 1986 identifies the case as being in the California Court of Appeals in 1986.

Case law
Aggregate of reported cases on a particular legal subject as formed by the decisions of those cases.

Causation
A legal requirement that there be a reasonable, close, and causal connection between the defendant’s negligent conduct and the resulting damages suffered by the plaintiff.

Certification
The recognition by a governmental or professional association that an individual’s expertise meets the standards of that group. Some professional groups establish their own minimum standards for certification in those professions that are not licensed by a particular state. Certification by an association or group is a self-regulation credentialing process.

Certiorari
Writ that commands a lower court to certify proceedings for review by a higher court. This is the common method of obtaining review by the U.S. Supreme Court.

Charitable immunity
Legal doctrine that developed out of the English court system that held charitable institutions blameless for their negligent acts.

Child abuse crime
Defined by U.S. Criminal Code as “A crime committed under any law of a State that involves the physical or mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child by any person.” Some states extend the definition to include a child suffering from starvation. Other states include moral neglect in the definition of abuse. Others mention immoral associations; endangering a child’s morals; and the location of a child in a disreputable place or in association with vagrant, vicious, or immoral persons.

Chiropractor
A healthcare professional who seeks to alleviate pain or physical impairment by manipulating the spine and neck.

Civil law
Body of law that describes the private rights and responsibilities of individuals. The part of law that does not deal with crimes but involves actions filed by one individual against another (e.g., actions in tort and contract).

Civil Rights Act
A 1964 law prohibiting the practice of racial discrimination by any organization or agency receiving money under any program supported by the Department of Health and Human Services (DHHS). This includes all “providers of service” receiving federal funds under Medicare legislation.

Clinical nurse specialist
A professional registered nurse with an advanced academic degree, experience, and expertise in a clinical specialty (e.g., obstetrics, pediatrics). The
clinical nurse specialist functions in a leadership capacity as a clinical role model, assisting the nursing staff to continuously evaluate patient care.

Clinical privileges
On qualification, the diagnostic and therapeutic procedures that an institution allows a physician to perform on a specified patient population. Qualification includes a review of a physician’s credentials, such as medical school diploma, state licensure, and residency training.

Closed-shop contract
Labor–management agreement that provides that only members of a particular union may be hired.

Code of ethics
A formal statement explaining the ethical standards of a particular organization or profession.

Commission
Active engagement in or participation in an episode or process.

Commitment
The act of binding oneself intellectually and/or emotionally to a course of action (e.g., pursue a career, adhere to a religious belief) or person (e.g., marriage, family, patient care). It is an agreement or pledge to do something. It can be ongoing, such as in a marriage, or a pledge to do something in the future, such as an engagement as a commitment to marry a particular person.

Common law
Body of principles that has evolved and continues to evolve and expand from court decisions. Many of the legal principles and rules applied by courts in the United States had their origins in English common law.

Communication
The exchange of thoughts, messages, or information through speech, signals, writing, or behavior. It is the art and technique of imparting information or ideas. The process of communication includes both verbal and nonverbal messages. Communication requires a sender, a message, and an intended recipient, the receiver.

Comorbidities
Two or more coexisting medical conditions or disease processes that are additional to an initial diagnosis. [
http://medical-dictionary.thefreedictionary.com/Comorbidities].

Comparative negligence
A legal principle that the degree of negligence or carelessness of each party to a lawsuit must be established by the finder of fact and that each party then is responsible for his or her proportional share of any damages awarded.

Compassion
The profound awareness of and sympathy for another’s suffering. The ability to show compassion is a true mark of moral character. Compassion is a moral value expected of all caregivers.

Complaint
The first pleading, in an alleged negligence action, filed in a court by the plaintiff’s attorney. It is the first statement of a case by the plaintiff against the defendant and states a cause of action, notifying the defendant as to the basis for the suit.

Conflict of interest
Situations in which a person has the opportunity to promote self-interests that could have a detrimental effect on an organization with which he or she has a special relationship (e.g., employee, board member). The potential for conflict of interest exists for individuals at all levels within an organization.

Conflict resolution
Negotiation to satisfy opposing parties in a disagreement or argument.

Congressional Record
Document in which the proceedings of Congress are published. It is the first record of debate officially reported, printed, and published directly by the federal government. Publication of the
Congressional Record began March 4, 1873.

Conscientious
Having moral integrity and a strict regard for doing what is considered the right thing to do.

Consent
See
Informed consent.

Consequential theory
A moral theory that determines good or bad, right or wrong, based on good outcomes or consequences.

Constitution of the United States
The foundation of U.S. federal law that sets out the responsibilities of the three branches of government of the United States, specifies the rights of individual citizens, and details the powers and limitations of the federal government. The U.S. Constitution takes precedence over the constitutions and laws of specific states and local jurisdictions.

Contextualism
An ethical doctrine that considers the rightness or wrongness of an action, such as lying, to be based on the particular circumstances of a given situation. The implication is that lying is acceptable in one situation but not in another, even though the situation may be similar. In other words, it depends on the context within which something occurs.

Contract
A written or oral agreement that involves legally binding obligations between two or more parties.

Contributory negligence
Any lack of ordinary care on the part of the person injured that, combined with the negligent act of another, caused the injury. A person is contributorily negligent when that person does not exercise reasonable care for his or her own safety. As a general proposition, if a person has knowledge of a dangerous situation and disregards the danger, then that person is contributorily negligent.

Cooperation
The process of working with others. In the healthcare setting, caregivers must work together to improve patient outcomes.

Corporate authority
The governing body of a corporation that has ultimate responsibility for the decisions made in the organization. The existence of this authority creates certain duties and liabilities. The governing body, having ultimate responsibility for the operation and management of the organization, generally delegates responsibility for the day-to-day operations of the organization to the organization’s chief executive officer.

Corporate negligence
Failure by a corporation to perform those duties it owes directly to a patient or to anyone else to whom a duty may extend. If such a duty is breached
and a patient is injured as a result of that breach, the organization can be held culpable under the theory of corporate negligence.

Courage
The mental or moral strength to persevere and withstand danger; the strength of character necessary to continue in the face of fears and the challenges in life. Courage involves balancing fear, self-confidence, and values.

Credentialing
A process for validating the background of healthcare professionals and assessing their qualifications to provide healthcare services. The process is an objective evaluation of a professional’s current licensure, training, or experience; competence; and ability to perform the services or procedures requested.

Criminal negligence
Reckless disregard for the safety of others. It is the willful indifference to an injury that could follow an act.

Damages
In the legal sense, an assessment of appropriate recompense for an act of negligence or incompetent care.

Darling v. Charleston Community Memorial Hosp.
A benchmark case in which the court enunciated a “corporate negligence doctrine” under which hospitals have a duty to provide adequately trained medical and nursing staff. A hospital is responsible, in conjunction with its medical staff, for establishing policies and procedures for monitoring the quality of medicine practiced within the hospital.

Decision capacity
Having the mental capacity to make one’s own decisions. Mental capacity refers to the ability to understand the risks, benefits, alternatives, and consequences of one’s actions. Inferred in this interpretation is knowing the decision maker can reasonably distinguish right from wrong and good from bad.

Defamation of character
Injury of a person’s reputation or character caused by the false statements of another made to a third person. Defamation includes both libel and slander.

Defendant
In a criminal case, the person accused of committing a crime. In a civil suit, the party against whom the suit is brought, demanding that he or she pay the other party legal relief.

Delineation of clinical privileges
The process by which the medical staff determines precisely what procedures a physician is authorized to perform. This determination is based on the credentials necessary to competently perform the privileges requested.

Demonstrative evidence
Proof offered by the evidence itself, which can include objects, documents, images, or electronic communications that support or refute an argument in a legal case.

Demurrer
Formal objection by one of the parties to a lawsuit that the evidence presented by the other party is insufficient to sustain an issue or case.

Dentist
A healthcare provider whose practice focuses on the teeth, gums, and oral tissue.

Deontological ethics
An ethical approach that focuses on duty rather than on the consequences, when determining the right conduct to be followed.

Deposition
A method of pretrial discovery that consists of statements of fact taken by a witness under oath in a question-and-answer format as it would be in a court of law with opportunity given to the adversary to be present for cross-examination. Such statements may be admitted into evidence if it is impossible for a witness to attend a trial in person.

Descriptive ethics
The study of what people believe to be right and wrong and why they believe it. Descriptive ethics describes how people act, and/or what sorts of moral standards they claim to follow.

Detachment
Lack of emotional involvement.

Determinism
The view that nothing happens without a cause.

Dietitian
Healthcare professionals whose expertise is the analysis of how a patient’s dietary habits conform to his or her physiological needs and development of dietary plans to help the patient improve their ability to restore or maintain health.

Directed verdict
When a trial judge decides that the evidence and/or law is clearly in favor of one party, the judge may direct the jury to return a verdict for the appropriate party. The conclusion of the judge must be so clear and obvious that reasonable minds could not arrive at a different conclusion.

Direct evidence
Proof offered through direct testimony. It is the jury’s function to receive testimony presented by witnesses and to draw conclusions in the determination of facts.

Discernment
The ability to make a good decision without personal biases, fears, and undue influences from others.

Discharge summary
That part of a medical record that summarizes a patient’s initial complaints, course of treatment, final diagnosis, and instructions for follow-up care.

Discovery
To ascertain that which was previously unknown through a pretrial investigation; it includes testimony and documents that may be under the exclusive control of the other party.

Distributive justice
A principle that requires treatment of all persons equally and fairly.

Documentary evidence
Written evidence capable of making a truthful statement (e.g., drug manufacturer inserts, autopsy reports, birth certificates, and medical records). Documentary evidence must satisfy the jury as to authenticity.

Dogmatic
The stubborn refusal to consider challenges to your own ethical point of view.

Do-not-resuscitate (DNR) order
Directive to withhold cardiopulmonary resuscitation in the event that a patient experiences cardiac arrest.

Durable power of attorney
Legal instrument enabling an individual to act on another’s behalf. In the healthcare
setting, a
durable power of attorney for health care is the authority to make medical decisions for another.

Duty to care
A legal obligation of care, performance, or observance imposed on one to safeguard the rights of others. This duty may arise from a special relationship such as that between a physician and a patient. The existence of this relationship implies that a physician–patient relationship was in effect at the time an alleged injury occurred.

Elective sterilization
A procedure performed with the consent of a competent adult to block or impede the reproductive tract specifically as a means to prevent conception.

Emergency Medical Treatment and Active Labor Act (EMTALA)
A 1986 law that forbids Medicare-participating hospitals from “dumping” patients out of emergency departments.

Employment at will
A legal doctrine providing that employment is at the will of either the employer or the employee. The employer or employee may terminate employment for any or no reason, unless there is a contractual agreement in place that specifies the terms and duration of employment.

Employment-related paternalism
Ideally, a shared and cooperative style of management in which the employer recognizes and considers employee rights when making decisions in the workplace. At its worst, however, the employer’s style of management becomes more authoritarian, sometimes arbitrary, and unpredictable.

Ethical conduct
Conducting oneself in a manner consistent with acceptable principles of right and wrong. Such conduct may relate to one’s community, country, profession, and so on.

Ethical decision making
Weighing principles of ethics in finding an ethical solution to a complicated problem.

Ethical dilemma
A situation that forces a person to make a decision that involves breaking some ethical norm or contradicting some ethical value. It involves making a decision between two or more possible actions where any one of the actions can be justified as being the right decision, but, whatever action is taken, there always remains some doubt as to whether the correct course of action was chosen. The effect of an action may put others at risk, harm others, or violate the rights of others.

Ethical relativism
The theory that holds that morality is relative to the norms of one’s culture.

Ethical theories
The foundations of ethical analysis that provide guidance in the decision-making process.

Ethicist
One who specializes in ethics.

Ethics
A set of principles of right and wrong conduct; a theory or system of moral values, of what is right and what is wrong. Ethics is a system of values that guides behavior in relationships among people in accordance with certain social roles.

Ethics consultation
Consultation with a professional ethicist to help determine the correct action in a particularly difficult or complex case.

Ethics in Patient Referral Act
A 1989 federal law prohibiting physicians who have ownership interest or compensation arrangements with a clinical laboratory from referring Medicare patients to that laboratory. The law also requires all Medicare providers to report the names and provider numbers of all physicians or their immediate relatives with ownership interests in the provider entity prior to October 1, 1991.

Eugenic sterilization
The controversial practice of legislating the sterilization of certain categories of persons described in statutes, without the need for consent by, or on behalf of, those subject to the procedures. Such statutes are ordinarily designed to prevent the transmission of hereditary defects to succeeding generations, but several statutes also have recognized the purpose of preventing procreation by individuals who would not be able to care for their offspring.

Euthanasia
A Greek word meaning “the good death.” It is an act conducted for the purpose of causing the merciful death of a person who is suffering from an incurable condition, such as providing a patient with medications to hasten his or her death.

Evidence
Proof of a fact, which is legally presented in a manner prescribed by law, at trial.

Exclusive contract
An agreement between two or more entities to deal only with each other regarding a specific area of business. The essential feature of an exclusivity contract is the covenant not to engage in a particular business activity with other parties for a specified period of time.

Expert witness
Person who has special training, experience, skill, and knowledge in a relevant area and who is allowed to offer an opinion as testimony in court.

Express consent
An overt agreement to permit caregivers to provide care or perform procedures. Express consent may be verbal or written.

Express corporate authority
Authority specifically delegated by statute. Healthcare corporations derive authority to act from the laws of the state in which they are incorporated.

Fairness
The ability to make judgments free from discrimination, dishonesty, or one’s own bias.

False imprisonment
The unlawful restraint of an individual’s personal liberty or the unlawful restraint or confinement of an individual.

Family and Medical Leave Act of 1993
A law enacted to grant temporary medical leave to employees under certain circumstances. The act provides that covered employers must grant an eligible employee up to a total of 12 work weeks of unpaid leave during any 12-month period for one or more of the following reasons: the birth and care of an employee’s child; placement of an adopted or foster child with the employee; for the care of an immediate family
member (spouse, child, or parent) with a serious health condition; or inability to work because of a serious health condition. It is illegal to terminate health insurance coverage for an employee on FMLA leave.

Felony
A more serious crime that is generally punishable by imprisonment in a state or federal penitentiary for more than 1 year.

Fidelity
Faithfulness; being true to our commitments and obligations to others.

Float nurse
Nurses who are rotated from unit to unit based on staffing needs. They often cover nursing units with unusually burdensome workloads that often involve complex patients. Float nurses can present a liability to the organization if they are assigned to work in an area where they are not qualified and competent to perform the assigned duties.

Foreseeability
Reasonable anticipation that harm or injury will result from an act or a failure to act.

Freedom
The ability to make choices for oneself within the boundaries of law.

Futility
Having no useful result.
Futility of treatment, as it relates to medical care, occurs when the physician recognizes that the effect of treatment will be of no benefit to the patient. Morally, the physician has a duty to inform the patient when there is little likelihood of success.

Genetic marker
Genes or DNA sequences with a known location on a chromosome that can be used to identify specific cells and diseases, as well as individuals and species. They are often used to study the relationship between an inherited disease and its genetic cause in order to determine an individual’s predisposition to a specific disease.

Good-faith reporting
A genuine belief that the facts in a report of abuse are true, which protects mandated reporters such as physicians or nurses from lawsuits should the report turn out to be erroneous or unsubstantiated. The definition of good faith as used in a child abuse statute may vary from state to state; however, when a healthcare practitioner’s medical evaluation indicates reasonable cause to believe a child’s injuries were not accidental, and when the healthcare practitioner is not acting from a desire to harass, injure, or embarrass the child’s parents, making the report will not result in liability.

Good Samaritan laws
Laws designed to protect those who stop to render aid in an emergency. These laws generally provide immunity for specified persons from a civil suit arising out of care rendered at the scene of an emergency, provided that the one rendering assistance has not done so in a grossly negligent manner.

Grand jury
Jury called to determine whether there is sufficient evidence that a crime has been committed to justify bringing a case to trial.

Grievance
The process undertaken to resolve a labor–management dispute when there is an allegation by a union member that management has failed in some way to meet the terms of a labor agreement.

Guardianship
Appointment of an individual by a court whose task is to protect the interests of and make decisions for a person who is incapable of making his or her own decisions.

Health
According to the World Health Organization, “[a] state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.”

Health Care Financing Administration (HCFA)
Federal agency that coordinates the federal government’s participation in the Medicare and Medicaid programs.

Health Care Quality Improvement Act
A 1986 federal law enacted to establish a system of professional peer review and national reporting that provided those persons giving information to professional review bodies and those assisting in review activities limited immunity from damages that may arise as a result of adverse decisions that affect a physician’s medical staff privileges.

Healthcare ethics committee
A committee created to deal with ethical problems and dilemmas in the delivery of patient care.

Healthcare proxy
Document that delegates the authority to make one’s own healthcare decisions to another, known as the healthcare agent, when one has become incapacitated or is unable to make his or her own decisions.

Health Insurance Portability and Accountability Act (HIPAA)
An Act designed to protect the privacy, confidentiality, and security of patient information.

Hearsay rule
Rule of evidence restricting the admissibility of evidence that is not the personal knowledge of the witness.

Hippocratic oath
A traditional oath developed in ancient Greece that is the earliest and most basic statement of medical ethics. It is used in modified form by some medical schools.

Holographic will
A will hand written by the testator.

Home health agency
An agency that provides home health services. Home health care involves an array of services provided to patients in their homes or foster homes because of acute illness, exacerbation of chronic illness, and disability. Such services are therapeutic and/or preventative.

Home health care
Home health care is an alternative for those who fear leaving the secure environment of their home. Such care is available through home health agencies. These agencies provide a variety of services for the elderly living at home. Such services include part-time or intermittent nursing care; physical, occupational, and speech therapy; medical social services, home health aide services, and nutritional guidance; medical supplies other than drugs and biologicals prescribed by a physician; and the use of medical appliances.

Honesty
A character trait that involves giving truthful information in a forthright yet compassionate manner.

Hopefulness
Looking forward to something with the confidence of success. The caregiver must be sensitive to each patient’s needs and provide hope.

Hospice care
Care provided for terminally ill persons, provided in a setting more economical than that of a hospital or nursing facility. Hospice care is often sought after a decision has been made to discontinue aggressive efforts to prolong life. A hospice program includes such characteristics as support services by training individuals, family involvement, and control of pain and discomfort.

Hydration
Intravenous addition of fluids to the circulatory system.

Immoral
Behavior that is in opposition to accepted societal, religious, cultural, and/or professional standards.

Implied consent
An act of silence that raises a presumption that consent has been provided and care has been authorized. For example, a person found unconscious by a roadside will be taken to a healthcare facility and given care regardless of his inability to authorize his care based on the presumption that if he were able to, he would provide authorization.

Implied corporate authority
The authority to perform any and all acts necessary to exercise a corporation’s expressly conferred authority and to accomplish the purposes for which it was created.

Incapacity
An individual’s lack of ability to make decisions for himself or herself.

Incompetent
Individual determined by a court to be incapable of making rational decisions on his or her own behalf.

Independent contractor
One who agrees to undertake work without being under the direct control or direction of an employer.

Indictment
Formal written accusation presented by a grand jury charging a person therein named with criminal conduct.

Infliction of mental distress
Conduct that is so outrageous that it goes beyond the bounds tolerated by a decent society.

Informed consent
Legal concept that provides that a patient has the right to know the potential risks, benefits, and alternatives of a proposed procedure prior to undergoing a particular course of treatment. Informed consent implies that a patient understands a particular procedure or treatment, including the risks, benefits, and alternatives; is capable of making a decision; and gives consent voluntarily.

Injunction
Court order either requiring a person to perform a certain act or prohibiting the person from performing a particular act.

Injury
Harm, whether physical or mental, done to a person via intentional or neglectful actions by another.

In loco parentis
Legal doctrine that permits the courts to assign a person to stand in the place of parents and possess their legal rights, duties, and responsibilities toward a child.

Institutional review board
A committee designated by organizations (e.g., hospitals) conducting clinical trials to provide initial approval and periodic monitoring of biomedical research studies. The primary responsibilities of an IRB include protecting the rights and welfare of human subjects, ensuring protocols are presented by the sponsor(s), and ensuring sponsor(s) of a protocol discloses potential conflicts of interest.

Instrumental value
Something that confers value upon something else (e.g., the instrumental value of money is that it offers the possibility of fulfilling wants or needs).

Integrity
A steadfast adherence to a strict moral or ethical code and a commitment not to compromise this code.

Intentional tort
An intentional act that causes harm to another.

Interrogatories
List of questions sent from one party in a lawsuit to the other party to be answered under oath.

Intrinsic value
Something that has value in and of itself (e.g., happiness).

Invasion of privacy
A wrong that invades the right of a person to personal privacy. Disregard for a patient’s right to privacy is legally actionable, particularly when patients are unable to protect themselves adequately because of unconsciousness or immobility.

Involuntary euthanasia
A decision to end the life of a patient with an incurable and/or terminal illness that is made by someone other than the patient.

Joint Commission
See
The Joint Commission.

Judicial notice
An act by which a court, in conducting a trial or forming a decision, will, of its own motion and without evidence, recognize the existence and truth of certain facts bearing on the controversy at bar (e.g., serious falls require X-rays).

Jurisdiction
Right of a court to administer justice by hearing and deciding controversies.

Jurisprudence
Philosophy or science of law on which a particular legal system is built.

Justice
The obligation to be fair in the distribution of benefits and risks.

Kennedy Institute of Ethics
The world’s oldest and most comprehensive bioethics center. The institute was established at Georgetown University in 1971 by a grant from the Joseph P. Kennedy, Jr. Foundation.

Kindness
The quality of being considerate and sympathetic to another’s needs.

Laboratory medical technologists
Technical personnel who conduct laboratory tests to assess a patient’s overall condition in relation to standardized values (e.g., blood glucose or A1C).

Larceny
Taking another person’s property without consent with the intent to permanently deprive the owner of its use and ownership.

Law
A system of principles and processes by which people in a society deal with their disputes and problems, seeking
to solve or settle them without resorting to force. Laws are general rules of conduct that are enforced by government, which imposes penalties when prescribed laws are violated. Laws govern the relationships between private individuals and organizations and between both of these parties and government.

Legally appointed decision maker
An individual whom a patient names to make medical decisions on his or her behalf should the patient become incapacitated.

Legal wrong
Invasion of a protected right.

Liability
As it relates to damages, an obligation one has incurred or might incur through a negligent act.

Libel
False or malicious writing that is intended to defame or dishonor another person and is published so that someone other than the one defamed will observe it.

Licensure
The process by which some competent authority grants permission to a qualified individual or entity to perform certain specified activities that would be illegal without a license. As it applies to healthcare personnel, licensure refers to the process by which licensing boards, agencies, or departments of the several states grant to individuals who meet certain predetermined standards the legal right to practice in a healthcare profession and to use a specified healthcare practitioner’s title.

Life support
Medical intervention(s) designed to prolong life (e.g., respirator, kidney dialysis machine, tube feedings).

Living will
A document in which an individual expresses in advance his or her wishes regarding the application of life-sustaining treatment in the event that he or she is incapable of doing so at some future time. A living will describes in advance the kind of care one wants to receive or does not wish to receive in the event that he or she is unable to make decisions for himself or herself. A living will takes effect when a person is in a terminal condition or permanent state of unconsciousness.

Macroethics
A generalized, global view of right and wrong.

Malfeasance
Execution of an unlawful or improper act.

Malpractice
Professional misconduct, improper discharge of professional duties, or failure to meet the standard of care of a professional that results in harm to another; the negligence or carelessness of a professional person such as a nurse, pharmacist, physician, or accountant.

Mandamus
Action brought in a court of competent jurisdiction to compel a lower court or administrative agency to perform—or not to perform—a specific act.

Manslaughter
The commission of an unintentional act that results in the death of another person.

Medicaid
Medical assistance provided in Title XIX of the Social Security Act. Medicaid is a state-administered program for the medically indigent.

Medical assistant
An unlicensed person who provides administrative, clerical, and/or technical support to a licensed practitioner.

Medical diagnosis
A determination of possible causes of a patient’s symptoms that is the basis of a treatment plan.

Medical paternalism
A situation in which a physician unwittingly makes decisions for a patient who is capable of making their own choices by providing information selectively to encourage the patient toward options the physician prefers. This directly violates patient autonomy.

Medical treatment
A therapeutic course of care that utilizes standardized procedures and regimens for addressing a patient’s illness, including medications.

Medicare
Medical assistance provided in Title XVIII of the Social Security Act. Medicare is a health insurance program administered by the Social Security Administration for persons aged 65 years and older and for disabled persons who are eligible for benefits. Medicare Part A benefits provide coverage for inpatient hospital care, skilled nursing facility care, home health care, and hospice care. Medicare Part B benefits provide coverage for physician services, outpatient hospital services, diagnostic tests, various therapies, durable medical equipment, medical supplies, and prosthetic devices.

Metaethics
The study of ethical concepts.

Microethics
An individual’s view of what is right and wrong based on personal life teachings, traditions, and experiences.

Misdemeanor
Unlawful act of a less serious nature than a felony, usually punishable by a jail sentence for a term of less than 1 year and/or a fine.

Misdiagnosis
Reaching an incorrect diagnosis of a patient’s condition either by failing to perform appropriate diagnostic testing, failing to consider the signs and symptoms present, or considering the signs and symptoms but arriving at a medically unlikely or improbable conclusion.

Misfeasance
Improper performance of an act.

Monotheism
The worship of one God, who is immortal, omniscient, omnipotent, and omnipresent.

Moral dilemmas
Conflicts in values, rights, duties, and loyalties.

Morality
A code of conduct that acts as a guide to behavior that all rational persons would put forward for governing the behavior of all moral agents. Morality is often legislated when differences cannot be resolved because of conflicting moral codes with varying opinions as to what is right and what is wrong.

Moral judgments
Judgments concerned with what an individual or group believes to be the right or proper behavior in a given situation.

Moral values
Characteristics that promote ethical behavior, such as respect, trust, integrity, and compassion.

Murder
The unlawful killing of a person; homicide involving malice aforethought and the intent to kill another human being. First-degree murder involves the deliberate and premeditated killing of another with malice aforethought. Second-degree murder is not deliberate, nor is it premeditated; however, it is the killing of another with malice aforethought.

Nasogastric tube
Involves placing a tube through the patient’s nose, down the back of the throat into the esophagus, and then into the stomach. Its purpose is to suction out the contents of the stomach.

Negligence
Omission or commission of an act that a reasonably prudent person would or would not do under given circumstances. It is a form of heedlessness or carelessness that constitutes a departure from the standard of care generally imposed on members of society.

Neiswanger Institute for Bioethics and Health Policy
Dedicated to the threefold mission of research, education, and service, the institute serves the students and faculty of the Stritch School of Medicine, healthcare professionals and patients of Loyola University Health System, and professionals from the regional community and across the nation.

Noise interferences
Barriers to effective communication that preclude a listener from understanding a verbal message. These can be (1) environmental (e.g., disruption of communication by a barking dog); (2) physiological impairment (e.g., deafness, blindness, pain); (3) semantic (e.g., “coke” could refer to coal, cocaine, or a beverage); (4) syntactical (e.g., mistakes in grammar); (5) organizational (e.g., corporate policies on grievance procedures that differ from the employee handbooks); (6) cultural (e.g., stereotyping the followers of a particular religion because of extremists); and (7) psychological (e.g., stress, fear, anger, or sadness that may cause someone to lose focus in the moment and thus distort effective communications).

Non compos mentis
“Not of sound mind”; suffering from some form of mental defect.

Nonconsequential ethics
The ethical theory that holds that the intention, not the outcome, determines the rightness or wrongness of an action.

Nonfeasance
Failure to act, when there is a duty to act, as a reasonably prudent person would in similar circumstances.

Nonmaleficence
The principle requiring healthcare providers to do no harm.

Nonverbal communication
Communication that depends on non-word messages. Clothing styles, hairstyles, body language, facial expression, and tone of voice are forms of nonverbal communication. Nonverbal communication has been called the silent language and plays a key role in the day-to-day communications process.

Normative ethics
The study of what is right and wrong.

Norms
Accepted rules and ways of doing things. Without norms, society would be chaotic and unpredictable.

Nuncupative will
An oral statement intended as a last will made in anticipation of death.

Nurse anesthetist
A registered nurse with additional training and certification that enables them to perform anesthesia-related tasks.

Nurse midwife
A registered nurse with additional training and certification that enables them to manage prenatal and obstetrical care for pregnant women.

Nurse practitioner
RNs who have completed the necessary education to engage in primary healthcare decision making. A nurse practitioner is a registered nurse working in an expanded nursing role, usually with a focus on meeting primary healthcare needs. NPs conduct physical examinations, interpret laboratory results, select plans of treatment, identify medication requirements, and perform certain medical management activities for selected health conditions.

Nursing assistant
An aide who has been certified and trained to assist patients with activities of daily living. The nursing assistant provides basic nursing care to non-acutely ill patients and assists in the maintenance of a safe and clean environment under the direction and supervision of a registered nurse or licensed practical nurse. The nursing assistant helps with positioning, turning, and lifting patients and performs a variety of tests and treatments.

Obamacare
An appellation ascribed to the Patient Protection and Affordable Care Act (ACA).

Objectivism
The belief that morality is based on some universal, external, and unchangeable fact. For example, murder is always wrong.

Office of Government Ethics
An agency within the executive branch of government whose mission and goals are to foster high ethical standards for employees in the executive branch of government. Common ethical issues that come under the committee’s purview include gifts from outside sources, gifts between employees, conflicting financial interests, remedies for financial conflicts of interest, impartiality in performing official duties, seeking other employment, misuse of position, and so forth.

Ombudsman
Person who is designated to speak and act on behalf of a patient/resident, especially in regard to his or her daily needs.

Omission
A failure to act when action is appropriate.

Oral consent
Consent expressed verbally, but not in writing.

Oregon Death with Dignity Act
The first state law to legalize assisted suicide, allowing terminally ill Oregon residents to obtain prescriptions from their physician for self-administered, lethal doses of medications.

Pain
The body’s way of alerting the patient that something is not quite right.

Pain management
The process whereby caregivers work with the patient to determine the cause of pain and develop a pain control treatment plan. The process involves educating the patient as to the importance of pain management in the healing process. With current treatments, pain can often be prevented or at least be better controlled.

Pain rating scale
A visual tool often used to help patients describe their pain level. It helps the caregiver know how well treatment is working and whether change in the treatment plan is necessary.

Paramedic
An allied health professional whose primary focus is to provide advanced emergency medical care for critical and emergent patients who access the emergency medical system.

Partial birth abortion
A colloquial name for a late-term abortion procedure involving artificial ripening and dilation of the cervix prior to abortion of the fetus so that the aborted fetus may be delivered via the birth canal.

Passive euthanasia
The withdrawal or withholding of a potentially lifesaving treatment.

Paternalism
A doctrine that literally means “rule by the father.” In health care, it is the concept of physicians making decisions for their patients, whereas the more acceptable approach is autonomy, whereby the physician informs the patient as to the risks, benefits, and alternatives to care and treatment, and then the patient makes the final choice as to what is best.

Patient abuse
The mistreatment or neglect of individuals in the healthcare setting. Abuse often occurs to those who are most vulnerable and dependent on others for care (e.g., patients diagnosed with dementia and Alzheimer’s disease, those who are physically weak). Abuse is not limited to an institutional setting and may occur in the patient’s home. Abuse can take many forms—physical, psychological, medical, financial, and so forth.

Patient assessment
The systematic collection and analysis of patient-specific data necessary to help determine a patient diagnosis.

Patient care teams
Working groups of individual care providers who cooperatively develop therapy plans for a patient.

Patient diagnosis
The process of identifying a possible disease or disease process, thus providing the physician with treatment options.

Patient Protection and Affordable Care Act
A federal act passed by Congress, signed into law by President Obama in March 2010, upheld as constitutional by the Supreme Court in 2012, designed to provide better health security by enacting comprehensive health insurance reforms that hold insurance companies accountable, lower healthcare costs, guarantee more choice, and enhance the quality of care for all Americans.

Patient Self-Determination Act (PSDA)
A 1990 federal statute that was enacted to ensure that patients are informed of their rights to execute advance directives and accept or refuse medical care. As a result of implementation of the PSDA, healthcare organizations participating in the Medicare and Medicaid reimbursement programs must address patient rights regarding life-sustaining decisions and other advance directives.

Patient’s Bill of Rights
A statement that documents a patient’s rights and responsibilities in a given healthcare facility.

Patient treatment
The attempt to restore the patient to health following a diagnosis. It is the application of various remedies and medical techniques, including the use of medications for the purpose of treating an illness or trauma.

Perjury
Act of willfully giving false testimony under oath.

Pharmacist
A licensed healthcare professional responsible for dispensing medications and developing, coordinating, and supervising all pharmacy activities and reviewing the drug regimens of each patient.

Physical therapy
The art and science of preventing and treating neuromuscular or musculoskeletal disabilities through the evaluation of an individual’s disability and rehabilitation potential and the use of physical agents—heat, cold, electricity, water, and light—and neuromuscular procedures that, through their physiologic effect, improve or maintain the patient’s optimum functional level.

Physician assistant
Healthcare professionals who work under the supervision of physicians and surgeons to examine patients, diagnose injuries and illnesses, and provide treatment.

Physician-assisted suicide
An action in which a physician voluntarily aids a patient in bringing about his or her death.

Plaintiff
Party who brings a civil suit seeking damages or other legal relief.

Political malpractice
Negligent conduct by an elected or appointed political official that results in care lower than the accepted standard.

Polytheism
Belief and worship in many gods.

Precedent
A judicial decision that can be used as a standard in subsequent similar cases. A precedent is set when a court decision is rendered that serves as a rule for future guidance when deciding similar cases.

Privacy Act of 1974
A federal statute enacted to safeguard individual privacy from the misuse of federal records, to give individuals access to records concerning themselves that are maintained by federal agencies, and to establish a Privacy Protection Safety Commission.

Private law
Laws that deal with relationships among individuals. Two types of private laws are tort and contract actions.

Privileged communication
Statement made to an attorney, physician, spouse, or anyone else in a position of trust. Because of the confidential nature of such information, the law protects it from being revealed even in court. The term is applied in two distinct situations. First, the communications between certain persons, such as physician and patient, cannot be divulged without the consent of the patient. Second, in some situations, the law provides an exemption from liability for disclosing information for which there is a higher duty to speak, such as statutory reporting requirements.

Probate
A judicial proceeding that determines the existence and validity of a will.

Probate court
A court with jurisdiction over wills. Its powers range from deciding the validity of a will to distributing property.

Process
A series of related actions to achieve a defined outcome.

Prognosis
Informed judgment regarding the likely course and probable outcome of a disease.

Proximate cause
In immediate relation with something else. In negligence cases, the careless act must be the proximate cause of injury.

Psychologist
Licensed mental health professionals who assess and treat patients for emotional and personality disorders and mental illness.

Public law
Laws that deal with the relationships between individuals and the government. Criminal law is a segment of public law.

Public policy
The principle of law that holds that no one can lawfully do that which tends to be injurious to the public or against the public good. The sources of public policy “include legislation; administrative rules, regulations, or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy.”

Punitive damages
An assessment of damages in addition to those compensating for economic loss; punitive damages are awarded specifically to recompense the plaintiff for intangible losses like mental anguish or physical suffering; punish an egregious offense; and deter similar behavior by others.

Radiology technologists
Individuals trained to conduct radiological examinations and tests on patients, e.g., X-ray or ultrasound examinations.

Rational
Having the capacity to think logically.

Real evidence
Evidence furnished by tangible things (e.g., medical records and equipment).

Reasonable man standard
A legal standard that requires caregivers to do “what any reasonable man would do” in a given set of circumstances, such that doing less than this standard is considered negligence.

Reasonably prudent person
A nonexistent, hypothetical person who is put forward as the community ideal of what would be considered reasonable behavior. It is a measuring stick representing the conduct of the average person in the community under the circumstances facing the defendant at the time of the alleged negligence.

Rebuttal
Giving of evidence to contradict the effect of evidence introduced by the opposing party.

Registered nurse
An individual who has passed a state registration examination and has been licensed to practice nursing. The scope of practice of a registered professional nurse includes patient assessment, analyzing laboratory reports, patient teaching, health counseling, executing medical regimens, and operating medical equipment as prescribed by a physician, dentist, or other licensed healthcare provider.

Relativism
The belief that morality is relative to each individual culture. What is right in one culture may be wrong in another culture. In ethics, it is a theory that conceptions of truth and moral values are not absolute but are relative to the persons or groups holding them.

Release
Statement signed by one person relinquishing a right or claim against another.

Religious ethics
Codes of conduct for appropriate behavior obtained through a tradition reliant on revelations from a divine source, e.g., the Ten Commandments.

Remand
Referral of a case by an appeals court back to the original court, out of which it came for the purpose of having some action taken there.

Res gestae
“The thing done”; all the surrounding events that become part of an incident. If statements are made as part of the incident, they are admissible in court as
res gestae despite the hearsay rule.

Res ipsa loquitur
“The thing speaks for itself”; a doctrine of law applicable to cases in which the defendant had exclusive control over the thing that caused the harm and where the harm ordinarily could not have occurred without negligent conduct.

Res judicata
“The thing is decided”; that which has been acted on or decided by the courts.

Respect
An attitude of admiration or esteem.

Respirator
A machine used to assist in keeping a patient breathing.

Respiratory therapist
A person employed in the practice of respiratory care who has the knowledge and skill necessary to administer respiratory care.

Respondeat superior
“Let the master answer”; an aphorism meaning that the employer is responsible for the legal consequences of the acts of the servant or employee who is acting within the scope of his or her employment.

Restraint
Can be either “physical” or “chemical” (medication). Physical restraint involves a device (e.g., safety belts, safety bars, geriatric chairs, bed rails) that restricts or limits voluntary movement and that cannot be removed by the patient.

Right to privacy
A right implied by the Constitution that permits individuals to be free from unwarranted publicity and exposure to public view, as well as the right to live one’s life without having one’s name, picture, or private affairs made public against one’s will. In health care, this means that healthcare providers are not permitted to disclose confidential medical information about a patient or share patient records with others without the patient’s written authorization.

Roe v. Wade
The landmark 1973 Supreme Court decision that established a woman’s right to privacy in the context of matters relating to her own body, including how a pregnancy would end.

Sarbanes-Oxley Act
A federal law that requires top executives of public corporations to vouch for the financial reports of their companies. The act encourages self-regulation and the need to promote due diligence, select
a leader with morals and core values, examine incentives, constantly monitor the organization’s culture, build a strong, knowledgeable governing body, be on the alert for conflicts of interest, focus attention on the right things, and have the courage to speak out.

Secular ethics
A code of conduct developed by societies that have relied on customs to formulate their codes; e.g., the Code of Hammurabi.

Senior abuse
The harmful treatment of older people; includes abandonment, financial exploitation (e.g., theft or misuse of a senior individual’s money or property by a person in a position of trust); emotional, verbal, mental, sexual, or physical abuse; corporal punishment; and involuntary restraint and seclusion. Neglect is the failure to provide the care necessary to prevent physical harm (e.g., the failure of staff to turn a patient periodically to prevent pressure sores) or mental anguish.

Separation of powers
The constitutional principle that provides that no one branch of the government will be dominant over the other two.

Sexual harassment
Verbal or physical acts that are sexual in nature and unreasonably interfere with an employee’s work performance, creating an intimidating or offensive working environment. Sexual harassment includes a request for a sexual favor, sexual advances made as a condition of employment, and repeated sexually suggestive commentary to or about an employee or coworker.

Sherman Antitrust Act
A federal law that prescribes that every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states is declared to be illegal. Those who attempt to monopolize, combine, or conspire with any other person or persons to monopolize any part of the trade or commerce can be deemed guilty of a felony.

Situational ethics
An ethical perspective concerned with the outcome or consequences of an action in which the ends can justify the means. It refers to those times when a person’s beliefs and values can change as circumstances change.

Slander
False oral statement, made in the presence of a third person, that injures the character or reputation of another.

Social workers
Licensed personnel who assist patients and families with psychosocial issues; obtaining insurance coverage; making difficult care decisions; and planning for post-discharge care.

Socratic method of teaching and learning
A method of instruction that relies on the teacher asking the student questions, which are designed to provoke directed thought and learning.

Sovereign immunity
The common-law doctrine by which federal and state governments historically have been immune from liability for harm suffered from the tortious conduct of employees.

Special duty nurse
A nurse employed by a patient or patient’s family to perform nursing care for the patient.

Spirituality
Faith in a higher being or power.

Standard of care
Description of the conduct that is expected of an individual in a given situation. It is a measure against which a defendant’s conduct is compared.

Stare decisis
“Let the decision stand”; the legal doctrine that prescribes adherence to those precedents set forth in cases that have been decided.

Statute of limitations
Legal limit on the time allowed for filing suit in civil matters, usually measured from the time of the wrong or from the time when a reasonable person would have discovered the wrong.

Statutory consent
Legislation that clarifies implied consent with respect to patients clinically incapable of consenting to lifesaving emergency treatment.

Statutory law
Law that is prescribed by legislative enactments.

Stem cell research
The use of embryonic stem cells in research relating to human disease and aging. It continues to be a highly controversial issue, generally involving religious beliefs and fears as to how far scientists might go in their attempt to create, for example, a cloned human being weighed against the potential to develop effective therapies for life-threatening and life-altering chronic diseases.

Sterilization
The termination of an individual’s ability to produce offspring.

Stipulation
Agreement, usually in writing, by attorneys on opposite sides of an issue as to any matter pertaining to the proceedings. A stipulation is not binding unless agreed on by the parties involved in the issue.

Subjectivism
A doctrine that says moral judgments are based on personal preferences.

Subpoena
A court order requiring an individual or corporation to testify in a case. A
subpoena ad testificandum requires an individual to appear in court to give oral testimony. A
subpoena duces tecum commands a person to come to court and to produce whatever specific documents are named in the order.

Subrogation
Substitution of one person for another in reference to a lawful claim or right.

Substituted judgment
In the healthcare setting, a surrogate decision maker’s decisions are accepted as a substitute for the patient in the event the patient becomes incapacitated and unable to make decisions. Decisions are made on the basis of the patient’s known healthcare preferences. Such preferences are generally described in the document appointing the surrogate and/or other documents such as a “living will” or “durable power of attorney for health care.”

Summary judgment
Generally, an immediate decision by a judge, without jury deliberation.

Summons
Court order directed to the sheriff or other appropriate official to notify the defendant in a civil suit that a suit has been filed and when and where to appear.

Surrogacy
A method of reproduction whereby a woman agrees to give birth to a child she will not raise but will hand
over at birth to the contracting party, who is often a person or a couple unable to conceive a natural child of their own.

Surrogate decision maker
Individual who has been designated to make decisions on behalf of an individual determined incapable of making his or her own decisions.

Teamwork
Cooperative activities by multiple individuals or groups intended to achieve a common end.

Teleological ethics
A theory of morality that derives duty or obligation from what is good or desirable as an end to be achieved.

Terminal condition
A medical condition that is incurable and because of which death will occur.

Testimony
Oral statement of a witness given under oath at trial.

Theft
The act of taking something that belongs to another.

The Joint Commission
A not-for-profit independent organization dedicated to improving the quality of health care in organized healthcare settings. The major functions of The Joint Commission include developing organizational standards, awarding accreditation decisions, and providing education and consultation to healthcare organizations.

Therapeutic sterilization
A procedure that renders a patient sterile that is undertaken out of medical necessity to preserve the life or health of the individual, e.g., removal of the ovaries when ovarian cancer is present.

Tolerance
Acceptance; may be
positive (as in, being open-minded and welcoming toward others who differ from oneself) or
negative (e.g., maintaining an attitude of unwilling or reluctant forbearance toward someone or something that is unwanted or disliked).

Tort
A civil wrong committed by one individual against another. Torts may be classified as either intentional or unintentional. When a tort is classified as a criminal wrong (e.g., assault, battery, false imprisonment), the wrongdoer can be held liable in a criminal and/or civil action.

Tort-feasor
Person who commits a tort.

Trial court
Court where evidence is presented to a judge or jury for decision.

Truth telling
Providing enough information so that a patient can make an informed decision about his or her health care.

Two-schools-of-thought doctrine
The legal dogma that states that a physician is not liable for medical malpractice if he or she follows a course of treatment supported by reputable, respected, and reasonable medical experts, even if there is disagreement over which course of treatment is best for the disorder in question.

Ultra vires acts
Acts conducted by a corporation that lie beyond its scope of authority to perform. A governing body can be held liable for acting beyond its scope of authority, which is either expressed (e.g., in its articles of incorporation) or implied in law.

Undue burden
A rule or law that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

Unethical behavior
Character that describes behavior contrary to admirable traits or a code of conduct that has been endorsed by one’s society, community, or profession.

Uniform Anatomical Gift Act
Legislation that permits individuals to decide in advance to donate organs for transplantation at the time of death.

Union-shop contract
Labor–management agreement making continued employment contingent on joining the union.

Utilitarianism
A moral theory that treats pleasure and happiness as the only absolute moral good. Acts that bring about happiness and pleasure are good, and acts that bring about pain and suffering are morally bad.

Value judgment
A judgment that assigns a value to an action.

Values
Worth or usefulness. “Intrinsic values” are those goods that are valuable in their own right. “Instrumental values” are those goods that help us achieve another good.

Venue
Geographic district in which an action is or may be brought.

Veracity
Devotion to and conformity with what is truthful. It involves an obligation to be truthful.

Verdict
Formal declaration of a jury’s findings of fact, signed by the jury foreperson and presented to the court.

Virtue(s)
A moral term that refers to excellence and righteousness.

Virtue ethics
Ethics focused upon the inherent character of a person rather than on the specific actions he or she performs.

Voluntary euthanasia
A decision by a competent adult patient with an incurable condition, who has been informed of the possible ramifications and alternatives, to terminate their own life either actively via suicide or passively via cessation of medical therapy.

Waiver
Intentional giving up of a right, such as allowing another person to testify to information that ordinarily would be protected as a privileged communication.

Whistleblowing
Revelation by a person affiliated with an organization of unethical or illegal behavior by others within the organization, usually against the organization’s policies or standards. Violating organizational policies may have serious consequences for the whistleblower, but often laws shield a whistleblower from retaliation if it can be shown that he or she acted in the public interest.

Will
Legal declaration of the intentions that a person wishes to have carried out after death concerning property, children, or estate. A will designates a person or persons to serve as the executor(s) responsible for carrying out the instructions of the will.

Withdrawal of treatment
The act of ceasing an ongoing course of therapy.

Withholding of treatment
The act of refraining from initiating a therapeutic course that would be indicated under most medical circumstances.

Witness
Person who is called to give testimony in a court of law.

Writ
Written order that is issued to a person or persons requiring the performance of some specified act or giving authority to have it done.

Written consent
A written document that preserves evidence that a patient was supplied with the information necessary to give informed consent; the nature of the treatment, the risks, benefits, and consequences involved should be incorporated into the consent form.

Wrongful birth
Applies to the cause of action of the parents who claim that the negligent advice or treatment deprived them of the choice of preventing conception or of terminating the pregnancy.

Wrongful conception
Applies to the cause of action of the parents who claim that damages were sustained by the parents of an unexpected child based on the allegation that the child’s conception was the result of negligent sterilization procedures or a defective contraceptive device.

Wrongful life
Refers to a cause of action brought by or on behalf of a child with a health defect who claims that, but for the defendant (e.g., a laboratory’s negligent testing procedures or a physician’s negligent advice or treatment of the child’s parents), the child would not have been born.

Index

Note: Page numbers followed by
f or
e indicate materials in figures or exhibits, respectively.

A

abandonment,
285,
353

Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach,
80

abnormal laboratory results,
263–
264

abortion,
63–
72

counseling,
65

first trimester,
64

funding,
65

incompetent person,
67–
68

informed consent,
68

morality of,
70–
71

parental consent,
67–
68

partial-birth abortion,
69

Partial-Birth Abortion Ban Act,
69

In re Anonymous,
68

restrictions,
64–
65

right to,
63

second trimester,
64

spousal consent,
67

state abortion statutes,
69–
70

Texas law,
69

third trimester,
64

undue burden,
65

Abortion Committee Review,
65

abuse, reporting.
See
patient abuse

acceptance,
175

accreditation,
228–
229

scores,
208

standards,
225–
227

Accreditation Association for Ambulatory HealthCare (AAAHC),
226

acquired immune deficiency syndrome (AIDS),
87

ACS Statement of Principles,
331

active euthanasia,
102

Adams v. Krueger,
250

adequacy of consent

competent patient,
336

incompetent patients,
338

by minors,
337–
338

parental consent,
337

spouse,
336–
337

temporary guardian,
338

adequate staff,
220

adequate supplies and equipment,
220–
223

administration of medications,
268–
269

Administration on Aging (AOA),
148

administrative law,
140,
143–
144,
151

Administrative Procedures Act,
143

advance directives,
111–
118

durable power of attorney,
115,
117
f

guardianship,
116

healthcare proxy,
116–
118

living will,
111–
114,
113
f

substituted judgment,
115–
116

surrogate decision making,
115

Advanced Emergency Medical Technician (AEMT),
247

advanced practice registered nurse (APRN),
249

advisory commission,
387

Advisory Commission on Consumer Protection and Quality in the Health Care Industry,
387

age and justice,
20–
21

Agency for Health Care Administra-tion (AHCA),
231

Agency for Healthcare Research and Quality (AHRQ),
151,
198,
226

Agency for Toxic Substances and Disease Registry (ATSDR),
151

agency personnel,
252

AHRQ.
See
Agency for Healthcare Research and Quality

AIDS education,
92

Akron v. Akron Center for Reproductive Health,
65

Alaska Natives (AI/AN),
151

ambiguous medication order,
252–
253

American Accreditation HealthCare Commission/Utilization Review Accreditation Commission (AAHC/URAC),
226

American Chiropractic Association,
255

American College of Healthcare Executives (ACHE),
213,
214

American College of Surgeons (ACS),
331

American Medical Accreditation Program (AMAP),
226

American Medical Association (AMA),
20,
121,
156,
161,
219,
284

American Medical Association’s Council on Ethical and Judicial Affairs,
285

American Society for Clinical Laboratory Science,
264

answer,
178

AOA.
See
Administration on Aging

appeals,
183

applied ethics,
6

appointment, and privileging process,
217

APRN.
See
advanced practice registered nurse

Argus v. Scheppegrell,
297

arraignment,
165–
166

arrest,
164

artificial insemination,
76

assault,
161–
162

assembly-line medicine,
301–
302

assisted suicide

Oregon Death with Dignity Act,
109–
110,
110
f

physician-assisted suicide,
107–
108

vs. refusal,
108–
109

assumption of a risk,
182

atheism,
44

ATSDR.
See
Agency for Toxic Substances and Disease Registry

Attorney General John Ashcroft filed,
61

Austin, Sara,
20

autonomy,
10–
12

Autonomy and the Law Collide,
134–
136

Awkerman v. Tri-County Orthopedic Group,
349

B

baby boomers,
21

Bagent v. Blessing Care Corp.,
378

bait-and-switch advertising,
209

Baker v. Arbor Drugs, Inc.,
269

Bankruptcy Amendments and Federal Judgeship Act,
146

Barber v. Superior Court,
120

battery,
161–
162

Baxter v. Montana,
62

Bayles, Michael D,
4

Beal v. Doe,
65–
66

Beasley v. State Personnel Board,
356

Begley, Sharon,
325

Bellotti v. Baird,
67

beneficence,
13,
272–
273

Berger v. United States,
166–
167

best practices,
240

bill of particulars,
178

bill of rights,
143

bioethics,
2

Black’s Law Dictionary,
104,
142

blood transfusions,
87–
88,
341

board education,
239–
240

board integrity,
216

body language,
393

Boodman, Sandra G.,
33

Bordelon v. St. Francis Cabrini Hospital,
88

breach of duty,
158,
158
f

breeding ground for crime,
174

British Medical Journal,
260

Brown, in Brown v. Belinfante,
256

Buddhism,
42

bullying,
310

burden of proof,
180–
181

Burditt case,
196

Burditt v. U.S. Department of Health and Human Services,
196

Bush, George W.,
61,
86

Business Ethics in Healthcare: Beyond Compliance,
215

Butler v. Rolling Hill Hospital,
76

C

Cafiero v. North Carolina Board of Nursing,
254

California Health and Safety Code,
224

Campbell, Keith,
60

Canesi ex rel. Canesi v. Wilson,
74

Canterbury v. Spence,
57

care based on age,
291

caregivers,
277,
302

caregiver’s pledge,
327

Casey v. Woodruff,
205

causation

but-for rule,
159

defense attorney,
159

defined,
158

foreseeability,
159

Hastings case,
159

Centers for Disease Control and Prevention (CDC),
150,
320

Centers for Medicare and Medicaid Services (CMS),
149,
351

certification of healthcare professionals,
276

chance of survival,
158

charting observations,
255

chief executive officer (CEO)

appointment,
212–
213

code of ethics,
214–
217

licensure,
213–
214

responsibilities and challenges,
214

child abuse,
273–
274

definition,
347

detecting,
348–
349

good-faith reporting,
349–
350

immunity,
349–
350

reporting,
348

Child Maltreatment 2016,
347

chiropractor,
255

Christianity,
42–
43

Cignetti v. Camel,
252

Circuit Courts of Appeals,
146

Circular reasoning,
46

clinical nurse specialist (CNS),
251

clinical trials, end-of-life issues

case study,
83–
84

Cures Act,
85–
86

Experimental Subject’s Bill of Rights,
83

informed consent,
82–
83

institutional review board (IRB),
82

Patients in National Institutes of Health (NIH),
84–
85

Right to Try Bill,
80–
81

Clinton, Bill,
60

closing statements,
183

CMS.
See
Centers for Medicare and Medicaid Services

CNS.
See
clinical nurse specialist

Cockerton v. Mercy Hospital Medical Center,
274

code of conduct,
4,
192

code of ethics,
48,
332–
333

Code of Federal Regulations,
364

code of medical ethics.
See
medical ethics, principles

code of silence,
394–
417

codes of ethics for organizations,
206–
207

Colautti v. Franklin,
68

commercial ethics,
176

Commission for the Study of Ethical Problems,
58

commission of an act,
155

commitment,
24

committee functions,
130–
133

committee activities,
131

confidentiality of information,
131

consultation and conflict resolution,
131

education,
131

policy and procedure development,
130

requests for committee consultations,
131–
133,
133
f

requests for consultations,
130

Committee on Ethics,
191

committee activities,
131

common law,
141–
142,
151

communication,
392,
393
f

Community Hospital
vs. Respected Medical Center,
29

Community Medical Center (CMC),
6

comparative negligence,
182

compassion,
24–
26

compassion care,
286–
287

competency,
218

complaints,
177–
178

compliance, local rules and regulations,
225–
229

compliance officer,
319–
320

Comprehensive Accreditation Manual for Hospitals,
218

concealing mistakes,
209–
210

Conditions of Participation (COP),
225–
226,
249

conference,
166

confidentiality

employee responsibilities,
319–
320

employee rights,
312

human genetics,
89

of information,
131

patient rights,
376–
378

conflict of interest,
228–
231

conflict of laws,
143,
145

conscientious,
27–
28

consent.
See
patient consent

consequential ethics,
6

consideration,
175

Constitution of the United States,
142–
143

constitutional law,
140

consultation and conflict resolution,
131

continuity of care,
240–
241

contract action,
140

contracts,
175
f,
185

elements,
175

employment,
175

exclusive,
175–
176

implied contract,
174

voidable contract,
174

contributory negligence,
182

cooperation,
37–
38

COP.
See
Conditions for Participation

Copithorne v. Framingham Union Hospital,
323

Corp. v. Arizona Health Care Cost Containment Sys,
66

corporate authority,
205

corporate compliance program,
207–
208

corporate duties and responsibilities

adequate staff,
220

adequate supplies and equipment,
220–
223

appointment, and privileging process,
217

appointment of a CEO,
212–
213

case study,
219–
220,
230–
231,
233–
235

CEO Code of Ethics,
214–
217

CEO licensure,
213–
214

CEO responsibilities and challenges,
214

competency,
218

conflicts of interest,
230

credentialing,
218

discipline of physicians,
218–
219

prevention of falls,
234

quality patient care,
224–
225

rules and regulations,
225–
229

safe environment,
231–
233

scarce resources,
223–
224

screen job applicants,
217

sexual harrassment and assault, protecting patients and staff,
234

corporate ethics

case study,
209

codes of ethics for organizations,
206–
207

concealing mistakes,
209–
210

corporate compliance program,
207–
208

ethical behavior,
206

false/misleading advertising,
208–
209

trust and integrity,
208

unprofessional conduct,
208

counseling,
65

courage,
23–
24

court,
179–
180

Covey, Stephen M. R.,
44

Cox v. MA Primary and Urgent Care Clinic,
272

credentialing,
218

Credentials Committee,
197

criminal law,
140,
184–
185

classification,
164

criminal procedure,
164–
167

Grand Jury, report,
165
f–
166
f

healthcare fraud,
167–
172

manslaughter,
172

murder,
172

objectives,
164

theft,
172–
174

criminal negligence,
155

criminal procedure,
164–
167

criminal trial,
167

culture ethics,
47–
48

culture of compassion and kindness,
241

D

damages,
183

Danforth v. Planned Parenthood,
67

Darling v. Charleston Community Memorial Hospital,
210–
211

DCIS.
See
Defense Criminal Investigative Service

de Lamartine, Alphonse,
306

DEA.
See
Drug Enforcement Administration

death,
104–
106

Death with Dignity Act,
62

Deerings West Nursing Center v. Scott,
157

defamation of character,
162

defense counsel,
167

Defense Criminal Investigative Service (DCIS),
167

defense of one’s actions,
181–
183

deficient care,
357

DeGrella v. Elston,
60

delineation of clinical privileges,
218

demonstrative evidence,
181

dental hygienist,
257

dentistry,
256–
257

dentists,
256

deontological ethics,
8–
9

Department of Health and Human Services (DHHS),
146,
151,
168

AOA,
148

civil rights,
195

CMS,
149

federal government,
147
f

master’s degree program,
149

PHS,
149–
151

source of regulations,
148

Department of Justice (DOJ),
168

descriptive ethics,
5–
6

detachment,
26–
27

DHHS.
See
Department of Health and Human Services

dietary,
258–
260

dietitians,
259

difficult balancing act,
320

dilation and curettage (D&C),
341

Dimora v. Cleveland Clinic Foundation,
290

direct evidence,
181

discernment,
28

discharge,
299–
301,
378

discipline of physicians,
218–
219

disclosure

limitations on,
377–
378

patient information,
376–
378

discovery,
178

discrimination,
308

dispensing of medications,
268–
269

Disraeli, Benjamin,
26

disruptive behavior,
310

Dixon v. Taylor,
275

Doan v. Griffith,
299

documentary evidence,
181

Doe v. Bolton,
65

Doe v. Poelker,
308

Doe v. Smith,
67

Doe v. University of Cincinnati,
89

Doe v. Zimmerman,
67

DOJ.
See
Department of Justice

Dolly the Sheep Cloned,
60

do-not-resuscitate (DNR) orders,
122–
123

Dorsten v. Lapeer County General Hospital,
143,
145

Downey v. University Internists of St. Louis, Inc.,
301

Drucker, Peter F.,
24

Drug Enforcement Administration (DEA),
167

drug substitution,
269

durable power of attorney,
115,
117
f

duty to care

competent employees,
157–
158

defined,
155–
156

pharmacy’s department policy and procedure manual,
156

physician–patient relationship,
156

requirement in,
155

standard of care expected,
156

timely care, stabilization, transfer,
157

duty to monitor patient’s medications,
269

E

EBT.
See
examination before trial

economic status,
157

ED.
See
emergency department

education,
131

effective communication,
239,
239
f

Einstein, Albert,
46

elective abortions,
65–
66,
308

elective sterilizations,
72–
73

Eli v. Griggs County Hospital & Nursing Home,
162

emergency care,
369

emergency department (ED),
157

case study,
261

on-call system,
262

teamwork in action,
261
f

Emergency Environmental Control for Nursing Homes,
231–
232

Emergency Medical Responder,
246–
247

Emergency Medical Technician (EMT),
247

Emergency Medical Treatment and Active Labor Act (EMTALA),
196,
236

emotional/psychological abuse,
353

employee confidentiality,
312

employee responsibilities

adhere to safe practices,
320–
321

admit to mistakes,
321–
322

assigned duties,
319

caregiver’s pledge,
327

compassion,
316–
317

confidentiality,
319–
320

educate and encourage patients to ask questions,
315–
316

encourage teamwork,
325–
326

helpful advice,
327

honor and respect patient rights,
319

hospital policy,
317–
319

new patient,
315

patient advocate,
324–
325

professional competence,
325

professional relationships,
322–
323

professional standards,
321

protect patients from harm,
324

report patient abuse,
324

sexual harassment,
323–
324

State and Federal Regulations,
317

unethical behavior report,
324

employee rights

dignity and respect,
311

disruptive behavior,
310

“employment-at-will,” 306–308

fair treatment,
306–
308

family medical leave,
313

freedom from intimidation,
311–
312

privacy and confidentiality,
312

question patient care,
309

refuse to participate in patient care,
308–
309

safe environment,
315

sexual harassment,
310–
311

suggest physician change,
310

unemployment compensation,
315

whistleblowing,
313–
314

employment contracts,
175

employment-at-will doctrine,
306–
308

employment-related paternalism,
14–
16

EMTALA.
See
Emergency Medical Treatment and Active Labor Act

encourage teamwork,
325–
326

end-of-life dilemmas

advance directives,
111–
118

assisted suicide,
107–
110

defining death,
104–
106

DNR orders,
122–
123

euthanasia,
101–
103

feeding tubes,
121–
122

futility of treatment,
118

legislative response,
106

Medicine’s Palliative Care,
100

new beginning,
124

PSDA,
110–
111

removal of life-support equipment,
120–
121

right to self-determination,
103–
104

vegetative state,
120

withdrawal of treatment,
118–
119

withholding of treatment,
118–
119

end-of-life options,
62

endotracheal tube,
255

The Equal Pay Act (EPA),
308

Erie Care Center, Inc. v. Ackerman,
232

Estate of Behringer v. Medical Center at Princeton,
88

Estes Health Care Centers v. Bonnerman,
183

ethical dilemmas

abortion,
63–
72

artificial insemination,
76

historical event,
55

human genetics,
86–
92

organ donations,
77–
80

research, experimentation, clinical trials,
80–
86

sterilization, case study,
72–
73

surrogacy,
77

ethical principles

age and justice,
20–
21

autonomy,
10–
12

beneficence,
13

emergency care,
21

employment-related paternalism,
14–
16

facility CPR policy,
13

initiation of, CPR,
13

insurance benefits,
20

justice,
17–
21

law and ethics intersect,
16–
17

medical paternalism,
13–
14

nonmaleficence,
16

paternalism,
13

principle of, nonmaleficence,
17

search of, economic justice,
21–
22

Stamford Hospital v. Vega,
12

surveyor implications,
13

Tuskegee syphilis experiment,
17

ethical relativism,
9–
10

ethical theories,
4–
10

applied ethics,
6

consequential ethics,
6

deontological ethics,
8–
9

descriptive ethics,
5–
6

ethical relativism,
9–
10

meta-ethics,
5

nonconsequential ethical theory,
9

normative ethics,
5

Oregon law,
5

utilitarian theory,
7–
8

ethical dilemmas,
136–
137

ethics

atheism,
44

culture of,
47–
48

describtion of,
2–
3

ethical theories,
4–
10

Hippocratic Oath,
283–
285

inaccurate lab results,
264–
265

moral compass,
46–
47

morality,
3–
4

principles of,
10–
21

reasoning,
45–
46

religious,
39–
43

secular ethics,
44

situational of,
44–
45

virtue ethics,
22–
39

ethics consultation,
373–
374

Ethics in Patient Referral Act,
198

eugenic sterilization,
72–
73

euthanasia,
101–
103

active euthanasia,
102

involuntary euthanasia,
102–
103

passive euthanasia,
102

voluntary euthanasia,
102–
103

evidence,
181

evidence-based care models,
148

examination before trial (EBT),
178

examination of witnesses,
181

exclusive contracts,
175–
176

executive branch,
146–
147

expert witness,
181

express consent,
331

express corporate authority,
206

external ethical issues,
134

Eyoma v. Falco,
254

F

Facebook,
171

facility CPR policy,
13

failure to follow instructions,
254

failure to report physician negligence,
254

fairness,
28–
29

Fall v. White,
384

false advertising,
208–
209

False Claims Act,
314

false HIV diagnosis,
265

false imprisonment,
162

false statements,
218

falsification of records,
290

Falun Gong,
42

Family and Medical Leave Act of 1993 (FMLA),
313

family history,
292,
292
f

family medical leave,
313

Family Medical Leave Act (FMLA),
225

favor preserving life,
334–
335

FBI.
See
Federal Bureau of Investigation

FDA.
See
Food and Drug Administration

FDA website,
80

FDIC v. Stahl,
205

Federal administrative agencies,
143

Federal Bureau of Investigation (FBI),
167

federal court system,
146

feeding tubes,
121–
122

felony,
164

fidelity,
29–
30

fiduciary, responsibility,
205–
206

Final Exit and Freedom of Speech,
59–
60

financial incentive schemes,
236–
267

financial/material exploitation,
353

first do no harm,
284

first responders

2011 National EMS Assessment,
246

Advanced Emergency Medical Technician,
247

Emergency Medical Responder,
246–
247

Emergency Medical Technician,
247

paramedic,
247–
248

scope of practice,
246

first trimester,
64

Fjerstad v. Knutson,
261

float nurse,
251–
252

Florida Hospital Waterman, Inc., etc. v. Teresa M. Buster, et al.,
378

Foley v. Bishop Clarkson Memorial Hospital,
293

Follett v. Davis,
267

follow-up care,
299–
301

Food and Drug Administration (FDA),
150,
167

forcible administration,
356

foreseeability,
159

Forever Anonymous, Inc. (FA),
229

forgiveness,
38–
39

foster empathy during conflict,
26

Foundation for Accountability (FACCT),
226

fourteenth amendment to the constitution,
194

45-year prison sentence,
170–
171

fracture stabilization,
247

Franklin, Benjamin,
37

fraud, healthcare

DHHS,
168

FBI,
167

45-year prison sentence,
170–
171

HIPAA,
168

home care fraud,
171

investigation and prosecution,
168–
169

pharmacist billing fraud,
171–
172

schemes to defraud,
169–
170

fraud investigation,
168–
169

freedom,
30–
31,
30
f

funding,
65

futility of treatment,
118

G

Gallegos, Alicia,
314

Gandhi, Indira,
38

General Hospital’s nursery,
159

Genetic Information Nondiscrimination Act (GINA),
86

genetic markers,
86

Georgia Court of Appeals,
274

ghost surgery,
161–
162

Gill v. Hartford Accident & Indemnity Co.,
298

Gilmore v. Board of Psychologist Examiners,
273

global situation and trends,
87

Goff v. Doctors General Hospital,
254

Goldberg v. De Buono,
324

Gonzales v. Oregon,
62

Good Samaritan laws,
182

good-faith reporting,
349–
350

Gosnell Report of the Grand Jury,
71

government ethics

Code of Conduct,
192

Committee on Ethics,
191

OCE,
192

OGE,
190

political malpractice,
200–
201

public policy,
192–
199

public service,
201

state ethics committees,
192

U.S. Senate Select Committee on Ethics,
191–
192

Government of United States,
144
f

government organization

conflict of laws,
143,
145

executive branch,
146–
147

Government of United States,
144
f

judicial branch,
145–
146

legislative branch,
145

separation of powers,
143

Grellet, Stephen,
1

Greynolds v. Kurman,
336

guardianship,
116,
338

Guidelines on Human Experimentation,
56

H

hand hygiene guidelines,
320

hands-on doctoring fades away, patients lose,
294

Harris, Sydney J.,
2

Harris v. McRae,
66

Harrison v. Axelrod,
253

Hartke v. McKelway,
75

Harvard Ad Hoc Committee on Brain Death,
56

Hastings v. Baton Rouge Hospital,
157,
158

Head Injury Instructions,
160

Health and Human Services-Office of Inspector General (HHS-OIG),
167–
168

Health Care Fraud Prevention and Enforcement Action Team (HEAT),
168

Health Care Quality Improvement Act of 1986 (HCQIA),
197

Health Insurance Portability and Accountability Act (HIPAA),
60,
168,
196,
376,
377

Health Resources and Services Administration (HRSA),
150

Health Review Council (HRC),
394

healthcare ethics

case study,
132,
136,
137

committee functions,
130–
133

committee goals,
129–
130

committee structure,
129

ethical dilemmas,
136–
137

make better decisions,
137–
138

role of,
134–
136

healthcare fraud.
See
fraud, healthcare

healthcare organizations,
232

healthcare professionals,
245, 323.
See
legal-ethical issues

healthcare proxy,
116–
118

HEAT.
See
Health Care Fraud Prevention and Enforcement Action Team

Heddinger v. Ashford Memorial Community Hospital,
229

Heinecke v. Department of Commerce,
323

Hemlock Society,
58

Hepburn, Audrey,
26

Hickman v. Sexton Dental Clinic,
258

Hinduism,
42

Hippocratic Oath,
283–
285

historical event,
55

altruistic living kidney donors,
62

Attorney General John Ashcroft filed,
61

Ballot physician-assisted suicide defeated,
61

Baxter v. Montana,
62

cardiopulmonary resuscitation,
56

Commission for the Study of Ethical Problems,
58

compassion and choices,
58–
59

Death with Dignity Act,
62

DeGrella v. Elston,
60

Dolly the Sheep Cloned,
60

end-of-life options,
62

Final Exit and Freedom of Speech,
59–
60

first durable power of attorney legislation,
58

first living will legislation,
58

Gonzales v. Oregon,
62

Guidelines on Human Experimentation,
56

Harvard Ad Hoc Committee on Brain Death,
56

Health Insurance Portability and Accountability Act,
60

Hemlock Society,
58

Holocaust,
55

Human Cloning, Ethical Issues,
62

human genome system,
61

informed consent,
57

Kennedy Institute of Ethics,
56–
57

Kevorkian administers lethal injection,
61

Kevorkian charged with murder,
61

living donor registry,
62

Matter of Karen Ann Quinlan,
57–
58

Michigan—Physician Assisted Suicide Illegal,
60

Military Tribunal for War Crimes,
56

morning-after pill,
62

Nancy Cruzan Feeding Tube Removed,
59

Neanderthal Burial Sites,
55

NRA,
57

Oregon voters reaffirm,
61

Oregon’s Death with Dignity Act,
60

Patient as a Person,
56

Patient Self-Determination Act,
59

patients receive lethal doses,
61

physician-assisted suicide,
60–
61

radiation experiments,
60

Roe v. Wade,
57

seven myths about end-of-life care,
61

State of Oregon v. Ashcroft,
61

supreme court rule,
61

Timothy Quill,
59

Tuskegee Study of Syphilis,
55

UK Supreme Court Denies Right to Treatment,
62

unethical experiments on children,
59

WMA Guidelines for Conducting Biomedical Research,
56

WMA International Code of Medical Ethics,
56

HIV testing,
265

Holocaust,
55

home care fraud,
171

honesty,
31–
32

Hooks v. McLaughlin,
269

hopefulness,
36–
37

hospital charges,
380

hospital peer-review materials,
380

hospital-acquired infections (HAIs),
298

Hoxie v. Ohio State Med. Bd.,
218

HRSA.
See
Health Resources and Services Administration

Hudson, Wanda,
62

Human Cloning, Ethical Issues,
62

human genetics,
86–
92

AIDS,
87,
92

blood transfusions,
87–
88

case study,
88–
91

confidentiality,
89

genetic markers,
86

GINA,
86

global situation and trends,
87

spread of AIDS,
87

stem cell research,
86–
87

treatment,
91

human genome system,
61

I

immunity,
349–
350

implied consent,
331,
333

implied contract,
174

implied corporate authority,
206

In re Anonymous,
68

In re Axelrod,
356

In re Claire C. Conroy,
121

In re Estate of Smith v. O’Halloran,
354

In re Guardianship of L.S.,
337

In re Muncan,
210

independent contractor,
212

Indian Health Service,
151

indictment,
165
f–
166
f,
166

infliction of mental distress,
163–
164

informed consent,
57,
68,
288,
296–
297.
See
patient consent

injury, due to negligence,
158,
158
f

Insinga v. LaBella,
218

insurance benefits,
20

insurance coverage,
157

integrity,
33–
35

intentional tort,
184

assault,
161–
162

battery,
161–
162

case study,
163

defamation of character,
162

false imprisonment,
162

infliction of mental distress,
163–
164

invasion of privacy,
162–
163

proof of intent,
160

internal ethical issues,
134

Internal ethics,
192

internal issues,
134

Internal Revenue Service-Criminal Investigation (IRS-CI),
167

intravenous (IV) admixture room,
158,
158
f

invasion of privacy,
162–
163

involuntary euthanasia,
102–
103

irreversible coma,
119

IRS-CI.
See
Internal Revenue Service-Criminal Investigation

Islam,
43

J

Jain, Manoj,
31

Jameson, Marni,
314

Jefferson, Thomas,
10

Jesse Bravo v. White Memorial Hospital,
224

Jewish Law,
41

Johnson, Samuel,
23

Johnson v. Terry,
183

Joint Commission on Accreditation of Healthcare Organizations (JCAHO),
226

The Joint Commission,
297

The Joint Commission’s
Speak Up initiative,
316

Joint Commission standards,
259

Joseph, P.,
56

Journal of General Internal Medicine,
26

Journal of the American Medical Association,
31,
381

Judaism,
41–
42

judge’s charge to the jury,
183

judicial branch,
151

federal court system,
146

principle,
145

state court system,
145–
146

Jupiter v. U.S.,
299

jury deliberation,
183

jury process,
180

justice,
17–
20,
291

K

Kant, Immanuel,
6

Kennedy, Edward M.,
18

Kennedy, Rose F.,
56

Kennedy, Ted,
86

Kennedy Institute of Ethics,
56–
57

Kevorkian, Jack,
59

Kevorkian administers lethal injection,
61

Kevorkian charged with murder,
61

kindness,
36

Kingsley, Charles,
24

Kirk v. Mercy Hosp. Tri-County,
309

Koeniguer v. Eckrich,
254

Kushner, Harold,
36

L

laboratory,
263–
265

laboratory medical technologists,
263

Lambert v. Beverly Enterprises, Inc.,
259

Larrimore v. Homeopathic Hospital Association,
253

Larson v. Albany Medical Center,
308

law

development of public policy,
140

and ethics intertwine,
284–
285

sources of,
141–
143

legal reporting requirements

child abuse,
347–
350

senior abuse.
See
senior abuse

legal system

administrative law,
143–
144

common law,
141–
142

Department of Health and Human Services,
147–
151

government organization,
143–
147

private law,
140–
141

public law,
140

sources of law,
141–
144

statutory law,
142–
143

legal-ethical issues

nurses,
248–
255

paramedics and first responders,
246–
248

Leggett v. Kumar,
296

legislate morality,
4

legislative branch,
145,
151

legislative response,
106

Lerner, Gerda,
24

Letters from a Farmer in Pennsylvania,
141

liability,
210

libel,
162

licensed vocational nurse (LVN),
157–
158

licensing

healthcare professionals,
276–
277

suspension and revocation procedures,
277

licensure,
276–
277

life/death decisions,
342

Lincoln, Abraham,
33

living donor registry,
62

living will,
111–
114,
113
f

Louisiana civil law,
141

Louisiana law,
270–
271

Lovelace Medical Center v. Mendez,
75

Luka v. Lowrie,
334

LVN.
See
licensed vocational nurse

M

Macleod v. Miller,
379

macroethics,
2

Magnolias Nursing and Convalescent Center v. Department of Health and Rehabilitation Services,
214

make better decisions,
137–
138

malfeasance,
155

malnutrition,
260

Managed Care,
209

manslaughter,
172

Marbury v. Madison,
140,
143,
145

Marks v. Mandel,
261

masquerading physician,
218

Massachusetts State Constitution,
147

Matsumura, Molleen,
45

Matter of Jascalevich,
290

Matter of Karen Ann Quinlan,
57–
58

Matt’s survey,
6

McCracken, Robert J.,
27,
28

medicaid,
149

Medicaid Fraud Control Units,
167

medical assistant,
266

medical ethics, principles

compassion care,
286–
287

consultation,
290

falsification of records,
290

justice,
291

respect for privacy,
291–
292

responsibility,
287

trust,
287–
289

Medical Executive Committee (MEC),
197

medical history,
293–
294,
293
f

medical identity theft,
173

medical integrity,
35–
36

medical mix-ups,
298

medical paternalism,
13–
14

medical records,
267

medical staff, physician–patient relationship,
301–
302

medicare,
149

medication errors,
268,
268
f

reducing,
270

medications

forcible administration,
356

order change, failure to note,
253–
254

patient treatment,
297,
297
f

wrong dosage,
253

wrong patient,
253

Medicine’s Palliative Care,
100

Mehlman v. Powell,
212

Melone v. State Education Department,
257

meta-ethics,
5

Michigan—Physician Assisted Suicide Illegal,
60

microethics,
2

Military Tribunal for War Crimes,
56

Miller v. Dunn,
172

misdemeanor,
164

misdiagnosis,
295

misfeasance,
155

misleading advertising,
208–
209

Montana law,
307

Montgomery Health Care Facility v. Ballard,
357

moral compass,
46–
47

moral dilemmas,
4

moral integrity,
215–
217

moral judgments,
4

morality,
3–
4

morality rules,
4

Morena v. South Hills Health Systems,
247

morning-after pill,
62

mother refuses treatment, spouse agrees,
340–
341

Mother’s Right, a Child’s Death,
340

Moyo v. Ambach,
297

multidisciplinary approach,
271–
272,
326

murder,
172

Murphy v. Board of Medical Examiners,
237

N

Nancy Cruzan Feeding Tube Removed,
59

National Abortion Fed’n v. Gonzages,
69

National Association of Long Term Care Administrator Boards (NAB),
213

National Association of Social Workers (NASW),
276

National Committee for Quality Assurance (NCQA),
226

National Institutes of Health (NIH),
149–
150

National Research Act (NRA),
57

Neade v. Portes,
156

Neanderthal Burial Sites,
55

negative tolerance,
37

negligence,
184

breach of duty,
158,
158
f

causation,
158–
159,
159
f

commission of an act,
155

defined,
155

duty to care,
155–
158,
156
f

elements,
155–
159,
156
f,
158
f,
159
f

ethicists and standard of care,
156

injury/actual damages,
158,
158
f

malpractice,
155

nursing,
252–
255

omission of an act,
155

patient assessment,
292–
294

patient diagnosis,
294–
295,
294
f

patient treatment.
See
patient treatment

political malpractice,
200

proximate cause,
158–
159

state statutes,
156–
157

new beginning,
124

New York State Education Law,
292

Nicoletta v. Rochester Eye & Human Parts Bank,
79

NIH.
See
National Institutes of Health

NIH patients,
84–
85

Niles v. City of San Rafael,
160

nitrous oxide,
257

noise interferences,
393

noncompetition agreements,
176

noncompliance,
226

nonconsequential ethical theory,
9

nonfeasance,
155

nonmaleficence,
16,
159,
164,
265,
272–
273,
284

nonverbal communication,
392–
393

normative ethics,
5

North Carolina Board of Nursing,
254

Norton v. Argonaut Insurance Co.,
253

Notami Hospital of Florida, Inc., etc. v. Evelyn Bowen, et al,
378

nurse anesthetist,
251

nurse assessments,
252

nurse midwives,
251

nurse practitioner (NP)

negligence imputed to physician,
250

potential risks,
250

role of,
249

routine diagnostic tests,
250

telephone medicine,
250–
251

nurses, nursing,
277–
278

agency personnel,
252

APRN,
249

caregivers,
277

case study,
255–
258,
266–
267,
275

certification of healthcare professionals,
276

chiropractor,
255

CNS,
251

COP,
249

dentistry,
256–
257

dietary,
258–
260

emergency department,
261–
262

float nurse,
251–
252

higher salaries and incentives,
248

laboratory,
263–
265

licensure,
276–
277

medical assistant,
266

medical records,
267

negligent acts,
252–
255

nurse anesthetist,
251

nurse midwife,
251

nurse practitioner,
249–
251

nursing assistants,
252

patient’s illness,
248

pharmacy,
267–
270

physical therapy,
270–
272

physician assistants,
272

psychology,
272–
274

radiology,
274

registered nurse,
249

respiratory care,
274–
275

social work,
276

special duty nurse,
251

student nurses,
252

suspension and revocation procedures,
277

nurses’ notes,
289

nurse’s sexual relations,
323

nursing assistants,
252

nursing diagnosis,
252

Nursing Practice Act,
254,
309

O

O’Brien v. Cunard Steam Ship Co.,
334

Occupational Safety and Health Act of 1970 (OSHA),
265

O’Connor v. Eastman Kodak Co.,
175

Odom v. State Department of Health and Hospitals,
226

offer/communication,
175

Office of Congressional Ethics (OCE),
192

Office of Government Ethics (OGE),
190

Office of Inspector General (OIG),
168

Office of Personnel Management-Office of Inspector General (OPM-OIG),
167

OIG.
See
Office of Inspector General

Older Americans Act of 1965,
148

omission of an act,
155

Online Medical Treatment Advisor,
296

open-heart surgery,
318

opening statements,
180

OPM-OIG.
See
Office of Personnel Management-Office of Inspector General

oral consent,
333

Oregon Death with Dignity Act,
109–
110,
110
f

Oregon law,
5

Oregon voters reaffirm,
61

Oregon’s Death with Dignity Act,
60

organ donations,
77–
80

Altruism vs. Sale of Organs,
79–
80

decision maker,
78

failure to obtain consent,
79

Uniform Anatomical Gift Act,
78

organizational ethics,
241–
242

case study,
211

corporate authority,
205

corporate duties and responsibilities.
See
corporate duties and responsibilities

corporate ethics,
206–
210

corporate negligence,
210

fiduciary responsibility,
205–
206

independent contractor,
212

organizational performance,
239–
241

professional ethics,
235–
237

respondeat superior,
205,
212

restoring trust,
238–
239

organizational harmony,
313

O’Rourke, Peter,
193

Orwell, George,
31

OSHA’s Whistleblower Protection program,
314

P

pain management,
298–
299

patient rights,
376

pain rating scale,
376

paramedics,
247–
248

parental consent,
67–
68

parents refuse treatment,
337

Parker, Kathleen,
411

Partial-Birth Abortion Ban Act,
69

partner with the community,
241

passive euthanasia,
102

paternalism,
13

patient abuse

child abuse,
347–
350

senior abuse.
See
senior abuse

patient advocacy services,
372–
373

patient advocate,
324–
325

Patient as a Person,
56

patient assessment

family history,
292,
292
f

medical history,
293–
294,
293
f

patient care teams,
259

patient consent

adequacy of consent,
336–
338

capacity,
335

code of ethics,
332–
333

informed consent,
331–
332

introduction to,
331

lack of,
335

patient death,
335

proof of consent,
333–
334

religious beliefs,
339–
343

right to refuse treatment,
339–
343

statutory consent,
334

patient diagnosis,
294–
295,
294
f

patient emergency,
334–
335

patient infections,
298,
298
f

patient is competent,
123

Patient Protection and Affordable Care Act (PPACA),
199

patient responsibilities

advisory commission,
387

appointments,
383

to ask questions,
386

current medication records,
383–
384

follow discharge instructions,
386

healthy lifestyle,
383

medical history,
384

reporting sudden changes in health status,
384

rights of other patients,
386

second opinion,
385

show compassion for caregivers,
387

stay informed,
385–
386

symptoms description,
384

teamwork and professional relationships,
388

treat caregivers with respect,
386

treatment planning,
385

patient rights

access lab reports,
380

access medical records,
379

addressing with special needs,
371

addressing with spiritual needs,
373

admission,
370

to ask questions,
366–
367

choose physicians,
371–
372

choose treatment,
374

compassionate care,
374–
375

Conditions of Participation,
364

discharge,
378

emergency care,
369

ethics consultation,
373–
374

examination and treatment,
370

execute advance directives,
371

exercise rights,
366

explanation of rights,
366

to freedom from abuse and harassment,
378

hospital charges,
380

informed consent,
371

know caregivers,
371

know hospital’s adverse events,
378

know one’s rights,
366

medical errors,
381

over-surveyed
vs. under-surveyed,
383

pain management,
376

patient advocacy services,
372–
373

privacy and confidentiality,
376–
378

receive quality care,
374

refuse treatment,
371

to respect,
376

restraints,
382

right to complain,
367

safe healing environment,
381–
382

seclusion,
382

third-party relationships,
380

transfer,
379

trust caregivers,
372

try experimental drugs,
374

Patient Self-Determination Act (PSDA),
59,
110–
111,
198–
199,
339

patient treatment,
295–
296

autonomy and informed consent,
296–
297

evidence-based best practices,
296

medications,
297,
297
f

pain management,
298–
299

patient infections,
298,
298
f

patient’s condition,
298

surgery,
297–
298

patient’s condition,
298

patient’s condition, failure to observe,
254–
255

patient’s discharge, failure to question,
254

patient’s hope,
287

patients receive lethal doses,
61

patient’s spouse, avoidance relationship,
324

Payne v. Marion General Hospital,
123

Pediatric Intensive Care Unit (PICU),
254

peer review,
145

Peete v. Blackwell,
162

People v. Coe,
356

People v. Eulo,
105

People v. Lancaster,
172

Perkins v. Lavin,
340

Perna v. Pirozzi,
161,
372

persistent vegetative state,
120

personalized treatment,
301–
302

pharmacist billing fraud,
171–
172

pharmacists role,
269

pharmacy

administration of medications,
268–
269

dispensing of medications,
268–
269

drug substitution,
269

duty to monitor patient’s medications,
269

medication errors,
268,
268
f

pharmacists role,
269

practice of,
267

questionable prescription,
269

reducing medication errors,
270

warning patients, overdose,
269

PHS.
See
Public Health Service

physical abuse,
352

Physical Therapists’ Code of Ethics,
271

physical therapy,
270–
272

physician assistants (PAs),
272

physician lacks compassion,
286

physician strikes,
162

physician-assisted suicide,
60–
61

physician–patient relationship,
301–
302

physician’s inappropriate house call,
323–
324

physician’s orders, incorrectly interpreting,
270–
271

Pilgrim, Peace,
37

pillars of moral strength,
23,
23
f

Planned Parenthood v. Casey,
65,
69

Planned Parenthood v. Owens,
68

pleadings,
176–
178

Plum, Fred,
122

pneumatic anti-shock gar-ment (PASG),
247

Poe v. Gerstein,
67

policies and procedures,
240

policy and procedure development,
130

political malpractice,
200–
201

politics,
33

Pontiff v. Pecot & Assoc.,
270

Poor Sisters of St. Francis v. Catron,
255

Poor v. State,
256

positive tolerance,
37

precedent,
142

preparation of witnesses,
178–
179

prevention of falls,
234

prima facie case,
183

principles morality,
4

principles of, medical ethics,
12

Privacy Act of 1974,
195

Privacy Protection Safety Commission,
195

private law,
140–
141,
151

professional competence,
325

professional ethics

EMTALA,
236

financial incentive schemes,
236–
267

insured’s chemotherapy,
236

management’s financial decisions,
236

policies and procedures,
236

professional relationships,
388

proof of consent,
333–
334

prosecution of fraud,
168–
169

prosecutor,
166–
167

proximate cause,
158–
159

psychiatric unit,
16

psychologists,
272

psychology

beneficence and nonmaleficence,
272–
273

child abuse,
273–
274

psychologists,
272

sexual harassment,
273

unethical conduct,
273

Public Health Service (PHS)

AHRQ,
151

ATSDR,
151

CDC,
150

FDA,
150

health policy and intergovernmental relations,
149

HRSA,
150

Indian Health Service,
151

NIH,
149–
150

substance abuse and mental illness,
150

public law,
140,
151

public policy,
201–
202,
309

AHRQ,
198

case study,
196,
198

defined,
192

EMTALA,
196

Ethics in Patient Referral Act,
198

exception,
307–
308

fourteenth amendment to the constitution,
194

HCQIA,
197

HIPAA,
196

PPACA,
199

Privacy Act,
195

PSDA,
198–
199

Sarbanes-Oxley Act,
199

Sherman Antitrust Act,
195

sources,
192

Title VI: Civil Rights Act,
195

veterans administration,
193–
194

public service, ethics in,
201

punitive damages,
162,
183

Q

quality patient care,
224–
225

questionable prescription,
269

Quill v. Vacco,
108

Quinlan approach,
103

R

radiation experiments,
60

radiology,
274

radiology group,
176

radiology technologists,
274

Ramberg v. Morgan,
295

Ramsey, Paul,
13

Randerson, James,
29

real evidence,
181

reasonably prudent person,
156

reasoning,
45–
46

reduce variation,
240

Refusal of Care and Treatment,
340,
342
f

refuse treatment, right to,
339–
343

registered nurse (RN),
157,
249

religious beliefs,
43

religious ethics,
39–
43,
40
f

report patient abuse,
324

requests for committee consultations,
131–
133,
133
f

requests for consultations,
130

Res judicata,
142

research, experimentation, clinical trials,
80–
86

resident neglect,
271–
272

respect,
36

respiratory care,
274–
275

respiratory therapist (RT),
274–
275

respondeat superior,
205,
212,
251

restraints,
382

Richard v. Larry,
324

Riffe v. Vereb Ambulance Service,
Inc.,
248

right to privacy,
162

Riser v. American Medical Int’l, Inc.,
335

robotic surgery,
332

Rochefoucauld, Francois de La,
36

Rockefeller, John D., Jr.,
315

Roe v. Wade,
57,
63

role of, ethics

Autonomy and the Law Collide,
134–
136

external ethical issues,
134

internal ethical issues,
134

internal issues,
134

runaway elevator,
233–
234

Rust v. Sullivan,
66–
67

S

safe environment,
231–
233,
315

safe healing environment,
381–
382

San Diego Medical Group,
285

Sarbanes-Oxley Act,
199

scarce resources,
223–
224

schemes to defraud,
169–
170

Schloendorff v. Society of New York Hospital,
103,
161

Schopenhauer, Arthur,
24

Schweitzer, Albert,
4

screen job applicants,
217

Scripps Clinic,
285

Scripps Clinic v. Superior Ct,
285

seclusion,
382

secular ethics,
44

senior abuse

abusers,
357

abusive resident/disciplinary overkill,
356–
357

abusive search,
356

CMS,
351

deficient care,
357

definition,
350

federal comparative surveys,
351

prevention,
357–
359

reporting,
352

signs of,
352–
354

widespread and pervasive,
351

separation of powers,
143,
151

sexual abuse,
352–
353

sexual harassment,
273

employee responsibilities,
323–
324

employee rights,
310–
311

sexual harrassment and assault, protecting patients and staff,
234

Shaheen v. Knight,
76

Shea v. Esensten,
237

Sherman Antitrust Act,
195

Shewmon, Alan,
99

Sides v. Duke Hospital,
306

Simiao, Sun,
86

situational ethichs,
44–
45

slander,
162

Social Security Act Amendments of 1965,
149

Socratic method of teaching and learning,
366

Somers, Daniel,
193

Somoza v. St. Vincent’s Hospital,
379

sources of law

administrative law,
143–
144

common law,
141–
142

statutory law,
142–
143

sovereign immunity,
183

Spahn v. Eisenberg,
120

“Speak-Up” sign,
368

special duty nurse,
251

spiritual assessments,
373

spirituality,
40

spousal consent,
67

spouse,
336–
337

spread of AIDS,
87

staff lacks compassion,
286–
287

standard of care

ethicists,
156

individual expectation,
156

state statutes,
156–
157

stare decisis,
142

state abortion statutes,
69–
70

state and local jurisdictions,
142

state court system,
145–
146

state ethics committees,
192

State of Oregon v. Ashcroft,
61

state statutes,
156–
157

State University v. Young,
275

State v. Cunningham,
354

statute of limitations,
182–
183

statutory consent,
334

statutory law,
142–
143,
151

stem cell research,
86–
87

Stepp v. Review Board of the Indiana Employ-ment Security Division,
265

sterilization,
72–
73

elective sterilizations,
72–
73

eugenic sterilization,
72

therapeutic sterilization,
72

wrongful birth,
73–
74

wrongful conception,
75–
76

wrongful life,
74–
75

Sterne, Laurence,
36

Stoick v. Caro Community Hospital,
371

stroke patient refused treatment,
371

student nurses,
252

subpoena ad testificandum,
180

subpoena duces tecum,
180

subpoenas,
180

substance abuse and mental illness,
150

substituted judgment,
115–
116

Sullivan, Paul,
314

summons,
177

Superintendent of Belchertown State School v. Saikewicz,
103

supreme court rule,
61

Supreme Judicial Court of Massachusetts,
145

surgeons and medical center breach trust,
288–
289

surgery,
297–
298

surrogacy,
77

surrogate decision making,
115

T

Tanner, Lindsey,
39

Taoism,
42

Tarrant County Hospital District v. Hughes,
89

Taylor v. Kennestone Hosp.,
219

teamwork,
325–
326,
388

temperance,
24

temporary guardianship,
338

Tennyson, Alfred,
23

termination, public policy exception,
307–
308

Texas Advance Directives Act,
134

Texas law,
69

The Conversation Project (TCP),
124

The Department of Health and Human Services (HHS),
380

The Division of Unemployment Insurance,
315

The Patient’s Bill of Rights,
366

theft,
172–
174

therapeutic abortions, funding,
65–
66

therapeutic sterilization,
72

third-party relationships,
380

Thomas v. Corso,
261

Thomas v. Sisters of Charity of the Incarnate Word,
234

Thompson, Dorothy,
30

Thompson v. Nason Hospital,
210

Thoreau, Henry David,
3

timely treatment,
229–
230

Timothy Quill,
59

Title VI: Civil Rights Act,
195

tolerance,
37

Tomcik v. Ohio Dep’t of Rehabilitation & Correction,
163

Torres, Christian,
397

tort action,
140

tort law,
183–
184

case study,
160

negligence,
155–
159

objectives,
155

transient ischemic attack (TIA),
266

trial procedures,
177
f,
185

appeals,
183

burden of proof,
180–
181

closing statements,
183

court,
179–
180

damages,
183

defense of one’s actions,
181–
183

discovery,
178

evidence,
181

examination of witnesses,
181

judge’s charge to the jury,
183

jury,
180

jury deliberation,
183

opening statements,
180

pleadings,
176–
178

preparation of witnesses,
178–
179

subpoenas,
180

Truan v. Smith,
300

trust,
313

and integrity,
208

medical ethics,
287–
289

truth

code of silence,
394–
417

communication,
392,
393
f

truth telling,
31

Tuskegee Study of Syphilis,
55

Twain, Mark,
31

U

UK Supreme Court Denies Right to Treatment,
62

ultra vires acts,
206

unanticipated medical outcomes,
367–
368

undue burden,
65

unemployment compensation,
315

unethical behavior report,
324

unethical conduct,
273

unethical experiments on children,
59

unintended retention of foreign objects (URFOs),
297

United States

House of Representatives,
191

U.S. Court of Claims,
146

U.S. Court of Military Appeals,
146

U.S. Courts of Appeals,
146

U.S. Customs Court,
146

U.S. District Court,
145,
146

U.S. Judicial Code of Conduct,
192

U.S. Supreme Court,
143

U.S. Tax Court,
146

University of Pennsylvania Health System,
39

unlawful administration,
257

unnecessary coronary stents,
332

unnecessary surgery,
284

unprofessional conduct,
208

untimely discharge,
299–
300

urinary tract infection (UTI),
299

U.S. Cancer-Care Delivery is “In Crisis”: Report,
325

U.S. Code for sex discrimination,
145

U.S. Department of Justice,
164

U.S. District Court,
145

U.S. Equal Employment Opportunity Commission (EEOC),
308

U.S. Senate Select Committee on Ethics,
191–
192

Utah Women’s Clinic, Inc. v. Leavitt,
70

utilitarian theory,
7–
8

V

vegetative state,
120

Veterans Administration (VA) hospitals,
193–
194,
230

Veterans Affairs (VA),
193–
194,
299–
300

virtue ethics,
22–
39

commitment,
24

compassion,
24–
26

conscientious,
27–
28

cooperation,
37–
38

courage,
23–
24

detachment,
26–
27

discernment,
28

fairness,
28–
29

fidelity,
29–
30

forgiveness,
38–
39

freedom,
30–
31,
30
f

honesty,
31–
32

hopefulness,
36–
37

integrity,
33–
35

kindness,
36

medical integrity,
35–
36

pillars of moral strength,
23,
23
f

politics,
33

respect,
36

temperance,
24

tolerance,
37

wisdom,
24

voidable contract,
174

voir dire,
180

voluntary euthanasia,
102–
103

W

wait-and-see program,
300

Walls, Bill,
15

Wanton neglect of residents,
354–
355

warning patients, overdose,
269

Washington County Memorial Hospital v. Sidebottom,
176

Webster v. Reproductive Health Services,
69

Wesley, John,
28

Whipple, E. P.,
10

Whirlpool Corp. v. Marshall,
265

whistleblowing,
313–
314

Wilmut, Ian,
60

wisdom,
24

withdrawal of treatment,
118–
119

withholding of treatment,
118–
119

WMA Guidelines for Conducting Biomedical Research,
56

WMA International Code of Medical Ethics,
56

Women’s Medical Professional Corp. v. Voinovich,
69

Wons v. Public Health Trust,
339

Woods v. Commonwealth,
132

Wright, Frank Lloyd,
24

written consent,
333

wrongful birth,
73–
74

wrongful conception,
75–
76

wrongful life,
74–
75

wrong-site surgery,
298

X

X-ray technician,
274

XYZ corporation,
312

Y

Youk, Thomas,
61

Z

Zen,
42

Zucker v. Axelrod,
271

Contents

Cover

Title Page

Copyright Page

Dedication

Epigraph

Brief Contents

Contents

Foreword

Preface

Acknowledgments

Chapter 1 Introduction to Ethics

Learning Objectives

Introduction

Ethics

Why Study Ethics

Morality

Code of Conduct

Moral Judgments

Morality Legislated

Moral Dilemmas

Ethical Theories

Meta-Ethics

Normative Ethics

Descriptive Ethics

Applied Ethics

Consequential Ethics

Utilitarian Ethics

Deontological Ethics

Nonconsequential Ethics

Ethical Relativism

Principles of Ethics

Autonomy

Beneficence

Nonmaleficence

Justice

Virtue Ethics and Values

Courage as a Virtue

Wisdom as a Virtue

Temperance as a Virtue

Commitment

Compassion and Empathy

Conscientiousness

Discernment

Fairness

Fidelity

Freedom

Honesty/Trustworthiness/Truth Telling

Integrity

Kindness

Respect

Hopefulness

Tolerance

Cooperation and Teamwork

Forgiveness

Religious Ethics

Judaism

Hinduism

Buddhism

Taoism

Christianity

Islam

Religious Beliefs and Duty Conflict

Secular Ethics

Atheism

Situational Ethics

Reasoning and the Decision-Making Process

Absence of a Moral Compass

Creating a Culture of Ethics

Summary Thoughts

Chapter 2 Contemporary Ethical Dilemmas

Learning Objectives

Introduction

Noteworthy Historical Events

68,000–58,000 BC

AD 1932–1972

1933–1945

1946

1949

1954

1960s

1964

1968

1970

1971

1972

1973

1974

1976

1978

1980

1983

1987

1990

1993

1994

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2009

2010

2013

2017

2018

Abortion

Right to Abortion

Abortion Restrictions

Undue Burden Rule

Funding

Refusal to Fund Abortion Counseling Not Unconstitutional

Spousal Consent

Parental Consent

Informed Consent

States May Protect Fetus

State Abortion Statutes

Law and Morality of Abortion—Conflicting Beliefs

Sterilization

Elective Sterilization

Therapeutic Sterilization

Eugenic Sterilization

Wrongful Birth, Life, and Conception

Wrongful Birth

Wrongful Life

Wrongful Conception

Artificial Insemination

Consent

Confidentiality

Surrogacy

Organ Donations

Who Lives? Who Dies? Who Decides?

Uniform Anatomical Gift Act

Failure to Obtain Consent

Altruism vs. Sale of Organs

Research, Experimentation, and Clinical Trials

Right to Try Experimental Drugs

Office of Research Integrity

Food and Drug Administration

Institutional Review Board

Informed Consent

Experimental Subject’s Bill of Rights

Patient Responsibilities

The Cures Act

Human Genetics

Genetic Markers

Genetic Information Nondiscrimination Act of 2008 (HR493)

Stem Cell Research

Acquired Immune Deficiency Syndrome

Spread of AIDS

Confidentiality

The Right to Treatment

AIDS Education

Chapter 3 End-of-Life Dilemmas

Learning Objectives

Introduction

Where Do Americans Die?

Euthanasia

Active or Passive Euthanasia

Voluntary or Involuntary Euthanasia

Right to Self-Determination

Defining Death

Legislative Response

Assisted Suicide

Physician-Assisted Suicide

Assisted Suicide Versus Refusal or Withdrawal of Treatment

Oregon’s Death with Dignity Act (1994)

Patient Self-Determination Act of 1990

Advance Directives

Living Will

Right to Die Without a Living Will

Durable Power of At torney

Surrogate Decision Making

Futility of Treatment

Withholding and Withdrawal of Treatment

Patient Not in a Persistent Vegetative State

Removal of Life-Support Equipment

Feeding Tubes

Do-Not-Resuscitate Orders

Competent Patients Make Their Own Decisions

A New Beginning and a Better Ending

Chapter 4 Healthcare Ethics Committee

Learning Objectives

Introduction

Committee Structure

Committee Goals

Committee Functions

Policy and Procedure Development

Expanding Role of the Ethics Committee

Internal Ethical Issues

External Ethical Issues

Resolution of Ethical Dilemmas

Making Better Decisions

Chapter 5 Development of Law

Learning Objectives

Introduction

Public Law

Private Law

Sources of Law

Common Law

Statutory Law

Administrative Law

U.S. Government Organization

Separation of Powers

Conflict of Laws

Legislative Branch

Judicial Branch

Executive Branch

Department of Health and Human Services

Administration on Aging

Centers for Medicare and Medicaid Services

Public Health Service

Chapter 6 Introduction to Law

Learning Objectives

Introduction

Tort Law

Negligence

Intentional Torts

Assault and Battery

False Imprisonment

Defamation of Character

Invasion of Privacy

Infliction of Mental Distress

Criminal Law

Criminal Procedure

Healthcare Fraud

Manslaughter

Murder

Theft

Contracts

Elements of a Contract

Employment Contracts

Exclusive Contracts

Trial Procedure and the Courtroom

Pleadings

Discovery

Preparation of Witnesses

The Court

The Jury

Subpoenas

Opening Statements

Burden of Proof

Evidence

Examination of Witnesses

Defense of One’s Actions

Closing Statements

Judge’s Charge to the Jury

Jury Deliberation

Damages

Appeals

Chapter 7 Government Ethics and the Law

Learning Objectives

Introduction

U.S. Office of Government Ethics

House of Representatives Committee On Ethics

Senate Select Committee On Ethics

Office of Congressional Ethics

U.S. Judicial Code of Conduct

State Ethics Committees

Public Policy

Veterans Administration

Fourteenth Amendment to the Constitution

Title VI: Civil Rights Act

Sherman Antitrust Act

Privacy Act

Health Insurance Portability and Accountability Act (HIPAA)

Emergency Medical Treatment and Active Labor Act (EMTALA)

Health Care Quality Improvement Act

Agency for Healthcare Research and Quality

Ethics in Patient Referral Act

Patient Self-Determination Act

Sarbanes-Oxley Act

Patient Protection and Affordable Care Act (2010)

Political Malpractice

Oath of Office

Ethics in Public Service

Chapter 8 Organizational Ethics and the Law

Learning Objectives

Introduction

Corporate Authority

Fiduciary Responsibility

Express Corporate Authority

Implied Corporate Authority

Ultra Vires Acts

Corporate Ethics

Code of Ethics for Organizations

Corporate Compliance Program

Unprofessional Conduct

Trust and Integrity

False Advertising

Concealing Mistakes

Corporate Negligence

Doctrine of Respondeat Superior

Independent Contractor

Corporate Duties and Responsibilities

Appointment of a CEO

CEO Licensure

CEO Responsibilities and Challenges

CEO Code of Ethics

Screen Job Applicants

Credentialing, Appointment, Privileging, and Discipline

Ensure Competency

Discipline of Physicians

Provide Adequate Staff

Provide Adequate Supplies and Equipment

Allocate Scarce Resources

Provide Quality Patient Care

Comply with Rules and Regulations

Provide Timely Treatment

Avoid Conflicts of Interest

Provide a Safe Environment

Prevention of Falls

Protect Patients and Staff from Sexual Harassment and Assault

Decisions that Collide with Professional Ethics

A Life Needlessly Shortened

Financial Incentive Schemes

Restoring Trust

Effective Communication Builds Trust

Improving Organizational Performance and Ethics

Board Education

Policies and Procedures

Search for Best Practices

Reduce Variation

Assure Continuity of Care

Partner with the Community

Develop a Culture of Compassion and Kindness

Chapter 9 Healthcare Professional Legal-Ethical Issues

Learning Objectives

Introduction

Paramedics and First Responders

Emergency Medical Responder

Emergency Medical Technician

Advanced Emergency Medical Technician

Paramedic

Nurses: Ethics and Legal Issues

Registered Nurse

Advanced Practice Nurse

Nurse Practitioner

Clinical Nurse Specialist

Nurse Anesthetist

Nurse Midwife

Special Duty Nurse

Float Nurse

Agency Personnel

Nursing Assistants

Student Nurses

Negligent Acts in Nursing

Chiropractor

Dentistry

Dental Hygienist

Dietary

Incidence and Recognition of Malnutrition

Emergency Department

Timely Response May Require a Phone Call

Laboratory

Ethics and Inaccurate Lab Results

Refusal to Perform HIV Testing

Medical Assistant

Medical Records

Pharmacy

Dispensing and Administration of Drugs

Drug Substitution

Expanding Role of the Pharmacist

Duty to Monitor Patient’s Medications

Warning Patients About Potential for Overdose

Refusal to Honor a Questionable Prescription

Reducing Medication Errors

Physical Therapy

Incorrectly Interpreting Physician’s Orders

Resident Neglect

Physician Assistant

Psychology

Failure to Minimize Harm: Unethical Conduct

Sexual Harassment

Reporting Child Abuse

Radiology

Failure to Restrain Causes Patient Fall

Respiratory Care

Social Work

Certification of Healthcare Professionals

Licensing of Healthcare Professionals

Suspension and Revocation of License

Helpful Advice for Caregivers

Chapter 10 Physicians’ Ethical and Legal Issues

Learning Objectives

Introduction

The Hippocratic Oath

Code of Medical Ethics

Law and Ethics Intertwine

Morally Wrong, Legally Actionable

Hippocratic Oath and AMA Code of Ethics Violated

Principles of Medical Ethics

Compassionate Care

Responsibility to the Patient Is Paramount

Trust

Failure to Refer for Consultation

Falsification of Records

Justice

Respect for Privacy

Negligence

Patient Assessments and Diagnosis

Patient Diagnosis

Patient Treatment

Discharge and Follow-Up Care

Untimely Discharge

Failure to Provide Follow-Up Care

Failure to Follow-Up on Test Results

Physician–Patient Relationship

Personalized Treatment Versus Assembly-Line Medicine

Treat Caregivers with Respect

Chapter 11 Employee Rights and Responsibilities

Learning Objectives

Introduction

Employee Rights

Fair Treatment and Employment at Will

Refuse to Participate in Patient Care

Question Patient Care

Suggest Changing Physician

Freedom from Disruptive Behavior

Sexual Harassment

Treatment with Dignity and Respect

Freedom from Intimidation

Privacy and Confidentiality

Family Medical Leave

Whistleblowing

Safe Environment

Unemployment Compensation

Employee Responsibilities

Know Your Patient

Educate and Encourage Patients to Ask Questions

Be Compassionate

Comply with State and Federal Regulations

Comply with Hospital Policy

Comply with Assigned Duties

Honor and Respect Patient Rights

Maintain Confidentiality

Adhere to Safe Practices

Admit to Mistakes

Adhere to Professional Standards

Maintain Professional Relationships

Sexual Harassment

Report Unethical Behavior

Protect Patients from Harm

Report Patient Abuse

Stand as a Patient Advocate

Maintain Professional Competence

Encourage Teamwork

Helpful Advice

The Caregiver’s Pledge

Chapter 12 Patient Consent

Learning Objectives

Introduction

Informed Consent

Codes of Ethics

Proof of Consent

Statutory Consent

Capacity to Consent

Adequacy of Consent

Competent Patient

Spouse

Parental Consent

Consent by Minors

Incompetent Patients

Guardian

Right to Refuse Treatment

Refusal of Care Based on Religious Beliefs

Chapter 13 Patient Abuse

Learning Objectives

Introduction

Child Abuse

Reporting Abuse

Detecting Abuse

Good-Faith Reporting

Immunity and Good-Faith Reporting

Senior Abuse

Reporting Senior Abuse

Signs of Abuse

Intimidation of Abusive Resident/Disciplinary Overkill

Abusers Abused

Prevention of Senior Abuse

Look Closer, See Me

Chapter 14 Patient Rights and Responsibilities

Learning Objectives

Introduction

Patient Rights

Right to Know One’s Rights

Right to Explanation of One’s Rights

Right to Exercise Rights

Right to Ask Questions

Right to Complain

Right to Emergency Care

Right to Admission

Right to Examination and Treatment

Right to Know Caregivers

Right to Informed Consent

Right to Refuse Treatment

Right to Execute Advance Directives

Right to Have Special Needs Addressed

Right to Choose Physician(s)

Right to Trust Caregivers

Right to Patient Advocacy Services

Right to Have Spiritual Needs Assessed and Addressed

Right to Ethics Consultation

Right to Choose Treatment

Right to Try Experimental Drugs

Right to Timely Response to Care Needs

Right to Receive Quality Care

Right to Compassionate Care

Right to Respect

Right to Pain Management

Privacy and Confidentiality

Right to Freedom from Abuse and Harassment

Right to Know Hospital’s Adverse Events

Right to Discharge

Right to Transfer

Right to Access Medical Records

Right to Access Lab Reports

Right to Know Third-Party Care Relationships

Right to Know Hospital Charges

Right to Know Medical Errors

Right to a Safe Healing Environment

Right to be Free from Restraints and Seclusion

Which Right is the Greater Good?

Patient Responsibilities

Maintain a Healthy Lifestyle

Keep Appointments

Maintain Current Medication Records

Accurately Describe Symptoms

Provide Full and Honest Disclosure of Medical History

Report Sudden Changes in Health Status

Adhere to the Treatment Plan

When in Doubt, Seek a Second Opinion

Stay Informed

Ask Questions

Follow Discharge Instructions

Treat Caregivers with Respect

Respect the Rights of Other Patients

Show Compassion for Caregivers

Advisory Commission Describes Patient Responsibilities

Teamwork and Professional Relationships

Chapter 15 Summary Case: Search for Truth

Learning Objectives

Introduction

Case: Code of Silence

Characters

Settings

Background

Events of Sunday, October 2

Events of Thursday Morning, October 6

Events of Thursday Luncheon, October 6

Events of Thursday Late Afternoon, October 6

Events of Thursday Evening, October 6

Events of December 27–29 Educational Conference

Glossary

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