9.

Legal and ethical issues

in medical practice
Introduction
 Medical law plays an important role in medical facility
procedures and the way we care for patients
 We live in a litigious society, where patients, relatives, and
others are inclined to sue health-care practitioners, health-
care facilities, manufacturers of medical equipment and
products, and others when medical outcomes are not
acceptable
 In today’s society, medical treatment and decisions
surrounding health care have become complex
 It is therefore important to be knowledgeable about medical
law and ethics that govern patient care
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Introduction…

 There are two main reasons for medical

professionals to study law and ethics:
 The first is to help you function at the highest
professional level by providing competent,
compassionate health care to patients, and
 the second is to help you avoid legal problems
that can threaten your ability to earn a living

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Introduction…
 A law is a rule of conduct or action prescribed or formally
recognized as binding or enforced by a controlling authority
 Governments enact laws to keep society running smoothly and
to control behavior that could threaten public safety
 Ethics is considered a standard of behavior and a concept of
right and wrong beyond what the legal consideration is in any
given situation
 Moral values serve as a basis for ethical conduct
 Moral values are formed through the influence of the family,
culture, and society

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Classifications of Law
 There are two types of law that pertain to health-care
practitioners: criminal law and civil law
 Criminal Law: involves crimes against the state
 When a state or federal criminal law is violated, the
government brings criminal charges against the
alleged offender
 Examples include: murder, arson, rape, and burglary
 Criminal acts are classified as either a felony or
misdemeanor

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Classifications of Law…
 A felony is a crime punishable by death or by
imprisonment in a state or federal prison for more than one
year
 Some examples include abuse (child, elder, or domestic
violence), manslaughter, fraud, attempted murder, and
practicing medicine without a license
 Misdemeanors are less serious crimes than felonies
 They are punishable by fines or by imprisonment in a
facility other than a prison for one year or less
 examples are thefts under a certain dollar amount,
attempted burglary, and disturbing the peace

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Classifications of Law…
 Civil law involves crimes against the person.
 Under civil law, a person can sue another person, a business,
or the government
 includes a general category of law known as torts
 A tort is broadly defined as a civil wrong committed against a
person or property that causes physical injury or damage to
someone’s property or that deprives someone of his or her
personal liberty and freedom
 Torts may be intentional (willful) or unintentional (accidental)

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 Intentional torts
 when one person intentionally harms another
A. Assault: is the open threat of bodily harm to another, or put
another in the “reasonable apprehension of bodily harm”
B. Battery: an action that causes bodily harm to another
 any bodily contact made without permission
 unauthorized touching of a patient, including suturing a
wound, administering an injection, doing a physical
examination
C. Invasion of privacy: the interference with a person’s right to be
left alone
 Entering an exam room without knocking, the improper use of
or a breach of confidentiality of medical records

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Intentional torts…
D. Defamation of character: Damaging a person’s
reputation by making public statements that are both
false and malicious
 can take the form of slander and libel
E. False imprisonment: the intentional, unlawful restraint
or confinement of one person by another
 Preventing a patient from leaving the facility might be
seen as false imprisonment
F. Fraud: consists of deceitful practices in depriving or
attempting to deprive another of his or her rights

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Unintentional torts
 The most common torts within the health-care delivery system
are those committed unintentionally
 Unintentional torts are acts that are not intended to cause harm
but are done with a disregard for the consequences
 The term negligence is used to describe such actions when
health care practitioners fail to exercise ordinary care resulting
in patient injury
 Negligence cases are those in which a person believes a
medical professional’s actions, or lack thereof, caused harm to
the patient
 Malpractice is the negligent delivery of professional services

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 Medical malpractice
 Medical malpractice consists of wrongful acts on the part of
doctors and health care workers which cause injuries or harm to
patients
 Medical malpractice occurs when a health-care provider deviates
from the recognized “standard of care” in the patient treatment
 Malpractice is a specific type of negligence that occurs when the
standard of care commonly expected from health care
professionals is not met
 It is also known as professional negligence
 a surgeon is held to a higher standard of care than a general
practitioner for performing an appendectomy

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Medical malpractice…
 Error is the failure of a planned action to be completed as
intended (i.e., error of execution) and the use of a wrong plan to
achieve an aim (i.e., error of planning)…(Reason, 1990)
 Medical error: an act of omission or commission in planning or
execution that contributes or could contribute to an unintended
result … (Grober and Bohnen, 2005)
 The vast majority of errors do not result in injury to patients

Adverse event: injury caused by

substandard medical management
Medical
error Near miss: any event that could have had an
adverse patient consequence but did not
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Medical malpractice…
 Malpractice claims are lawsuits by a patient against a
physician for errors in diagnosis or treatment
 Res ipsa loquitur: This Latin term, which means “The thing
speaks for itself,” refers to a negligence case in which the
doctor’s fault is completely obvious. e.g.
 if a lung cancer patient has to have the right lung removed
and the surgeon instead removes the left lung,
 a surgeon accidentally leaves a surgical instrument inside the
patient
 Abandonment: A health-care professional who stops care
without providing an equally qualified substitute
 Delayed treatment
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 Medical malpractice…
 Negligence cases are sometimes classified using the
following three legal terms

1. Malfeasance refers to an unlawful act or misconduct

2. Misfeasance refers to a lawful act that is done incorrectly

3. Nonfeasance refers to failure to perform an act that is one’s

required duty or that is required by law

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Medical malpractice…
 all errors are not negligent
 sometimes a medical product such as a drug or a device like a
heart valve or pacemaker can be faulty or fail
 negligence – failure to meet the standard of practice of an
average qualified physician practicing in the specialty in
question
 occurs not merely when there is an error, but when the degree
of error exceeds the accepted norm
 medical negligence: doing some act that a reasonable and
prudent physician or provider would not do or failing to do
some act that a reasonable and prudent physician or provider
would do thus resulting in injury or death of the patient

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 Medical malpractice…
 medical negligence is an act or omission of a medical
practitioner in performing his or her duty
 is failure to exercise reasonable care and skill, or
 omission to do something which a reasonable man
would do
 something which a reasonable man would not do
 Failure to perform professional duties according to the
accepted standard of care is negligence
 Professional negligence is more easily prevented than
defended
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 Medical malpractice…
 The four Ds of Negligence
 Damages: patients must prove that they suffered injury
 Duty of care: patients must show that a physician-patient
relationship existed in which the physician owed the patient a
duty
 Derelict: patients must show that the physician failed to comply
with the standards of the profession (breach of duty)
 Direct cause: patients must show that any damages were a direct
cause of a physician’s breach of duty
 To go forward with a malpractice suit, a patient must be prepared to
prove all four Ds of negligence

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Settling Malpractice Suits
 Court
 Malpractice suits often require a trial in a court of law

 A subpoena is a written court order addressed to a specific

person, requiring that person’s presence in court

 Subpoena duces tecum, which is a court order to produce

documents, like arrange for delivery of patient records for this

purpose
 Arbitration
 Sometimes malpractice suits are settled through arbitration

 Persons outside the court system with special knowledge in

the field listen to the case, and decide the dispute

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Law of Agency
 According to the law of agency, an employee is considered to
be acting as a doctor’s agent (on the doctor’s behalf) while
performing professional tasks
 The Latin term respondeat superior, or “Let the master answer,”
is sometimes used to refer to this relationship
 an employer is liable for the behavior of an employee working
within his or her scope of employment
 Therefore, the doctor is responsible, or liable, for the negligence
of employees
 Employees are also legally responsible for their own actions,
and they can be sued directly
 Therefore, a patient can sue both the doctor and the involved
employee for negligence
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Types of Medical Errors

 Medication errors
 Surgical errors
 Diagnostic errors
 Equipment failure
 Nosocomial infections
 Blood transfusion injuries
Errors of commission and omission
Common medical errors

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 Malpractice insurance
 Once physicians become licensed, they become legally liable
for their actions as physicians
 They are responsible, accountable, obligated, and legally bound
by law
 malpractice insurance is a type of professional liability
insurance purchased by professionals, most often medical
professionals, to financially cover them in the event they are
sued for malpractice
 this insurance coverage protects health care providers against
patients who sue them under the claim that they were harmed by
the physician's negligent or intentionally harmful treatment
decisions

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 Malpractice insurance…
 The need for physicians to carry professional liability insurance
is obvious for numerous reasons
 The most important, perhaps, is financial protection
 doctors, surgeons, nurses, and most other medical professionals
are sometimes required to purchase malpractice insurance,
before becoming employed by a facility or opening a private
practice
 malpractice insurance is often one of the most expensive types
of insurance policies that can be purchased,
 Some physicians are limiting their practice and their
professional liability insurance coverage because of the high
cost of premiums

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Malpractice insurance…
 Physicians need liability insurance protection whether they are
employees or employers
 In some cases, clients sue both the employer and the employee
 As employers, physicians need professional liability insurance
mainly because of the doctrine of respondeat superior
 Physicians may not be directly negligent, but they are liable for
the acts of their employees
 Another reason for carrying professional liability insurance is
that the physician may be asked for medical advice or assistance
from friends or neighbors in a casual situation

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 Malpractice insurance…
 premiums are usually based on the physician's specialty and
geographic location but not on claims experience
 this means that even if a physician has never been sued, he or she can
end up paying extremely high premiums
 Physicians usually buy their insurance from a commercial company or
a physician-owned mutual company, either individually or through a
group practice
 Hospitals and other health care facilities purchase their own insurance,
and hospitals that directly employ physicians typically buy a policy
that covers both the hospital and its medical staff
 Physicians employed by the federal government don’t buy insurance; if
they are sued, the suit is brought against the federal government, which
insures itself
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