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Patients, Providers, and Third-Party Payers


Textbook
: Fremgen, B. F. (2014). Medical law and ethics (5th ed.). Upper Saddle River, NJ: Pearson.

Instructions: Please ensure to substantiate your response with scholarly sources and also a personal account of your own experience in the work place. Cite and reference work! Must be 150 to 175 word count.

1. Read Chapter 4 and discuss what you found the least interesting. See Chapter 4 attached.

2. For chapter 4, discuss your thoughts on the Marion and the pacemaker case.

3. Read Chapter 5 and discuss what you found the interesting. See Chapter 5 attached

4. Read the Patient Rights page on the U.S. National Library of Medicine: Medline Plus website.

https://www.nlm.nih.gov/medlineplus/patientrights.html  

5. Read the A Guide to Informed Consent- Information Sheet page on the U.S. Food and Drug Administration website. 

http://www.fda.gov/regulatoryinformation/guidances/ucm126431.htm

6. Read and discuss your take on the Understanding Health Information Privacy page on the U.S. Department of Health & Human Services website. http://www.hhs.gov/hipaa/index.html

7. Watch the “Informed Consent: What Are Your Rights? Part I” video

8. Review the “Provider and Third-Party Payor Obligations: Medicaid Third-Party Billing, Payment & Enforcement” presentation from the Office of Medicaid Inspector General. https://www.omig.ny.gov/images/stories/Webinar/tpl_%20pi_webinar102010v2.pdf

9. What information is required to be presented to the patient in the informed consent process? How would you, as a health care manager/administrator, be able to assess a patient’s understanding of what he or she is being told?

10. Physician Choice to Treat: Does it surprise you to find out that physicians have the right to select the patients they wish to treat?

11. Types of Consent and Payers: Complete the chart.

Identify 3 Third-Party Payers

Describe third-party payer (20- to 45- words)

Describe the legal issues that regulate the third-party payers (45- to 90-words).

Describe an applicable law that regulates the third-party payers (45- to 90- words).

Describe the impact that the legal issue and applicable laws have on the third-party payers (45- to 90- words).

1

2.

12. Research the following health care regulations and select one regulation to focus on for the written assignment:

· HITECH Act

· Occupational Safety and Health Act of 1970

· False Claims Act

· Anti-Kickback Statute

· Stark Law (Physician Self-Referral Law)

· Human Subject Research

Write a 700- to 1,050-word paper that summarizes your health care regulation selection. Include the following:

· Identify selected health care regulation.

· Describe the reason for your selection.

· Identify 5 key points from your research.

Format your assignment according to APA guidelines. Cite 2 peer-reviewed, scholarly, or similar references to support your paper



4 Working in Today’s Healthcare Environment

Learning Objectives

After completing this chapter, you will be able to:

· 1. Define all key terms.

· 2. Describe today’s healthcare environment.

· 3. Discuss the similarities and differences among health maintenance organizations (HMOs), preferred provider organizations (PPOs), and exclusive provider organizations (EPOs).

· 4. Describe five types of medical practice.

· 5. Discuss the term diplomat as it relates to medical specialty boards.

· 6. Identify three categories of licensed nurses and describe their educational requirements.

· 7. Describe five categories of certified healthcare professionals.

· 8. Describe the diagnostic related group (DRG) system of classification.

· 9. State the differences between Medicare and Medicaid.

Key Terms

Associate practice

Capitation rate

Certification

Conscience clause

Copayment

Corporation

Diagnostic related groups (DRGs)

“Donut Hole”

Exclusive provider organization (EPO)

Fee splitting

Fixed-payment plan

Franchise

Franchisee

Gatekeeper

Group practice

Health Care Quality Improvement Act

Health maintenance organization (HMO)

Indigent

Licensure

Managed care organization (MCO)

Medicaid

Medicare

National Practitioner Data Bank (NPDB)

Partnership

Per diem

Preferred provider organization (PPO)

Primary care physician (PCP)

Prospective payment system

Registration

Sole proprietorship

Solo practice

Third-party payers

THE CASE OF MARION AND THE PACEMAKER

Marion is a 92-year-old patient who weighs 78 pounds. She has had poor eating habits for at least 20 years. In addition, Marion had been a heavy smoker all her life and suffered frequent respiratory problems. During the past two years she has become quite forgetful, has suffered a broken hip as a result of a fall out of bed, and has been treated for pneumonia. In spite of Marion’s protests, she is admitted to a nursing home. However, she quickly adjusts to her new home and likes the care and the attention that she receives.

During her third week in the nursing home, Marion develops a cough, high temperature, and respiratory problems. She is hospitalized with a diagnosis of pneumonia. The attending physician suggests that in addition to treatment for pneumonia, Marion will also need to have a pacemaker inserted to regulate her heartbeat.

Marion clearly explained to her family her wishes not to receive extraordinary measures to prolong her life. She also signed a living will indicating her wishes. After thoughtful discussions with other family members, Marion’s daughters tell the physician that they do not want to put their confused mother through the surgical procedure and the pain while recovering from the surgery. Further, they are concerned that their mother will not survive an anesthetic and surgical procedure in her frail condition.

The physician seems to be understanding of this decision. He says that he will place into Marion’s chart their request not to have the pacemaker inserted. However, the floor nurses take the daughters aside on several occasions to tell them that this is not a dangerous procedure and that they should sign a permit for surgery. The nurses make the daughters feel that they are not acting in their mother’s best interests by not signing the surgical permit. Marion returns to the nursing home without a pacemaker. She lives another four years without any cardiac problems.

· 1. Were the nurses carrying out their responsibility as licensed healthcare professionals or were they overstepping their role?

· 2. Were Marion’s daughters acting in the best interests of their mother because they knew that if she had the surgery she could not return to the nursing home where she was receiving good care?

· 3. What should happen when a physician agrees with the family members and the nursing staff does not?

Introduction

Today’s healthcare professionals are immersed in an ever-changing environment. The advent of managed care, a variety of medical practice arrangements, and a multitude of healthcare specialty areas have resulted in the continual need to understand healthcare law. Unfortunately, due to the rise in the number of malpractice suits, many physicians are protecting themselves by ordering multiple testing procedures, some of which might not be needed. In addition, many patients no longer want older, more conservative approaches to testing and diagnosis—and the newer tests are more expensive.

As demonstrated in the above case, all healthcare professionals need to pay attention to the wishes of their patients. And in circumstances where the patient has given family members or others authority to make a healthcare decision on their behalf, healthcare professionals must respect the patient’s wishes. They also should use care not to place their own opinions ahead of the decisions made by physicians and other healthcare professionals in consultation with the patient. However, ethical dilemmas arise when the healthcare professional’s moral and religious beliefs conflict with their role in healthcare. There are no easy, or perfect, answers to these dilemmas.

TODAY’S HEALTHCARE ENVIRONMENT

Healthcare has undergone major changes since 1965 when Medicare and Medicaid became law. The Patient Protection and Affordable Care Act (PPACA), also known as the Affordable Care Act of 2010, is more fully discussed in
Chapter 14
.

The growth rate of the older adult population and the remarkable technological discoveries and applications, such as heart and kidney transplants and mobile mammogram units, are just a few of the developments that have caused a rapid expansion of the healthcare system. In addition, insurance companies, managed care plans—such as
health maintenance organizations (HMOs)
, which stress preventive care and patient education—and government legislation have significantly impacted the way healthcare is delivered.

Currently, about $3 billion a day is spent on healthcare in the United States. However, this does not mean that all Americans are receiving good care, or even any care. We, as a nation, are far from the top in life expectancy at birth. Traditionally, the emphasis in healthcare has been on quality. However, with rising healthcare costs, many U.S. citizens are concerned about the cost of services and access to medical care. Another critical issue is the crisis in health insurance coverage as many Americans do not have adequate medical insurance.

Health insurance includes all forms of insurance against financial loss resulting from illness or injury. Private health insurance is more than a $200 billion business annually. The most common type of health insurance covers hospital care. Relatively new types of insurance are the fixed-payment plans. These are offered by organizations that operate their own healthcare facilities or that have made arrangements with a hospital or healthcare provider within a city or region. The
fixed-payment plan
offers subscribers (members) complete medical care in return for a fixed monthly fee. HMOs, for example, base their operations on fixed prepayment plans.

Insurance companies and other
third-party payers
, such as HMOs, recognize that persons who are well covered by medical insurance have no incentive to economize. Insurers, however, want to keep their costs for reimbursement as low as possible. Physicians want to order more tests to avoid malpractice suits. Patients want adequate tests and complete care. Keeping these differing viewpoints in mind, who then decides on the allocation of the health resources?

Managed Care

Managed care is a method for restructuring the healthcare system, including delivery of a broad range of services, financing of care, and purchasing. Managed care provides incentives to keep costs of healthcare down by using an administrative structure to manage the enrolled population of patients. The managed care movement is known for its goal of offering medical care at lower costs and decreasing the amount of unnecessary medical procedures. Managed care provides a mechanism for a
gatekeeper
, such as primary care physician or insurance company to approve all patient referrals and nonemergency services, hospitalizations, or tests before they can be provided. A
primary care physician (PCP)
acts in a gatekeeper capacity, because he or she is responsible for the patient’s medical care and any referrals to other physicians or services. In addition, patients could select any physician or specialist to treat them.

MED TIP

One of the fundamental principles of managed care is “managed choice.” Patients have a choice about their medical care but only within certain parameters that are determined by the managed care organizations (MCOs).


Managed care organizations (MCOs)
pay for and manage the medical care a patient receives. One of the means an MCO uses to manage costs is to shift some of the financial risk back onto the physician and hospitals—when the costs go up, their income from the MCO goes down. This mechanism poses many ethical dilemmas. MCOs offer a variety of financial incentives, including bonuses to physicians for reducing the number of tests, treatments, and referrals to hospitals and specialists. These incentives can create a conflict of interest for physicians.

The offer of financial inducements to physicians who order fewer tests and hospitalizations for their patients is a widely discussed concern. Many fear that physicians may withhold services from patients in order to increase their own profits. Some of the reasons for these concerns are that MCOs attempt to limit the:

· Choice of physician.

· Treatments a physician can order.

· Number and type of diagnostic tests that can be ordered.

· Number of days a patient can stay in the hospital for a particular diagnosis.

· Choice of hospitals.

· Drugs a physician can prescribe.

· Referrals to specialists.

· Choice of specialists.

· Ordering of a second opinion for diagnosis and treatment.

The managed care movement—with the implementation of health maintenance organizations (HMOs), preferred provider organizations (PPOs), and exclusive provider organizations (EPOs)—sought to bring healthcare costs under control by monitoring healthcare and hospital usage.

· 1. Health Maintenance Organization (HMO)—a type of managed care plan in which a range of healthcare services are made available to plan members for a predetermined fee (the
capitation rate
) per member, by a limited group of providers (such as physicians and hospitals). HMOs use a physician as the primary care physician (PCP) to manage and control the enrolled patient’s medical care. This capitation rate replaced the former “fee-for-service” rate which was considered to be more costly. In addition, the HMO places the PCP at some financial risk if there are excessive medical expenses toward the patient’s medical care.

· 2. Preferred Provider Organization (PPO)—a plan in which the patient uses a medical provider (physician or hospital) who is under contract with the insurer for an agreed fee in order to receive
copayment
(usually $10 to $20) from the insured. PPOs differ from HMOs in two main areas: (a) A PPO is a fee-for-service program not based on a prepayment or a fixed monthly fee paid to the healthcare provider for providing patient services (capitation rate) as with an HMO—physicians and hospitals designated as PPOs are reimbursed for each medical service they provide; and (b) PPO members are not restricted to certain designated physicians or hospitals.

· 3. Exclusive Provider Organization (EPO)—a new managed care plan that is a combination of HMO and PPO concepts. In an EPO, the selection of providers (such as physicians and hospitals) is limited to a defined group, but the providers are paid on a modified fee-for-service (FFS) basis. Unlike a PPO, there is no insurance reimbursement if nonemergency service is provided by a non–EPO provider.

Federal Assistance Programs

Medicare


Medicare
is the federal program that provides healthcare coverage for three groups of people: persons age 65 and over; disabled persons who are entitled to Social Security benefits or Railroad Retirement benefits; and end-stage renal disease patients of any age. It was established under Title XVIII of the Social Security Act as part of the Social Security Amendments of 1965. Medicare was designed as a traditional third-party private insurance that emphasized free choice of healthcare. The accounting details were handled by private insurance companies, usually Blue Cross and Blue Shield. Medicare expenditures quickly rose beyond the initial projections. In addition, traditional Medicare reimbursement became very complex in both the administration and review process. This led to several problems, including a long delay for physicians and hospitals to receive reimbursement for providing services (see
Figure 4.1
).

As a result of the rising costs of the Medicare program, a rationing of healthcare under Medicare has occurred. For example, the first $500 of the hospital care costs may have to be paid by the recipients once during each benefit period as a deductible; there is a cutoff of reimbursement of care beyond sixty days; and long-term care is not fully reimbursed. These cost-saving devices result in a fixed allocation of healthcare services for many elderly who will not use a hospital or nursing home facility because they cannot afford the deductible payment. In addition, most Medicare recipients can afford to also pay for supplemental insurance to cover those costs not covered under Medicare.

Figure 4.1 Medicare and Supplemental Private Insurance Cards

Medicare patients have a right to appeal care that may be denied under existing Medicare rules and regulations. As a result of a court case, new rules by the Department of Health and Human Services for HMOs went into effect in August 1997. In the case of Grijalva v. Shalala (Donna Shalala was secretary of the department when the suit was filed), an Arizona court found that a 71-year-old Medicare patient, whose healthcare coverage was refused by her HMO, was denied the right to appeal when her request for home healthcare was refused by her HMO. The judge ruled that the Department of Health and Human Services, which oversees Medicare, was at fault for failing to force HMOs to follow federal law that mandates allowing appeals when there are denials for treatment. Under the current rules, a Medicare patient in an HMO may appeal when there are denials for treatment (Grijalva v. Shalala, 946 F. Supp. 747, Ariz. 1996).

Diagnostic Related Groups (DRGs)

Another method of rationing healthcare was implemented in 1983, when Medicare instituted a hospital payment system—
diagnostic related groups (DRGs)
—that classifies each Medicare patient by illness. DRGs, now used for all patients, are designations which categorize diagnoses and treatments into groups that are used to identify reimbursement conditions. There are currently nearly 1000 illness categories of medical conditions under the DRG system.

Hospitals receive a preset sum for treatment of an illness category, regardless of the actual number of “bed days” of care used by the patient. This method of payment provides a further incentive to keep costs down. However, it has also discouraged the treatment of severely ill patients due to the high costs associated with their care. In addition, patients are often discharged before they are ready to take care of themselves. This has resulted in hospital readmissions and, in some extreme cases, deaths that could have been prevented if the patient had remained under hospital supervision a few days longer.

Medicaid


Medicaid
is a federal program implemented by the individual states, with the federal government paying 57 percent of Medicaid expenditures. Enacted at the same time as Medicare, it provides financial assistance to states for insuring certain categories of the poor and
indigent
(a person without funds). There is a growing concern that these two programs operate at cross purposes, as they serve some of the same beneficiaries, and that better coordination of the two programs is needed. Cases of abuse and fraud are reported within both programs. For example, there are cases of physicians and others employed in the healthcare field submitting bills for reimbursement under these two programs for patients they have never treated.

Rationing also takes place in the Medicaid program. For instance, several state Medicaid programs have resisted funding procedures such as liver transplants. The state of Oregon voted to abolish Medicaid funding for liver transplants and instead fund intensive prenatal screening programs. Voters apparently believed that the millions spent to save a few lives with liver transplants are better spent on effective prenatal screening that would help to prevent premature births and thus save more lives.

Individual states enact their own legislation to direct the way funds such as Medicaid are spent. Ethical dilemmas surface as patients on Medicaid find they have little or no access to funds within their own state. For example, while this does unfortunately happen, hospitals have gotten themselves into trouble for discharging a patient too early. Hospitals have been found guilty for negligently discharging patients because adequate discharge planning was not implemented.

Medicaid patients in long-term-care facilities are required under the law to use their own excess income to help to pay for their care. This means that they must use their own income before Medicaid will assist them. This has proved to be a burden for married couples, because it may impoverish the spouse as well as the patient. Some states have enacted laws in which the spouse may separate his or her financial resources from the patient’s. In other words, the total amount of resources is divided in half so as not to leave the patient’s spouse without a home or other resources. Some states offer nursing homes a
per diem
, or daily rate, payment for a patient’s care. Other states may use a
prospective payment system
in which the payment amount or reimbursement for care is known in advance.

MED TIP

High costs in drugs for patients on Medicare and Medicaid has meant that some elderly and disabled patients resort to splitting pills in two or skipping them entirely. This can result in further hospitalization. In addition, there is often a
“donut hole”
or gap, causing an amount of out-of-pocket costs the patient must pay for medications even though they are on Medicare. In some cases, the poor, elderly, and disabled have gone hungry in order to pay for their life-saving medications.

Ethical Considerations of Managed Care

Managed care, including Medicare and Medicaid, has many flaws. Because the basis for a managed care approach is an economic one of cost containment, those who know how to use the system will fare better than the poor and less educated. The wealthy patient may receive better care than the poor patient. For example, the wealthy Medicare patient may be able to carry a supplemental health insurance policy to cover the items, such as prescription drugs and long-term care, which are not fully covered under Medicare. Other ethical considerations and questions concerning managed care include the following:

· Some physicians will not accept patients who are on Medicare. They are concerned that the reimbursement is not sufficient to treat patients who may require a great deal of care as they age.

· Many believe it is difficult, if not impossible, to provide a decent minimum standard of care or treatment to everyone under the managed care concept.

· Are all the families and patients who agree to a managed care contract at the closest clinic fully informed of the consequences of trying to obtain healthcare elsewhere?

· Is a bait-and-switch approach being used by the MCO in which the patient is lured into joining a managed care plan only to realize that only minimal services are provided in such areas as rehabilitation or long-term care?

· Are the patient’s interests being sacrificed to the bottom line? In other words, does a profit for the MCO become more important than the patient?

· Do the wealthy have better access to care and treatment?

Medicare and Medicaid laws prohibit physicians referring their patients to any service, such as physical therapy or dialysis centers, in which they may have a financial ownership or interest. In addition, physicians must be cautious that their patient charges do not violate Medicare’s fee-for-service reimbursement rule.

Managed care poses the question of how to maximize the services available to the maximum number of people. This ideal equity approach would bring access to healthcare for all at an appropriate level. This would result in a relationship between access, cost, and quality of care. However, changing any one of these three elements (access, cost, and quality of care) impacts on the other two areas. For example, if we provide more access to care without increasing the cost, then quality will be negatively affected. If there is a proposal to increase quality and access to care, then there will be an increase in cost. In the current healthcare system, the public perception is that managed care has sacrificed quality and access for cost.

In spite of the potential problems with managed care, it is not an inherently unethical system of healthcare. Under this system, monitoring and control of the excessive use of testing and surgical procedures have improved. In addition, a reputable MCO can provide better preventive programs and healthcare screening for early detection of disease. It can also reduce the unnecessary testing, treatments, and hospitalizations that were present under the old fee-for-service (FFS) system.

Health Care Quality Improvement Act (HCQIA) of 1986

Congress passed the
Health Care Quality Improvement Act
in response to a growing concern about medical malpractice. The act provides for peer review of physicians by other physicians and healthcare professionals. The act also provides protection from lawsuits (liability) that whistleblowers may face when they report issues of potential malpractice. The main purpose of this act is to improve the quality of medical care. The act also sets up a
National Practitioner Data Bank (NPDB)
which assists with the peer review of physicians. The NPDB collects information about physicians’ medical malpractice losses and settlements, investigations into licensure, and other damaging professional conduct. The NPDB has become a resource for organizations, such as state licensing boards, that require information about the qualification of doctors and dentists, in particular. This data bank information has become a necessary requirement when physicians are seeking medical staff hospital privileges. The data bank does not disclose this information to the general public.

TYPES OF MEDICAL PRACTICE

In the early part of the twentieth century, the main form of medical practice was the solo practice set up by a family practitioner within a designated town or geographic area. Over the years, the practice of medicine and the legal environment have changed. Few physicians make house calls any longer. However, patients now expect to be able to reach their physicians on a 24-hour basis.

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The increase in the number of patients who have initiated malpractice lawsuits has necessitated not only increased insurance coverage costs for physicians and patients, but different methods of practice.

Other forms of medical practice have become popular, including some that meet patient needs for around-the-clock coverage and some that provide the opportunity for a group of physicians to share insurance premium costs, staff, and facilities investments.

Solo Practice

In
solo practice
, a physician practices alone. This is a common type of practice for dentists. However, physicians generally enter into agreements with other physicians to provide coverage for each other’s patients and to share office expenses. Physicians are becoming increasingly reluctant to enter into solo practice because of the large burden of debt they incurred during their medical training and the high cost of operating an independent office.

A type of solo practice called
sole proprietorship
is one in which a physician may employ other physicians and pay them a salary. However, the sole proprietor of the medical practice is still responsible for making all the administrative decisions. The physician–owner pays all expenses and retains all assets.

The advantages of this type of practice include being able to retain all of the profits and to make the major decisions concerning policies and staffing. However, in a sole proprietorship, the owner is responsible and liable for the actions of all the employees. In addition, the physician may have to work long hours to provide his or her patients with the care they need. It is often difficult to find the correct balance of qualified physicians to help out during vacations and illnesses of the solo practitioner. This form of practice is diminishing rapidly due to increasing expenses and the lack of another physician to share the patient load.

Partnership

A
partnership
is a legal agreement to share in the business operation of a medical practice. A partnership may exist between two or more physicians. In this legal arrangement, each partner becomes responsible for the actions of all the other partners. This responsibility includes debts and legal actions unless otherwise stipulated in the partnership agreement. It is always advisable to have partnership agreements in writing. A document or “certificate of doing business as partners” is registered in the local county clerk’s office.

The advantages of a partnership include greater earning power than a physician just working alone can realize. There are also other physicians in a partnership to carry any burden of patient care, liability, overhead expenses, or capital requirements to improve the office facility. The disadvantages often relate to personality conflicts. In addition, all the partners in the group must share in the liabilities even if only a few of the members are responsible for incurring them (see
Figure 4.2
).

Associate Practice

The
associate practice
is a legal agreement in which physicians agree to share a facility and staff but not the profits and losses. They do not generally share responsibility for the legal actions of each other, as in a partnership. The legal contract of agreement stipulates the responsibilities of each party. The physicians act as if their practice is a sole proprietorship.

The legal arrangement of an associate practice must be carefully described and discussed with patients. Patients may mistakenly believe that there is a shared responsibility by all the physicians in the practice. This can lead to legal difficulties if one physician is accused of committing malpractice.

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To avoid the appearance that a partnership exists when one does not, physicians must be sure the signage on their offices, their letterhead and other stationery, and the manner in which the staff answers the telephone are not misleading.

Figure 4.2 Physicians in Partnership

Group Practice

A
group practice
consists of three or more physicians who share the same facility (office or clinic) and practice medicine together. This is a legal form of practice in which the physicians share all expenses and income, personnel, equipment, and records. A physician may be a member of a group practice as a partner or as an employee. Some areas of medicine frequently found in group practice are anesthesiology, rehabilitation, obstetrics, radiology, and pathology. In some cases, physicians who practice in a single specialty area such as radiology join together in group practice. The membership of a group practice can be quite large, and thus it may be a difficult setting to work in for those who prefer to work alone. In some cases, the income level may not be as high as in a more limited type of partnership due to the large number of physicians creating the expenses (see
Figure 4.3
).

A group practice can be designated as a health maintenance organization (HMO) or as an independent practice association (IPA). Group practices have grown rapidly during the last decade, and large groups of more than 100 doctors are not uncommon. A large group practice often forms a legal professional corporation.

Professional Corporations

During the 1960s, state legislatures passed laws (statutes) allowing professionals—for example, physicians and lawyers—to incorporate. A
corporation
is managed by a board of directors. There are legal and financial benefits to incorporating the practice.

Professional corporation members are known as shareholders. Some of the benefits that can be offered to employees of a corporation include medical expense reimbursement, profit sharing, pension plans, and disability insurance. These fringe benefits may not always be taxable to the employee and are generally tax deductible to the employer. While a corporation can be sued, the individual assets of the members cannot be touched (as they can in a solo practice). In some cases, a physician in solo practice will take legal steps to incorporate in order to provide some protection of assets. A corporation will remain until it is dissolved. Other forms of practice, such as the sole proprietorship, stop with the death of the owner. Today, most medical practices are corporations.
Table 4.1
describes the types of medical practice along with the advantages and disadvantages of each.

Figure 4.3 Group Practice

© Robert Kneschke/fotolia

TABLE 4.1 Types of Medical Practices

Type of Practice

Advantages

Disadvantages

Solo practice (only one physician)

Physician retains independence; simplicity of organization; physician retains all assets

Difficulty raising capital; sole responsibility for liability and management functions; inadequate coverage of patients’ needs; practice may die with the owner

Sole proprietorship

Physician retains all assets; autonomy; physician hires other physicians to provide assistance

Pays all expenses; responsible for all liability

Partnership

Legal responsibility is shared among partners; work, assets, and income are shared

Partners may have personality differences; all partners are liable for actions of the other partners

Associate practice

Work is shared

Legal responsibility is not shared by all members all members

Group practice

All expenses and income are shared; all equipment and facilities are shared

Income may not be as great as when a physician practices alone; possible personality clashes among members

Single specialty

Expenses and staff are shared

Possible competition among specialists within the group

Corporation

Protection from loss of individual assets; many fringe benefits offered; corporation will remain until it is dissolved

Income may not be as great as in other forms of practice

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Physicians are moving away from solo practice and forming partnerships or corporations to better serve patient needs, share the costs of insurance, and, in the case of corporations, provide legal protection.

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Remember that in all forms of practice, the physician is responsible for the actions of his or her employees.

THE ETHICS OF FEE SPLITTING


Fee splitting
occurs when one physician offers to pay another physician for the referral of patients. Fee splitting has long been considered unethical and is a basis for professional discipline. The payment of a referral fee is also considered a felony in states such as Alaska, New Mexico, Vermont, and California. However, the most prohibitive statements against accepting a fee for referrals are at the federal level. The Medicare and Medicaid programs both contain antifraud and abuse provisions. These provisions declare that anyone who receives or pays any money, directly or indirectly, for the referral of a patient for service under Medicare or Medicaid is guilty of a felony punishable by five years’ imprisonment, a $25,000 fine, or both.

Fee splitting is not the same as referrals to a hospital
franchise
, such as a pharmacy or radiology department. In this case, the holder of the franchise, or the
franchisee
, may legally pay the hospital in proportion to the amount of business received from hospital patients.

It is not necessarily considered fee splitting if the franchisee is paying an amount equal to expenses incurred. For instance, in a California case, a court held that a radiologist’s payment of two-thirds of his receipts to a hospital did not constitute fee splitting because the evidence showed that fees paid to the hospital were equal to expenses incurred by the hospital to furnish the diagnostic center (Blank v. Palo Alto-Stanford Ctr., 44 Cal. Rptr. 572, Cal. Ct. App. 1965).

MEDICAL SPECIALTY BOARDS

Of the 9 million people employed in the healthcare system, there are approximately 600,000 physicians, 35,000 doctors of osteopathy, and 150,000 dentists. Of the 600,000 physicians, only 150,000 practice primary patient care: family medicine, internal medicine, obstetrics, and pediatrics. The majority of physicians work in specialty fields such as anesthesiology, psychiatry, or a surgical specialty. Many physicians now work at salaried staff positions in hospitals, as members of group practices, for a corporate-sponsored medical care firm, or for community clinics.

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It’s important that the physician’s support staff, including nurses, physician assistants, certified medical assistants, and technicians, understand the different medical specialty categories because they are often the ones who respond to patients’ questions regarding these specialties.

Currently, 23 specialty boards are covered by the American Board of Medical Specialists. Included among these specialties are the American Board of Allergy and Immunology, American Board of Anesthesiology, American Board of Emergency Medicine, American Board of Internal Medicine, American Board of Surgery, and American Board of Urology. The specialty boards seek to improve the quality of medical care and treatment by encouraging physicians to further their education and training. The board evaluates the qualifications of candidates who apply and pass an examination. The physicians who pass the board review become certified as diplomats. As board-certified physicians, they may be addressed as either diplomats or fellows, a designation they can use after their name—for instance, Paul Smith, M.D., Diplomat of the American Board of Pediatrics.

Due to the dramatic advances in medicine over the past two decades, there continues to be an interest in specialization among physicians. Transplant surgery, including liver, kidney, lungs, and pancreas, has expanded the need for medical and surgical specialties. A description of some of the more common medical and surgical specialties is found in
Table 4.2
.

TABLE 4.2 Medical and Surgical Specialties

Medical Specialty

Description

Adolescent medicine

Treats patients from puberty to maturity (ages 11 to 21)

Allergy and immunology

Treats abnormal responses or acquired hypersensitivity to substances with medical methods such as testing and desensitization

Anesthesiology

Deals with administration of both local and general drugs to induce a complete or partial loss of feeling (anesthesia) during a surgical procedure

Cardiology

Treats cardiovascular disease (of the heart and blood vessels)

Dermatology

Treats injuries, growths, and infections to the skin, hair, and nails

Emergency medicine

Focuses on the ability and skills to quickly recognize, prioritize (triage), and treat acute injuries, trauma, and illnesses

Family practice

Treats the entire family regardless of age and gender

Geriatric medicine

Focuses on the care of diseases and disorders of the elderly

Hematology

Specializes in blood and blood-forming tissues

Hospitalists

Specializes in caring for patients while they are in the hospital.

Usually trained in internal medicine or family medicine.

Infection control

Focuses on the prevention of infectious disease by maintaining medical asepsis, practicing good hygiene, and promoting immunizations

Internal medicine

Treats adults who have medical problems

Neurology

Treats the nonsurgical patient who has a disorder or disease of the nervous system

Nephrology

Specializes in pathology of the kidney, including diseases and disorders

Nuclear medicine

Specializes in the use of radioactive substances for the diagnosis and treatment of diseases such as cancer

Obstetrics and gynecology

Obstetrics treats the female through prenatal care, labor, delivery, and the postpartum period; gynecology provides medical and surgical treatment of diseases and disorders of the female reproductive system

Oncology

Treats benign tumors and cancer-related tumors

Ophthalmology

Treats disorders of the eye

Orthopedics

Specializes in the prevention and correction of disorders of the musculoskeletal system

Otorhinolaryngology (ENT)

Specializes in medical and surgical treatment of the ear (otology), nose (rhinology), and throat (laryngology)

Pathology

Specializes in diagnosing abnormal changes in tissues that are removed during surgery or an autopsy

Pediatrics

Specializes in the care and development of children

Physical medicine/rehabilitative medicine

Treats patients after they have suffered an injury or disability

Preventive medicine

Focuses treatment on the prevention of both physical and mental illness or disability

Psychiatry

Specializes in the diagnosis and treatment of patients with mental, behavioral, or emotional disorders

Radiology

Specializes in the study of tissue and organs based on x-ray visualization

Rheumatology

Treats disorders and diseases characterized by inflammation of the joints, such as arthritis

Surgery

Corrects illness, trauma, and deformities using an operative procedure

Surgical Specialty

Description

Cardiovascular

Surgically treats the heart and blood vessels

Colorectal

Surgically treats the lower intestinal tract (colon and rectum)

Cosmetic/plastic surgery

Surgically reconstructs underlying tissues

Hand

Surgically treats defects, traumas, and disorders of the hand

Neurosurgery (CNS)

Surgically intervenes for diseases and disorders of the central nervous system

Orthopedic

Surgically treats musculoskeletal injuries and disorders, congenital deformities, and spinal curvatures

Oral (periodontics/orthodontics)

Treats disorders of the jaws and teeth by means of incision and surgery as well as tooth extraction; treats malocclusion (misalignment) of teeth

Thoracic

Surgically treats disorders and diseases of the chest

American College of Surgeons

The American College of Surgeons also confers a fellowship degree upon applicants who have completed additional training and submitted documentation of 50 surgical cases during the previous three years. A successful candidate becomes a Fellow of the American College of Surgeons (FACS).

American College of Physicians

The American College of Physicians offers a similar fellowship and entitles the applicant to become a Fellow of the American College of Physicians (FACP) in a nonsurgical area.

The designation doctor (Dr.) is the proper way of addressing—verbally or in writing—someone who holds a doctoral degree of any kind. In the medical field, the title of doctor indicates that a person is qualified to practice medicine within the limits of the degree received; in other fields, the title means that a person has attained the highest educational degree in that field. Several designations for doctor are listed in
Table 4.3
.

MED TIP

The term doctor comes from the Latin word docere, meaning “to teach.”

TABLE 4.3 Designations and Abbreviations for Doctors

Designations

Abbreviations

Doctor of Chiropractic

D.C.

Doctor of Dental Medicine

D.M.D.

Doctor of Dental Surgery

D.D.S.

Doctor of Medicine

M.D.

Doctor of Optometry

O.D.

Doctor of Osteopathy

D.O.

Doctor of Philosophy

Ph.D.

Doctor of Podiatric Medicine

D.P.M.

ALLIED HEALTH PROFESSIONALS

A physician works with a variety of trained personnel, depending on the area of specialization. Healthcare professionals are also called allied healthcare practitioners. There are specific requirements for healthcare professionals, including licensure, certification, and registration as well as a means of establishing competency. In addition, programs for educating healthcare professionals may seek accreditation such as through the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). (See more about the JCAHO in
Chapter 3
.)


Licensure
, generally issued at the state level, is a mandatory credentialing process that allows an individual to legally perform certain skills. As dictated by law, there is usually a requirement to pass certain tests and exhibit the ability to perform certain skills. For example, nurses and pharmacists must graduate from an accredited educational program and pass a national examination that shows competency in their chosen medical field. Licensed personnel, including registered nurses, nurse practitioners, licensed practical nurses, and pharmacists are licensed in the state in which they practice. Licensed medical professionals can place their license in jeopardy, or even lose their license to practice their profession, if they abuse drugs or alcohol, steal from their employer or patients, lie about their education and training, or commit a criminal act.


Certification
is a voluntary credentialing process usually offered by a private professional organization, such as a school, college, or other accreditation body. Certification indicates that the allied health professional has met the standards set by the certification entity. The individual programs will have requirements to adequately perform certain skills. Certified, but not licensed, personnel include physician assistants or registered/certified medical assistants, certified medical transcriptionists, laboratory technicians, and ultrasound technologists.

The American Association of Medical Assistants (AAMA), founded in 1956, is a key association in the field of medical assisting. This organization is responsible for the medical assistants’ certification process. Certification indicates that a candidate has met the standards of the AAMA by achieving a satisfactory test result. A certificate, or legal document, is issued to a person who has successfully passed the examination (see
Figure 4.4
).


Registration
indicates that a person whose name is listed on an official record or register has met certain requirements in their particular profession. The registry list of names can then be accessed by healthcare providers to determine if a potential employee has met certain requirements. For example, registered nurses’ names are listed in the registry of the state in which they hold a license. The American Medical Technologists (AMT) association provides oversight for the registration and testing of medical assistants, medical technologists, and phlebotomists. This association, in cooperation with the AMT Institute for Education (AMTIE) has developed a continuing education (CE) program and recording system.

Figure 4.4 Health Professionals Working Together

The AMT, a nonprofit certifying body, provides a Registered Medical Assistant (RMA) certification for medical assistants who meet the eligibility requirements and who can prove their competency to perform entry-level skills through written examination. The RMA is awarded to candidates who pass the AMT certification examination.

Nonphysician health professionals also cannot practice medicine outside of their own licensure and expertise. If one acts outside the area of his or her competency and the patient is injured as a result, that healthcare practitioner is liable for malpractice or, in other terms, medical negligence. In this situation, the healthcare practitioner could be fined and/or lose his or her license. For example, it is against the law for a licensed practical nurse (LPN) or medical assistant to prescribe medications: this function lies only within the domain of a physician, nurse practitioner, or physician assistant. A phlebotomist is not licensed to discuss the results of a patient’s laboratory tests with the patient: only the physician is licensed to interpret and discuss this information with the patient.

MED TIP

Physicians and their staff who assist with hiring personnel have a responsibility to check the licensure and certification of all employees. For example, patients expect that when they see the initials R.N. after an employee’s name that person is trained and licensed as a registered nurse.

Accreditation agencies for allied health educational programs include the Commission on Accreditation of Allied Health Education Programs (CAAHEP) and the Accrediting Bureau of Health Education Schools (ABHES). This accreditation, which is voluntary, requires that the educational facilities maintain particular standards which usually include an internship. (See
Table 4.4
for a description of healthcare occupations.)

TABLE 4.4 Healthcare Professions

Occupation

Description

Certified Medical Assistant (CMA)

Duties are grouped into two categories: administrative and clinical. Works in a variety of healthcare settings including physicians’ offices and clinics. Must graduate from an accredited program and pass a national certification exam.

Certified Medical Transcriptionist (CMT)

Types dictation recorded by a physician or surgeon. Must pass a certification exam. Works in medical records departments in hospitals and other healthcare facilities.

Certified Professional Coder (CPC)

Evaluates medical orders using the Health Care Procedure System (HCPCS) used for billing purposes.

Dental Assistant

Works under the supervision of a dentist to prepare the patient for treatment, take dental x-rays, and hand instruments to the dentist.

Dental Hygienist

Works directly with the dental patient to clean teeth, take x-rays, and discuss results of the patient’s dental exam with the dentist.

Electrocardiograph Technologist

Operates electrocardiograph (EKG/ECG) machines to record and study the electrical activity of the heart.

Emergency Medical Technician (EMT/paramedic)

Provides emergency care and transports injured patients to a medical facility. Works for ambulance service or a hospital

Laboratory or Medical Technologist (MT)

Performs laboratory analysis, directs the work of laboratory personnel, and maintains quality assurance standards for all equipment. Also referred to as clinical laboratory scientist.

Licensed Practical Nurse (LPN)

Performs some, but not all, of the same tasks as the registered nurse. Must graduate from a recognized one-year program and become licensed by the National Federation of Licensed Practical Nurses. Works under the supervision of physicians and registered nurses.

Medical Records Technician

Skilled in health information technology; maintains medical records in healthcare institutions and medical practices.

Nurse Practitioner (NP)

A registered nurse who has additional training in a specialty area such as obstetrics, gerontology, or community health. This nurse usually holds a master’s degree.

Occupational Therapist (OT)

Provides treatment to people who are physically, mentally, developmentally, or emotionally disabled in the area of personal care skills; goal of OT is to restore the patient’s ability to manage activities of daily living.

Pharmacist

A licensed professional who orders, maintains, prepares, and distributes prescription medications.

Pharmacy Technician

Prepares and dispenses patient medications.

Phlebotomist

Draws blood from patients; certification is required in some states.

Physical Therapist (PT)

Provides exercise and treatment of diseases and disabilities of the bones, joints, and nerves through massage, therapeutic exercises, heat and cold treatments, and other means.

Physician Assistant (PA)

Assists the physician in the primary care of the patient. Requires additional education similar to a master’s level program; must work or have an internship experience and pass an accreditation exam. Works under the supervision of a physician.

Registered Nurse (RN)

A professional caregiver who has successfully completed a national licensure exam known as the National Council Licensure Examination (NCLEX).

Respiratory Therapist (RT)

Evaluates, treats, and cares for patients who have breathing abnormalities.

Social Worker

Provides services and programs to meet the special needs of the ill, physically and mentally challenged, and older adults.

Surgical Technician

Trained in operating room procedures and assists the surgeon during invasive surgical procedures.

Ultrasound Technologist (ARRT)

Uses inaudible sound waves to outline shapes of tissues and organs.

X-Ray Technologist (radiologic technologist)

Uses radiologic technology such as nuclear medicine and radiation.

MED TIP

Patients often refer to anyone wearing a white laboratory coat as “doctor” or a white uniform as “nurse.” Always correct patients and tell them exactly what your position is. If you are a student, be sure to wear an identifying badge so that you will not be asked to perform an action outside of your scope of practice.

Conscience Clause

Because many employees in a variety of healthcare settings have religious or moral objections to assisting with certain procedures, such as sterilization and abortion, several states have enacted legislation called a
conscience clause
. These clauses state that hospitals may choose not to perform sterilization procedures and that physicians and hospital personnel cannot be required to participate in such procedures or be discriminated against for refusing to participate. In 1979, a Montana nurse-anesthetist was awarded payment (damages) from a hospital that violated the Montana conscience clause. The hospital had fired her for refusing to participate in a tubal ligation (Swanson v. St. John’s Lutheran Hosp., 579 P.2d 702, Mont. 1979).

On the other hand, there have been situations in which employees do not wish to leave their work setting even though they are morally unable to assist with sterilization or abortion procedures. In one New Jersey case, a court held that a hospital could transfer a nurse from the maternity ward to the medical-surgical staff because the nurse refused to assist in sterilization or abortion procedures. The court ruled that the transfer was not illegal because the nurse did not lose her seniority and it did not alter her pay (Jeczalik v. Valley Hosp., 434 A.2d 90, N.J. 1981).

There are numerous examples of healthcare providers and patients clashing over the right to refuse to give treatment if it violates a person’s beliefs. This conflict stimulates bitter debate over religious freedom versus patients’ rights. Patients claim their rights are being ignored. Healthcare workers claim they are victims of religious discrimination when they are discharged or fired for refusing to provide service or care to patients. For example, a Chicago ambulance driver refused to transport a woman who was having an abortion, a Texas pharmacist refused to fill a prescription for a rape victim who was seeking the morning-after pill, and a California fertility clinic refused to give assistance to a gay woman who was requesting artificial insemination. Some respiratory therapists have objected to removing terminally ill patients from ventilators; gynecologists have declined to prescribe birth control pills; and some anesthesiologists have refused to provide anesthetics in sterilization procedures or to participate in executions.

Patient advocates claim that there is a long tradition in medicine that medical professionals have an ethical, as well as a professional, responsibility to place the patient’s needs first. Believers in a “right of conscience” or the “conscience clause” in medicine believe that U.S. citizens should not be forced to violate their moral and religious values. This debate is not new. After the 1973 Roe v. Wade decision allowing abortion, several states passed laws to protect doctors and nurses who did not want to participate in performing an abortion. Oregon’s law in 1994 to legalize physician-assisted suicide allows doctors and nurses to decline to participate.

Many such conflicts are quietly and informally handled. In some cases an employee will seek a position elsewhere; in others, a coworker will step in to assist with a procedure, usually without the patient’s even knowing of the change. The ethical dilemma facing both patients and healthcare workers becomes critical during an emergency. This is especially difficult in poor or rural areas where there are few options for care. There is currently no perfect solution, legal or otherwise, to this problem.

POINTS TO PONDER

· 1. What impact will managed care have upon your career as an allied health professional?

· 2. What type of practice does your physician/employer have? If it is not a solo practice, what are the other specialties involved in the practice?

· 3. What are the advantages of forming a corporation?

· 4. Why is it important to include the medical specialty and initials indicating a particular degree or license after one’s name?

· 5. What should you say if a patient refers to you as “doctor” or “nurse” even though your degree is in another discipline?

· 6. How should healthcare plans balance the interests of all the enrolled patients with the interests of a patient who has special medical needs and extraordinary expenses?

· 7. In the interest of maintaining a successful practice, should a physician refuse to provide care for patients who are uninsured or minimally insured?

· 8. Consider the question of ethics that arises when we ask ourselves if we are reducing unnecessary tests, as the HMOs and others believe we should, or if we are limiting tests for patients who really need them.

DISCUSSION QUESTIONS

· 1. Discuss your role as a medical professional in relation to the physician and other healthcare providers.

· 2. Discuss the impact that managed care is likely to have on your career in healthcare.

· 3. What can be done to ensure that MCOs provide ethical care for all patients?

· 4. Discuss “managed choice” as described in this chapter. Is there a choice?

REVIEW CHALLENGE

Short Answer Questions

· 1. What are the differences between Medicare and Medicaid?

· 2. What are the advantages and disadvantages of a group medical practice for a physician?

· 3. What are some of the areas that might be limited to patients under an MCO?

· 4. Explain the titles for the following abbreviations: D.P.M._____ O.D._____ D.O._____ D.M.D._____ M.D._____ D.C._____

· 5. Explain the titles for the following abbreviations: NP _____ CMT _____ CMA _____ RT _____ PT _____ ARRT _____ PA _____ ART _____

· 6. Explain the differences between licensure, certification, and registration.

· 7. What is the purpose of a conscience clause?

· 8. What is the National Practitioner Data Bank (NPDB)?

· 9. Explain the difference between a per diem payment system and a prospective payment system.

Matching

Match the responses in column B with the correct term in column A.

Column A

 

Column B

_____

1. HMO

a. preferred provider organization

_____

2. EPO

b. physicians agree to share expenses of a facility

_____

3. PPO

c. health maintenance organization

_____

4. solo practice

d. managed by a board of directors

_____

5. associate practice

e. financial assistance for the elderly

_____

6. sole proprietorship

f. exclusive provider organization

_____

7. corporation

g. one physician may employ others

_____

8. third-party payer

h. financial assistance for the indigent

_____

9. Medicaid

i. physician practices alone

_____

10. Medicare

j. insurance company



5 The Physician–Patient Relationship

Learning Objectives

After completing this chapter, you will be able to:

· 1. Define the key terms.

· 2. Describe the rights a physician has when practicing medicine and when accepting a patient.

· 3. Discuss the nine principles of medical ethics as designated by the American Medical Association (AMA).

· 4. Summarize “A Patient’s Bill of Rights.”

· 5. Understand standard of care and how it is applied to the practice of medicine.

· 6. Discuss three patient self-determination acts.

· 7. Describe the difference between implied consent and informed consent.

Key Terms

Abandonment

Acquired immune deficiency syndrome (AIDS)

Advance directive

Against medical advice (AMA)

Agent

Consent

Do not resuscitate (DNR)

Durable power of attorney

Human immunodeficiency

virus (HIV)

Implied consent

Informed (or expressed)

consent

Incompetent patient

In loco parentis

Living will

Minor

Noncompliant patient

Parens patriae authority

Privileged communication

Prognosis

Proxy

Uniform Anatomical Gift Act

THE CASE OF DAVID Z. AND AMYOTROPHIC LATERAL SCLEROSIS (ALS)

David, who has suffered with ALS for 20 years, is now hospitalized in a private religious hospital on a respirator. He spoke with his physician before he became incapacitated and asked that he be allowed to die if the suffering became too much for him. The physician agreed that, while he would not give David any drugs to assist a suicide, he would discontinue David’s respirator if asked to do so. David has now indicated through a prearranged code of blinking eye movements that he wants the respirator discontinued. David had signed his living will before he became ill, indicating that he did not want extraordinary means keeping him alive.

The nursing staff has alerted the hospital administrator about the impending discontinuation of the respirator. The administrator tells the physician that this is against the hospital’s policy. She states that once a patient is placed on a respirator, the family must seek a court order to have him or her removed from this type of life support. In addition, it is against hospital policy to have any staff members present during such a procedure. After consulting with the family, the physician orders an ambulance to transport the patient back to his home, where the physician discontinues the life support.

· 1. What were the primary concerns of the hospital?

· 2. What was the physician’s primary concern?

· 3. When should the discussion about the patient’s future plans have taken place with the hospital administrator?

Introduction

Few topics are as important as the physician–patient relationship. This relationship impacts the entire healthcare team. All healthcare professionals who interact with the patient must understand their responsibilities to both the patient and the physician. The patient’s right to confidentiality must always be paramount.

The first physicians were “medicine men,” witch doctors, or sorcerers. The physician–patient relationship has come a long way from those early years. In order for the relationship to exist, both physician and patient must agree to form a contract for services. Once a doctor has agreed to treat a patient, the patient can expect that the doctor will provide medical services for as long as necessary (
Figure 5.1
). In order to receive proper treatment, the patient must confide truthfully in the physician. Failure to do so may result in serious consequences for the patient, and the physician is not liable if the patient has withheld critical information. Medical personnel who work closely with physicians, such as nurses, physician assistants, and medical assistants, must keep in mind that the physician–patient relationship is one to be closely guarded by them also. Any patient information that is either overheard or read is always to be considered confidential.

PHYSICIAN’S RIGHTS

Physicians have the right to select the patients they wish to treat. They also have the right to refuse service to patients. From an ethical standpoint, most physicians treat patients who need their skills. This is particularly true in cases of emergency.

Physicians may also state the type of services they will provide, the hours their offices will be open, and where they will be located. The physician has the right to expect payment for all treatment provided, and a physician can withdraw from a relationship if the patient is noncooperative or refuses to pay bills when able to do so.

Physicians have the right to take vacations and time off from their practice and to be unavailable to care for their patients during those times. It is legally prudent for physicians to arrange for coverage during an absence. In most cases, other physicians will cover for them and take care of their patients. Physicians should notify their patients when they will be unavailable.

Figure 5.1 The Physician–Patient Relationship

Some physicians now charge for services such as answering after-hours phone calls and filling out insurance forms. Many physicians feel that the large increases in their malpractice insurance premiums and the tighter regulations by HMOs have forced them to charge for services that they previously performed without charge.

PHYSICIAN’S RESPONSIBILITIES

Clearly, a physician’s first responsibility is to be professionally competent. In addition, a physician must treat all patients with the same standards regardless of race, gender, sexual orientation, or religion. While a physician has the right to accept or decline to establish a professional relationship with any person, once that relationship is established, the physician has certain responsibilities. For example, federal law and many state laws prohibit hospitals from giving physicians “kickbacks” of money or other benefits in return for referring patients. In 1994, NME Psychiatric Hospitals pleaded guilty to making unlawful payments to physicians in order to induce them to refer patients to their institutions. NME agreed to pay the federal government $379 million to settle the case (United States v. NME Psychiatric Hosps., Inc., No. 94-0268).

The physician has many other responsibilities, including ethical ones. The American Medical Association (AMA) has taken a leadership role in setting ethical standards for the behavior of physicians. The AMA, organized in 1846, formed its first code of ethics in 1847.
Table 5.1
presents the AMA’s current statement of principles in its entirety.

TABLE 5.1 AMA Principles of Medical Ethics

Preamble

The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility not only to patients, but also to society, to other health professionals, and to self. The following principles adopted by the American Medical Association are not law, but standards of conduct which define the essentials of honorable behavior for the physician.

Human Dignity

I. A physician shall be dedicated to providing competent medical service with compassion and respect for human dignity.

Honesty

II. A physician shall deal honestly with patients and colleagues, and strive to expose those physicians deficient in character or competence, or who engage in fraud or deception.

Responsibility to Society

III. A physician shall respect the law and recognize a responsibility to seek changes in those requirements that are contrary to the best interests of the patient.

Confidentiality

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

Continued Study

V. A physician shall continue to study, apply, and advance scientific knowledge, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals as needed.

Freedom of Choice

VI. A physician shall, in the provision of appropriate health care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide service.

Responsibility to Improved Community

VII. A physician shall recognize a responsibility to participate in activities contributing to an improved community and the betterment of public health.

Responsibility to Patient

VIII. A physician shall recognize that responsibility to the patient is paramount.

Patient Access to Medical Care

IX. A physician must support access to medical care for all people.

Source: American Medical Association, Code of Medical Ethics ©
2008

2009
.

PROFESSIONAL PRACTICE RESPONSIBILITIES

Medical practice responsibilities include such commonplace routines as effective hand-washing techniques before touching any patient. While this may seem to be an issue that hardly needs to be stated, nevertheless, there are serious ethical, legal, and economic implications when healthcare personnel ignore these sensible routines. For example, a survey of over 900 hospitals, cited in the Chicago Tribune, reports that medical mistakes kill anywhere from 44,000 to 98,000 Americans every year. According to the report, many often-preventable complications, such as postoperative infections, lead to more than 32,000 hospital deaths and more than $9 billion in extra costs annually. One of the most serious complications is postsurgery sepsis (bloodstream infections). Researchers believe that improved hand washing might reduce these high rates of death.

MED TIP

Failure to practice correct hand washing is considered to be a medical error when it results in patient infection. All healthcare professionals must hold themselves to the same high standards regarding diligent hand washing that we set for physicians. Physicians have many duties upon entering the practice of medicine. Examples of professional duties are described in
Table 5.2
.■

TABLE 5.2 Examples of Physicians’ Duties

Conflict of interest

Physicians should not place their own financial interests above the patient’s welfare.

Professional courtesy

Historically, there is an unwritten practice among many physicians that they would not charge each other for professional services. However, this practice has lost favor because many physicians are concerned about the lack of documentation when seeing a fellow physician free of charge.

Reporting unethical conduct of other physicians

A physician should report any unethical conduct by other physicians.

Second opinions

Physicians should recommend that patients seek a second opinion whenever necessary.

Sexual conduct

It is unethical for the physician to engage in sexual conduct with a patient during the physician–patient relationship.

Treating family members an emergency.

Physicians should not treat members of their families except in an emergency.

Duties During a Medical Emergency

A physician cannot ethically or legally turn away a patient who is in an emergency situation. If the physician is unable to adequately treat the patient, then he or she must call for emergency assistance from paramedics (a 911 call). For instance, allergy specialists may be unable to give life-saving medications to a stroke victim, because the drugs won’t be available in their offices. However, allergy specialists can handle victims who are in respiratory distress as well as, or better than, some other medical specialists. It is especially important to remember that patients cannot be turned away from a hospital or physician’s office if they are indigent or uninsured.

MED TIP

Remember that all physicians receive the same basic medical training regardless of their medical specialty. They and their staff should be able to assist with basic cardiopulmonary resuscitation (CPR).

Duty to Treat Indigent Patients

In U.S. hospitals, there has been, in the past, a “dumping crisis” of indigent patients who lack medical insurance. There are many stories of deaths occurring after a patient has been shuffled from a private hospital emergency room to a public hospital that accepts indigent patients. While the hospital treatment may not be to blame for the death, the long delay in treatment while the patient is being transferred might. The Comprehensive Omnibus Budget Reconciliation Act (COBRA) contains an amendment (EMTALA) that prohibits “dumping” patients from one facility to another. It is now a federal offense to do this. (See EMTALA discussed further in
Chapter 8
.) This amendment does not mandate treatment, but it does require a hospital to stabilize a patient during an emergency situation.

Does a physician have a duty to treat a patient who is unable to pay? According to the Summary of Opinions of the Council on Ethical and Judicial Affairs of the AMA (
2008

2009
), a physician has the right to select which patients to treat. However, physicians do not have the same freedom to drop patients once they have agreed to treat them. The healthcare professional has the right to earn a living and charge for services, but from an ethical standpoint, a physician cannot abandon any patient, even in a nonemergency situation. Abandonment might expose the patient to dangers due to lack of oversight of medications and treatment.

Duty Not to Abandon a Patient

Once a physician has agreed to take care of a patient, this is considered to be a contract that may not be terminated improperly. Physicians may be charged with
abandonment
of the patient if they do not give formal notice of withdrawal from the case. In addition, the physician must allow the patient sufficient time to seek the service of another physician. This does not mean the physician may never withdraw from a case. Physicians may decide they can no longer accept responsibility for the medical treatment of a patient because the patient refuses to come in for periodic checkups or take prescribed medications and treatments. They may even offer referral suggestions. Abandonment could occur if the physician does not give enough notice to the patient so that other arrangements for medical care can be made.

MED TIP

There are occasions, such as during vacations, when a physician will ask another physician to “cover” or take charge of his or her patients. This is not considered to be abandonment.

Abandonment is considered to be a civil wrong or tort. It can be considered to be a breach of contract and even negligence. The courts have found the physician–patient relationship to be that of a contract when they enter into a mutual agreement. The physician agrees to diagnose and treat the patient until the relationship is over. The patient agrees to pay the physician for these services. If the physician, who has already agreed to this mutual contract, does not allow the patient to make an appointment for treatment, then abandonment may exist.

MED TIP

Office receptionists and nurses need to use care when denying patients an appointment. In some cases, office personnel believe they are serving the best interests of the physician by not overloading his or her schedule, but they may be setting up the physician for a charge of abandonment.

Abandonment with negligence occurs when the physician terminates the relationship in an unreasonable way as compared to the way other physicians would act in the same circumstances. For example, if a physician refused to see a patient for follow-up care after a surgical procedure because the patient or the patient’s insurance company did not pay the bill, the physician could be liable for damages due to negligence and abandonment.

It is a frustration for physicians when patients do not comply with the treatment plan. Patients can also be frustrated when they do not experience a cure from a physician. The patient may then terminate the physician–patient relationship by not making any more appointments to see the physician. However, physicians and their office staffs must be vigilant about maintaining the relationship until it is terminated in a formal manner such as a letter sent by certified mail.

MED TIP

Sending a letter by certified mail is the best method physicians can use to protect themselves from a charge of abandonment when they have to sever a relationship with a patient.

Abandonment does not apply just to the physician–patient relationship. Licensed healthcare providers, such as dentists, podiatrists, physician assistants, and nurse practitioners, are all subject to this principle. There are difficult situations relating to abandonment that arise when medical personnel have started to provide emergency care such as CPR. For example, once emergency medical technicians (EMTs) have started to give treatment, they may not stop until someone else takes over for them or the patient expires. In fact, all persons who administer CPR are taught to continue to provide this procedure until someone else relieves them or they cannot perform CPR any longer.

Hospitals are also liable for abandonment, especially in emergency situations. In some cases, an emergency patient may have to be transferred to another hospital that can better handle his or her care, such as one having a burn unit. However, an emergency patient must be stabilized, usually with intravenous medications, before being transferred to other facilities.

The Noncompliant and Incompetent Patient

A
noncompliant patient
is one who fails, or refuses, to cooperate with the recommendations of a healthcare professional. This person may refuse to take prescribed medications, or carry out a portion of their medical plan that is under their control.

An
incompetent patient
is one who is determined to be unable to provide for his or her own needs and protection. This status must be provided by a court of law.

A patient who is noncompliant and also incompetent presents a special concern for physicians and hospitals. Hospitalized patients who are noncompliant may discharge themselves
against medical advice
of their physicians, but the incompetent patient poses a unique problem because he or she may not be able to understand the need for treatment and may even pose a threat to another person. In this case, a physician will submit an emergency application to a judge, who can then order an emergency hospital admission for the patient. Most states require that within 72 hours a formal (due process) hearing be held. At this hearing, the patient’s medical condition is evaluated along with the loss of any of his or her rights. A decision may be made to either allow the patient to return home or to continue to be hospitalized. Additional hearings are held as long as the incompetent patient is hospitalized.

MED TIP

Note that abbreviations used for the American Medical Association (AMA) and Against Medical Advice (AMA) are the same. Be careful not to confuse the two.

Duty to Treat Patients with AIDS


Acquired immunodeficiency syndrome (AIDS)
is a disease resulting in infections that occur as a result of exposure to the
human immunodeficiency virus (HIV)
, which causes the immune system to break down. Testing for HIV is useful, since medications are available that can slow or even stop the advancement of the disease. Because there is a strong stigma attached to this disease, it is important to respect the confidentiality of anyone having an HIV or AIDS test. Patients must give their informed consent for the test.

MED TIP

Note that testing positive for HIV does not necessarily mean that a person has, or will develop, AIDS. Positive test results, if leaked to an employer, can lead to loss of job, on-the-job harassment, or other serious consequences, even though such actions may be illegal.

Ethical Considerations When Treating AIDS Patients

A physician who knows that the patient may endanger the health of others has certain ethical obligations, which include the following:

· 1. Persuading the patient to inform his or her partner(s).

· 2. Notifying authorities if there is a suspicion that the patient will not inform others.

· 3. As a last resort, notifying the patient’s partner(s).

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As with all legal/ethical issues, when in doubt about a notification obligation, it is wise to check the laws in your state regarding the requirement and/or consult an attorney. Many states require only the information about a new case of AIDS and not the name of the infected person.

It is unethical to refuse to treat, work with, or provide housing for a person who is HIV- or AIDS-infected. In addition, the Americans with Disabilities Act (ADA), a federal law, protects HIV and AIDS patients from discrimination.

Physicians have faced the dilemma of honoring the confidentiality of their patients and then risking being sued for failure to warn or protect third parties who may have been exposed to HIV/AIDS through the activity of the patient. This is of particular concern when the patient is a child. The child may be shunned by friends or others who are afraid of being exposed to the virus. In Doe v. Borough of Barrington, the court cited the plaintiffs’ brief for numerous examples of hysteria caused as a result of AIDS. These included a Florida family with hemophiliac children, who tested positive for AIDS, driven out of town after their house was firebombed; a teacher with AIDS who was removed from teaching duties; and children with AIDS who were denied schooling in Colorado (Doe v. Borough of Barrington, 729 F. Supp. 376, N.J. 1990). The physician, by law, must make a full report to the state about any patient who is HIV- or AIDS-positive, despite the potentially serious consequences to the patient by reporting the case.

MED TIP

Patients with AIDS, or who are HIV-positive, need to be treated with the same compassion and care that would be given to any patient with a life-threatening illness.

Exposure of Healthcare Workers to a Patient’s Blood

Unfortunately, needlestick injuries in healthcare settings are common even when physician and healthcare workers take special precautions, such as using gloves. After exposure to an HIV-positive patient’s blood, a physician or healthcare worker has a 0.3 percent risk of contracting HIV, according to the CDC estimates. In one study of medical school residents, it was found that almost 70 percent reported they had received a needlestick injury during their medical training. Understandably, healthcare workers who have received needlestick injuries wish to know if the patient’s blood contained the HIV or AIDS virus.

If the patient refuses to be tested for HIV or AIDS, can the physician order blood work to test for the virus without the patient’s consent? This presents both legal and ethical concerns. HIV testing without the patient’s consent is illegal. However, some states have allowed HIV testing without the patient’s consent when a serious situation warrants the testing. From an ethical standpoint, HIV testing in spite of the patient’s objection violates the patient’s autonomy and privacy.

Restriction on HIV-Infected Healthcare Workers

Public health concerns about HIV-infected healthcare employees has always been an issue. Several ethical questions have been presented:

· Should healthcare workers, especially those who perform invasive procedures such as drawing blood specimens, be tested for HIV?

· Should HIV-infected healthcare workers inform their patients that they are positive for the virus?

· Should the practice of HIV-infected workers be restricted?

As patients/consumers, it is relatively easy for us to answer yes to these three questions. For example, physicians have an ethical obligation that requires that they do no harm to their patients. Further, physicians are obligated to disclose information to their patients that a reasonable person would require in order to make an informed decision about their own testing for the virus. Most patients would certainly want to know if their physician or healthcare worker is infected with HIV. A Newsweek poll found that 94 percent of their readers responding to the poll agreed that all physicians and dentists should be required to tell their patients if they are HIV-infected.

The American Medical Association recommends that HIV-positive healthcare workers should not perform invasive procedures that pose a risk to their patients and that physicians should always “err on the side of protecting patients.” The American Academy of Orthopedic Surgeons recommends that HIV-positive surgeons not perform procedures that involve the placement of internal devices, such as hip replacements, wires, or even blind probing of tissue. Probably the strongest statements come from the Federation of State Medical Boards, which states that it would be professional misconduct for healthcare workers to perform invasive procedures if they do not know their HIV-status. Furthermore, the Federation recommends that all state boards require that the names of HIV-infected healthcare workers be reported to them.

There are strong arguments for ignoring confidentiality issues and reporting HIV-positive workers if their actions put patients’ health at risk. For example, surgeons, gynecologists, dentists, phlebotomists, surgical nurses, and emergency medical technicians all take part in invasive procedures in which HIV could be transmitted. In addition, removing the HIV-positive healthcare worker from close patient contact could ultimately provide protection from patients’ infections and diseases such as tuberculosis.

There are valid arguments against requiring mandatory testing and restricting the activities of HIV-positive healthcare workers. For example, healthcare workers have a right to freedom from discrimination and to privacy. There are statistics that show that the risk of transmitting the HIV to another person is very low. In addition, the cost of testing all healthcare workers for HIV is prohibitive. The CDC has estimated that it would cost more than $250 million for testing alone. This money would have to be diverted from research and other programs. The CDC guidelines also declare that healthcare workers have no ethical duty to disclose their HIV status if they present no significant risk to their patients.

On-the-Job Protection for the Healthcare Worker

There is a relatively low risk of infection for persons working in the fields of medical transcription, secretarial, or office management in which there is little patient contact. There is a greater risk of infection for healthcare professionals, such as a physician, nurse, or medical assistant, as they have direct patient contact. The bottom line for all healthcare organizations is that there should be a clearly stated policy on how to handle all needlestick situations (
Figure 5.2
) and patients’ bodily fluids.

MED TIP

Medical offices, clinics, and hospitals should have special absorbent cleaning material available in case of a blood spill. Directions on what to do when a blood spill or other accident occurs should be placed where they are visible by the entire staff.

Duty to Properly Identify Patients

Many medical errors occur because the patient was not properly identified. It is necessary to identify the patient both by stating his or her name and examining any other identification such as a medical wristband. It’s always wise to ask patients to identify themselves by name. Patients who are hard of hearing, suffering from Alzheimer’s disease, non-English-speaking, or elderly may not understand when you call them by name. There have been cases of incorrect patients in the emergency room (ER) waiting area going in for treatment because they didn’t properly hear their name called. It’s always wise to ask to examine some identification, such as a driver’s license or medical wristband. Some medical offices take the patient’s photo for their records.

Figure 5.2 Needlestick Protection

MED TIP

Remember, if an error is made, such as not properly identifying the correct patient, admit it immediately. Then seek to correct the situation. You may save a life.

Duty to Respect Confidentiality

Medical personnel should use a low voice when speaking to patients over the telephone or speaking about patients to other staff members within hearing distance of any patients in the waiting room. Ideally, a glass enclosure should be present at the front desk in all waiting rooms to separate the receptionist from the patients and provide an additional aid for patient confidentiality. The sign-in sheet or patient register should be designed so those patients who are signing in or registering cannot view other patients’ names.

Duty to Tell the Truth

There has always been the dilemma in medicine about whether to tell dying patients the truth about their
prognosis
(prediction for the course of their disease). On the one hand, the truth can be a means for patients to have a sense of control and even empowerment over their remaining time. On the other hand, the truth can act as a traumatic and demoralizing event that may cause the patient to lose the will to live.

There has been a major change in physicians’ attitudes concerning truth telling during the past several decades. Originally, many physicians believed in a paternalistic, or protective, approach in which they avoided upsetting their terminally ill patients by telling them the truth about their condition. In a research study conducted in 1961, Donald Oken reported that 88 percent of U.S. physicians surveyed said it was their policy not to tell their patients if they had a terminal malignancy. The physicians believed it would be too upsetting to the patient. In a follow-up study 20 years later, these findings were completely reversed, with 98 percent of the physicians surveyed following a policy of telling the truth to patients. This position of truth telling has continued to the present day. The openness for cancer patients came about, in part, due to the necessity to seek consent for chemotherapy and radiation therapy.

Is this change in honesty for the benefit of the patient? Should physicians inform their Alzheimer’s patients if their families want the information withheld? Should elderly patients be lied to when they have to move into a nursing home? Should family members be misled over the phone when called to come into a hospital after a family member has expired? These difficult questions have caused many healthcare professionals to reexamine the truth-telling issue.

For example, a medical ethicist, Joseph Fletcher, states that maintaining the lie of a diagnosis becomes very difficult for everybody on the healthcare team. He believes in focusing on the consequences of an action while protecting the patient. Furthermore, according to Fletcher, medicine has now become too complex to keep secrets from patients. He states that in the long run it is better for the patient if the truth is told.

MED TIP

The physician is the person responsible for discussion of the diagnosis with the patient. There are various interpretations of what constitutes lying. However, most people believe that a lie is a falsehood told in those circumstances in which the other person has a reasonable expectation of the truth.

False results of research studies also have had a negative impact upon patients. For example, a Canadian physician working with researchers at a major U.S. medical school reported fictitious results about a mastectomy study. The researchers falsely claimed, and advised the medical community, that the “less radical” surgical procedure (something other than a mastectomy) was an effective treatment for cancer of the breast. This deception took place over a 15-year period until finally they retracted their false claims.

Many believe that when dealing with the issue of truth telling, one should apply principles of justice. In other words, try to determine what a “just” action would be for the patient. Thomas Hackett, in writing about psychological assistance for the dying patient, cites an example of a typical victim in which there was a failure to inform:

· A woman with terminal breast cancer asked her doctor why her headaches persisted. When the doctor said it was probably nerves, she asked why she was nervous. He returned the question. She replied, “I am nervous because all the tests have stopped, nobody wants my blood, and I get all the pills I want. The priest comes to see me twice a week, which he never did before, and my mother-in-law is nicer to me even though I am meaner to her. Wouldn’t this make you nervous?” There was a pause. Then the doctor said, “You mean you think you are dying?” She said, “I do.” He replied, “You are.” Then she smiled and said, “Well, I broke the sound barrier; someone finally told me the truth.”

In some circumstances, truth telling is at variance with the medical profession’s obligation of confidentiality. For example, in the famous Tarasoff case, the court held that a psychiatrist should have warned Tatiana Tarasoff that one of his patients was threatening to kill her. The patient did fulfill his threat to kill Tatiana Tarasoff. The court stated that the therapist was under an obligation to take reasonable steps, such as breaching confidentiality, to protect all third parties from the ill patient (Tarasoff v. Regents of the University of California, 17 Cal. 3d 342, 1976). However, in a later case, the same California court that tried the Tarasoff case stated that the therapist did not have a duty to warn a third party of a threat, because the patient had not made threats against a particular person. While these two cases seem to be at odds with each other, the current thinking is that this later verdict is more reasonable. It is difficult, if not impossible, for a psychiatrist to determine which threats a patient makes will result in murder. In reality, however, many mental health physicians are maintaining a conservative approach by hospitalizing patients who show violent tendencies.

The American Hospital Association’s Committee on Biomedical Ethics states:

· Also subject to state law, confidentiality may be overridden when the life or safety of the patient is endangered such as when knowledgeable intervention can prevent threatened suicide or self-injury. In addition, the moral obligation to prevent substantial and foreseeable harm to an innocent third party usually is greater than the moral obligation to confidentiality.

PATIENTS’ RIGHTS

The patient has the right to approve or give consent—permission—for all treatment. In giving consent for treatment, patients reasonably expect that their physician will use the appropriate standard of care in providing care and treatment—this means that the physician will use the same skill that other physicians use in treating patients with the same ailments in the same geographic locality. (Standard of care is discussed in more detail in
Chapter 3
.)

The patient’s right to privacy prohibits the presence of unauthorized persons during physical examinations or treatments. This right has long been established. In a precedent-setting 1881 case, the plaintiff, a poor woman named Mrs. Roberts, sued Dr. DeMay for bringing in a third party, by the name of Scattergood, to assist him while she was in labor. Mrs. Roberts claimed that Scattergood “indecently, wrongfully, and unlawfully” laid hands on her and assaulted her. Even though Mrs. Roberts thought Scattergood was a physician, which he was not, he was present without her permission. The court found in the plaintiff’s favor and awarded her damages for the “shame and mortification” she suffered (DeMay v. Roberts, 9 N.W. 146, Mich. 1881).

Additionally, patients have the right to be informed of the advantage and potential risks of treatment—including the risk of not having the treatment. They also have the right to refuse treatment. Some members of religious groups, such as Jehovah’s Witnesses and Christian Scientists, do not wish to receive blood transfusions or other types of medical treatment. Physicians may not treat them against their wishes. However, in the case of a minor child, the court may appoint a guardian who can give consent for the child’s procedure.

Confidentiality

Patients expect that the physician and staff will keep all information and records about their treatment confidential. In fact, the Medical Patients Rights Act provides that all patients have the right to have their personal privacy respected and their medical records handled with confidentiality. No information, test results, patient histories, or even the fact that the patient is a patient, can be transmitted to another person without the patient’s consent. A breach of confidentiality is both unethical and illegal. See
Chapter 9
for a detailed discussion of confidentiality when using electronic transmission of patient’s medical information as mandated by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

MED TIP

Remember that no patient information can be given over the telephone without that person’s permission.


Privileged communication
refers to confidential information that has been told to a physician (or attorney) by the patient. The physician–patient relationship is considered to be a protected relationship and, as such, keeps the holder of this information from being forced to disclose it on a witness stand.

The American Hospital Association developed a published statement called “A Patient’s Bill of Rights,” which describes the physician–patient relationship (see
Table 5.3
). All healthcare professionals must follow these guidelines when working with patients.

TABLE 5.3 A Patient’s Bill of Rights

· 1. The patient has the right to considerate and respectful care.

· 2. The patient has the right to and is encouraged to obtain from the physicians and other direct caregivers relevant, current, understandable information concerning diagnosis, treatment, and prognosis.

· 3. The patient has the right to make decisions about the plan of care prior to and during the course of treatment and to refuse a recommended treatment or plan of care to the extent permitted by law and hospital policy and to be informed of the consequences of this action.

· 4. The patient has the right to have an advance directive (such as a living will, healthcare proxy, or durable power of attorney for healthcare) concerning treatment or designating a surrogate decision maker with the expectation that the hospital will honor the intent of that directive to the extent permitted by law and hospital policy.

· 5. The patient has the right to every consideration of privacy.

· 6. The patient has the right to expect that all communications and records pertaining to his/her care will be treated as confidential by the hospital, except in cases such as suspected abuse and public health hazards when reporting is permitted or required by law.

· 7. The patient has the right to review the records pertaining to his/her medical care and to have the information explained or interpreted as necessary, except when restricted by law.

· 8. The patient has the right to expect that, within its capacity and policies, a hospital will make reasonable response to the request of a patient for appropriate and medically indicated care and service.

· 9. The patient has the right to ask and be informed of the existence of business relationships among the hospital, educational institutions, other healthcare providers, or payers that may influence the patient’s treatment or care.

· 10. The patient has the right to consent to or decline to participate in proposed research studies or human experimentation affecting care and treatment or requiring direct patient involvement, and to have those studies fully explained prior to consent.

· 11. The patient has the right to expect reasonable continuity of care when appropriate and to be informed by physicians and other caregivers of available and realistic patient care options when hospital care is no longer appropriate.

· 12. The patient has the right to be informed of hospital policies and practices that relate to patient care, treatment, and responsibilities.

Source: Reprinted with permission of the American Hospital Association, ©
2008
.

Patient Self-Determination Acts (Advance Directives)

Several documents executed by the patient, called self-determination documents or advance directives, state the patient’s intentions for healthcare-related decisions and in some cases name another person as
proxy
to make decisions for the patient. A proxy statement is the written authorization given by a person so that a second person can act for him or her.

An
advance directive
is a written statement in which people state the type and amount of care they wish to receive during a terminal illness and as death approaches. These documents include living wills, durable power of attorney, and organ donation. Self-determination documents provide protection for both the patient and the physician. The patients obtain assurance that their healthcare wishes will be followed at the point in time when they are unable to express their intent, and physicians have an assurance that they are acting within the guidelines for care set by their patients.
Table 5.4
contains a brief summary of advance directives.

TABLE 5.4 Advance Directives

Type

Description

 

Living will

Document that a person drafts before becoming incompetent or unable to make healthcare decisions.

Durable power of attorney

A legal document that empowers another person (proxy) to make healthcare decisions for an incompetent patient. It goes into effect after the person becomes incompetent and only pertains to healthcare decisions.

Uniform Anatomical Gift Act

All states have some form of this law. It allows persons 18 years or older and of sound mind to make a gift of any part of their body for purposes of medical research or transplantation.

Do not resuscitate (DNR) order

This is an order placed into a person’s medical chart or medical record. It indicates that the person does not wish to be resuscitated if breathing stops.

Living Will

A
living will
allows patients to set forth their intentions in advance as to their treatment and care. This document contains the patient’s desires in the case of a catastrophic situation in which he or she may be incompetent to voice wishes concerning medical treatment. A patient may request that life-sustaining treatments and artificial nutritional support, such as tube feedings, either be used or not be used to prolong life. The patient may also request that no extraordinary medical treatment, such as being placed on a respirator (ventilator), be given. In this case, the physician puts a
Do not resuscitate (DNR)
order in the patient’s medical chart in either the hospital or nursing home. This means that CPR cannot be used if the person’s heart and breathing stop. This living will document gives patients the legal right to direct the type of care they wish to receive when death is imminent.

Some state statutes will specifically state what conditions need to be present in order for a living will to go into effect. For example, Ohio follows the Modified Rights of the Terminally Ill Act, which states that the person must be terminally ill and/or in a state of permanent unconsciousness. The patient must be in a state that is irreversible, untreatable, and incurable with the prospect of imminent death. This type of regulation protects patients from having their living will implemented when they are briefly unconscious following surgery or a mild stroke.

Ideally, this process is discussed in the physician’s office with patients when they are capable of making the decision. Other family members or significant others can also be part of the discussion and decision process. The living will document must be signed by the patient and witnessed by another person. One copy should be kept in the patient’s record. Many patients ask their attorneys to also retain a copy. See
Figure 5.3
for a sample of a living will document.

Durable Power of Attorney

The
durable power of attorney
, when signed by the patient, allows an
agent
(also called a proxy) or representative designated by the patient to act on behalf of the patient. If the durable power of attorney is for healthcare only, then the agent may only make healthcare-related decisions on behalf of the patient.

Because the power of attorney is “durable,” the agent’s authority continues even if the patient is physically or mentally incapacitated. This document is in effect until canceled by the patient. A copy of the durable power of attorney should also be kept with the patient record. Both a living will and durable power of attorney for healthcare are recommended for all people. See
Figure 5.4
for a sample of a durable power of attorney for healthcare document.

Figure 5.3 Sample Living Will

Figure 5.4 Sample Power of Attorney

Uniform Anatomical Gift Act

The
Uniform Anatomical Gift Act
allows persons 18 years or older and of sound mind to make a gift of any or all body parts for purposes of organ transplantation or medical research. The statute includes two specific safeguards. First, a physician who is not until The Healthcare Environment involved in the transplant must determine the time of death. Second, no money is allowed to change hands for organ transplantation.

The donor carries a card that has been signed in the presence of two witnesses. In some states, the back of the driver’s license has space to indicate the desire to be an organ donor, with space for a signature.

If a person has not indicated a desire to be a donor, the family may consent on the patient’s behalf. Generally, if a member of the family opposes the donation of organs, then the physician and hospital do not insist on it, even if the patient signed for the donation to take place. See
Figure 11.3
for a sample donor card.

Questions that are frequently asked about advance directives include the following:

· 1. To whom should the advance directives be given? Copies of the advance directives should be given to the personal physician, close relatives, and a close friend. In addition, a copy should be placed in the medical chart if the patient is hospitalized or in a nursing home.

· 2. Where should advance directives be stored? They should be kept with the patient’s personal papers in the home or nursing home setting. It is not recommended that they be stored in a safety deposit box, as they will not be accessible in an emergency.

· 3. How can the advance directive be changed or amended? Any revisions can be made by drawing through the outdated statement in the original document. After a revision is made, it should be dated and signed. An amended copy should be given to the personal physician, family member, and friend.

· 4. Can the advance directive be revoked? People can revoke their documents by destroying them and asking anyone holding a copy to do the same. Ideally, the request to destroy the advance directive should be sent in writing to all those who hold a copy.

· 5. What does the law say about advance directives? A federal law, the Patient Self-Determination Act (PSDA) was passed in 1991. Congress has strongly supported a person’s right to self-determination before becoming incompetent. However, a patient’s request for assisted suicide will not be honored in any states except Oregon and Washington.

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It is recommended that all persons place in writing their wishes about what type of treatment they should receive if they become incompetent. The advance directive should be specific about treatments such as CPR, tube feedings, and the use of ventilators.

RIGHTS OF MINORS

A
minor
is a person who has not reached the age of maturity, which in most states is 18. In most states, minors are unable to give consent for treatment, except in special cases involving pregnancy, request for birth control information, abortion, testing and treatment for sexually transmitted diseases, problems with substance abuse, and a need for psychiatric care. The courts have held that the consent of a minor to medical or surgical treatment is not sufficient. The physician must secure the consent of the parents or someone standing in for the parents (

in loco parentis

) or run the risk of liability.

In some cases the state must take over the care for minors who cannot care for themselves. The principle of

parens patriae


authority
occurs when the state takes responsibility from the parents for the care and custody of minors under the age of 18. This principle may also occur when persons are mentally incompetent to take care of themselves. If the child is removed from his or her parents, then two rights must be protected through due process: the rights of the child and the rights of the parents. It is not a simple matter for the state to remove a child from the custody of the parents. The state must prove that the parents are neglecting the child or are not capable of caring for the child. Then a hearing must take place in juvenile court.

TABLE 5.5 Classification of Minors’ Competencies

Classification

Definition

Minor

A person under the age of 18 (termed infant under the law). The signature of a parent or legal guardian is needed for consent to perform a medical treatment in nonemergency situations.

Mature minor

A person judged to be mature enough to understand the physician’s instructions. Such a minor may seek medical care for treatment of drug or alcohol abuse, contraception, venereal disease, and pregnancy.

Emancipated minor

A person between the ages of 15 and 18 who is either married, in the military, or self-supporting and no longer lives under the care of a parent. Parental consent for medical care is not required. Proof of emancipation (for example, marriage certificate) should be included in the medical record.

Mature minors and emancipated minors are considered competent and can provide consent for other types of treatment as well. The varying degrees of minors’ competency are described in
Table 5.5
.

PATIENTS’ RESPONSIBILITIES

In addition to the patients’ rights, they also have certain obligations. Patients are expected to follow their physician’s instructions. They must make follow-up appointments to monitor their treatment and medication use if requested by their physician. Patients must be absolutely honest with the physician about such issues as past medical history; family medical history; and tobacco, drug, and alcohol use. Finally, patients and parents of minor children are expected to pay the physician for medical services (
Figure 5.5
).

Figure 5.5 A Parent or Guardian Is Responsible for a Minor’s Medical Bills

Consent


Consent
is the voluntary agreement that a patient gives to a medically trained person the permission to touch, examine, and perform a treatment. The two types of consent, informed consent and implied consent, are discussed in the following section.

The Doctrine of Informed Consent


Informed (or expressed) consent
means that the patient agrees to the proposed course of treatment after having been told about the possible consequences of having or not having certain procedures and treatments (
Figure 5.6
). The patient’s signature on the consent form indicates that the patient understands the limits or risks involved in the pending treatment or surgery as explained by the physician. The goal of informed consent is to protect patients’ rights to decide for themselves about their own healthcare treatment. In addition, informed consent is meant to disclose information to the patient so that he or she can make a reasoned decision.

The physician, who is solely responsible for providing information to the patient, must carefully explain that in some cases the treatment may even make the patient’s condition worse. The Doctrine of Informed Consent requires the physician to explain the following in understandable language:

· The patient’s diagnosis, if known

· The nature and purpose of the proposed treatment or procedure

· The advantages and risks of treatment

· The alternative treatments available to the patient, regardless of their cost and whether they will likely be covered by the patient’s insurance

· Potential outcomes of the treatment

· What might occur, both risks and benefits, if treatment is refused

In addition, the physician must be honest with the patient and explain the diagnosis, the purpose of the proposed treatment, and the probability that the treatment will be successful. The purpose of this explanation is that the patient can then make a knowledgeable decision about whether to go ahead with the treatment or procedure. In an emergency situation in which the patient cannot understand the explanation or sign a consent form, the physician providing the care is protected by law.

Figure 5.6 Patient Signs a Consent Form

© Monkey Business/fotolia

According to recent studies, a few physicians have withheld options for treatment from their patients. A University of Chicago research study found that 29 percent of the 1,144 surveyed physicians would have problems referring a patient to another doctor for some legal procedures. In some cases, such as for contraceptives or end-of-life issues such as withholding chemotherapy, they had ethical problems making the referral. The advice to patients is to be aware that they may not get all the information about treatments they are legally due.

In a case in Alaska, the court determined that the physician did not fulfill his duty to disclose the risks of breast reduction surgery when he failed to warn the patient about the risk of scarring. In answer to the patient’s questions, the physician said that she shouldn’t worry and she would be happy with the results. The patient wasn’t happy, and she sued the physician and won (Korman v. Mallin, 858 P.2d 1145, Alaska 1993).

Is it difficult to know if or when the patient is fully informed? There are two standards to use to determine if the patient understands what he or she is being told. The first standard is based upon what the physician tells the patient. Many courts will use a “reasonable physician standard,” meaning that the physician must tell the patient what a “reasonable physician in the same specialty” would tell him or her under the same circumstances. This allows for a type of mass-produced consent form for many treatments and surgical procedures. However, in addition to having a patient sign this mass-produced consent form, the physician must also explain the procedure, risks, and alternatives. The second standard is “the reasonable patient standard,” which means that the patient must receive the information that other patients receive but, in addition, must be provided the opportunity to communicate questions to the physician. Healthcare professionals such as nurses and medical assistants should not replace the physician in obtaining a signed informed consent form. However, they are in an ideal situation in either the office or hospital to alert the physician when they believe that the patient is confused about the procedure.

MED TIP

In many cases, patients will be more comfortable discussing their fears with a trusted caregiver rather than with their physician. These patient fears must then be conveyed to the physician, and documented on the patient chart, even if a consent form has been signed.

It is very difficult to fully inform a patient about all the things that can go wrong with a treatment. However, the physician must make a reasonable attempt to do so in order for the patient to make an informed decision about treatment.

The Canterbury decision is a classic example of two crucial components of informed consent: patients granting consent because they have the right to control what is done to their bodies and insisting on information so they can make an intelligent decision. For patients to be able to consent in an intelligent manner, they must be given information by the physician that a “reasonable person” in the patient’s situation would wish to receive. As such, the amount of information is not based on what the physician believes is relevant, but on what the patient believes he or she needs to hear. The “reasonable person standard” was used in a 1959 case, Canterbury v. Spence. Nineteen-year-old Jerry Canterbury, who suffered from back pain, underwent a surgical procedure to treat a suspected ruptured vertebral disk. On the day following surgery, he fell off the hospital bed while he was trying to urinate and subsequently became paralyzed from the waist down. Emergency surgery reversed some of his paralysis, but he continued to have urological problems. Canterbury sued both the physician (Spence) and the hospital, claiming that he was not fully warned about the risk of falling out of bed and of paralysis. The physician based his defense on a therapeutic privilege claim that he did not think the disclosure of the risk of falling out of bed was necessary. The judge in the district court ordered a directed verdict and told the jury that they must find in favor of the hospital and physician. Upon appeal, a higher court sent the case back to the lower court so that a jury could hear the evidence and make a decision. The court was not clear on whether the fall or the surgery had caused the patient’s paralysis. The court also declared that a physician cannot use the therapeutic privilege to justify withholding information the patient requires to make an informed decision. In an unusual decision, the jury also found in favor of the hospital and physician (Canterbury v. Spence, 464 F.2d 772, D.C. 1972).

MED TIP

Except in emergency situations, the process of obtaining consent cannot be delegated by the physician to someone else. If the emergency involves risk to the patient’s life or the patient is unable to communicate, consent may be implied under the rationale that the patient would have consented to emergency treatment.

Except in cases of emergency, all patients must sign a consent form before undergoing a surgical procedure. This signed form indicates that the patient has been instructed concerning the risks associated with the procedure. If, after the physician has carefully explained the treatment, the patient acknowledges understanding the explanation and risks and signs the consent form, then, generally, there is some protection from lawsuits. However, patients have sued and won cases in which they were presented the risks of a procedure and signed the form, and then the treatment failed.

A patient’s informed consent is limited to those procedures to which the patient has consented. For example, in the case of Mohr v. Williams, a woman consented to have an operation on her diseased right ear. After she was unconscious under the anesthetic, the ear surgeon determined that the right ear was not diseased enough to warrant an operation, but the left ear was seriously diseased. He proceeded to operate on the left ear without reviving her to seek permission. The operation was skillfully performed and successful. However, the plaintiff sued for battery and won. The physician appealed that verdict, but the appellate court determined that because the surgery was unauthorized, even though successful, it constituted an assault (Mohr v. Williams, 104 N.W.12, Minn. 1905). In another early case, a physician was sued when he received consent to repair a woman’s hernia but also removed both ovaries (Zoterell v. Repp 153 N.W. 692, Mich. 1915).

Procedures in which an informed consent form should be signed include the following:

· Minor invasive surgery

· Organ donation

· Radiological therapy, such as radiation treatment for cancer

· Electroconvulsive therapy

· Experimental procedures

· Chemotherapy

· Any procedure with more than a slight risk of harm to the patient

In some circumstances—such as HIV testing, procedures involving reproduction, and major surgical procedures—state laws require that the patient sign an informed consent form. This signed document represents a legal statement in which the patient certifies that the risks, benefits, and alternatives to treatment have been thoroughly explained. The document is an indication that the informed patient enters the treatment of their own free will and not by means of coercion.

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Remember that the patient grants informed consent to the physician. Simply explaining a procedure to the patient does not constitute informed consent. The patient must understand the explanation and agree to the procedure.

Certain categories of patients are judged to be incapable of giving an informed consent. These include minors (other than emancipated minors), the mentally incompetent, persons who do not understand English or the language of the physician transmitting the information and had no interpreter present, and emergency patients who are unconscious.

Implied Consent

A physician should obtain written consent before treatment whenever possible. However, the law may assume or “imply” a patient’s consent. Implied consent can be difficult to interpret because it is based on another person’s interpretation.
Implied consent
occurs when patients indicate by their behavior that they are accepting of the procedure. The patient’s nonverbal communication may indicate an implied consent for treatment or examination. Because consent means to give permission or approval for something, when a patient is seen for a routine examination, there is implied consent that the physician will touch the person during the examination. Therefore, the touching required for the physical examination would not be considered the crime of battery.

In a famous precedent-setting case involving implied consent, the court declared that a woman had given consent for a vaccination when she extended her arm (O’Brien v. Cunard S.S.Co., 28 N.E. 266, Mass. 1891). Implied consent is also assumed in medical emergencies when the patient cannot respond to give consent. In this case, the law assumes that if the patient were able, consent would be given for the emergency procedure. In an Iowa case, the court determined that implied consent existed when a surgeon removed the mangled limb of a patient run over by a train because the procedure was necessary to save the patient’s life (Jackovach v. A. L. Yocum, Jr., 237 N.W. 444, Iowa, 1931).

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Both expressed and implied consent should be an informed consent. This means that patients must know, or be informed, about what they are providing consent for.

Exceptions to Consent

There are exceptions to the informed consent doctrine that are unique to each state. Some of the more general exceptions follow:

· 1. A physician need not inform a patient about risks that are commonly known. For example, physicians need not tell patients that they could choke swallowing a pill.

· 2. A physician who believes the disclosure of risks may be detrimental to the patient is not required to disclose them. For instance, if a patient has a severe heart condition that may be worsened by an announcement of risks, the physician should not disclose the risks.

· 3. If the patient asks the physician not to disclose the risks, then the physician is not required to do so.

· 4. A physician is not required to restore patients to their original state of health, and in some cases, may be unable to do so.

· 5. A physician may not be able to elicit a cure for every patient.

· 6. A physician cannot guarantee the successful results of every treatment.

Refusal to Grant Consent

Adult patients who are conscious and considered to be mentally capable have a right to refuse any medical or surgical treatment. The refusal must be honored no matter what the patient’s reasoning: concern about the success of the procedure, lack of confidence in the physician, religious beliefs, or even mere whim. Failure to respect the right of refusal could result in liability for assault and battery. In Erickson v. Dilgard, the hospital requested the court to authorize a blood transfusion over the patient’s objection. The court held in favor of the patient who refused a blood transfusion, even though the refusal could have resulted in the patient’s death (Erickson v. Dilgard, 252 2d 705, N.Y.S. 1962). The hospital and medical personnel have a responsibility to use reasonable care to protect the patient from touching (assault and battery) when consent has not been granted.

ROLE OF THE HEALTHCARE CONSUMER

Today’s healthcare consumer is better informed about medicine and treatments than ever before due to an abundance of literature, television programming, and information available on the World Wide Web. However, wise consumers will not self-medicate or offer their medications to family members and friends for their use. Healthcare personnel must carefully question all patients/consumers about over-the-counter (OTC) medications they may be taking. Many OTC medications, such as aspirin, can have a negative interaction with prescribed medications. Dietary supplements such as herbs and vitamins should also be declared by the patient. The consumer must alert the medical staff to any allergies and adverse reactions to medications.

Healthcare consumers must be honest with their physicians about prescriptions they may be taking that were prescribed by other doctors. Every patient/consumer should carry a small card listing all medication names and dosages in the event the names are needed for a patient history or in an emergency situation. They should ask questions about their medications and the treatments they are receiving. If they do not understand what they are told, then they should be persistent with the physician or healthcare professional until they do understand the instructions.

The patient/consumer can assist the physician in prevention of medical errors. Before undergoing any surgical treatment, it is important that the patients, their personal physicians, and their surgeons all are clear on what will be done. Many fail-safe approaches have been instituted by medical professionals to prevent errors. For instance, performing surgery at the wrong site, such as the right knee instead of the left knee, is rare. But to prevent this type of injury to the patient, the American Academy of Orthopedic Surgery urges all its members to sign their initials directly on the site to be operated upon before the surgery.

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It is important to remember that many patients do not understand medical terminology. They are often ashamed to admit that they either do not understand or cannot hear the instructions. It is the healthcare professional’s duty to make sure that the patient is fully informed.



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