11830 Westline Industrial Drive St. Louis, Missouri 63146 PROMOTING LEGAL AND ETHICAL AWARENESS: A PRIMER FOR HEALTH PROFESSIONALS AND PATIENTS ISBN: 978-0-323-03668-9 Copyright © 2009 by Mosby, Inc., an affi liate of Elsevier Inc. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in writing from the publisher. Permissions may be sought directly from Elsevier’s Rights Department: phone: ((cid:2)1) 215 239 3804 (US) or ((cid:2)44) 1865 843830 (UK); fax: ((cid:2)44) 1865 853333; e-mail: [email protected]. You may also complete your request on-line via the Elsevier website at http://www.elsevier.com/permissions. Notice Neither the Publisher nor the Author assume any responsibility for any loss or injury and/or damage to persons or property arising out of or related to any use of the material contained in this book. It is the responsibility of the treating practitioner, relying on independent expertise and knowledge of the patient, to determine the best treatment and method of application for the patient. The Publisher Library of Congress Control Number 2007941313 Vice President and Publisher: Linda Duncan Senior Editor: Kathy Falk Developmental Editor: Megan Fennell Publishing Services Manager: Julie Eddy Project Manager: Marquita Parker Design Direction: Paula Catalano Printed in the United States of America Last digit is the print number: 9 8 7 6 5 4 3 2 1 FM-A03668_i-xviii.indd iv 1/9/08 5:37:55 PM I dedicate this book with love to the love of my life, my wife Pepi. Thanks for making my life complete over the past 35 years. FM-A03668_i-xviii.indd v 1/9/08 5:37:55 PM Preface The health care system is indeed complex. From professional education to employ- ment to clinical service delivery to reimbursement to quality management, every health care professional must be ever cognizant of existing and evolving standards. This truism is no less applicable to ethical and legal mandates that govern health care practice. Even practicing attorneys have diffi culty keeping up with a specialized area of the law in a single state system, so the task is even more challenging for health care professionals. Ethics and law modernly have often blended into a unitary stan- dard of conduct, which must be conformed to. This book is written with the intention of providing a roadmap to health profes- sionals, students, and patients to the legal environment. It starts and ends with foci on professional ethics, which are inextricably intertwined with legal duties. Chapters 1 and 2 address legal and ethical foundational principles. Chapter 2 pres- ents a 4-quadrant legal/ethical clinical practice grid and a systems model for ethical decision making, which can be adapted for individual use by practitioners. Chapter 3 focuses on health care malpractice issues and clinical risk management. Chapter 4 addresses intentional wrongs – civil intentional torts and criminal misconduct inci- dent to health care delivery. Chapter 5 covers ethical and legal issues in employment, and includes an alphabetized presentation of key federal employment laws and regu- lations, as well as detailed coverage of workplace sexual harassment. Chapter 6 explores business law and ethics topics in alphabetical order, including, among other topics, advertising professional services, contracts, professional liability insurance, and the Sarbanes-Oxley Act of 2002. Chapter 7 examines legal and ethical issues in education, as they affect health care professionals. Chapter 8 concludes with focused ethical issues, including: informed consent, life and death decision making, nondiscrimination in health care delivery, pro bono care delivery, professional prac- tice issues, and research considerations. I hope that the information presented in this book helps you to better serve pa- tients under your care, and to have greater peace of mind while doing so. Best wishes for continued practice success! vii FM-A03668_i-xviii.indd vii 1/9/08 5:37:56 PM Acknowledgments I wish to acknowledge all of the dedicated health care professionals and support pro- fessionals at all levels whose work improves the health and well-being of patients and their families and signifi cant others. Thanks, too, to Kathy Falk, Megan Fennell, Marquita Parker, Julie Eddy, and Paula Catalano at Elsevier for their sage advice and assistance in making this book come to fruition. viii FM-A03668_i-xviii.indd viii 1/9/08 5:37:56 PM About The Author Ron Scott has been a health care professional since 1969, and an attorney since 1983. He has also been a university professor since 1985, and a writer, editor, and writers’ coach since 1990. Ron started his career as a Navy hospital corpsman and operating room technician during the Vietnam War in 1969. He subsequently attended the University of Pittsburgh’s Physical Therapy Program, and graduated a McMillan Scholar and Jessie Wright awardee. He went on to earn 6 other academic degrees, including an MA in Spanish (Millersville University), MS (Samuel Merritt College), MSBA (Boston University), JD (University of San Diego), EdD (University of Texas, Austin), and LLM (Judge Advocate General’s School). Ron has been a civilian and Army physical therapist and clinical manager for 21 years. For 6 years, he was a JAG Corp attorney, specializing in criminal defense and health care malpractice claims adjudication. After completing his military career as a Major in the Army Medical Specialist Corps, Ron became an associate professor and interim chair in physical therapy at the University of Texas Health Science Center, San Antonio. He is currently a faculty member in four programs: Husson College, Marymount University, Rocky Mountain University of Health Sciences (nursing, physical therapy, and allied health), and the University of Indianapolis. Ron currently works full-time as an attorney-mediator, specializing in employ- ment, family, and health law. This is Ron’s twelfth book. ix FM-A03668_i-xviii.indd ix 1/9/08 5:37:56 PM Ch01-A03668_001-023.indd 2 1/4/08 3:29:50 PM 1 R E Legal Foundations T P A H C K E Y T E R M S Beyond a reasonable doubt Frequency Remittitur Case captions Guilty Res ipsa loquitur Clear and convincing Iatrogenesis Respondent evidence In personam jurisdiction Restitution Clear and convincing proof In rem jurisdiction Right of privacy Common law Incarceration Sentenced Comparative fault Infer Severity Concurrent jurisdiction Jurisdiction Special and general Contingent fee Liable damages Contributory negligence Litigants Specifi c and general Declarations of rights deterrence Monetary damages and duties Stare decisis Negligence Defendants Statutes Plaintiffs Diversity of citizenship Strict product liability Preponderance of evidence jurisdiction Subject-matter jurisdiction Presumption Due process Substantive due process Procedural due process Exclusive jurisdiction Tort reform Public record Expectancy Tortious conduct Punitive damages Fact fi nder Torts Pure comparative fault Fine I N T R O D U C T I O N Everyone in society—from health care professionals to ordinary citizens—must comply with established laws and regulations. Sources of legal obligations include federal and state constitutions, legislatively created statutory laws, judicial case law decisions, and administ rative rules and regulations promulgated by state and federal administrative or regulatory agencies. Legal actions against health care professionals can take place in criminal or civil courts. Criminal actions brought by the state, incident to health care delivery, are normally limited to 3 Ch01-A03668_001-023.indd 3 1/4/08 3:29:52 PM 4 Promoting Legal and Ethical Awareness situations in which intentional misconduct with patient injury or deaths of patients have oc- curred. Civil legal actions for malpractice are brought by patients against health care providers, and the burden of proof—preponderance, or greater weight, of evidence—is lower than in the criminal justice system, in which the state must prove a defendant’s culpability by the standard of beyond a reasonable doubt. Although an obvious civil litigation crisis exists in the United States, the magnitude of a specifi c health care malpractice crisis is less certain. Still, tort reform efforts, many designed to limit health care malpractice plaintiffs’ access to courts, continue to proliferate. THE NATURE OF THE AMERICAN LEGAL SYSTEM The American legal system has two basic subsystems: the criminal law system and the civil law system. Each state has its own criminal and civil trial and appellate courts, as does the federal government. American criminal and civil law systems are grounded in British common (judicial) law and in the legal codes of France, Spain, and other “code” nations. Foundational British common law, the Napoleonic code, and other codes have been substantially replaced or augmented over time with American case (common) law, state and federal statutes, and laws from other sources. Jurisdiction State or federal courts in the criminal or civil legal system exercise jurisdiction, or power, over litigants (jurisdiction over parties, or in personam jurisdiction), over pro perty that is the subject of litigation (in rem jurisdiction), and over specifi c types of cases (subject-matter jurisdiction). The federal courts have (or at least were ex- pected by the founders of the United States to have) limited jurisdiction over issues involving specifi c federal interests, whereas state courts are courts of broad, general jurisdiction. State courts have exclusive (or at least primary) jurisdiction over purely state governmental matters, such as crimes occurring within the state (but not on federal property), dome stic and family relations, establishment of private businesses (including incorporation of businesses), insurance, traffi c offenses, and health care malpractice and related issues, among many other areas of interest. Federal courts have concurrent (shared) jurisdiction with states over areas such as the interpreta- tion of state and (most) federal laws. Federal courts also share jurisdiction with states over what would seem to be ex- clusively state business, including health care malpractice cases, under a concept known as diversity of citizenship jurisdiction. Diversity jurisdiction applies when all parties on one side of a civil case are citizens of different states than the parties on the opposing side of the case. Diversity jurisdiction was originally intended to prevent inequity, or unfairness, to an out-of-state party in a civil case that might occur in a state court. Because of the growing case burden on federal judges, however, diversity jurisdiction has been limited in recent times to cases involving a monetary amount in controversy of at least $75,000.1 Ch01-A03668_001-023.indd 4 1/4/08 3:29:54 PM CHAPTER 1 ■ Legal Foundations 5 The federal courts exercise exclusive jurisdiction over limited types of cases for which the Constitution grants the federal courts such power. These types of cases include antitrust actions; bankruptcy proceedings; federal crimes; military law and policy cases; patent, copyright, and trademark actions; and lawsuits brought against the United States. Sources of Law and Legal Obligation Everyone in society (with the possible exception of persons having diplomatic im- munity) has an affi rmative duty to comply with the administrative, civil, and criminal laws in effect in the jurisdiction. It is often said that ignorance of the law is no excuse for noncompliance. Whereas real problems exist in society regarding the selective enforcement of laws, every person—from the homeless pauper to the president of the United States—is bound by the laws of the land. Even diplomats are not always assured immunity from answering for their conduct under the law. Consider the case of Georgy Makharadze, a Georgian diplomat who was involved in a traffi c accident in Washington, D.C., in December 1996. Largely because of political pressure from the U.S. State Department, President Eduard Shevardnadze waived diplomatic immunity for Makharadze in February 1997, freeing the way for his prosecution for vehicular homicide in the case.2 Constitutional Law There are four main sources of law and legal obligation (Figure 1-1). The preeminent source of legal authority is the federal Constitution, which is universally recognized as the “supreme law of the land.” All other laws, regulations, and rules are subordinate in authority to the express provisions of the Constitution and to interpretations of federal constitutional law made by courts. Although there is a historical, ongoing controversy over authority to interpret the Constitution (because of the separation of powers doctrine involving the relative power of the president, Congress, and the Supreme Court), the U.S. Supreme Court is usually the fi nal arbiter in interpreting and enforcing the Constitution. Many cases interpreting the Constitution over the history of U.S. law have directly or indirectly affected health care delivery, including cases interpreting the meaning and scope of due process of law (fundamental fairness) and creating the fundamental right of (individual) privacy. The fi rst case in which the Supreme Court established a fundamental right of privacy, Griswold v. Connecticut,3 turned on whether a conju- gate adult couple could legally purchase pharmaceutical contraceptives for birth control. The Griswold case is also the fi rst and only instance in which a court created an implied federal constitutional right; and in the majority Supreme Court decision, written by Justice Douglas, one sees how this implied constitutional right of privacy was fashioned from express rights enunciated in the Bill of Rights. Specifi c guarantees in the Bill of Rights have penumbras [fringe areas], formed by emanations from those guarantees that helped give them life and substance. Various guarantees create zones of privacy. The rights of association contained in the penum- bra of the fi rst amendment is one, … the third amendment in its prohibition against Ch01-A03668_001-023.indd 5 1/4/08 3:29:54 PM 6 Promoting Legal and Ethical Awareness Constitution Statutes Case study Regulatory authority FIGURE 1-1 Sources of law and legal authority. ( From Scott RW: Professional ethics: a guide for rehabilitation professionals, St Louis, 1998, Mosby.) the quartering of soldiers “in any house” in time of peace without the consent of the owner is another. … The fourth amendment explicitly affi rms the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. The fi fth amendment in its self-incrimination clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detri- ment. The ninth amendment provides “the enumeration in the Constitution of cer- tain rights will not be construed to deny or disparage others retained by the people.” The present case [Griswold] concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. … We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or worse, hopefully enduring and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faith; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.3 Virtually all of the express provisions related to personal rights and liberties in the federal Constitution are found, not in the body of the document, but in the amen- dments to the Constitution. Personal rights and liberties of citizens were not written into the main Constitution by the founding fathers during the Constitutional Con- vention of 1787. The personal rights enunciated in the Bill of Rights—added in 1791—in large part were fashioned after the Virginia state bill of rights. The fi rst 10 of these amendments, originally intended to protect citizens from undue interference Ch01-A03668_001-023.indd 6 1/4/08 3:29:54 PM