The Medical-Legal Aspects of Acute Care Medicine: A Resource for Clinicians, Administrators, and Risk Managers PDF
Preview The Medical-Legal Aspects of Acute Care Medicine: A Resource for Clinicians, Administrators, and Risk Managers
The Medical-Legal Aspects of Acute Care Medicine A Resource for Clinicians, Administrators, and Risk Managers James E. Szalados Editor 123 The Medical-Legal Aspects of Acute Care Medicine James E. Szalados Editor The Medical-Legal Aspects of Acute Care Medicine A Resource for Clinicians, Administrators, and Risk Managers Editor James E. Szalados Director, Surgical and Neurocritical Care Units Rochester Regional Health System at Rochester General Hospital Rochester, NY USA The Szalados Law Firm Hilton, NY USA ISBN 978-3-030-68569-0 ISBN 978-3-030-68570-6 (eBook) https://doi.org/10.1007/978-3-030-68570-6 © Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland This project could not have been possible without the constant support of my family. To my mom, who gave me positive energy, who raised me to work hard and never, ever, give up. To my dad, who taught me to stand for what I believe but also to understand, respect, and care for others. For my sister Liz, whose gentle spirit taught me about the magic in believing. Finally, but not lastly, for my wife and love of my life, my constant life companion, my anchor, my best friend, and soulmate, Doris, who shares in all that we have accomplished because she has been there with me and for me, on every step on this journey. James E. Szalados Preface This book could not have been possible without the hard work and support of so many. I would like to thank all my contributors for their hard work and insight. Taking the time to help write a book, especially given the events of the past year, is an extraordinary commitment and achievement. I would also like to thank my sup- port staff, especially Abha Krishnan and her editorial team at Springer, for their patience, hard work, and dedication in helping bring this project to completion. I have the privilege of practicing multiple professions. On any given day, I have the opportunity of helping, patients, clients, or others as I work on their behalf as a physician, attorney, or consultant. I take great satisfaction in being able to help oth- ers in need; it is my life’s work. This book crosses the boundaries between the pro- fessions from a single multidisciplinary lens. My hope is that it is both engaging and practical. The healthcare team is comprised of many professionals of diverse training and backgrounds who work in what is possibly the most regulated of any area of public service or commerce in the USA. To a large extent, deep ethical and moral convic- tions, internal fortitude, work ethic, and dedication provide the momentum for healthcare professionals and their support teams to perform the work of patient care. Healthcare entails enormous personal commitment and sacrifice, from the begin- ning of one’s training to the daily rigors of practice. Moreover, healthcare is not devoid of risk, as the recent COVID-19 pandemic has underscored. Throughout the moment-to-moment and day-to-day controlled chaos, it is often the shared goals and the team spirit that helps us all make a difference. It is not inconsequential that when the world ground to a halt in the COVID epidemic, the frontline healthcare teams were there, every day, every night, making a difference, doing what we were born to do. However, take one step back and healthcare workers immediately realize the regulatory and legal complexity of the system in which we work each day. We seem to prefer the term “administrative complexity” to address the regulatory framework in which our healthcare system is embedded. We prefer the term “population health” to address the deep importance of the social and economic support system upon which our public health infrastructure is precariously balancing. The law is vii viii Preface something healthcare practitioners and administrators hope to avoid; however, it is always there. Nonetheless, there are healthcare attorneys, who also want to help; healthcare attorneys understand the regulations, laws, and the processes that are so essential to effective patient care. The task of the healthcare attorney is to help busy healthcare practitioners focus on patients, their families, and the community. The goal of healthcare attorneys is to provide guidance and counsel, when needed, to navigate the regulatory world. In a sense, healthcare attorneys are also a part of the healthcare team, perhaps not at the front lines, but on the sidelines helping to make it all work. Morality and ethics will always be at the foundation of healthcare, as much as patients and families will always be our focus. Advances in medical technology should never overtake the relationships we have with our patients, although technol- ogy helps us provide better care for them. New technology will pose ethical, legal, and regulatory problems, and technology, as it progresses, will inevitably “force” new laws and regulations. Laws rarely force technology, although they may enable innovation; technology, on the other hand, will inevitably and always force new laws and regulations into existence. It is inevitable that healthcare providers main- tain their situational awareness and participate fully in their organizations, public policy development, and regulatory agencies to help develop and drive technology and laws and to help enable a better tomorrow. Rochester, NY, USA James E. Szalados Author’s Note and Disclaimers This book is intended for students, teachers, clinicians, administrators, and other attorneys. The material presented herein is intended to provide readers with a rich and prac- tical overview of the enormous complexity of the ethical and legal framework in which healthcare professionals practice. This work is intended to serve both as a practical reference and also as a basis for further inquiry. The information presented herein focusses on the laws and regulations related to the practice of healthcare in the USA and is not intended to address international laws or procedures. The material presented herein is not intended to and must not be construed in any way to represent legal advice. This book in no way implies the existence of an attor- ney–client relationship. No legal actions should be taken solely in reliance on this material. The editors and authors disclaim any legal responsibility for actions taken or not taken in reliance of the material herein to the fullest extent. The laws of the USA are constantly in flux, with new regulations, statutes, and case law. In addition, the laws regarding or impacting healthcare vary between states. Please consult with a qualified attorney for legal advice on any specific legal issue. The opinions of the editor or the authors represent the opinions of each individ- ual contributor and may not reflect the opinions or policies of any institutions, firms, or other entities with which the contributors are, or have previously been, affiliated. ix Contents 1 Morality, Ethics, the Foundations of the American Legal System, and Ethical Challenges in the Digital Age . . . . . . . . . . . . . . . 1 James E. Szalados 2 Traditional and Applied Clinical Ethics: Contemporary and Evolving Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Margie Hodges Shaw, Marianne Chiafery, and David C. Kaufman 3 The Ethics and Laws Governing Informed Decision-Making in Healthcare: Informed Consent, Refusal, and Discussions Regarding Resuscitation and Life-S ustaining Treatment . . . . . . . . . . . . . . . . . . . 43 James E. Szalados 4 The Laws and Regulations Governing Hospitals and Healthcare Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 James E. Szalados 5 The Timeline of a Medical Malpractice Lawsuit . . . . . . . . . . . . . . . . . 117 James E. Szalados 6 Regulation of Provider Practice: State Oversight, Licensing, Credentialing, Peer Review, and the National Practitioner Data Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 James E. Szalados 7 Laws and Liability Relating to the Education and Supervision of Trainees and Allied Health Professionals . . . . . . . . . . . . . . . . . . . . . . . 171 James E. Szalados 8 The Science of Teamwork in Healthcare: Importance to Patient Outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 James E. Szalados xi xii Contents 9 Medical Error, Quality Management, and the Evolving Culture of Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 James E. Szalados 10 Laws Pertaining to Insurance and Risk Management . . . . . . . . . . . . 229 James E. Szalados 11 Overview of the Claims Submission, Medical Billing, and Revenue Cycle Management Processes . . . . . . . . . . . . . . . . . . . . . . . . . 251 Joette Derricks 12 Regulations and Regulatory Compliance: False Claims Act, Kickback and Stark Laws, and HIPAA . . . . . . . . . . . . . . . . . . . . 277 James E. Szalados 13 Medical Records and Confidentiality: Evolving Liability Issues Inherent in the Electronic Health Record, HIPAA, and Cybersecurity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 James E. Szalados 14 The Legal and Regulatory Components of Tele-ICU Care . . . . . . . . . 343 Mario V. Fusaro, Christian Becker, Daniel Miller, Zohair Ahmed Al Aseri, and Corey Scurlock 15 Digital Technologies in Healthcare: Opportunities and Risk for Health Systems and Providers . . . . . . . . . . . . . . . . . . . . . . . . 353 Peter J. Papadakos and Tiffany M. Ingham 16 The Laws of Professional Negligence: What Is Malpractice – And How Does Litigation Work? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363 James E. Szalados 17 Legal Reasoning: Why the Law and Its Application Are Confusing to Medical Providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383 James E. Szalados 18 Ethical Conflicts and Legal Liability in Professional Nursing . . . . . . 393 Taylor Hughes 19 Criminal Statutes Affecting Medical Providers . . . . . . . . . . . . . . . . . . 417 James E. Szalados 20 Ethical and Legal Issues in Contemporary Pharmacy Practice: Scope of Practice, Drug Use Stewardship, Medical Error Management, and Teamwork. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437 James E. Szalados 21 Legal Issues in Mental Health Relevant to Acute Care Practice . . . . 453 James E. Szalados
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