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Health Law Outline
- I. PHYSICIAN-PATIENT RELATIONSHIP................................................................................................................................... Contents
- LICENSING AND SCOPE OF PRACTICE............................................................................................................................
- SCOPE OF PRACTICE REGULATION................................................................................................................................
- MEDICAL MALPRACTICE ELEMENTS..............................................................................................................................
- PHYSICIAN/PATIENT RELATIONSHIP..............................................................................................................................
- INFORMED CONSENT....................................................................................................................................................
- Negligence as a basis of recovery..................................................................................................................................
- DECISION AIDS AND INFORMED CONSENT....................................................................................................................
- CONFIDENTIALITY AND PRIVACY...................................................................................................................................
- FEDERAL MEDICAL PRIVACY STANDARDS UNDER HIPPA...............................................................................................
- PHYSICIAN LIABILITY: STANDARD OF CARE..................................................................................................................
- TWO SCHOOLS OF THOUGHT DOCTRINE.....................................................................................................................
- INSTITUTIONAL LIABILITY............................................................................................................................................
- VICARIOUS LIABILITY OF HOSPITALS FOR NEGLIGENCE OF MEDICAL STAFF................................................................
- I. Actual Agency and the “Control” Test......................................................................................................................
- ELEMENTS TO ESTABLISH AGENCY RELATIONSHIP: Two elements:............................................................................
- APPARENT AGENCY.....................................................................................................................................................
- DIRECT LIABILITY OF HOSPITALS..................................................................................................................................
- Negligence...................................................................................................................................................................
- ELEMENTS OF NEGLIGENCE ACTION PREDICATED ON MEDICAL MALPRACTICE.........................................................
- CORPORATE NEGLIGENCE...........................................................................................................................................
- II. ACCESS TO CARE..............................................................................................................................................................
- EMERGENCY MEDICAL TREATMENT AND LABOR ACT.................................................................................................
- A. Common law duty to treat
- EMTALA: The Exception for Emergency Care..............................................................................................................
- EMTALA: General overview:........................................................................................................................................
- EMTALA RULE ( Baber ):................................................................................................................................................
- EMTALA AND OTHER STATUTORY EXCEPTIONS TO COMMON LAW...........................................................................
- A. ADA AND SECTION 504 OF THE REHABILITATIONS ACT...........................................................................................
- Americans with Disabilities Act (ADA).........................................................................................................................
- SECTION 504 OF THE REHABILITATION ACT OF 1973..................................................................................................
- HEALTH AND HEALTHCARE DISPARITIES.....................................................................................................................
- III. FINANCING OF HEALTHCARE..........................................................................................................................................
- PRIVATE HEALTH INSURANCE......................................................................................................................................
- Principles of Health Insurance.....................................................................................................................................
- Ratemaking..................................................................................................................................................................
- Adverse and Favorable Selection.................................................................................................................................
- Adverse Selection and Moral Hazard...........................................................................................................................
- Employer-Based Coverage...........................................................................................................................................
- THE CONCEPT OF MANAGED CARE.............................................................................................................................
- MANAGED CARE CONTRACT AND TORT LIABILITY......................................................................................................
- MEDICARE...................................................................................................................................................................
- d) Four parts:
- i. Donut Hole................................................................................................................................................................
- MEDICARE APPEALS PROCESS.....................................................................................................................................
- MEDICAID AND CHIP...................................................................................................................................................
- New Medicaid..............................................................................................................................................................
- TRADITIONAL MEDICAID BENEFITS..............................................................................................................................
- MEDICAID FINANCING AND PAYMENT FOR SERVICES.................................................................................................
- Different Healthcare Systems Around the World
- IV. HEALTHCARE REFORM...................................................................................................................................................
- THE AFFORDABLE CARE ACT: OVERVIEW AND FINCANCING.......................................................................................
- AFFORDABLE CARE ACT AND FURTHER LEGISLATION.................................................................................................
- ACA EXCHANGES; IPAB AND THE CADILLAC TAX.........................................................................................................
- SCOPE OF COVERAGE AND ALLOCATION DECISIONS..................................................................................................
- Rationing Healthcare – Policy Considerations.........................................................................................................
- CONTROLLING COSTS: REVIEW OF ACA/HEALTH INSURANCE.....................................................................................
- V. CLASS SELECTED TOPICS..................................................................................................................................................
- HUMAN SUBJECTS RESEARCH REGULATION AND ETHICS...........................................................................................
- VACCINES....................................................................................................................................................................
- RELIGIOUS OBJECTIONS TO HEALTHCARE...................................................................................................................
- OPIODS........................................................................................................................................................................
- COVID-19 TRAVEL RESTRICTIONS................................................................................................................................
2) SCOPE OF PRACTICE REGULATION
a) Policy Considerations: i) Physician-directed medical care is giving way to a team approach as a core characteristic of health care delivery and as a formal requirement for medical homes and other forms of health care delivery. (1) Stronger emphasis on preventative care, primary care, and on chronic disease management all point to critical and greatly expanded roles for advanced nurse practitioners and physician assistants. (a) This is leading to a push to expand practice opportunities for midlevel practitioners (b) The ACA provides significant support for healthcare workforce development directed towards advanced practice nursing and other non-physician health professionals. (i) Several of the healthcare delivery models supported by the ACA – including the medical home, the Nurse-Managed Health Clinic, and the Independence at Home Medical Practice – mandate a team approach to care with very significant practice and leadership roles for advanced nurse practitioners and physician assistants. ii) Problem with the scope of practice regulation (1) Focuses on setting boundaries between professions and attempts to separate medicine from nursing and other healthcare disciplines (a) By attempting to set these boundaries it applies the notion that fails to reflect the overlapping competencies of healthcare professionals or the nature of diagnosis and treatment. Sermchief v. Gonzales – Supreme Court of Missouri o Two nurses and five physicians request injunction and declaratory judgement that they were not engaged in the unauthorized practice of medicine under Chapter 334 relating to the Missouri State Board of Registration for the Healing Arts. Nurses are licensed professional nurses and the physicians are licensed to practice medicine. Opposing party complains that nurses routinely provided the following services; taking history, breast and pelvic exams, lab testing of PAP smears, gonorrhea cultures, and blood serology, providing and giving of info about oral contraceptives, condoms, and intrauterine devices, and dispensing of certain designated medications, and counseling services and community education. No acts caused injury. o RULES: It shall be unlawful for any person not now a registered physician within the meaning of the law to practice medicine or surgery in any of its departments, or to profess to cure and attempt to treat the sick and others afflicted with bodily or mental infirmities or engage in the practice of midwifery in this state, except as herein provided. This Chapter does not apply to nurses licensed and lawfully practicing under their profession within the provisions of chapter 335, RSMo. o Professional nursing is the performance for compensation of any act which requires substantial specialized education, judgement, and skill based on knowledge and application of principles derived from the biological, physical, social, and nursing sciences, including, but not limited to … (list on pg. 68) Legislature intended for an expanded scope of nursing through revisions of legislation. – Evidence is the elimination of the requirement that a physician directly supervise the nurse while practicing. o HOLDING: The acts performed by the nurses here are exactly what the legislature contemplated and intended for them to perform. They did not perform unauthorized medicine under the statute. The acts were authorized by law because there is a specific exception written in Chapter 335 for nurses lawfully practicing their profession.
3) MEDICAL MALPRACTICE ELEMENTS
**1. Duty
- Breach
- Injury proximately caused by the breach of duty**
- Damages
4) PHYSICIAN/PATIENT RELATIONSHIP
a) How is a physician/patient relationship created?
- Express or implied consent to advise or treat the patient
- Detrimental reliance - physician led patient to believe that treatment was forthcoming
- Ongoing physician/patient relationship that formed earlier (continuing treatment for some ‘spell’ of illness)
- Contractual obligation creating a duty to treat a specific group of patients Ethics are different to legal responsibility. You can behave unethically and not necessarily be liable for anything. Whether you could legally be deprived of your license for behaving unethically can also be different from whether you committed a tort or broke the law b) Nature of Relationship i) Contractual (1) Physician has no obligation to offer services that a patient may require that are outside their competence and training or services outside the scope of the original physician-patient agreement in which the physician has limited the contract to a type of procedure, to an office visit, or to consultation only. (2) However, once a physician-patient relationship has begun, the physician has an obligation of “continuing attention” c) Do Doctors have a duty to treat? i) If a doctor takes on a patient (agrees to treat them) he cannot abandon them. ii) Can stop treating them in two ways : (1) Get fired by the patient (2) Refer them on to another doctor who can meet their needs (a) An express, written contract is rarely drafted. Normally an implied contract. (b) Note: When a physician treating a patient consults by phone or otherwise with another physician, some courts are reluctant to find a doctor-patient relationship created by such a conversation. iii) Most physicians are part of managed care networks and therefore have a contractual relationship with the plan that requires them to treat subscribers (normally insurance companies and those they insure). (1) E.g. Hand v. Travera (a) Hand (plaintiff) went to the emergency room complaining of headache. Dr. Travera was the Dr. responsible for admissions and sent Hand home, recommending outpatient treatment. (b) Hand sued for malpractice when he later suffered a stroke (i) HOLDING: The contract between Dr. Travera and Hand’s insurer created a treatment relationship which Dr. Travera breached. iv) Exculpatory Clauses Tunkle v. Univ. of California o Issue: Does the exculpatory clause in a contract protect a charity research hospital from malpractice claims when one of the physicians is negligent in their care of a patient? o RULE: Civil Code section 1668: All contract which have their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law. Precedent: the exculpatory provision may stand ONLY if it does not involve “the public interest” Tunkl factors to meet for the treatment to be for the public good (making the clause in the contract invalid):
- Hospital business was suitable for public regulation
- Party seeking exculpation performs a service of great importance to the public, or practical necessity for some members of the public.
was never discussed. To consider this a physician-patient relationship would have a ‘chilling effect’ and would stifle education, communication, and professional association.
5) INFORMED CONSENT
- Doctrine : “Every human being of adult years and sound mind has a right to determine what shall be done with his own body…” – Schloendorff v. Society of New York Hospital a. 5 Functions served by doctrine of informed consent i. Protect individual autonomy ii. Protect the patient’s status as a human being iii. Avoid fraud or duress iv. Encourage doctors to carefully consider their decisions v. Foster rational decision-making by the patient; and vi. Involve the public generally in medicine 2) Policy: a. Studies show that patient outcomes and costs improve when they are involved in understanding their treatments to a greater extent b. We are now moving beyond informed consent and toward a more robust of patient involvement and activation c. Patient engagement and shared decision making are two central components of new methods for healthcare delivery and payment under the Affordable Care Act (ACA). d. Doctrine of informed consent divided into three periods: i. Built on the law of battery (up to the mid-twentieth century)
1. Required little more than disclosure by doctors of their proposed treatment 2. Provided the theoretical underpinnings for a cause of action 3. Doctrine of battery protects a patient’s physical integrity from harmful contact and her personal dignity from unwanted bodily contact a. Only requires that the patient was not informed of the very nature of the medical touching. b. When a surgeon, in the course of surgery removes or operates on an organ other than the one he and the patient discussed, a battery action lies. i. Physician has few defenses to battery ii. Plaintiff does not need to prove the standard of care – the only proof required is proof that the physician failed to explain to the patient the nature and character of a particular procedure. iii. To prove causation, the plaintiff need only show that a nonconsensual touching occurred. 1. Most common claims now are that the physician failed to disclose important information to the patient prior to obtaining the patient’s consent – this falls under negligence. ii. Judicial policy that doctors should disclose the alternatives to their proposed treatment and their risks, as well as the risk of the proposed treatment itself iii. Legislative retrenchment and judicial inertia (1972-present) Schloendorff v. Society of the New York Hospital Woman consents to examination under anesthesia but not to an operation, doctor operates anyway She gets gangrene from the procedure o Rule: Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable for damages. Exceptions:
Not true if the patient is unconscious and where it is necessary to operate before consent can be obtained. Does not apply in cases of threats to the public health. Not required when a patient waives the right to disclosure Battery (non-consensual touching) can be committed by anyone o In contrast, the duty to obtain informed consent is unique to physicians
Negligence as a basis of recovery
Canterbury v. Spence o Young boy had back pain and agreed to an operation but the physician failed to disclose the risks of paralysis the operation would cause. The boy fell from his hospital bed after being left alone while voiding. A few hours after the fall the lower half of his body was paralyzed. o He had another operation and extensive medical care but he has never regained full function to the lower half of his body. He spent the rest of his life on crutches and with bowel and urinary incontinence. Sue for negligence on behalf of physician and negligent post-operative care on part of hospital. Consent form was signed after surgery by mother, not before. Consent form signed prior to second operation o Rule: True consent to what happens to oneself is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each….from these axiomatic considerations springs the need, and in turn the requirement of a reasonable divulgence by physician to patient to make such a decision possible. The cases demonstrate that the physician is under an obligation to communicate specific information to the patient when the exigencies of reasonable care call for it. Three Duties: o Duty to warn of dangers of procedure o Duty to impart information which the patient has every right to expect o Duty of reasonable disclosure of the choices with respect to proposed therapy and the dangers inherently and potentially involved. STANDARD: The Special Standard: When medical judgement enters the picture and for that reason the special standard controls. The General Standard: Applies in all other instances o The physician’s duty to disclose is governed by the same legal principle applicable to others in comparable situations, with modification only to the extent that medical judgment enters the picture. NOT dependent on the existence and nonperformance of a relevant professional tradition
DECISION AIDS AND INFORMED CONSENT
o Some argue for the implementation of decision aids to provide patients with detailed and specific information on treatment options and outcomes, help them clarify their values and guide them through the decision making process. o Process through which decision aids are used: Shared Medical Decision-Making A process in which the physician shares with the patient all relevant risk and benefit information on all treatment alternatives, and the patient provides all relevant personal info that might make one treatment or side effect more or less tolerable than another. Both parties use this info to come to a mutual medical decision.
a. First promulgated in 2000 and amended in 2009 by the Health Information Technology for Economic and Clinical Health Act (HITECH Act).
- HIPPA Privacy Rule codified at 45 C.F.R. Parts 160 and 164 and enforced by the Office of Civil Rights (OCR) of the Department of Health and Human Services (HHS).
- HIPPA Security Rule a. Sets forth standards for keeping health data secure, including encryption and other technological and organizational requirements. 4) HIPPA LAW: a. PAGES 175- Policy/Problems
- Often misunderstood – doctors and nurses refuse to divulge information that is not in fact protected under HIPPA and can make life harder for the patients and their families. a. Providers do not understand the law and enforce it overzealously. i. Some argue this is a result of the language of the law itself – health care professionals may share information with others but are not required to. This gives them broad discretion. b. Threats of legal action to nurses and doctors lead them to restrict information arbitrarily and aggressively. i. Nurses don’t understand law to begin with, but the hyper-technical language of HIPPA results in them being over-cautious and assuming it is best not to release any information at all. c. Department failed to provide adequate guidance on what is or is not required by the law i. Under HIPPA medical professionals can talk freely about the patient’s medical information with family so long as the patient does not object. ii. No signed authorization is required and the person receiving the information does not need to have legal standing or power of attorney. iii. In cases of legal investigations into crimes or abuse, HIPPA defers to state law. Usually, though not always, state law requires disclosure in these cases. iv. Medical professionals CANNOT disclose confidential medical information to reporters but may discuss general health issues.
7) PHYSICIAN LIABILITY: STANDARD OF CARE
1) Adverse Event: “an injury caused by medical management rather than the underlying condition of the patient” 2) Medical Error: “the failure of a planned action to be completed as intended…or the use of a wrong plan to achieve an aim…” a. The law has generally focused on physician error, until recently finding the physician liable rather than the institution. b. However, institutions play an ever-increasing role in the quality in medical care. i. Quality improvement is essential to the Affordable Care Act. Section 3501 mandates the Director of the Center for Quality Improvement Programs to “identify, develop, evaluate, disseminate, and provide training in innovative methodologies and strategies for quality improvement practices in the delivery of health care services that represent best practices in health care quality, safety, and value” in collaboration with other federal agencies.
1. As the federal government develops and disseminates innovative strategies will likely affect the standards of care for physicians and medical institutions. Standard of Care Cases Hall v. Hilburn o Woman with abdominal pain undergoes an exploratory laparotomy to which she consented. She is moved to a recovery room and her husband sits with her. Alert and communicative, with stable vital signs at 2:50. o Moved to a private room where she died 14 hours later.
o Wife complained of pain and was given morphine. Husband later noticed she had trouble breathing. He reported this to the nurses. He was told his wife was ok. This happened multiple times until she eventually died. Rule: Medical malpractice is legal fault by a physician or surgeon. It arises from the failure of the physician to provide the quality of care required by law. When a physician undertakes to treat a patient, he takes on an obligation enforceable at law to use minimally sound medical judgement and render minimally competent care in the course of the services he provides. A physician does not guarantee recovery. If a patient sustains injury because of the physicians failure to perform the duty he has assumed under our law, the physician may be liable in damages. o A competent physician is not liable per se for a mere error of judgement, mistaken diagnosis, or the occurrence of an undesirable result. Duty: Each physician has a duty to have a practical working knowledge of the facilities, equipment, resources, (including personnel in health related fields and their general level of knowledge and competence), and options (including what specialized services or facilities may be available in larger communities) available to him or her as well as the practical limitations on same. Scope of Duty: The professional services contemplated within this duty concern the entire caring process, including but not limited to examination, history, testing, diagnosis, course of treatment, medication, surgery, follow-up, after-care, and the like. A physician may incur civil liability only when the quality of care he renders (including his judgement calls) falls below MINIMALLY acceptable levels. o **NOTE: Can only be held accountable for a duty based on the medical facilities, services, equipment, and options as are reasonably available.
- Who may qualify as an expert medical witness in a malpractice case? a.** A witness qualified as an expert by knowledge, skill, experience, training or education (or a combination thereof) coupled with independence and lack of bias, may testify thereto in the form of an opinion or otherwise. i. Medical malpractice cases generally require expert witnesses to assist the trier of fact to understand the evidence ii. Generally, where an expert lives or where he or she practices his or her profession has no relevance per se with respect to whether a person may be qualified and accepted by the court as an expert witness. 2) What information can they provide in testimony? a. May express an opinion regarding conclusions minimally knowledgeable and competent physicians in the same specialty or general field of practice would draw, or actions (not tied to the availability of specialized facilities or equipment not generally available) they would take. Hall v. Hilburn
TWO SCHOOLS OF THOUGHT DOCTRINE
1) RULE: Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgement he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise. – Jones v. Chidester a. Under this doctrine, a physician cannot be held liable for following a widely accepted medical approach even if there is another approach with a similarly large following that would support responding differently to the medical issue. b. Provides a complete defense to malpractice.
i. Terms and conditions of employment are set controlled by the hospital, which sets their hours, wages, and working conditions.
- When these employees are negligent, the hospital is vicariously liable for their acts as a result of the master-servant relationship of agency law.
- Physician-Hospital Relationship a. More complicated for questions of agency i. A hospital may have several categories of physicians.
- Largest of these is comprised of private physicians with staff privileges. a. Staff privileges : right to admit and discharge private patients to and from the hospital, and the right to use the hospital’s facilities. i. Considered independent contractors, rather than employees. ii. Historically, a hospital has not been held vicariously liable for the negligence of a doctor affiliated with the hospital unless the doctor is employed by the hospital.
- The hospital was independently liable ONLY if it was negligent in its administrative or housekeeping functions, for example causing a patient to slip and fall on a wet floor. a. This has changed in recent years iii. NOW: The vicarious liability doctrine has been expanded due to the evolution of the modern hospital. Vicarious Liability Cases Scott v. SSM Healthcare St. Louis o Young boy, Matthew, gets sinus infection that spreads to his brain o Has brain infection, several surgeries but permanent paralysis in right side and permanent drainage tube in brain is needed. 1. Negligence action against physicians and against the hospital (Dr. Koch considered agent of hospital).
ELEMENTS TO ESTABLISH AGENCY RELATIONSHIP : Two elements:
i. The principle must consent, either expressly or impliedly, to the agent’s acting on the principle’s behalf, and ii. The agent must be subject to the principle’s control For hospital-physician relationship: Consider whether the hospital generally controlled or had the right to control the conduct of the doctor in his work performed at the hospital. o NOTE: Missouri courts have held that physicians must be free to exercise independent medical judgement; the mere fact that a physician retains such independent judgement will not preclude the court, in an otherwise proper case, from finding the existence of an employer-employee or principal-agent relationship between a hospital and physician. Courts in other states, as well, have strongly rejected the notion that such a relationship cannot be found merely because the hospital does not have a right to stand over the doctor’s shoulder and dictate to him or her how to diagnose and treat the patient.
APPARENT AGENCY
- Traditional agency tests to determine whether a hospital is vicariously liable for the negligence of independent contractors (who would not ordinarily be considered agents of the hospital). Cases: Burless v. West Virginia University Hospitals, Inc.
Birth defect cases due to doctors and nurses not responding quickly enough to warning signs through pregnancy e.g. mum’s blood pressure was high and during labour, baby suffered numerous decelerations in heartbeat before born. o RULE:
1. As a general rule, if a physician is found to be an independent contractor, then the hospital is not liable for his or her negligence. EXCEPTION: One who by his acts or conduct has permitted another to act apparently or ostensibly as his agent, to the injury of a third person who has dealt with the apparent or ostensible agent in good faith and the exercise of reasonable prudence, is estopped to deny the agency relationship. 2. APPARENT AGENCY RULE IN AN EMERGENCY: Even where a physician charged with negligence is an independent contractor, the hospital may nevertheless be found vicariously liable where the complained of **treatment was provided in an emergency room.
- APPARENT AGENCY RULE OUTSIDE AN EMERGENCY ROOM:** For a hospital to be found liable for a physician’s negligence under an apparent agency theory, a plaintiff must establish that: 1) The hospital either committed an act that would cause a reasonable person to believe that the physician in question was an agent of the hospital, or, by failing to take an action, created a circumstance that would allow a reasonable person to hold such a belief, and Requires evidence that the hospital either committed an act that would cause a reasonable person to believe that the physician in question was an agent of the hospital , or, by failing to take action, created a circumstance that would allow a reasonable person to hold such a belief. Generally satisfied when the hospital holds itself out to the public as a provider of care. Not necessary to show an express representation by the hospital…instead, a hospital is generally deemed to have held itself out as the provider of care unless it gave the patient contrary notice. o Hospital is generally able to avoid liability by providing meaningful written notice to the patient, acknowledged at the time of admission. Liability will not be attached where a patient knows or should have known, that the treating physician was an independent contractor. Absent other overt acts, an unambiguous disclaimer by the hospital explaining the independent contractor status of physicians will generally suffice to immunize the hospital from being vicariously liable for physician conduct. 2) The plaintiff relied on the apparent agency relationship. Established when the plaintiff looks to the hospital for services, rather than to the individual physician. Focuses on the patient’s belief that the hospital or its employees were rendering healthcare. Also requires consideration of the reasonableness of the patient’s subjective belief that the hospital or its employees were rendering health care.
a. Darling v. Charleston Community Memorial Hospital brought an expansion of hospital liability for failures in a range of functions hospitals are responsible for such as physician errors and medical system failures. Case: Darling v. Charleston Community Memorial Hospital o 18-year-old boy broke leg – traction and cast in emergency room. Then a heat cradle was applied. This led to severe pain and his toes becoming swollen and dark in color. They eventually became cold and insensitive. o A few days later cast was cut off and both sides of the leg were cut in the process. Blood and other seepage came out and the smell was terrible. Boy was moved to another hospital and treated by an orthopedic specialist. o Specialist said there was considerable amounts of dead tissue and performed numerous operations to try and save the leg. Eventually it had to be amputated. RULE/POLICY: No longer true that hospitals only furnish facilities for treatment. They employ large quantities of nurses, physicians, and interns, as well as administrative and manual workers. They also charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. o “Certainly, the person who avails himself of ‘hospital facilities’ expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility.” The standards for hospital accreditation, the state licensing regulations and the defendant’s bylaws demonstrate that the medical profession and other responsible authorities regard it as both desirable and feasible that a hospital assume certain responsibilities for the care of the patient.
II. ACCESS TO CARE
1) EMERGENCY MEDICAL TREATMENT AND LABOR ACT
A. Common law duty to treat
o Mammoth Wilmington Parents took toddler who hadn’t slept for a few days and having diarrhea to a doctor Doctor prescribed medicine Did not seem to work so took him to an emergency room Nurse at the hospital performed screening on the baby, but determined that it was being treated by another doctor and might clash with the medication being administered by that doctor and so she refused to treat the baby Baby had really high temperature Parents took baby home and the baby later died o Why not a malpractice suit specifically against the nurse? She was an employee of the hospital and tried to reach out to the doctor to see what to do Not clear that she had a provider/patient relationship with the baby Never provided treatment to the baby. Merely refused to treat - so possibly unable to show malpractice o Lower court : instance of quasi-public/private hospital with a duty to serve the public o Supreme court does not agree with this theory: They say that it is privately owned and operated and they can conduct business as they see fit. A duty to serve would not make sense and would force hospitals to serve all people, non- emergent or not e.g. hip replacement for elderly. This would likely end up being too broad a requirement for the hospital. A private actor/hospital does NOT have a duty to treat under US common law However, it WOULD have a duty if it began treatment to continue that treatment.
RULE : Liability on the part of the hospital may be predicated on the refusal to treat the patient if the patient has relied on a custom of treating certain things and rendering aid IF it has been holding itself out to be an ER or someone who offers help in emergencies o What justifies the different standards for public and private hospitals? Hospital might be considered to be in an easier position to cover costs If a hospital advertises itself as being an emergency room, it might cause detrimental reliance in its patients. EMTALA: The Exception for Emergency Care
1. EMTALA : Established in 1985 in response to a phenomenon called ‘patient dumping’ a. Patient Dumping : A practice where patients are moved from one hospital’s emergency room to another’s - normally from private to public – for other than therapeutic reasons. i. The practice was widespread ii. Most patients that were transferred were either uninsured or had government insurance. 1. Lack of insurance was cited as the reason for transfer in 87% of cases. iii. A large portion of the patients that were transferred were also medically unstable at the time of transfer. They received an average delay in treatment of five hours. iv. These transfers also disproportionately impacted racial minorities. b. EMTALA Focus: Narrow. i. Creates limited duties to treat in an emergency setting. c. EMTALA Reach: Broad. i. Although it only applies to hospitals that accept payment from Medicare AND operate an emergency department, almost all hospitals participate in the Medicare program. And, while EMTALA does not require hospitals to operate emergency rooms, a lot of licensure statutes do. 1. Most importantly, EMTALA applies to ALL patients, not just Medicare recipients. This means that its benefits apply to uninsured patients and those with disfavored forms of insurance. d. EMTALA specifically empowers patients to bring civil suits for damages against participating hospitals but does not provide a private right of action against a treating physician. i. Most successful in courts, rather than through administrative enforcement 1. Administrative financial penalties are small, and exclusion of hospitals from Medicare is almost unheard of. 2. Patient dumping continues, despite EMTALA. SEE EMTALA LAW ON PG. 371-373 OF CASEBOOK.
EMTALA: General overview:
a) Medical screening requirement i) If examination requested by patient, emergency department must provide to best of ability and determine whether or not an emergency medical condition exists. b) Necessary stabilizing treatment for emergency medical conditions and labor i) If someone comes to the hospital and it is determined they are suffering from an emergency condition. Hospital must provide either: (1) Examination and treatment required to stabilize with staff and facilities at the hospital, or (2) Transfer the individual to another medical facility in accordance with sub-section c. (restricting transfers until patient stabilized). c) Restricting transfers until individual stabilized i) Individual may not be transferred until stabilized unless: (1) Individual requests, in writing, to be transferred having been told the risks involved. (2) A physician has signed a certification that the medical benefits at the other medical facility reasonably outweigh the risks of transfer. d) Enforcement
d. Prior to transfer of an unstable patient, the transferring hospital did not obtain the proper consent or follow the appropriate certification and transfer procedures. NOTE: The question of whether the patient was unstable when discharged or transferred is an objective professional standard and not defined by the specific hospital’s policy. Improper notice is NOT required for there to be a violation of the requirement to stabilize a patient. Court gave no opinion as to whether improper motive is required for a violation of the requirement to provide an appropriate screening. o Sixth Circuit has held that EMTALA goes beyond economic motivations and ill intent is not required for either a stabilization or screening claim. EMTALA and the ACA
- The ACA did not change EMTALA
- It incentivized state to expand Medicaid coverage and gave hospitals the power to make presumptive Medicaid eligibility determinations for individuals , to reduce volume of uncompensated care to individuals who are eligible for Medicaid but are not enrolled.
- Also requires insurers to pay for emergency services under a lay person standard a. Celebrated by hospitals who worry about insurance companies refusing to pay for emergency care that they deem unnecessary When has a patient arrived at an emergency department? Debate sparked when a teenager came to within 35 feet of the ER doors and lay dying, while the emergency department refused to treat him. HHS Regulations: 42 C.F.R. § 489.24(b) – A patient is determined to have “come” to an emergency department when: o “Present on hospital property” o “Is in a ground or air ambulance owned and operated by the hospital…even if the ambulance is not on hospital grounds (unless the ambulance is directed to another hospital by a communitywide emergency medical service or is operated at the direction of a physician unaffiliated with the hospital; or o “Is in a ground or air nonhospital-owned ambulance on hospital property (unless the hospital directs the ambulance elsewhere because the hospital is on ‘diversionary status’ and the ambulance abides the hospital’s direction.” Emergency department’s responsibilities to the patient end when the patient is admitted in good faith to the hospital as an inpatient. Burditt v. HHS Woman arrives at an emergency room having had her waters break High risk of hypertension, so emergency room says they do not want to treat her Goes in the ambulance to another hospital, and gives birth to a healthy baby there. - Issues occur and she is diverted to another hospital to get a drug to allow o EMTALA violation: Did the doctor stabilize her in the way he is required to stabilize her under EMTALA before he transferred her - was she in a medical condition that was medically appropriate to be transferred? Under EMTALA , when someone is in active labor, they are not stabilized until they have the baby o However, you could appropriately transfer someone when they are NOT stabilized under the EMTALA statute Requirements for being able to transfer an unstable patient : Must be able to show that the benefits of transferring the patient outweigh the benefits of keeping them at the current hospital o Remember, if you are fine under EMTALA, you may still be at risk of liability under common law malpractice
Some good Samaritan exceptions to malpractice e.g. doctor on a plane and flight attendants want you to treat a sick patient and their illness or injury is not in your specific area of expertise you may have an exception to malpractice EMTALA: Success or Failure? Has not solved the problem of patient dumping o LA recently settled patient dumping case of homeless person being sent back onto the streets EMTALA does not prohibit a hospital from discharging a person who does not have an emergency medical condition or a person whose condition they have stabilized. EMTALA PRACTICE QUESTION ON PG. 382
2) EMTALA AND OTHER STATUTORY EXCEPTIONS TO COMMON LAW
A. ADA AND SECTION 504 OF THE REHABILITATIONS ACT
a) People with disabilities experience extreme levels of discrimination and unequal access to medical care a. Poorer health status b. Use fewer preventative services despite using healthcare services at a significantly higher rate overall c. Face more problems accessing health care than other groups i. Possible causes:
- Lack of training on disability competence issues and on legal requirements for health care practitioners most significant barriers. b) Americans with Disabilities Act offered some protections but has far from fixed the problem
Americans with Disabilities Act (ADA)
Enacted to end a history of discrimination based on disability to ensure integration in the community and full participation in society o Title I: Employment o Title II: State and Local Government Services; including state and local public hospitals and health programs such as Medicaid. o Title III: Public Accommodations; including private healthcare facilities and offices open to the public o Title IV: Miscellaneous Provisions; including important provisions regarding insurance.
SECTION 504 OF THE REHABILITATION ACT OF 1973
Prohibits the discrimination on the basis of disability in federal employment and in programs and activities that are funded by federal agencies o ADA and 504 similar in most respects o Differences: Section 504 applies only to programs and services receiving federal funding ACA broadens the reach of 504 significantly o U.S. Department of Justice enforces Titles I, II, and III of the ADA and Section 504 Broad authority to investigate, mediate, litigate, and settle individual and class-based claims Private and public ADA enforcement actions have addressed a wide range of barriers to healthcare services for individuals with disabilities However, many experts claim that the ADA and 504 are underenforced CASES: Howe v. Hull o Man, otherwise qualified to be admitted to the hospital, refused treatment, and not stabilized due to his positive HIV diagnosis. RULE:
1. In order to establish a prima facie case under the ADA Plaintiff must show: a. The plaintiff has a disability b. The defendants discriminated against the plaintiff; and
