Describe in detail two specific legal obligations, required by the federal and or state law

Describe in detail two specific legal obligations, required by the federal and or state law

ORDER NOW FOR AN ORIGINAL PAPER ASSIGNMENT:  HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)
HMGT 372 Legal and Ethical Issues in Health Care

Assignment 1

Management Tools for Health Care Organizations to Comply with Patient’s Legal Rights

From the list below, choose one topic and identify two specific legal obligations that a specific health service organization has to its patients and then write a paper discussing all the areas listed in the outline following this subject list. Include a cover page and a list of references at the end of the paper. Paper will be double spaced and be approximately 4-5 pages in 12 point New Times Roman font.

The Genetic Information Nondiscrimination Act (GINA)

Elder abuse Mandatory Reporting

Child abuse Mandatory Reporting

HIV Mandatory Reporting

The False Claims Act- the civil penalties

TB Mandatory Reporting

Proper treatment of environmental hazards.

Medical error-Critical Incident

False credentials of health care personnel

Medical Charting violations

Violation of HIPAA – confidentiality

Failure to treat patients in a timely manner

Failure to maintain required Staffing ratios

Patient Choice and treatment consent

Note: Outline: Must use the headings from the outline below in your paper and the paper must be in narrative form not outline or bullet format. A penalty will be deducted from paper if underlined headings not used in your paper.

1. Official Title of the Law or Laws:

State the official title of the federal and/or state law, the statute and section number. Must be either a federal statute or state statute and you must cite both if applicable. Thus if there is both a federal and state law that covers your subject picked then you must cite both. Do not assume that there is just a federal and or state law. In most cases there is both a federal and state law. You must use the laws cited in this section throughout the rest of the paper.

Health Care Organization’s Obligations to meet Patients’ Legal Rights:

Describe in detail two specific legal obligations, required by the federal and or state law, that a health care organization owes to its patients. Include the specific law citation that describes the patient’s rights. Use in-text citations for all statistical references.

Consequences for Non-Compliance:

First, discuss in general the civil and criminal consequences from either the federal and or state law. List the two legal obligations from the previous section, then discuss two (2) specific consequences from the federal and or state law, one consequence for each legal obligation, for the organizations’ non-compliance. Then for each consequence you must research and discuss one relevant real life case. In other words, you must discuss one (1) consequence for each legal obligation and have one real life researched case for each consequence. See outline below. Cases must be found via the internet or print media or from personal real life experiences. In other words, what would happen if the organization neglected to meet its obligations to its patients? Be specific. Provide the specific Federal and or state law citations to back up your claim of the consequences. Provide link to source of information.

1) Legal obligation 1

One specific consequence

One real life case

2) Legal obligation 2

One specific consequence

One real life case

Health Service Organization Management Actions to meet Legal Obligations for Patients’ Rights:

Describe in detail three (3) specific management actions, within your control as a health care manager that you would institute, to ensure the health care organization complies with its obligations to protect the patients’ rights. Be specific as to each management action you would personally institute and why. No general comments. These actions may include specific uses of technology, procedures, human resource training, and other management tools.

Conclusion: Summary of your findings above.

Reference List [APA Format]

The paper must be:

Late penalties: See Course Syllabus.

Be sure and use the underlined headings found in the outline below in your paper. Paper must be in narrative format not outline or bullets.

Include a cover page [not counted as a page] which should have student name and title of your paper [Provide a short name for the legal responsibility the specific health care organization has for one type of patient right in a specific setting ]

At the end of the paper a list of references [not counted as a page]

Be prepared using word-processing software and saved with a .doc, .docx, or .rtf extension. No pdf.

Be uploaded to your Assignments Folder by 11:59 p.m. EST on the due date.

The paper is to be posted in Assignment #1 drop box.

Must cite to the source for all facts in the text of your paper in APA format.

Example of in text citation:

(Ernst, & Young, 2000 p. 14).

Example of source cited on reference page:

References

Healthcare Financial Management Association (U.S.), Ernst, & Young. (2000). Health care system reform: A provider perspective : survey results. Westchester, Ill.: Healthcare Financial Management Association.

Except where noted, the assignment is written in clear, concise narrative. All sections of Assignment #1 are required.

The grading rubric for this assignment is in the Assignment Folder, or can be opened by clicking on the ‘Assignment #1 Grading Rubric’ tab in the lower right corner of the screen, if you opened the Assignment in Content.

HMGT 372 Legal and Ethical Issues in Health Care

Assignment 2

Goverance and Fraud in Health Care Organizations – Legal and Ethical Responsibilities

From the topics covered in Weeks 3-4, select one law related to financial management in health care organizations. We discussed such laws as False Claims Act, Stark Law etc. Include a cover page and a list of references at the end of the paper in APA Format. Paper will be double spaced and be 4-5 pages in 12 point New Times Roman font.

The assignment is to be written in clear, concise narrative. All sections in the outline for Assignment #2 are required.

Outline: Must use the headings from the outline below in your paper and the paper must be in narrative form not outline or bullet format. A penalty will be deducted from paper if underlined headings not used in your paper.

1. Name of the Law and or laws:

State the official title of the federal and/or state law, the statute and section number. Must be either a federal statute or state statute and you must cite both if applicable. Thus if there is both a federal and state law that covers your subject picked then you must cite both. Do not assume that there is just a federal and or state law. In most cases there is both a federal and state law. You must use the laws cited in this section throughout the rest of the paper.

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

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HMGT372 All Assignments (June 2019)

2. Management’s Financial Responsibilities:

What are the health care organization’s responsibilities under this financial management statute you stated above? Provide a comprehensive discussion of three (3) specific responsibilities under the financial management statute. State specifically after each responsibility where this responsibility is stated in the federal or state law. Describe the appropriate behavior and expectation. Include the citations and source of documents describing the organization’s responsibilities.

Consequences for Ethical or Legal Breach:

Discuss in general the civil and criminal consequences from the law. Then identify from the news, three (3) specific case examples of health care organizations or health care providers found guilty of a legal or ethical breach relative to the law you have cited in first part of paper. Identify the specific legal and/or ethical breach and the penalties assessed to the health service organizations and/or individuals found guilty of violating the law or ethics [provide citation of law]. At the end of each case, discuss in detail whether you agree or not with the decision and why. Bring in the facts of the case to support your comments. Students should use a minimum of three (3) documented specific examples retrieved from the print media.

HCO Management’s remedial steps to reverse the non-compliance organizations:

Describe in detail three (3) specific management actions or remedial steps you would take to ensure the financial management in the health care organization meets or exceeds the federal law or state law relative to the requirements of the law you cited above. Discuss specifically how each of the three management actions specifically meets or exceeds the specific federal or state law you cited. Note: These actions may include specific uses of technology, procedures, human resource training, and other management tools. However these action steps must be within the control of a manager.

5. Conclusion: Summary your findings above

Reference List [APA Format]

The paper must be:

Late penalties: See Course Syllabus.

Be sure and use the underlined headings found in the outline below in your paper. Paper must be in narrative format not outline or bullets.

Double spaced and be 4-5 pages in 12 point New Times Roman font.

Include a cover page [not counted as a page] which should have student name and title of your paper [Provide a short name for the legal responsibility the specific health care organization has for one type of patient right in a specific setting ]

A the end of the paper a list of references in APA Format [not counted as a page]

Be prepared using word-processing software and saved with a .doc, .docx, or .rtf extension. No pdf.

Be uploaded to your Assignments Folder by 11:59 p.m. EST on the due date.

The paper is to be posted in Assignment #2 drop box.

Must cite to the source for all your facts in the text of your paper in APA format.

Example of an in text citation:

(Ernst, & Young, 2000 p14).

Example of source cited on Reference page:

References

Healthcare Financial Management Association (U.S.), Ernst, & Young. (2000). Health care system reform: A provider perspective : survey results. Westchester, Ill.: Healthcare Financial Management Association.

Except where noted, the assignment is written in clear, concise narrative. All sections of Assignment #2 are required.

Grading Rubric for written Assignment #2 is in Assignments area of the class.

HMGT 372 Legal and Ethical Issues in Health Care

Assignment 3 Part 1

Raising Organizational Awareness Part 1

Assignment 3 contains 2 parts: a paper (12 points) and a video report (8 points)

For this assignment, students are required to Write a Paper (part 1)-12 points and Create a Video Report (part 2- a separate dropbox below)on an interview with a healthcare professional.

Select a topic from the list below [must be a different topic from the one you chose for Assignment #l] or clear a topic with the Instructor beforehand.

The purpose of this assignment is to raise the awareness of a specific employee in a specific health care setting regarding a potentially critical aspect of his/her responsibilities. Target the right issue, the correct employee. In other words, the employee should be either a head nurse or senior administrator thus your discussion should be as you are interviewing specific employees on their specific responsibilities and the specific consequences of failing in those responsibilities.

For example, The False Credentials paper issue would be for HR offices while the Critical Event might be for operating room technicians. Patient Treatment Consent might be a good paper for a Palliative Care Organization or an Oncology Clinic discharge planning staff. The paper must discuss accurate information for the setting with full consideration of the relevant state and federal laws with citations that are accessible by the instructor. The paper can ask questions and use graphics to deliver certain points of information but the graphics must be an addendum to the paper and not in the body of the paper. The paper should include in its conclusion “For more information about this issue…” and include a reference or references in your Conclusion.

The Genetic Information Nondiscrimination Act (GINA)

Elder abuse Mandatory Reporting

Child abuse Mandatory Reporting

HIV Mandatory Reporting

The False Claims Act- civil penalties

TB Mandatory Reporting

Proper treatment of environmental hazards.

Medical error-Critical Incident

False credentials of health care personnel

Medical Charting violation

Violation of HIPAA- confidentiality

Failure to treat patients in a timely manner

Patient Choice and treatment consent

WRITE THE PAPER.

Outline: Must use the headings from the outline below in your paper and the paper must be in a narrative form not outline or bullet format. A penalty will be deducted from paper if underlined headings not used in your paper.

1. Purpose of Paper, the topic chosen, applicable Federal and/or state laws

State the purpose of the paper and discuss why you chose the particular topic, and provide the official title of the applicable federal and/or state law, the statute and section number. Must be either a federal/state statute and you must cite both, if applicable. Thus if there is both a federal and state law that covers the subject you selected, then you must cite both the applicable federal and state law. Summarize in this paragraph the relevant language from the law that applies to your issue. If there is a relevant health care organizational policy that you can find, then please add that also. Do not assume that there is just a federal and or state law. In most cases, there are both federal and state laws. You must use the laws cited in this section throughout the rest of the paper.

2. The specifically targeted employee group and specific health services setting

Pick a specific health care setting and specific employee within the health care setting and then discuss, in detail, why you picked the specific employee and the specific health care setting. Examples of health care settings are the ER, the OR, nursing facilities, etc. Specific employee group may include doctors, nurses, program administrators, etc. Please be mindful to tailor your assignment to a specific employee and specific health care setting. Do not discuss your topic in general terms.

The information gathered from the interview with healthcare should be incorporated into the written paper in a paraphrased or quoted format (no more than 15% of the text for all citations in total).

3. Discussion of Three Critical Aspects of Employee’s responsibilities

You are trying to improve the quality of care in your health care organization. Thus, in this discussion area, you are using the information you gathered from interviewing a specific employee about their specific responsibilities and the specific consequences of failing in those three responsibilities. You must discuss at least three (3) specific employee critical responsibilities. You must also specifically relate the applicable federal and/or state law as to the specific consequences [you may also add relevant hospital policies as well if found] for failing in each of those responsibilities and provide citations to support the consequences. Be sure and include in the discussion the relevant law and hospital policies. Describe how each of them is relevant to the employees’ critical responsibilities. The outline below is to help you organize your thoughts but you must use a narrative format to discuss each area. Be sure and use my underlined headings below.

a) Discussion of Employee Specific Critical Responsibility 1

Discussion of specific consequence(s) for failing in this responsibility

Discussion of a specific statutory requirement

A specific real-life legal case illustrating the consequences for violating the specific responsibility.

b) Discussion of Employee Specific Critical Responsibility 2

Discussion of specific consequence(s) for failing in this responsibility

Discussion of a specific statutory requirement

A specific real-life legal case illustrating the consequences for violating the specific responsibility.

c) Discussion of Employee Specific Critical Responsibility 3

Discussion of specific consequence(s) for failing in this responsibility

Discussion of a specific statutory requirement

A specific real-life legal case illustrating the consequences for violating the specific responsibility.

4. Conclusion – Provide a summary of employee’s critical responsibilities, consequences and the impact failing in those critical responsibilities may have on the quality of health care. Also, add a statement “For more information about this issue…” and include a reference or references for further information on the issue you discussed.

5. References

End of headings

The paper must be:

Late penalties: See Course Syllabus.

Be sure and use the headings found in the outline in your paper. The paper must be in a narrative format, not outline or bullets.

Double spaced and be 4-5 pages in 12 point New Times Roman font.

Include a cover page [not counted as a page] which should have student name and title of your paper [Provide a short name for the legal responsibility the specific health care organization has for one type of patient right in a specific setting ]

A the end of the paper a list of references in APA Format [not counted as a page]

Be prepared using word-processing software and saved with a .doc, .docx, or .rtf extension. No pdf.

Be uploaded to your Assignments Folder by 11:59 p.m. EST on the due date.

The paper, along with the video, is to be posted in Assignment #3 drop box.

Must cite to the source for all your facts in the text of your paper in APA format.

Example of an in-text citation:

(Ernst, & Young, 2000 p14).

Example of the source cited on Reference page in APA format:

References

Healthcare Financial Management Association (U.S.), Ernst, & Young. (2000). Health care system reform: A provider perspective: survey results. Westchester, Ill.: Healthcare Financial Management Association.

Paper will be 4-5 pages in length not counting cover page and reference pages.

Grading rubric for Paper Assignment 3 is with the assignment in the Assignment area of class.

HMGT 372 Legal and Ethical Issues in Health Care

Assignment 3 Part 2

Assignment 3 part 2: Video report (8 points)- refer to the general assignment description in Part 1 of the assignment 3. CREATE A VIDEO REPORT BASED on an INTERVIEW. Students should identify a specific healthcare employee that has responsibilities to carry out the topic selected. Students should then interview the employee and video record the presentation based on the paper you write.

The video should be no longer than 3-4 minutes (you can use a PPT, pictures or another format as background for your video presentation).

Students should use “screencast-o-matic” to record the video at https://screencast-o-matic.com/. This software is free of charge and the product does not need to be uploaded to the Internet.

The faculty must approve the utilization of another video recording software before the class starts. It is the students’ responsibility to ensure the software is free of charge, compliant with copy/licensure laws and requirements, ADA accessible, visible to the faculty and other stakeholders as well as compatible with LEO.

Students are to create a video “report”. That means the student should be the only person to appear in the video. Students should neither ask an interviewee to be videotaped or have the interview appear on camera in the video. The format of the video is similar to the Introduction Video in Discussion Board #1 where the student is the only person in the video.

Students can interview a health care professional in person, via phone, Skype, WebEx, etc. However, students must provide specific identifying information for the interviewee in the video and paper to ensure authentication ie., the interviewee’s full name, employer, etc.

Students who do not know or cannot find a healthcare professional that has responsibilities for the topic selected should use UMUC’s Career Quest to locate a healthcare professional to interview at https://careerquest.umuc.edu/people

Students should use the Interview Script and Interview Questions for the interview-presentation i.e. make sure you ask the interviewee all the questions on this sheet. See attachment.

Students should submit the video and the paper by the deadline via the assignment folder.

Voice recording is not approved for this assignment.

HMGT 372 Legal and Ethical Issues in Health Care

Assignment 4

Health care case analysis

IMPORTANT NOTE: This paper must be submitted by Saturday in the last week of class no later than 11:59pm EST and if late will not be accepted. In addition to the written instructions, there are 2 VIDEOS that explain this assignment. See above links for videos.

The final project for this course is an analysis of the legal and or ethical issues involved in the below health care scenario. See questions to be answered at end of this factual scenario below. I have also provided, after the formatting requirements for the paper, two articles that will aid you in your analyzing the scenario and writing your paper.

The two articles to base the analysis of your paper are entitled:

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

HMGT372 All Assignments (June 2019)

Clinical Ethics Issues and Discussion and

A Framework for Thinking Ethically

This is the final paper for the class and must be double spaced and be approximately 4-5 pages in 12 point New Times Roman font. Include a cover page [not counted as a page] which should have student name and title of your paper. See more formatting requirements later in these paper instructions.

NOTE: For this paper it is unnecessary to do any research beyond the two articles I furnished with this assignment. Both are after the specific paper requirements. You may use all the articles in the class also. To do internet research would only be wasting your valuable time.

Case Scenario

A 72 year old woman was admitted to the Neurological Intensive Care Unit following a cerebral hemorrhage which left her with severe brain damage and ventilator dependent. One year before this event, the patient and her husband had drawn up “living wills” with an attorney. She was diagnosed by her treating physician as being in a permanent unconscious condition. The patient’s living will specified that the patient did not want ventilator support or other artificial life support in the event of a permanent unconscious condition or terminal condition.

The patient’s husband is her legal next of kin and the person with surrogate decision-making authority. When the living will was discussed with him, he insisted that the patient had not intended for the document to be used in a situation like the present one. Further discussion with him revealed that he understood that the patient would not be able to recover any meaningful brain function but he argued that the living will did not apply because her condition was not imminently terminal. He further indicated that he did not consider his wife to be in a permanent unconscious condition. The immediate family members (the couple’s adult children) disagreed with their father’s refusal to withdraw life support.

The treatment team allowed a week to pass to allow the husband more time to be supported in his grief and to appreciate the gravity of his wife’s situation. Nevertheless, at the end of this time, the husband was unwilling to authorize withdrawal of life support measures consistent with the patient’s wishes as expressed in her living will. End of scenario.

You paper should have 3 major sections. Each is numbered 1, 2 and 3. Questions to be discussed based on the facts above. You must weave into your discussion the relevant facts from above scenario to support your discussion in discussion areas 2 and 3 below. And for discussion area 3 you must weave into your discussion the ethics philosophy you pick for each issue from the article A Framework for Thinking Ethically. A penalty will be deducted if you fail to use appropriate headings in your paper.

1. Three Legal/Ethical Issues. Just list the three most important legal/ethics issues in this scenario that you will discuss. They must be three separate, different and distinct issues. Pay particular attention to the article I furnished with this assignment. No explanation needed, just state them 1, 2, 3.

2. Discussion of Three Legal/Ethical Issues. Discuss the three most important ethical/legal issues you listed above. Must use the relevant facts in the scenario to support your discussion of the legal/ethical issues.

Must use headings below. Headings will be:

Legal/Ethical Issue 1 [state the issue] then discussion

Legal/Ethical Issue 2 [state the issue] then discussion

Legal/Ethical Issue 3 [state the issue] then discussion

For each legal/ethical issue above discuss

a. Why each is a legal /ethical issue?

b. Discuss each issue in the context of the scenario facts and

c. Define the concepts you use

3. How I would Handle Each Issue. First, in this section and for each issue, as a health care provider, how would you handle each of the three issues discussed above and why? Must use the relevant facts in the scenario to support your positions. Secondly for each issue, using the article in these requirements, entitled “A Framework of Thinking Ethically” fully discuss the specific ethics philosophy that would epitomize your handling of each issue. Fully define the specific ethics philosophy used and weave the ethics philosophy into your discussion. See article below entitled A Framework for Thinking Ethically.

Must use headings below. Headings will be:

Handling of Legal/Ethical Issue #1 (followed by the discussion)

Handling of Legal/Ethical Issue #2 (followed by the discussion)

Handling of Legal/Ethical Issue #3 (followed by the discussion)

[A penalty will be deducted if you fail to use appropriate headings in your paper. ]

This is an independent paper and you are on the honor system not to discuss or consult with any students or other individuals about this paper. You may use the information we have discussed in the class, the articles in the class, and the two articles I have furnished below. Just so you know, all you need to read to analyze the questions for your paper are the two articles I have furnished with this assignment and information in the class.

All you need to read to analyze the questions for this paper are the two articles below entitled:

Clinical Ethics Issues and Discussion & A Framework for Thinking Ethically

The paper must be:

Late submission – No late assignment 4 papers will be accepted. Paper is due Saturday in the last week of class no later than 11:59pm EST..

Paper must be in narrative format not outline or bullets.

Double spaced and be 4-5 pages in 12 point New Times Roman font. [No deduction if paper exceeds a page or so. Thus 3 and half page paper will be penalized.]

Must cite to source of all your facts in the text of your paper in APA format.

You can cite directly to the original source. Here are the links to the sources where the University received copyright permissions for the materials:

Clinical Ethics and Law:http://depts.washington.edu/bioethx/topics/law.html

A Framework for Ethical Decision Making:https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/a-framework-for-ethical-decision-making/

Include a cover page [not counted as a page] which should have student name and title of your paper [Provide a short name for the legal responsibility the specific health care organization has for one type of patient right in a specific setting ]

A the end of the paper a list of references [not counted as a page]

Be prepared using word-processing software and saved with a .doc, .docx, or .rtf extension. No pdf.

Be uploaded to your Assignments Folder by 11:59 p.m. EST on the due date.

The paper is to be posted in Assignment #4 drop box.

Grading rubric for assignment is with assignment in Assignments area of class.

Background articles to support the issues you will discuss in the paper.

Article One of Two

Clinical Ethics Issues and Discussion Article

Relationships: I. clinical ethics, law & risk management

Definitions and sources of authority

In the course of practicing medicine, a range of issues may arise that lead to consultation with a medical ethicist, a lawyer, and/or a risk manager. The following discussion will outline key distinctions between these roles.

Clinical ethics may be defined as: a discipline or methodology for considering the ethical implications of medical technologies, policies, and treatments, with special attention to determining what ought to be done (or not done) in the delivery of health care.

Law may be defined as: established and enforceable social rules for conduct or non-conduct; a violation of a legal standard may create criminal or civil liability.

Risk Management may be defined as: a method of reducing risk of liability through institutional policies/practices.

Many health care facilities have in-house or on-call trained ethicists to assist health care practitioners, caregivers and patients with difficult issues arising in medical care, and some facilities have formally constituted institutional ethics committees. In the hospital setting, this ethics consultation or review process dates back to at least 1992 with the formulation of accreditation requirements that mandated that hospitals establish a “mechanism” to consider clinical ethics issues.

Ethics has been described as beginning where the law ends. The moral conscience is a precursor to the development of legal rules for social order. Ethics and law thus share the goal of creating and maintaining social good and have a symbiotic relationship as expressed in this quote:

[C]onscience is the guardian in the individual of the rules which the community has evolved for its own preservation. William Somerset Maugham

The role of lawyers and risk managers are closely linked in many health care facilities. Indeed, in some hospitals, the administrator with the title of Risk Manager is an attorney with a clinical background. There are, however, important distinctions between law and risk management. Risk management is guided by legal parameters but has a broader institution-specific mission to reduce liability risks. It is not uncommon for a hospital policy to go beyond the minimum requirements set by a legal standard. When legal and risk management issues arise in the delivery of health care, ethics issues may also exist. Similarly, an issue originally identified as falling within the clinical ethics domain may also raise legal and risk management concerns.

To better understand the significant overlap among these disciplines in the health care setting, consider the sources of authority and expression for each.

Ethical norms may be derived from:

Law

Institutional policies/practices

Policies of professional organizations

Professional standards of care, fiduciary obligations

Note: If a health care facility is also a religious facility, it may adhere to religious tenets. In general, however, clinical ethics is predominantly a secular professional analytic approach to clinical issues and choices.

Law may be derived from:

Federal and state constitutions (fundamental laws of a nation or state establishing the role of government in relation to the governed)

Federal and state statutes (laws written or enacted by elected officials in legislative bodies, and in some states, such as Washington and California, laws created by a majority of voters through an initiative process)

Federal and state regulations (written by government agencies as permitted by statutory delegation, having the force and effect of law consistent with the enabling legislation)

Federal and state case law (written published opinions of appellate-level courts regarding decisions in individual lawsuits)

City or town ordinances, when relevant

Risk Management may be derived from law, professional standards and individual institution’s mission and public relations strategies and is expressed through institutional policies and practices

Conceptual Models

Another way to consider the relationship among the three disciplines is through conceptual models:

Linear

Distinctions

Interconnectedness

Orientation to law for non-lawyers

Potential legal actions against health care providers

There are two primary types of potential civil actions against health care providers for injuries resulting from health care: (1) lack of informed consent, and (2) violation of the standard of care. Medical treatment and malpractice laws are specific to each state.

Informed Consent. Before a health care provider delivers care, ethical and legal standards require that the patient provide informed consent. If the patient cannot provide informed consent, then, for most treatments, a legally authorized surrogate decision-maker may do so. In an emergency situation when the patient is not legally competent to give informed consent and no surrogate decision-maker is readily available, the law implies consent on behalf of the patient, assuming that the patient would consent to treatment if he or she were capable of doing so.

Information that must be conveyed to and consented to by the patient includes: the treatment’s nature and character and anticipated results, alternative treatments (including non-treatment), and the potential risks and benefits of treatment and alternatives. The information must be presented in a form that the patient can comprehend (i.e., in a language and at a level which the patient can understand) and that the consent must be voluntary given. An injured patient may bring an informed consent action against a provider who fails to obtain the patient’s informed consent in accordance with state law.

From a clinical ethics perspective, informed consent is a communication process, and should not simply be treated as a required form for the patient’s signature. Similarly, the legal concept of informed consent refers to a state of mind, i.e., understanding the information provided to make an informed choice. Health care facilities and providers use consent forms to document the communication process. From a provider’s perspective, a signed consent form can be valuable evidence the communication occurred and legal protection in defending against a patient’s claim of a lack of informed consent. Initiatives at the federal level (i.e., the Affordable Care Act) and state level (e.g., Revised Code of Washington § 7.70.060) reflect approaches that support shared decision-making and the use of patient decision aids in order to ensure the provision of complete information for medical decision-making.

Failure to follow standard of care. A patient who is injured during medical treatment may also be able to bring a successful claim against a health care provider if the patient can prove that the injury resulted from the provider’s failure to follow the accepted standard of care. The duty of care generally requires that the provider use reasonably expected knowledge and judgment in the treatment of the patient, and typically would also require the adept use of the facilities at hand and options for treatment. The standard of care emerges from a variety of sources, including professional publications, interactions of professional leaders, presentations and exchanges at professional meetings, and among networks of colleagues. Experts are hired by the litigating parties to assist the court in determining the applicable standard of care.

Many states measure the provider’s actions against a national standard of care (rather than a local one) but with accommodation for practice limitations, such as the reasonable availability of medical facilities, services, equipment and the like. States may also apply different standards to specialists and to general practitioners. As an example of a statutory description of the standard of care, Washington State currently specifies that a health care provider must “exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the State of Washington, acting in the same or similar circumstances.”

III. Common clinical ethics issues: medical decision-making and provider-patient communication

There are a number of common ethical issues that also implicate legal and risk management issues. Briefly discussed below are common issues that concern medical decision-making and provider-patient communication.

If a patient is capable of providing informed consent, then the patient’s choices about treatment, including non-treatment, should be followed. This is an established and enforceable legal standard and also consistent with the ethical principle of respecting the autonomy of the patient. The next two sections (Surrogate decision-making; Advance directives) discuss how this principle is respected from a legal perspective if a patient lacks capacity, temporarily or permanently, to make medical decisions. The third section briefly introduces the issue of provider-patient communication, and highlights a contemporary dilemma raised in decisions regarding the disclosure of medical error to patients.

Surrogate decision-making

The determination as to whether a patient has the capacity to provide informed consent is generally a professional judgment made and documented by the treating health care provider. The provider can make a determination of temporary or permanent incapacity, and that determination should be linked to a specific decision. The legal term competency (or incompetency) may be used to describe a judicial determination of decision-making capacity. The designation of a specific surrogate decision-maker may either be authorized by court order or is specified in state statutes.

If a court has determined that a patient is incompetent, a health care provider must obtain informed consent from the court-appointed decision-maker. For example, where a guardian has been appointed by the court in a guardianship action, a health care provider would seek the informed consent of the guardian, provided that the relevant court order covers personal or health care decision-making.

If, however, a physician determines that a patient lacks the capacity to provide informed consent, for example, due to dementia or lack of consciousness, or because the patient is a minor and the minor is legally proscribed from consenting, then a legally authorized surrogate decision-maker may be able to provide consent on the patient’s behalf. Most states have specific laws that delineate, in order of priority, who can be a legally authorized surrogate decision-maker for another person. While these laws may vary, they generally assume that legal relatives are the most appropriate surrogate decision-makers. If, however, a patient has previously, while capable of consenting, selected a person to act as her decision-maker and executed a legal document known as a durable power of attorney for health care or health care proxy, then that designated individual should provide informed consent.

In Washington State, a statute specifies the order of priority of authorized decision-makers as follows: guardian, holder of durable power of attorney; spouse or state registered partner; adult children; parents; and adult brothers and sisters. If the patient is a minor, other consent provisions may apply, such as: court authorization for a person with whom the child is in out-of-home placement; the person(s) that the child’s parent(s) have given a signed authorization to provide consent; or, a competent adult who represents that s/he is a relative responsible for the child’s care and signs a sworn declaration stating so. Health care providers are required to make reasonable efforts to locate a person in the highest possible category to provide informed consent. If there are two or more persons in the same category, e.g., adult children, then the medical treatment decision must be unanimous among those persons. A surrogate decision-maker is required to make the choice she believes the patient would have wanted, which may not be the choice the decision-maker would have chosen for herself in the same circumstance. This decision-making standard is known as substituted judgment. If the surrogate is unable to ascertain what the patient would have wanted, then the surrogate may consent to medical treatment or non-treatment based on what is in the patient’s best interest.

Laws on surrogate decision-making are slowly catching up with social changes. Non-married couples (whether heterosexual or same sex) have not traditionally been recognized in state law as legally authorized surrogate decision-makers. This lack of recognition has left providers in a difficult legal position, encouraging them to defer to the decision-making of a distant relative over a spouse-equivalent unless the relative concurs. Washington law, for example, now recognizes spouses and domestic partners registered with the state as having the same priority status.

Parental decision-making and minor children. A parent may not be permitted in certain situations to consent to non-treatment of his or her minor child, particularly where the decision would significantly impact and perhaps result in death if the minor child did not receive treatment. Examples include parents who refuse medical treatment on behalf of their minor children because of the parents’ social or religious views, such as Jehovah’s Witnesses and Christian Scientists. The decision-making standard that generally applies to minor patients in such cases is known as the best interest standard. The substituted judgment standard may not apply because the minor patient never had decision-making capacity and therefore substituted judgment based on the minor’s informed choices is not able to be determined. It is important to note that minors may have greater authority to direct their own care depending on their age, maturity, nature of medical treatment or non-treatment, and may have authority to consent to specific types of treatment. For example, in Washington State, a minor may provide his or her own informed consent for treatment of mental health conditions, sexually transmitted diseases, and birth control, among others. Depending on the specific facts, a health care provider working with the provider’s institutional representatives could potentially legally provide treatment of a minor under implied consent for emergency with documentation of that determination, assume temporary protective custody of the child under child neglect laws, or if the situation is non-urgent, the provider could seek a court order to authorize treatment.

Advance directives

The term advance directive refers to several different types of legal documents that may be used by a patient while competent to record future wishes in the event the patient lacks decision-making capacity. The choice and meaning of specific advance directive terminology is dependent on state law. Generally, a living will expresses a person’s desires concerning medical treatment in the event of incapacity due to terminal illness or permanent unconsciousness. A durable power of attorney for health care or health care proxy appoints a legal decision- maker for health care decisions in the event of incapacity. An advance health care directive or health care directive may combine the functions of a living will and durable power of attorney for health care into one document in one state, but may be equivalent to a living will in another state. The Physician Orders for Life Sustaining Treatment (POLST) form is a document that is signed by a physician and patient which summarizes the patient’s wishes concerning medical treatment at the end of life, such as resuscitation, antibiotics, other medical interventions and artificial feeding, and translates them into medical orders that follow patients regardless of care setting. It is especially helpful in effectuating a patient’s wishes outside the hospital setting, for example, in a nursing care facility or emergency medical response context. This relatively new approach is available in about a dozen states, although the programs may operate under different names: POST (Physician Orders for Scope of Treatment), MOST (Medical Orders for Scope of Treatment), MOLST (Medical Orders for Life-Sustaining Treatment), and COLST (Clinician Orders for Life-Sustaining Treatment). The simple one page treatment orders follow patients regardless of care setting. Thus it differs from an advance directive because it is written up by the clinician in consultation with the patient and is a portable, actionable medical order. The POLST form is intended to complement other forms of advance directives. For example, Washington State recognizes the following types of advance directives: the health care directive (living will), the durable power of attorney for health care, and the POLST form. Washington also recognizes another legal document known as a mental health advance directive, which can be prepared by individuals with mental illness who fluctuate between capacity and incapacity for use during times when they are incapacitated.

State laws may also differ on the conditions that can be covered by an individual in an advance directive, the procedural requirements to ensure that the document is effective (such as the number of required witnesses) and the conditions under which it can be implemented (such as invalidity during pregnancy).

Advance directives can be very helpful in choosing appropriate treatment based upon the patient’s expressed wishes. There are situations, however, in which the advance directive’s veracity is questioned or in which a legally authorized surrogate believes the advance directive does not apply to the particular care decision at issue. Such conflicts implicate clinical ethics, law and risk management.

Provider-patient communications: disclosing medical error

Honest communication to patients by health care providers is an ethical imperative. Excellent communication eliminates or reduces the likelihood of misunderstandings and conflict in the health care setting, and also may affect the likelihood that a patient will sue.

One of the more contentious issues that has arisen in the context of communication is whether providers should disclose medical errors to patients, and if so, how and when to do so. Disclosure of medical error creates a potential conflict among clinical ethics, law and risk management. Despite a professional ethical commitment to honest communication, providers cite a fear of litigation as a reason for non-disclosure. Specifically, the fear is that those statements will stimulate malpractice lawsuits or otherwise be used in support of a claim against the provider. An increase in malpractice claims could then negatively affect the provider’s claims history and malpractice insurance coverage.

There is some evidence in closed systems (one institution, one state with one malpractice insurer) that an apology coupled with disclosure and prompt payment may decrease either the likelihood or amount of legal claim. In addition, a number of state legislatures have recently acted to protect provider apologies, or provider apologies coupled with disclosures, from being used by a patient as evidence of a provider’s liability in any ensuing malpractice litigation. It is currently too early to know whether these legal protections will have any impact on the size or frequency of medical malpractice claims. For this reason and others, it is advisable to involve risk management and legal counsel in decision-making regarding error disclosure.

Article Two of Two

A Framework for Thinking Ethically Article

This document is designed as an introduction to thinking ethically. We all have an image of our better selves-of how we are when we act ethically or are “at our best.” We probably also have an image of what an ethical community, an ethical business, an ethical government, or an ethical society should be. Ethics really has to do with all these levels-acting ethically as individuals, creating ethical organizations and governments, and making our society as a whole ethical in the way it treats everyone.

What is Ethics?

Simply stated, ethics refers to standards of behavior that tell us how human beings ought to act in the many situations in which they find themselves-as friends, parents, children, citizens, businesspeople, teachers, professionals, and so on.

It is helpful to identify what ethics is NOT:

• Ethics is not the same as feelings. Feelings provide important information for our ethical choices. Some people have highly developed habits that make them feel bad when they do something wrong, but many people feel good even though they are doing something wrong. And often our feelings will tell us it is uncomfortable to do the right thing if it is hard.

• Ethics is not religion. Many people are not religious, but ethics applies to everyone. Most religions do advocate high ethical standards but sometimes do not address all the types of problems we face.

• Ethics is not following the law. A good system of law does incorporate many ethical standards, but law can deviate from what is ethical. Law can become ethically corrupt, as some totalitarian regimes have made it. Law can be a function of power alone and designed to serve the interests of narrow groups. Law may have a difficult time designing or enforcing standards in some important areas, and may be slow to address new problems.

• Ethics is not following culturally accepted norms. Some cultures are quite ethical, but others become corrupt -or blind to certain ethical concerns (as the United States was to slavery before the Civil War). “When in Rome, do as the Romans do” is not a satisfactory ethical standard.

• Ethics is not science. Social and natural science can provide important data to help us make better ethical choices. But science alone does not tell us what we ought to do. Science may provide an explanation for what humans are like. But ethics provides reasons for how humans ought to act. And just because something is scientifically or technologically possible, it may not be ethical to do it.

Why Identifying Ethical Standards is Hard

There are two fundamental problems in identifying the ethical standards we are to follow:

1. On what do we base our ethical standards?

2. How do those standards get applied to specific situations we face?

If our ethics are not based on feelings, religion, law, accepted social practice, or science, what are they based on? Many philosophers and ethicists have helped us answer this critical question. They have suggested at least five different sources of ethical standards we should use.

Five Sources of Ethical Standards

The Utilitarian Approach

Some ethicists emphasize that the ethical action is the one that provides the most good or does the least harm, or, to put it another way, produces the greatest balance of good over harm. The ethical corporate action, then, is the one that produces the greatest good and does the least harm for all who are affected-customers, employees, shareholders, the community, and the environment. Ethical warfare balances the good achieved in ending terrorism with the harm done to all parties through death, injuries, and destruction. The utilitarian approach deals with consequences; it tries both to increase the good done and to reduce the harm done.

The Rights Approach

Other philosophers and ethicists suggest that the ethical action is the one that best protects and respects the moral rights of those affected. This approach starts from the belief that humans have a dignity based on their human nature per se or on their ability to choose freely what they do with their lives. On the basis of such dignity, they have a right to be treated as ends and not merely as means to other ends. The list of moral rights -including the rights to make one’s own choices about what kind of life to lead, to be told the truth, not to be injured, to a degree of privacy, and so on-is widely debated; some now argue that non-humans have rights, too. Also, it is often said that rights imply duties-in particular, the duty to respect others’ rights.

The Fairness or Justice Approach

Aristotle and other Greek philosophers have contributed the idea that all equals should be treated equally. Today we use this idea to say that ethical actions treat all human beings equally-or if unequally, then fairly based on some standard that is defensible. We pay people more based on their harder work or the greater amount that they contribute to an organization, and say that is fair. But there is a debate over CEO salaries that are hundreds of times larger than the pay of others; many ask whether the huge disparity is based on a defensible standard or whether it is the result of an imbalance of power and hence is unfair.

The Common Good Approach

The Greek philosophers have also contributed the notion that life in community is a good in itself and our actions should contribute to that life. This approach suggests that the interlocking relationships of society are the basis of ethical reasoning and that respect and compassion for all others-especially the vulnerable-are requirements of such reasoning. This approach also calls attention to the common conditions that are important to the welfare of everyone. This may be a system of laws, effective police and fire departments, health care, a public educational system, or even public recreational areas.

The Virtue Approach

A very ancient approach to ethics is that ethical actions ought to be consistent with certain ideal virtues that provide for the full development of our humanity. These virtues are dispositions and habits that enable us to act according to the highest potential of our character and on behalf of values like truth and beauty. Honesty, courage, compassion, generosity, tolerance, love, fidelity, integrity, fairness, self-control, and prudence are all examples of virtues. Virtue ethics asks of any action, “What kind of person will I become if I do this?” or “Is this action consistent with my acting at my best?”

Putting the Approaches Together

Each of the approaches helps us determine what standards of behavior can be considered ethical. There are still problems to be solved, however.

The first problem is that we may not agree on the content of some of these specific approaches. We may not all agree to the same set of human and civil rights.

We may not agree on what constitutes the common good. We may not even agree on what is a good and what is a harm.

The second problem is that the different approaches may not all answer the question “What is ethical?” in the same way. Nonetheless, each approach gives us important information with which to determine what is ethical in a particular circumstance. And much more often than not, the different approaches do lead to similar answers.

Making Decisions

Making good ethical decisions requires a trained sensitivity to ethical issues and a practiced method for exploring the ethical aspects of a decision and weighing the considerations that should impact our choice of a course of action. Having a method for ethical decision making is absolutely essential. When practiced regularly, the method becomes so familiar that we work through it automatically without consulting the specific steps.

The more novel and difficult the ethical choice we face, the more we need to rely on discussion and dialogue with others about the dilemma. Only by careful exploration of the problem, aided by the insights and different perspectives of others, can we make good ethical choices in such situations.

We have found the following framework for ethical decision making a useful method for exploring ethical dilemmas and identifying ethical courses of action.

A Framework for Ethical Decision Making

Recognize an Ethical Issue

Could this decision or situation be damaging to someone or to some group? Does this decision involve a choice between a good and bad alternative, or perhaps between two “goods” or between two “bads”?

Is this issue about more than what is legal or what is most efficient? If so, how?

Get the Facts

What are the relevant facts of the case? What facts are not known? Can I learn more about the situation? Do I know enough to make a decision?

What individuals and groups have an important stake in the outcome? Are some concerns more important? Why?

What are the options for acting? Have all the relevant persons and groups been consulted? Have I identified creative options?

Evaluate Alternative Actions

Evaluate the options by asking the following questions:

Which option will produce the most good and do the least harm? (The Utilitarian Approach)

Which option best respects the rights of all who have a stake? (The Rights Approach)

Which option treats people equally or proportionately? (The Justice Approach)

Which option best serves the community

as a whole, not just some members?

(The Common Good Approach)

Which option leads me to act as the sort of person I want to be? (The Virtue Approach)

Make a Decision and Test It

Considering all these approaches, which option best addresses the situation?

If I told someone I respect-or told a television audience-which option I have chosen, what would they say?

Act and Reflect on the Outcome

How can my decision be implemented with the greatest care and attention to the concerns of all stakeholders?

How did my decision turn out and what have I learned from this specific situation?

This framework for thinking ethically is the product of dialogue and debate at the Markkula Center for Applied Ethics at Santa Clara University. Primary contributors include Manuel Velasquez, Dennis Moberg, Michael J. Meyer, Thomas Shanks, Margaret R. McLean, David DeCosse, Claire André, and Kirk O. Hanson. It was last revised in May 2009. End of article.

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