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I N N O V A T I V E • C O M P R E H E N S I V E • H A N D S - O N
INTENSIVE UPDATE& BOARD REVIEW
AUGUST 24 - 26, 2018Loews Chicago O’Hare Hotel
Rosemont, IL
Medical Legal Medicine - Ethics and the Law
Elizabeth Petsche, JD
8/3/2018
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Medicine, Ethics and the Law
Elizabeth Petsche, J.D.
An Overview
• Law
– General Concepts
– Liability
– Key Statutes
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2
An Overview
• Law
– General Concepts
– Liability
– Key Statutes
• Ethics
– 4 Core Principles
– Advance Care Directives
Law: Consent
General Rule of Consent:
• All primary health care providers have a legal
and ethical duty to provide their patients
with sufficient information about
examination and intervention to allow them
to make a knowing, intelligent and
unequivocal decision regarding treatment
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Law: Consent
The Disclosures
• The Nature of the Procedure
• The Risks of the Procedure
• The Alternatives of the Procedure
• The Expected Benefits
• The Potential Consequences to Non-
Performance
Law: Consent
General Rule When Treating Minors:
• Minors are presumed to be incompetent to
make their own decisions in all arenas,
including health care, due to cognitive
limitations and immaturity
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Law: Consent
Nuances with Respect to Minors:
• Emergency Situations
– Consent is Implied
• Emancipated Minors
– No longer dependent: Marriage, Military, Independent
• Specific Health Care Decisions
– Partial Emancipation: STD, Contraception, Prenatal Care,
HIV and Substance Abuse
– Transfusions for Jehovah's Witnesses
Law: Consent
Nuances with Respect to Minors:
• Emergency Situations
– Consent is Implied
• Emancipated Minors
– No longer dependent: Marriage, Military, Independent
• Specific Health Care Decisions
– Partial Emancipation: STD, Contraception, Prenatal Care,
HIV and Substance Abuse
– Transfusions for Jehovah's Witnesses
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Law: Consent
Nuances with Respect to Minors:
• Emergency Situations
– Consent is Implied
• Emancipated Minors
– No longer dependent: Marriage, Military, Independent
• Specific Health Care Decisions
– Partial Emancipation: STD, Contraception, Prenatal Care,
HIV and Substance Abuse
– Transfusions for Jehovah's Witnesses
Law: Consent
Abortion :
• No National Standard
• Cannot be a simple “yes” or “no” answer
• Look for something like “encourage”
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Law: Consent
Abortion :
• No National Standard
• Cannot be a simple “yes” or “no” answer
• Look for something like “encourage”
• Undue Burden: Spousal/Partner Consent
A 55-year old woman comes to her primary care physician to look at an
enlarged lymph node under her right arm. During the examination you
detect an area of thickening on her breast and send her for additional
testing, ultimately leading to the diagnosis of Stage III breast cancer. You
discuss the disease with her, what she can expect, the risks and benefits of
treatment, and the potential consequences of not agreeing to treatment.
After she considers all of the information, she states verbally and in writing
that she never wants to have surgery to remove the tumor. As the disease
spread, the woman became extremely ill and after she lost the ability to
communicate her designated health care proxy demanded that you perform
the surgery. What is the best next step?
a. Perform the surgery because she has lost decision making capacity
b. Perform the surgery because it is in the best interest of the patient
c. Do not perform the surgery because the woman did not provide consent
d. Do not perform the surgery because the proxy did not use the substituted
judgment standard when making the decision
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Law: Consent
Informed Refusal:
A patient must be fully informed of the effects
and possible outcomes of refusing therapy
including all of the harm that could occur
Law: Liability
• Medical Malpractice
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Law: Liability
• Medical Malpractice – The 4 D’s
– Duty
– Derelict (Breach)
– Direct Cause (Cause)
– Damage
Law: Liability
• Medical Malpractice – The 4 D’s
– Duty
– Derelict (Breach)
– Direct Cause (Cause)
– Damage
• Within the Statute of Limitations
– No National Standard
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Duty:An obligation that requires a
physician to conform to a
particular standard of care
Derelict:A breach of the
appropriate standard of
care
Direct Cause:The primary cause
without which the injury
would not have occurred
Damage:A physical, mental, or
emotional injury or some form
of loss
Duty:An obligation that requires a
physician to conform to a
particular standard of care
Derelict:A breach of the
appropriate standard of
care
Direct Cause:The primary cause
without which the injury
would not have occurred
Damage:A physical, mental, or
emotional injury or some form
of loss
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Duty:An obligation that requires a
physician to conform to a
particular standard of care
Derelict:A breach of the
appropriate standard of
care
Direct Cause:The primary cause
without which the injury
would not have occurred
Damage:A physical, mental, or
emotional injury or some form
of loss
Duty:An obligation that requires a
physician to conform to a
particular standard of care
Derelict:A breach of the
appropriate standard of
care
Direct Cause:The primary cause
without which the injury
would not have occurred
Damage:A physical, mental, or
emotional injury or some form
of loss
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Duty:An obligation that requires a
physician to conform to a
particular standard of care
Derelict:A breach of the
appropriate standard of
care
Direct Cause:The primary cause
without which the injury
would not have occurred
Damage:A physical, mental, or
emotional injury or some form
of loss
An 18-year-old pregnant female, suffering from abdominal pain and cramping,
placed a phone call to her mother’s primary care physician in order to seek
advice about what to do in regard to her pain. The female has never been a
patient of the primary care physician, but did not know who else to call, because
her regular provider was out of town until the following day. The primary care
physician said that, based upon the description provided by the woman, the
abdominal pain and cramping were normal at this stage of her pregnancy, and
that she would be safe waiting until the following day to contact her regular
provider. Several hours later, the woman presents to the emergency room
having suffered a severe placental abruption. As a result of the delayed
treatment, the fetus did not receive enough oxygen and was born with brain
damage. The resulting lawsuit filed by the woman against the primary care
physician will most likely be
a. Successful because there was a physician-patient relationship created
b. Successful because the woman is the daughter of an existing patient
c. Unsuccessful because the physician was not the woman’s regular provider
d. Unsuccessful because the woman was never physically examined by the physician
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Law: Liability
• Res Ipsa Loquitur
– “The thing speaks for itself”
Law: Liability
• Res Ipsa Loquitur
– “The thing speaks for itself”
• Respondeat Superior
– “Let the master answer”
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Breach of Standard of Care
Complaint filed by Plaintiff(s)
Summons Delivered to Defendant(s)
Answer filed by Defendant(s)
Collection of Evidence (Discovery)
Pre-Trial Motions
Trial
Verdict
Motion to Dismiss Filed by
Defendant(s)
Case over if Granted (Unless
Appealed)
Motion for Summary
Judgment Filed by Defendant(s)
Case over if Granted (Unless
Appealed)
Flow Chart of a Medical Malpractice Lawsuit:
Key: Optional
Appeal Filed by Either Party
Law: Statutes
• HIPAA
– The privacy rule requires health care providers
to obtain patient authorization to use or disclose
individually identifiable health information, with
certain broad exceptions.
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Law: Statutes
• Exceptions Include:
– Treatment
– Payment and Operations
– Required Disclosures
Law: Statutes
• Required Disclosures:
– Serious Contagious Disease
– Child Abuse (must contact CPS)
– Serious and Immediate Threat of Harm to
Identifiable Persons
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Law: Statutes
• HIPAA
• EMTALA
– Screen
– Stabilize
Ethics – Basics
• 4 Core Principles
• Advance Care Directives
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Ethics – Basics
• 4 Core Principles
– Autonomy
– Beneficence
– Nonmaleficence
– Justice
A 22-year-old man is sent to see a vascular surgeon to examine a lump on
his left leg. The surgeon decides that several tests need to be performed in
order to determine the composition of the lump and the potential
complications that may result from its removal. The man consents to an
exploratory procedure. During the procedure, while the man is anesthetized,
the surgeon determines the lump is merely a tissue mass. In order to limit
the patient’s exposure to the risks of a second procedure, he removes the
lump. The removal was a success and there is minimal scarring. What is
the most accurate evaluation of the physician’s actions?
a. Appropriate because they were taken while acting in the patient’s best interests
b. Appropriate because the patient consented to the procedure
c. Appropriate because the lump was removed successfully
d. Inappropriate unless he receives informed consent after the patient wakes
e. Inappropriate because it was a violation of the patient’s ethical right to autonomy
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Ethics – Basics
• Key Points:
– Autonomy Trumps
– You Have Rights
– Double Effect Doctrine
Ethics – Basics
• Double Effect Doctrine: It is wrong to
intentionally harm someone (cause death) to
produce a good result (relieve from suffering),
but it is permissible to do something intended to
produce a good result (release from suffering),
even if the action leads to unintended but
foreseen harm
http://plato.stanford.edu/entries/double-effect/
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Ethics – Advance Care Directives
• Advance Care Directives
– Written instructions that relate to the kind of
health care the patient wishes to have or not
have when incapacitated
Ethics – Advance Care Directives
• Advance Care Directives
– Written instructions recognized under state law
that relate to the kind of health care the patient
wishes to have or not have when incapacitated
• Patient Self-Determination Act
– Requires institutions to inform patients of their
right to use advance care directives
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Ethics – Advance Care Directives
• 2 Main Types
– Living Will
– Durable Power of Attorney for Health Care
Ethics – Advance Care Directives
• Living Will
– A written document used to inform interested
parties (doctors, family members, etc.) what
medical care a patient wants to receive if they
are no longer able to make decisions due to
illness or incapacity
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Ethics – Advance Care Directives
• Durable Power of Attorney for Health Care
– A document used by a patient to designate
another individual to make medical treatment
and personal care decisions when they become
incapable of making health care decisions
A 70-year-old man is admitted to the hospital unfriended and complaining
of shortness of breath. He is alert, coherent, and responsive. Tests show
that he has pneumonia and respiratory failure is imminent. His health care
team believes the insertion of a respiratory tube will only maintain the
man’s life. The team reviews the man’s medical records and notices that a
valid living will is present and states that he wants no “invasive” medical
procedures that would “only prolong my death.” Should the tube be
inserted?
a. No, it would go against the patient’s advance care directive
b. No, not until consent is received from a surrogate decision maker
c. Yes, because the living will is unclear as to whether it applies
d. Yes, if the man consents to the procedure
e. Yes, an ethical duty exists to provide care
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For Later • Resources you may find interesting
– https://www.hhs.gov/sites/default/files/privacysum
mary.pdf
– http://oig.hhs.gov/compliance/physician-
education/roadmap_web_version.pdf
– http://www.childwelfare.gov/systemwide/laws_polic
ies/statutes/manda.cfm
– https://depts.washington.edu/bioethx/toc.html
The end…
• Questions?
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Thank you…
Elizabeth Petsche, J.D.
References
1. Lewis, Marcia A., Carol D. Tamparo, and
Brenda M. Tatro. Medical law, ethics, &
bioethics for the health professions. 7th ed.
Philadelphia, PA: F.A. Davis Co., 2012. Print.
2. Pozgar, George D.. Legal and ethical issues
for health professionals. 3rd ed. Boston:
Jones and Bartlett Publishers, 2013. Print.
3. http://plato.stanford.edu/entries/double-
effect/
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