Legal Considerations in Case Management
Lynn S. Muller
LEARNING OBJECTIVES
Upon completion of this chapter, the reader will be able to:
Understand a wide range of legal terms and identify sources for additional resources.
Gain an appreciation for the interaction of conflicting areas of law and ethical practice.
Discuss the role of the case manager in relation to the legal community.
Recognize and understand patients’ rights and case managers’ responsibilities.
Identify several strategies for case management practice that facilitate adherence to relevant laws or regulations.
IMPORTANT TERMS AND CONCEPTS
Advocate
Agent
Battery
Breach
Breach of Contract
Business Associate Agreement
Case Law
Causal Connection
Civil Law
Codify
Common Law
Compensable
Conflict of Interest
Contract
Contribution
Damages
Decision
Defendant
Deposition
Discovery
Duty
Expert Witness
Fundamental Right
Harm
Informed Consent
Intentional Tort
Interrogatories
Joint Liability
Law
Lawyer
Liability
Liable
Malpractice
Medical Malpractice
Negligence
Opinion
Professional Negligence
Proximate Cause
Regulation
Regulatory Compliance
Remedy
Res Judicata (Latin term meaning “a thing [already] adjudicated”)
Several Liability
Standard of Care
Statutory Law
Subpoena
Tort
Verdict
Waiver
Witness
Introduction
A. In our litigious society, case managers are concerned with an ethical-legal conflict in which they want to provide quality case management services, obey the law, meet licensing requirements and regulations, please their employers or contractors, and still act as advocates for their patients. The good news is that it is possible.
B. Legal issues affecting case management are interwoven in the complex matrix that is case management practice. Just as each patient is an individual who presents with uniquely different life experiences, expectations, and health outcomes potential, so the interplay of the law is unique and will affect decision making and ultimately the practice of the case manager.
C. Case managers have recognized the need for greater understanding in this area but must always be mindful of the parameters of practice. It is in knowing those parameters of practice or knowing the sandbox that reduces liability (Garner, 1996) exposure for the case manager.
D. It is important for case managers to be knowledgeable about the health and case management practice-related laws and regulations in the jurisdiction where they practice. It is also as important for them to be familiar about how, where, and when to seek information that pertains to these laws and regulations when uncertain or unsure or consult with a specialized person such as legal counsel when necessary.
Descriptions of Key Terms (Garner, 1996)
A. Advocate—A person who assists, defends, or pleads for another.
B. Agent—One who is authorized to act for or in place of another.
C. Battery—In tort law (civil law), an intentional and offensive touching of another.
D. Breach of contract—Violation (failure to perform) of a contract obligation.
E. Breach—Violation or infraction of a law or obligation. A failure on one’s part to conform to the standard required.
F. Business Associate Agreement—A mandatory written contract between a covered entity and a business associate.
G. Case law—The collection of reported cases that form the body of jurisprudence within a given jurisdiction.
H. Causal connection—The relationship between cause and effect.
I. Civil law—The law of civil or private rights.
J. Codify/codification—The process of compiling, arranging, and systematizing the laws of a given jurisdiction into an ordered code.
K. Common law—The body of law derived from judicial decisions and opinions, rather than from statutes or constitutions, also known as case law.
L. Compensable—A situation a person encounters that entitles the person for compensation, usually financial in nature. Often in the workers’ compensation arena, it is a work-related injury or death, which deems the injured worker or the deceased’s family eligible for financial compensation.
M. Conflict of interest—A real or seeming incompatibility between one’s private interests and one’s fiduciary duties.
N. Contract—A set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.
O. Contribution—The right to demand that another, who is jointly responsible for a third-party injury, supply part of what one is required to compensate a third party.
P. Damages—Monetary compensation for loss or injury to person or property.
Q. Decision—A court’s (judge’s) ruling in a case.
R. Defendant—The party being sued in a civil lawsuit.
S. Deposition—A witness’ out-of-court testimony that is reduced to a writing, usually by a court reporter, for later use in court or for discovery purposes.
T. Discovery—The act or process of finding and learning something that was previously unknown. (Each state’s court rules govern the discovery process.)
U. Duty—An obligation recognized by the law, requiring a person to conform to a certain standard of conduct, for the protection of others against reasonable risks.
V. Expert witness—A witness qualified by knowledge, skill, experience, training, or education to provide scientific, technical, or other specialized opinions about the evidence or a fact issue.
W. Fundamental right—(1) A right derived from natural or fundamental law. (2) Fundamental rights as enumerated by the Supreme Court, including the right to vote, interstate travel, along with various rights of privacy.
X. Harm—Actual loss or damage resulting from the actions or inactions of another.
Y. Informed consent—(1) A person’s agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives. (2) A patient’s intelligent choice about treatment, made after a physician discloses whatever information a reasonably prudent physician in the medical community would provide to a patient regarding the risks involved in the proposed treatment.
Z. Intentional tort—A tort committed by someone acting with general or specific intent; examples are battery, false imprisonment, and trespass. May also be termed a willful tort and is distinguished from negligence.
AA. Interrogatories—A numbered list of written questions submitted in a legal context, usually to an opposing party in a lawsuit as part of discovery.
BB. Joint liability—Liability shared by two or more parties (persons, agencies, or organizations).
CC. Law—(1) A set of rules that order human activities and relations. (2) The collection of legislation and accepted legal principles; the body of authoritative grounds of judicial action.
DD. Lawyer—One who is designated to transact business for another; a legal agent, attorney.
EE. Liability—The quality or state of being legally obligated or responsible.
FF. Liable—(1) Legally obligated or responsible. (2) To have a duty or burden.
GG. Malpractice—Negligence or incompetence on the part of a professional.
HH. Medical malpractice—A tort that arises when a doctor (or other health professional, including registered nurses, dentists, or social workers) violates the standard of care owed to a patient and the patient is injured as a result (often shortened to med mal).
II. Medical Marijuana—Provision in a state that has approved its use through legislation, by way of a prescription by a physician licensed to practice in that state, of cannabis for the treatment of a known diagnosis. Some recognized diagnoses include AIDs, seizure disorders, anorexia, glaucoma, migraines, etc.
JJ. Negligence—(1) The failure to exercise that standard of care that a reasonably prudent person would have exercised in the same situation. (2) A tort (civil wrong) grounded in this failure.
KK. Opinion—The court’s (a judge’s) written statement explaining its decision in a given case, including statements of fact, points of law, rationale, and dicta.
LL. Plaintiff—The party who brings a lawsuit in a civil action.
MM. Professional Negligence—See Malpractice above.
NN. Proximate cause—A cause that directly produces an event and without which the event would not have occurred.
OO. Regulations—Rules and administrative codes issued by governmental agencies at all levels, municipal, county, state, and federal. Although they are not laws, regulations have the force of law, since they are adopted under authority granted by statutes and often include penalties for violations (LAW.COM, 2015).
PP. Remedy—The enforcement of a right or the redress of an injury, usually in the form of monetary damages that a party asks of a court.
QQ. Res judicata (Latin term meaning “a thing [already] adjudicated”)—An issue that had been definitively settled by judicial decision.
RR. Several liability—Liability that is separate and distinct from another’s liability, so that the plaintiff may bring a separate action against one defendant without joining the other liable parties.
SS. Standard of care—In the law of negligence, the degree of care that a reasonable person would exercise.
TT. Statutory law—The body of law derived from statutes rather than from constitutions or judicial decisions.
UU. Subpoena—A court order commanding the appearance of a witness, subject to penalty for noncompliance.
VV. Tort—(1) A civil wrong for which a remedy may be obtained, usually in the form of damages. (2) Breach of a duty that the law imposes.
WW. Verdict—A jury’s findings or decision on the factual issues of a case.
XX. Waiver—(1) To voluntarily relinquish or abandon. Waiver may be expressed or implied (by one’s actions). A person who is alleged to have waived a right must have had both knowledge of the existing right and intention to relinquish it. (2) Waiver may also refer to the document by which a person relinquishes a right.
YY. Witness—(1) One who sees, knows, or vouches for something. (2) One who testifies under oath or affirmation, either orally or by affidavit or deposition. (3) Someone unrelated to a case but sometimes is brought into the case to share own expert view on the issue, referred to as expert witness.
Applicability to CMSA’S Standards of Practice
A. The Case Management Society of America (CMSA) describes in its standards of practice for case management (CMSA, 2010) that case management practice extends across all health care settings, including payer, provider, government, employer, community, and home environment.
B. Health care and the law are inextricably intertwined. The practice of case management has become more complex with the expansion of practice across the care continuum. The case manager is strongly advised to remain aware of the evolving legal and regulatory landscape affecting health care and the implication to case management practice.
C. One of the CMSA’s standards of practice for case management addresses the legal obligations of case managers and others involved in the provision of care and services to clients and their support systems. In this regard, the standards state that the case manager should adhere to applicable:
Local, state, and federal laws
Employer policies and procedures governing all aspects of case management practice, including client privacy and confidentiality rights (CMSA, 2010, p. 19)
D. CMSA also emphasizes that it is the responsibility of the case manager to work within the scope of the licensure he/she holds (e.g., nursing). It directs the case manager, in the event that the employer’s policies and procedures or those of other entities involved in the care of a client are in conflict with applicable laws and regulations, to seek clarification from an appropriate and reliable expert resource, such as the employer, government agency, or legal counsel (CMSA, 2010).
E. According to the CMSA standards of practice, the case manager is expected to adhere to applicable laws and organizational policies governing the client, client’s privacy, and confidentiality rights and protect the client’s best interest. Box 20-1 includes examples of the case manager’s legal obligations (CMSA, 2010).
F. This chapter discusses basic legal considerations for sound case management practice. The Legal Standard recognizes that case managers should practice within the scope of their underlying professional licensure and/or certification and in compliance with applicable federal, state, and local laws and regulations.
BOX 20-1 Legal Obligations of the Case Manager
Remain up-to-date about applicable laws and regulations concerning confidentiality, privacy, and protection of client medical information issues.
Obtain the client’s written acknowledgement that he/she has received notice of privacy rights and practices.
Seek appropriate and informed client consent before implementing case management services and document that client/client’s support system has consented.
Discuss the following with the client/client’s support system when obtaining the consent (written or verbal):
Case management process and services needed
Benefits and costs of the services
Alternatives to the proposed services
Potential risks and consequences of the proposed services
Client’s right to refuse care and treatment and consequences of the refusal
Seek the assistance of legal counsel when unsure about a situation or for support and advice.
Background
A. Legal basics
Understanding the law is much like learning a new language. It is especially important to learn legal terms, because some legal terms are words that have other meanings in common or medical usage.
The legal system is divided into two major categories, criminal and civil law. Civil law is the law that applies to private rights, as opposed to the law that applies to criminal matters (Box 20-2).
The purpose of tort law is to adjust losses and to compensate one person because of the actions of another. A tort is a civil or personal wrong, as compared with a crime, which is a public wrong.
B. Intentional torts—Intentional torts include assault, battery, false imprisonment, and trespass.
These terms are often confused because they also exist in criminal law. When they are used in criminal law, they are defined by statute (laws passed by the legislature) and can vary from state to state.
Each intentional tort represents a direct interference with a person’s physical integrity or right to property. Personal freedom is a
fundamental right. One does not waive a fundamental right, such as personal integrity, automatically, but a person must be aware that he or she possesses the right and can intentionally relinquish it.
Informed consent is a good example of a knowing and voluntary waiver of rights in the medical setting. In the absence of such a waiver of rights, a person touching or keeping another in a clinic, hospital, or any place he or she chooses not to be may be liable for assault, battery, or false imprisonment. Informed consent is a statutorily created right, given to potential recipients of medical treatment.
In 2010, as part of the Patient Protection and Affordable Care Act (PPACA), a Federal Patients’ Bill of Rights was signed into law and became effective on September 23, 2010; it provided new protections, including but not limited to a prohibition on denying health insurance coverage for those with pre-existing medical conditions (CMSA, 2010).
Every person admitted to a general hospital as licensed by the State Department of Health and Senior Services pursuant to P.L. 1971, c. 136 (C. 26:2H-1 et al.) shall have specific rights the hospital and health care providers must respect and meet.
Many states have also enacted a “Patient’s Bill of Rights” (Box 20-3), which may provide far more comprehensive rights than the federal one. When a law exists, such as a Patient’s Bill of Rights in one setting (e.g., the hospital setting), the health practitioner can reasonably assume that the policy established in that law may apply to a setting not articulated specifically.
In other words, if a case manager finds himself or herself in the field setting, on the telephone or communicating electronically and in a decision-making dilemma and, to complicate the matter, the patient is very argumentative and difficult, the case manager must be cognizant of the statutory language that states, “[A patient
(client) has a right] to considerate and respectful care consistent with sound … practices, which shall include being informed of the name and licensure status of a … staff member who … observes or treats the patient.”
There is no doubt that a case manager is making observations about a patient, whether on the telephone, through electronic communications, or at arm’s length. Even if there is no statute directly on point regarding case management practice, you can assume that a court will use existing law as a basis for an
alternative practice setting as much as is practical. This is how new laws are developed.
BOX 20-2 Civil and Criminal Laws
Civil law
The body of law that permits an individual who believes that he or she has been wronged to sue another and recover damages (dollars).
Criminal law
Public law that deals with crimes and their prosecution. Substantive criminal law defines crimes, and procedural criminal law sets down criminal procedure.
BOX 20-3 New Jersey Patient’s Bill of Rights
To considerate and respectful care consistent with sound nursing and medical practices, which shall include being informed of the name and licensure status of a student nurse or facility staff member who examines, observes, or treats the patient.
To be informed of the name of the physician responsible for coordinating his diagnosis, treatment, and prognosis in terms he can reasonably be expected to understand. When it is not medically advisable to give this information to the patient, it shall be made available to another person designated by the patient on his behalf.
To receive from the physician information necessary to give informed consent prior to the start of any procedure or treatment and that, except for those emergency situations not requiring an informed consent, shall include as a minimum the specific procedure or treatment, the medically significant risks involved, and the possible duration of incapacitation, if any, as well as an explanation of the significance of the patient’s informed consent. The patient shall be advised of any medically significant alternatives for care or treatment; however, this does not include experimental treatments that are not yet accepted by the medical establishment.
To refuse treatment to the extent permitted by law and to be informed of the medical consequences of this act.
To privacy to the extent consistent with providing adequate medical care to the patient. This shall not preclude discussion of a patient’s case or examination of a patient by appropriate health care personnel.
To privacy and confidentiality of all records pertaining to his treatment, except as otherwise provided by law or third-party payment contract, and to access to those records, including receipt of a copy thereof at reasonable cost, upon request, unless his physician states in writing that access by the patient is not medically advisable; to give this information to the patient, it shall be made available to another person designated by the patient on his behalf.
To expect that within its capacity, the hospital will make reasonable response to his request for services, including the services of an interpreter in a language other than English if 10% or more of the population in the hospital’s service area speaks that language.
To be informed by his physician of any continuing health care requirements, which may follow discharge and to receive assistance from the physician and appropriate hospital staff in arranging for required follow-up care after discharge.
To be informed by the hospital of the necessity of transfer to another facility prior to the transfer and of any alternatives to it, which may exist, which transfer shall not be effected unless it is determined by the physician to be medically necessary.
To be informed, upon request, of other health care and educational institutions that the hospital has authorized to participate in his treatment.
To be advised if the hospital proposes to engage in or perform human research or experimentation and to refuse to participate in these projects. For the purposes of this subsection, “human research” does not include the mere collecting of statistical data.
To examine and receive an explanation of his bill, regardless of source of payment, and to receive information or be advised on the availability of sources of financial assistance to help pay for the patient’s care, as necessary.
To expect reasonable continuity of care.
To be advised of the hospital rules and regulations that apply to his conduct as a patient.
To treatment without discrimination as to race, age, religion, sex, national origin, or source of payment.
To contract directly with a New Jersey licensed registered professional nurse of the patient’s choosing for private professional nursing care during his hospitalization. A registered professional nurse so contracted shall adhere to hospital policies and procedures in regard to treatment protocols and care activities.
N.J.S.A. 26:2H-12.8.
C. Negligence—For a lawsuit to be successful in negligence, there are four required elements. These elements are commonly referred to as duty, breach, cause, and harm.
All four of the elements must be proven, and the burden of proof is on the plaintiff (Box 20-4).
A well-established duty and an obvious breach of such duty are not sufficient without also establishing the causal connection to the harm claimed (Keeton & Prosser, 1984). Proof of damages (harm) is an essential element to a negligence case. Negligence is sometimes referred to as simple negligence as compared with malpractice or professional negligence. The standard of proof for a simple negligence case is that of a reasonably prudent person.
The concept of negligence is based on the idea that there can be a generally uniform standard of human behavior. The simplest example of this is that when one drives a car, there is a generally accepted expectation that each person will operate the vehicle in a reasonably prudent and careful manner. Each time that there is a motor vehicle accident, it is likely that one or more persons deviated from the reasonably prudent person’s standard and liability may attach. However, state statutes may limit or expand one’s ability to bring a cause of action, a lawsuit.
In 12 states, so-called “no fault” insurance is one example of such a limitation, particularly when there is an express limitation on one’s ability to sue for certain personal injuries (III, 2014), (N.J.S.A. 39:6B, et seq).
D. How cases are decided—What we refer to as “the law” is a combination of legislated rules—statutory law and case law.
Case law is the compilation of common law. Common law, with its historical roots dating back to 12-century England, provides the foundation for the collection of decisions, the result of various lawsuits. Such decisions are outcomes of particular cases and are either jury verdicts or judges’ decisions.
Judges’ decisions may be verbal, on the record, or in the form of a written opinion.
Res judicata is the legal term explaining that today’s law is based on decisions that came before. Once an issue on a particular set of facts has been decided, there is no reason to relitigate the same issue. For example, it has already been decided that if a surgeon excises the left limb when the informed consent clearly states the right limb, the surgeon is liable and has committed the tort of battery.
Whether a new case relates to ears, legs, arms, or breasts, the court will rely on the existing law relating to battery and professional negligence, also known as malpractice. Therefore, today, most cases that are heard in court are not reported.
A reported case is one that can be found in an official reporter. There are state as well as federal reporters. When entered into a reporter, the case is printed and becomes part of the ever-growing body of case law. It is important to remember that what we hear on the news, no matter the source, is simply news (and ofttimes entertainment), not admissible evidence at trial.
BOX 20-4 Four Elements of Negligence
A well-established duty
An obvious breach of such duty
Damages or injuries the client suffered
A proximate cause or connection between the breach and the client (evident in the resulting harm)
E. Professional negligence and malpractice—Each of us comes to case management with education and experience from a profession.
We are typically licensed in that underlying profession. In fact, such licensure is one of the qualifications for a person seeking to become a case manager.
It is critical that the case manager maintains current licensing and/or state certification requirements and updates his or her knowledge each year in both the field of case management and the underlying profession.
The standard by which any case manager will be judged remains one derived from an external authority, such as a governmental standard. If you are a nurse, this standard is derived from the Nurse Practice Act. (Each state has a Nurse Practice Act of one variety or another [N.J.S.A. 45:11-23, et seq]). See Additional Resources—States Boards of Nursing and the Nurse Practice Acts.
Nurse Practice Acts provide broad statements defining nursing practice, delineating the educational and other requirements for licensure and renewal, and giving notice to the public of the sort of behaviors that can be expected from a nurse and what unacceptable practices might subject a nurse to disciplinary review or sanctions.
When these laws were drafted, the concept of managed care had not been thought of by the legislatures. For a copy of any state’s Nurse Practice Act, contact the board of nursing in that state.
Each profession develops a standard for itself through a complicated process of interaction with other professions, professional journals, meetings, and networking with colleagues and the development and refining of educational programs for the profession.
In the developing world of new names and new roles, the law has not caught up with these rapid changes. Over time, hundreds of separate standards and comments become the “standard practice” (Eddy, 1982). Each profession has an obligation to monitor or “self-police.”
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