Barbara Johnson is the new office manager for two neurologists in an urban area. Recently she was subpoenaed to appear in court with medical records to testify about a patient. This particular patient was referred to one of the physicians in the clinic, Dr. Rebecca Patrick. Dr. Patrick saw the patient several years ago, and the patient has brought a medical professional liability case against a surgeon in another city. Barbara is considered the custodian of medical records and will take them to court and answer questions about the information in them.

One of Barbara’s first priorities at her new job is to make sure the office is operating in compliance with the legal regulations that affect the facility. She is knowledgeable about the requirements of the Occupational Safety and Health Administration (OSHA), as well as other legal issues. She is familiar with legal issues and has testified as a custodian of records several times during her tenure as an office manager.

Two of the employees Barbara supervises, Samantha and Lynda, are newly graduated from medical assisting school and are anxious to learn more about the statutes and laws that affect the physicians’ office. Barbara is more than happy to share what she has learned with them. She is excited about her new job and eager to be a great success.

While studying this chapter, think about the following questions:

• How can the medical assistant help the staff comply with legal regulations in the medical office?

• How can new graduates learn about the laws that affect them in their state?

• What are some ways medical professional liability suits can be prevented?

• What should the medical assistant do if the employer is not in compliance with legal regulations?

The law is a fascinating subject. When law is applied to medicine, it can provoke interesting case studies and complex decisions. In today’s litigious society, medical assistants, in addition to physicians and other staff members, must take steps to protect themselves from lawsuits. Legal issues underlie many aspects of the provision of healthcare in a physician’s office. Although the wording of statutes and regulations often is long and complicated, medical assistants must stay abreast of the rules governing medical facilities and do everything possible to remain in compliance with the standards and regulations for all organizations that oversee the medical industry.

Generally, the law holds that every person is liable for the consequences of his or her own negligence when another person is injured as a result. In some situations, this liability also extends to the employer. Physicians may be held responsible for the mistakes of those who work in their healthcare facility, and sometimes they must pay damages for the negligent acts of their employees.

Under the doctrine of respondeat superior, physicians are legally responsible for the acts of their employees when the employees are acting within the scope of their duties or employment. Physicians are also responsible for the acts of assistants who are not their own employees if the assistant commits acts of negligence in the presence of the physician while under the physician’s immediate supervision. Respondeat superior is a Latin term meaning “let the master answer.” When physicians practice as partners, they are liable not only for their own acts and those of their partners, but also for the negligent acts of any agent or employee of the partnership. A medical assistant acting within the scope of the employment contract is considered an agent of the employer.

Medical assistants guilty of negligence are liable for their own actions, but the injured party generally sues the physician, because the chance of collecting damages is greater. However, even an assistant who has no money can be liable for any negligent action. This fact illustrates the continuing importance of exercising extreme care in performing all duties in the professional office and maintaining liability coverage once employed in the healthcare industry.

Jurisprudence and the Classifications of Law

Jurisprudence, the science and philosophy of law, comes from the Latin words juris, which means “law, right, equity, or justice,” and prudentia, which means “skill or good judgment.”

Law is a custom or practice of a community. It is a rule of conduct or action prescribed or formally recognized as binding or enforceable by a controlling authority. Law is the system by which society gives order to our lives. The U.S. Constitution is the supreme law of the United States; it takes precedence over federal statutes, court opinions, and state constitutions. The state constitution is the supreme law within the boundaries of each state unless it conflicts with the U.S. Constitution. States cannot pass laws that conflict with the U.S. Constitution, nor can local governments pass laws that conflict with the state constitution.

A law enacted at the federal level, which must be passed by Congress, is called an act. Statutes are laws that have been enacted by state legislatures. Local governments create and enact ordinances. Much of our law is based on previous judicial and jury decisions, which are called precedents. Often judges and juries follow precedents when making a decision on a case. The two basic categories of jurisprudence are criminal law and civil law.

Criminal Law

Criminal law governs violations of the law punishable as offenses against the state or the federal government. Such offenses involve the welfare and safety of the public as a whole rather than of one individual. Criminal offenses are classified into three basic categories: misdemeanors, felonies, and treason. To ensure fair treatment under the law, all physicians are entitled to due process, which guarantees that the accused will have an opportunity to defend himself or herself against any charges brought in opposition. Several crimes can be committed concurrently, such as a criminal who robs and assaults a convenience store clerk or a man who commits rape and murder.

Misdemeanors

A minor crime is called a misdemeanor. Such a crime is punishable by fine or imprisonment in a city or county jail rather than in a penitentiary. Misdemeanors vary from state to state and often are divided into subgroups or classes, such as class A, class B, or class C misdemeanors. In most states the subgroups are divided from most serious offenses to lesser offenses. Some states have created a subcategory of misdemeanors for infractions, which often are called violations. Infractions are minor offenses, such as traffic tickets, which are punishable only by a fine.

Felonies

A felony is a major crime, such as murder, rape, or burglary. It is punishable by a more stringent sentence than for misdemeanors. Federal law and most state statutes classify felonies as crimes punishable by imprisonment for more than 1 year, whereas misdemeanors are punishable by imprisonment for 1 year or less. Usually a convicted felon cannot vote, hold public office, or own a firearm. Felonies often are divided into subgroups or degrees, such as first degree, second degree, and third degree. A first-degree offense is normally the most serious.

Treason

Treason, the most serious crime, is the offense of attempting to overthrow the government. High treason constitutes a serious threat to the stability or continuity of the government, such as an attempt to kill the president. The president of the United States has the right to declare an action against the United States an act of war rather than an act of treason, which is considered a crime. For instance, although the terrorist attacks of September 11, 2001, were certainly a threat against the United States, they were declared acts of war.

Civil Law

Civil law is concerned with acts that are not criminal in nature but involve relationships of individuals with other individuals, organizations, or government agencies. Many types of civil law address numerous issues. The three that most directly affect the medical profession include tort law, contract law, and administrative law.

Tort Law

Tort law provides a remedy for a person or group that has been harmed by the wrongful acts of others. Four elements must be established in every tort action: (1) the plaintiff must establish that the respondent or defendant was under a legal duty to act in a particular fashion; (2) the plaintiff must demonstrate that the defendant breached this duty by failing to conform his or her behavior accordingly; (3) the plaintiff must prove that the breach of the legal duty proximately caused some injury or damage; and (4) the plaintiff must prove damages, the injury or loss suffered. Medical professional liability, or medical malpractice, falls into the category of tort law. Libel and slander are common complaints that fall into the category of tort law. When a person is liable for an act, he or she is obligated or responsible according to the law. Professional and personal injuries are types of torts, meaning that a person or group has injured someone or something else. Physicians carry professional liability insurance, a type of third-party insurance, to help guard them from liability costs. Medical assistants can also invest in liability insurance. Remember, “libel” and “liable” are defined differently although they sound the same. Refer to the vocabulary list for clarification.

Contract Law

A contract is an agreement that creates an obligation. Contract law touches our lives in many ways practically every day, but we usually do not give much thought to its influences. If a person parks a car in a parking garage for a monthly fee and signs a contract for a year, then begins parking elsewhere and refuses to pay the fee, the person may be liable for the fees for the duration of the entire contract. If the person’s vehicle is damaged while parked in the garage, the garage may be responsible for reimbursement, if the contract does not stipulate otherwise. A contract does not have to be formalized in writing to be binding on the parties involved. Oral contracts also are valid in many states in most situations. The Uniform Commercial Code (UCC) is a long, elaborate act that attempts to harmonize the law of sales and other commercial transactions in all 50 states. This code directly affects contract law.

Administrative Law

Administrative law involves regulations set forth by governmental agencies. For example, the Internal Revenue Service (IRS) has thousands of regulations and codes, and the typical American does not understand all of them, which may result in errors when filing taxes. The laws that allow the IRS to collect taxes and pursue restitution are administrative laws. Other agencies that are involved with administrative law are the Social Security Administration (SSA), Citizenship and Immigration Services (USCIS), and the Centers for Medicare and Medicaid Services (CMS).

Anatomy of a Medical Professional Liability Lawsuit

A medical liability case often stems from a breach of trust or miscommunication between the physician and the patient. These cases fall into the category of tort law. Even when the physician has made an error, often the level of trust between the physician and patient determines whether a lawsuit is pursued. First, the physician-patient relationship must be formed. Before this relationship can be discussed, the requirements for a valid, enforceable contract must be understood.

What Constitutes a Valid Contract?

A valid legal contract has four essential elements. First, a manifestation of assent or “meeting of the minds” must exist. This element is proven by an “offer” and the “acceptance” of that offer. The parties to the contract must understand and agree on the intent of the contract. Second, the contract must involve legal subject matter. An obligation that requires an illegal action, such as a gambling contract, is not an enforceable contract. Third, both parties must have the legal capacity to enter into a contract. This means that each party must be an adult of sound mind or an emancipated minor. Fourth, some type of consideration must be involved. Consideration is an exchange of something of value (e.g., money) for the physician’s time.

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Critical Thinking Application

Barbara works for Dr. Rebecca Patrick, who saw the patient bringing the lawsuit against the surgeon as a referral patient. Does Dr. Patrick have a contract with the patient, based on a physician-patient relationship? Why or why not?

The physician-patient relationship is generally held by courts to be a contractual relationship that is the result of three steps:

• The physician invites an offer by establishing his availability (e.g., posting office hours or making himself available during office hours).

• The patient accepts the appointment and makes an offer by arriving for or requesting treatment.

• The physician accepts the patient’s offer by examining the patient and beginning treatment. Physicians also accept the offer by exercising independent medical judgment on behalf of the patient.

Before accepting a patient, the physician is under no obligation, and no contract exists. However, once the physician has accepted the patient, an implied contract exists (Figure 7-1). An implied contract in this case assumes that the physician will treat the patient using reasonable care and that the physician has a degree of knowledge, skill, and judgment that might be expected of any other physician in the same locality and under similar circumstances. It is extremely important that no express promise of a cure be made by anyone in the office, including the physician, because this would become a part of the contract.

FIGURE 7-1 The physician-patient relationship is built on a strong foundation of trust, but it also is a contractual relationship.

The patient’s responsibility in this agreement includes the liability of payment for services and a willingness to follow the advice of the physician. Most physician-patient contracts are implied contracts. Although many forms may be completed by the patient before he or she is accepted by the physician, they do not in most cases constitute a formal contract for each specific visit to the physician.

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Critical Thinking Application

If the patient does not pay for the services rendered by the physician, does this negate the physician-patient contract?

How might Barbara, Samantha, and Lynda ensure that patients understand that they are expected to follow the advice of the physician?

After the physician-patient relationship has been established, the physician is obligated to attend the patient as long as attention is required, unless the physician or patient terminates the contract. When a physician terminates the contract, the patient must be given notice of the physician’s intentions so that the patient has sufficient time to secure another physician. The physician may write a letter of withdrawal from medical care of the patient, and it should be delivered by certified mail, return receipt requested. A copy of the letter and the return receipt should be attached to the patient’s chart and permanently retained. Reasonable time should be allowed for the patient to secure other medical care.

To protect the physician against a lawsuit for abandonment, the details of the circumstances under which the physician is withdrawing from the case should be included in the patient’s medical chart. The letter of withdrawal does not have to specify a reason for withdrawal unless the physician so chooses. However, some physicians include a brief reason in the letter, such as missing appointments or failing to comply with treatment orders. In either case, the letter should state the following:

• That professional care is being discontinued

• That the physician will provide copies of the patient’s records to another physician on request

• That the patient should seek the attention of another physician as soon as possible

A patient who wants to terminate the physician-patient relationship simply no longer seeks the physician for treatment. The patient does not have to inform the office; however, if this is done, the office manager or physician should follow up with a confirmation letter, stating that the patient has ended the relationship.

Breach of Contract

An unjustifiable failure to perform all or some part of a contractual duty is a breach of contract. For example, if a surgeon prepares a surgery estimate and says that the fee will be no more than $6,500, but then charges the patient $7,200, a breach of contract exists. Although most physicians state that the document is just an estimate, this particular physician stated a clear amount that the surgery costs would not exceed.

The Statute of Frauds

In 1677 a statute was adopted in England to reduce the occurrence of perjured testimony. It provided that certain contracts could not be enforced if they depended on the testimony of witnesses alone and were not evidenced in writing. The provisions of this English statute have been closely followed by statutes adopted in all 50 states in the United States.

A promise to pay the debts of another person is an example of a contract that usually must be made in writing. If a third party who is not otherwise legally responsible for a patient’s medical bills agrees to pay them, the agreement cannot be enforced unless it is in writing. If a physician were to enter into an agreement to perform a series of treatments for a given sum and this series covered a time span of more than 1 year, the contract would have to be in writing to be enforceable.

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Critical Thinking Application

For what reasons might a physician not want to accept a patient?

Must the physician treat every patient who attempts to make an appointment?

How might Barbara tactfully explain that the physician will not accept the patient into treatment?

Preliminaries of Litigation

Lawsuits are filed in a variety of different courts, and different states have different types of courts at various levels. The state judiciary has several branches. At the local level are usually municipal courts. These are courts in a city or town that usually deal with ordinance violations. Municipal judges may issue search and arrest warrants. Some states also have justice of the peace courts, which have jurisdiction over many misdemeanors and some civil matters, in addition to concurrent jurisdiction over some matters along with the municipal courts. The judges that preside over justice of the peace courts may also issue search and arrest warrants. They often function as small claims courts, with which the medical assistant may have contact in cases of patients who do not pay their bills. Both municipal and justice of the peace courts are local trial courts with limited jurisdiction.

County courts are higher than municipal and justice of the peace courts. These courts handle misdemeanors and civil matters up to a certain monetary limit. District courts have unlimited jurisdiction in criminal and civil matters. They are the highest state courts, other than appellate courts. If one party to a lawsuit is dissatisfied with a lower court’s decision, it has the right to appeal to a higher court for review and possible reversal of the decision. Most states have an appellate court for both criminal and civil matters. The U.S. District Court handles federal matters of a criminal or a civil nature. States also have Supreme Courts that handle a limited number of appellate cases.

Under Article III, Section One of the U.S. Constitution, the U.S. Supreme Court has the authority to ensure equal justice under the law (Figure 7-2). The Supreme Court interprets and guards the Constitution. The court’s one chief justice and eight associate justices are appointed by the president and confirmed by Congress. Approximately 8,000 cases are on the docket per term, which runs from the first Monday in October to the first Monday in October of the next year. Only 80 to 90 cases are chosen each year for full oral argument in front of the justices.

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Critical Thinking Application

Samantha and Lynda are curious as to how Supreme Court’s decisions affect the individual physician’s office. What Supreme Court decisions have affected the medical profession?

FIGURE 7-2 The U.S. Supreme Court. The Supreme Court decides cases that involve interpretation of the Constitution of the United States.

Preparing for Court

Medical professional liability suits are far from rare, and every physician faces the probability of being sued at least once during his or her career. When a suit is filed, preparation for court should start expeditiously. A medical assistant may be involved in preparing materials for court and scheduling or participating in depositions. The best advice for a medical assistant in this position is to remember to tell the truth. Attorneys help prepare the defense of the physician and the staff, but everyone should be truthful in answering in court to prevent the loss of his or her credibility in the trial and charges of perjury. Be especially careful to present a true, complete statement to the representing attorney. Unless he or she knows the whole truth, an appropriate defense cannot be prepared.

Interrogatories

Before the trial, the physician may be asked to complete an interrogatory, which is a list of questions from each party to the other in the lawsuit. Answers to the interrogatory must be provided within a specified time, and the answers are considered to be given under oath. Only the parties named in the lawsuit may be questioned through interrogatories.

Depositions

A deposition is testimony taken from a party or witness to the litigation and is not limited to the parties named in the lawsuit. A witness who is not a party to the lawsuit may be summoned by subpoena for the deposition. The deposition usually is taken in an attorney’s office in the presence of a court reporter and is taken under oath. The person giving the deposition is called the deponent. The transcribed deposition, once finished, is sent to the deponent for review, and the deponent is at liberty to request any necessary changes or corrections in the document.

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Critical Thinking Application

Samantha and Lynda are anxious to hear about Barbara’s previous experiences in testifying in court. She mentions that attorneys often advise witnesses to “answer the question, then be quiet.” What might be meant by this advice?

Discuss the phrase, “the truth, the whole truth, and nothing but the truth.”

Subpoenas

A subpoena is a document issued by a court that requires a person to be in court at a specific time and place to testify as a witness in a lawsuit, either in a court proceeding or in a deposition. A subpoena duces tecum is a legally binding request to provide records or documents to appear in court and usually is issued to the person considered the custodian of the records. This may be the medical assistant or office manager. A fee may be demanded for the time spent in compiling the records and for photocopying charges, but this fee must be requested at the time the subpoena duces tecum is served, or it is considered to be waived. Physician approval must be obtained to release or to copy any patient records. Original records should never be released under any circumstances. If an original record is demanded in the subpoena, it usually is taken to court or to mediation by the physician or an employee of the physician’s office. Copies can be released in advance of the court date. Release only the information requested in the subpoena and provide only information that originated in the physician’s office. Do not provide records sent from previous or consulting physicians. Those records must be subpoenaed separately from the originating office.

Before responding to a subpoena, make sure it is valid. Although variances may occur from state to state, some general rules can be used to judge the validity of a subpoena:

• A subpoena issued in one state court generally is not valid in another state. Always verify the state in which the subpoena was issued.

• A subpoena issued by a federal court in one state generally is not valid in another state unless a federal statute authorizes nationwide service of process.

• Any duly authorized law officer may execute a valid subpoena anywhere in the same state. The officer notifies the issuing court once the subpoena has been served.

• Generally, the person or entity subpoenaed has 21 days to respond, but this period can differ from place to place.

• A subpoena duces tecum should be filed no less than 15 days before a trial. One served less than 15 days before a trial should not be honored.

Read the subpoena carefully to determine exactly what records are requested. The physician should always be notified of subpoenas served to the medical facility. Never copy records required in a subpoena without bringing the matter to the attention of the physician or office manager, or both. It also is advisable to keep a log of subpoenas served to the office, what records were involved, and the disposition of the request, including when the records were presented to the court. Always inform the physician about the subpoena, because he or she may want to present the document to an attorney for review before any information is released.

Discovery

Discovery is the pretrial disclosure of pertinent facts or documents by one or both parties to a legal action or proceeding. Many states have extensive discovery statutes that require each side to reveal to the other the facts that they “discover” while investigating the case. Discovery is also considered the process of uncovering facts in a lawsuit before the court proceedings.

Presentation of evidence may be done by testimony. A witness is called who has some information about an aspect of the case and is asked questions by one or both attorneys. The witness does not know about every part of the case, but something the person knows is relevant.

Another type of evidence may be documentary evidence. This is any type of evidence brought before the court by document or display. It could be a patient’s chart, a letter, a laboratory result, or a photograph. All of these are usually entered into evidence and numbered for easy reference.

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Critical Thinking Application

Samantha wonders what she should do if she ever finds information during a medical professional malpractice case that might harm her employer’s defense. What advice would you offer? Would it be considered an obligation or a choice to report the employer for wrongdoing?

Preparing Witnesses and Testifying

Attorneys prepare witnesses who may be called to testify during the court proceedings. They review the questions that will be asked and potential questions the opposite side may present. The attorney helps the witness to clarify the answers he or she gives so that they are sharp and succinct. One of the first rules law students learn is never to ask a question to which they do not already know the answer.

Witnesses should always be on time for a court appearance, because the judge and jury may frown on those who appear late; and that frown may include a fine or confinement in jail for contempt of court! It is critical that witnesses dress conservatively and in a manner that shows respect for the court. If any documents are to be referenced while testifying, the witness should review the documents before the court appearance if possible, so that the needed information is easy to locate and discuss. The witness should speak clearly and at a volume audible to the attorneys and parties to the suit, the judge, the jury, and the court reporter. The witness should always answer each question aloud, because the court reporter must record those answers and cannot specify that the witness “nodded yes” as a response to a question.

If a question is confusing, the witness should ask the attorney to restate or repeat it. If the witness does not know the answer to a question or does not recall, that should be stated clearly and confidently. Above all, the parties involved are expected to tell the truth and must be seen as credible witnesses (Figure 7-3). Lying under oath constitutes perjury, which carries stiff penalties. Listening is as important as speaking; therefore the witness should be sure to listen to the question and answer it, elaborating only if the attorney asks for more details.

FIGURE 7-3 Witnesses must be credible and must tell the truth on the stand in court to avoid charges of perjury.

If an attorney lodges an objection to a question, the witness should be silent until the judge rules on the objection. The objection may be sustained or overruled. Sustaining the objection means that the judge agrees with the objection and will not allow the question stated in that manner. If the judge allows the question, he or she will overrule the objection. Then the witness will be allowed to answer. The witness should never display a combative or hostile attitude and should not make sarcastic remarks while testifying in court. The witness should be professional at all times and restrain inappropriate comments and belligerent behavior. Using “yes, sir” and “no, ma’am” is appropriate in the courtroom. Always address the judge as “Your Honor.”

Inside the Courtroom

Today’s courtrooms are a far cry from the ones depicted on television shows representing the Old West. Modern courtrooms are equipped with computer and video equipment, and elaborate security systems often monitor those entering the building. The advent of truTV has changed the way Americans see the justice system. By simply turning on our televisions, we can watch justice at work.

Knowing the role of each person in a court of law can be helpful. The person or body bringing the lawsuit to court is referred to by different terms, depending on the type of case. In a criminal court, the government brings the case and is represented by a prosecutor. For example, in criminal cases, legal documents read, The State of Texas v. Robert Smith. In this case, the fictitious Robert Smith is the defendant. In civil court, the person or group bringing the case to court is called the plaintiff (or complainant in some court systems), and the opposite party is called the defendant or respondent. A judge presides over the case, giving instructions concerning the law to the jury, if a jury is present. If no jury is present, the judge decides the case; this is called a bench trial. A witness is a person who knows some pertinent information about the case and gives testimony. Often a court reporter takes notes of the proceedings, and a bailiff may be present, who assists in keeping order. All of these individuals should be treated with respect and courtesy.

Burden of Proof

In a criminal case the burden of proof is on the prosecution, which must prove guilt beyond any reasonable doubt. Reasonable doubt is defined as the level of certainty a juror must have to find a defendant guilty of a crime. It is real doubt, based on reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case.

Civil cases must be proven by a preponderance of the evidence. This means that the greater weight of evidence must point to the defendant or respondent as being responsible for the act involved in the case.

To understand the difference between reasonable doubt and preponderance of the evidence, think of the scales of justice (Figure 7-4). For a case to be proven beyond a reasonable doubt, the scales should tip heavily toward either guilt or innocence. However, for a case to be proven by preponderance of the evidence, the scales need tip only slightly one way or the other.

FIGURE 7-4 Lady Justice. Justitia was the Roman goddess of justice and is the figure depicted in statues across the world, often holding both scales and a sword. Her scales imply the weighing of justice, and the blindfold represents the impartiality of justice.

To illustrate the difference in the burden of proof in criminal and civil cases, consider The People of the State of California v. Orenthal James Simpson. In O.J. Simpson’s criminal trial, much circumstantial evidence was presented; however, enough doubt also existed that the scales could not tip heavily toward a verdict of guilty, and Mr. Simpson was acquitted. In the civil trial brought by family members of Nicole Brown Simpson and Ron Goldman after the criminal trial had ended, just enough evidence existed to tip the scales in favor of the families’ claim that Mr. Simpson was somehow responsible for the deaths of the two victims. This is the equivalent of a preponderance of the evidence.

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Critical Thinking Application

A discussion of the burden of proof prompts Barbara, Samantha, and Lynda to discuss the case of O.J. Simpson. Discuss whether reasonable doubt existed in his criminal trial.

Outcome of the Case

Once both sides have presented their case to the judge or jury, they usually are given the opportunity to present a final summation of their case. The jury then retires to consider the verdict. This can take minutes, hours, days, or weeks. After the jury reaches a decision, the judge may enter it as a final verdict or may disregard it if the evidence does not support the jury’s decision. The judge may also revise the verdict to comply with statutes, such as statutory limits on the amount of punitive damages. The final decision of the trial court is reflected in the judgment, signed by the judge.

Either side normally has the right to appeal the decision to a higher court. However, not all appellate courts are required to hear all cases. For instance, the U.S. Supreme Court chooses the cases it hears each year, and it is restricted to cases that involve interpretation of the Constitution and how that interpretation affects the people it governs.

In criminal cases, if the defendant is found guilty of the crime, a sentencing date is set, usually a few weeks to a few months after the verdict is announced. At this time the punishment is announced.

Arbitration

Arbitration is an alternative to trial in which a third party is chosen to hear evidence and make a decision because of the individual’s familiarity with or knowledge of the law or the issues involved. Arbitration is common in modern business life. It is recognized by statute in most states and usually is available to the medical profession, offering an alternative for resolving legal disputes between physician and patient. Many physicians and attorneys see arbitration as one way to solve the crisis of litigation in this country. Court battles can take years and can be extremely expensive, and much of the money reverts to the attorneys rather than the victors in the lawsuit.

In arbitration, the patient and the physician agree to submit the dispute to an arbitrator in an informal hearing. The arbitrator renders a legally binding decision based on very specific rules of arbitration. Arbitration applies essentially the same rights and the same measure of damages as a court. It is fair, less expensive, faster, and more confidential than court litigation.

The staff of each medical office should know whether arbitration statutes exist in the state where the office conducts business. The state medical board or local medical society should be able to provide this information. An arbitration agreement is a contract and is subject to the judgment of the courts only as to the fairness of the agreement. The agreement is precisely worded by an attorney and should not be paraphrased when explained to a patient. Signing the agreement is a voluntary act by the patient, who has a grace period in which to revoke the agreement if he or she later decides against it. Likewise, a physician always has the option to decide not to care for a patient but must formally notify a patient if the decision is made to no longer render care.

If a physician elects to implement an arbitration agreement procedure with patients, every member of the physician’s staff should know the details of the agreement, how and when the patient should sign up, and how to answer the patient’s questions. The way the program is presented to the patient and the office staff’s willingness to answer the patient’s questions play a large part in whether courts uphold the arbitration agreement as fair and legal.

The patient and the physician both have the opportunity to agree on who will arbitrate the case, so that one side is not favored over the other. By prior agreement, the arbitrator (or arbitrators) may be appointed by or from the American Arbitration Association, which is a neutral, private, nonprofit association dedicated to the advancement of out of court remedies. Its panels of arbitrators are made up of people from business, the professions, and public interest groups.

Medical Professional Liability and Negligence

When a patient is injured as a result of a physician’s negligence, the patient may initiate a malpractice lawsuit to recover financial damages. However, experience has shown that the incidence of malpractice claims is directly related to the personal relationship and trust that exist between the physician and the patient. Deterioration of the physician-patient relationship is a common reason patients sue physicians for malpractice, even when the patient has sustained no real injury.

Medical professional liability, commonly called medical malpractice, is governed by the law of torts. The term medical professional liability encompasses all possible civil liability that can be incurred during the delivery of medical care. Medical professional liability is much more easily prevented than defended.

To understand medical malpractice, the term negligence first must be understood. Negligence, in general, implies inattention to one’s duty or business, or the implication of a lack of necessary diligence or care. In medicine, negligence is defined as the performance of an act that a reasonable and prudent physician would not do or the failure to do an act that a reasonable and prudent physician would do. This, of course, also applies to any other healthcare professional. The standard of prudent care and conduct is not defined by law but is left to the determination of a judge or jury, usually with the help of expert witnesses. Expert witnesses are members of the profession involved—in this case, medicine. To be considered an expert witness, a person usually belongs to a certifying or qualifying organization, against which the defendant’s qualities may be compared.

Professional negligence in medicine falls into one of three general classifications:

• Malfeasance, or performance of an act that is wholly wrongful and unlawful

• Misfeasance, or improper performance of a lawful act

• Nonfeasance, or failure to perform an act that should have been performed

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Apr 6, 2017 | Posted by admin in MEDICAL ASSISSTANT | Comments Off

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