Basis Behind Medical Legal Issues

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Describe the Reasonable Person Theory of Tort Law

What is required for Appropriate Informed Consent

List Three Charting Pitfalls

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Statutory Law Law is passed (i.e.) Nurse Practice Act

Common Law Legal Precedent

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Criminal

Intentional

Civil Unintentional

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Duty

Medical Legal—Duty to care

Breech

Not acting within your standard of care

Harm

Actual or imagined

Causation

Did the breech cause the harm

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Negligence Law

Each member of society has a duty to behave as to avoid unreasonable risks of harm to others

We Must Act:

As a reasonable person of ordinary prudence in similar circumstances

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Considers Personal Characteristics

Similar age, intelligence, experience

Similar circumstances

▪ Emergencies require less of a standard

Similar physical disabilities

Mental Disabilities do not relieve a person from conforming to Reasonable Person Standard

▪ Same is true of intoxication

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Used as a judgment:

Did a persons conduct fall below this standard…

▪ Was there a breech of Duty?

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Objective for two reasons Hypothetical Person

▪ Ideal attributes

Focused of behavior

▪ Rather than the subjective mental state

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Flexible

Tailored to the facts of the case

▪ Reasonable Foreseeablity

▪ Magnitude

▪ Social Utility

▪ Avoidance

▪ Context

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Could a reasonable person predict the foreseeable risk of harm

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

As the seriousness of the risk increases the duty to avoid the behavior increases

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

The more valuable the conduct to society, the less likely the breech

Good Samaritan Laws

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Emergencies do not need the same cautiousness and deliberation as planned events

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Diagnosis Purpose of Procedure Risks involved Success Rate Failure to Act Alternative treatments

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Landmark case for informed consent handed sown in US Appeals Court Washington District

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

1959 – 19 y/o clerk in DC with back pain sought tx and found to have bulging disc @ T4

Surgeon called and talked to mother in WV. No record of consent during conversation Surgery performed and mom arrived after surgery, consent

signed. On PO day 2 pt assisted OOB to void and was left

unattended and fell in process of voiding Lower extremity paralysis Months later, crutch walking with no bowl or bladder

function

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

“every human being of adult years and sound mind has a right to determine what shall be done with his own body”

Right to Self Determination

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Must be able to trace:

Knowledge of options

Risks of each

Magnitude of Risk

Risk of failure to act

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Required to communicate this to the patient

Medical training enables providers to a self-satisfying course of action

Prerogative is of the patient not the physician

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Justices found:

This is doctrinal emphasis not an addition to malpractice law

Settled the rule:

▪ Therapy not authorized equaled a tort –Common Law Battery

▪ Criminal Tort (intentional) not a Civil Tort (unintentional)

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Degree of care which a reasonable prudent person with like training would have experienced under similar circumstances

Physician performs at a higher level than a non-physician

Same of similar location/setting

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Are but an adaptation of general standards Required to act as reasonable men

possessing their medical talents would

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Unwilling to adopt full disclosure

Unrealistic to expect disclosure of every risk no matter how remote

What a reasonable practitioner would bare More importantly:

What a reasonable person would expect

▪ Patient prerogative

▪ Self-determination shapes duty to reveal

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Two exceptions to the rules:

Incapable of consenting and failure to treat would harm▪ Unconscious patient in the ED

Disclosure poses threat to the patients care

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Not Duress but undue influence Duress

Induced by threat

No reasonable alternatives

Undue Influence

A relationship exists

▪ Trust and Confidence

▪ Domination

Unfair persuasion

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Healthcare Insurance Portability Assurance Act

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

Too little Too Much Illegible

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD

NCANA Dist. I & II Mtg. 2015 Jerry Coy, CRNA, PhD