One of the most critical areas in a country’s economy is the health sector. The main reason is the fact that raising a healthy nation replicates its benefits all across other sectors of the country. This paper is a revisit of the health care law to respond to certain raising issues regarding medical policies and legal regulations.
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The cost factor
Health insurance is playing a very important role in ensuring that health care services are available to citizens. Despite this benefit, there is a concern that the cost of insurance is bound to rise over subsequent years. In 2003, a projection by analysts was that the expected increase in employer’s contribution is expected to rise by 14% per year (Weatherly, 2004, p.1). As result, the contribution by employees has more than tripled five years down the line. This increase needs to be tamed since its implications to the employee’s overall compensation are directly affected and such effects will soon be felt in the economy.
Today, the situation of health insurance has shown a repetition in historic trends in financing. Before the policing by AMA in 1910, the cost of medical care was low. This is associated with the low demand for medical services. The cost of medical care however began to increase after 1920 (Davis & Rorem, 1932). This is because of the policies on medical care with the rise of medical insurance companies. The seemingly perpetual increase in health insurance cost has a detrimental effect on the demand for medical services with many Americans, especially the self-employed and those in the private sector, choosing to pay their medical bills as they occur. This is evident in the many healthcare lawsuits against incorporating legal Acts for instance the Individual Healthcare Mandate (Barry et al. 2010). The failure of these acts may take America back to the history of low demand for medical care though for different reasons.
Branches of Government and the DHHS
The concept of separation of powers in the government is important in the health sector. Just as it is important in other areas of the law, this concept is very important when it comes to preventing malpractices in the health care sector. First, legislation by Congress has to be ascended into law by the president. This means that the executive checks or rather control the legislation. This is a direct way of preventing any malicious legislation by the congressional representatives. The other arm of government in the implementation of laws is the judiciary. The judiciary can check both the legislature and the executive. It further provides forums for the citizens to file lawsuits against the legal provisions they feel are faulty. In this way, the concept of separation of powers is of great importance in preventing malpractices in health care legislation.
Role of DHHS
The department of human health services plays the primary role of coordinating all public health and medical emergency response activities by the government. One of the most commendable achievements of this department is its influence in improving the capability of hospitals to respond to emergencies through the implementation of the Hospital Preparedness Program. This emphasis on emergency preparedness arose in 2001 after the terrorist attack.
Negligent torts are torts, which include the breaking of a duty of care owed to the plaintiff by the defendant. This tort can only stand under certain conditions. The conditions include the existence of a duty of care owed, the breach of that duty, and that the breach of the duty caused injury to the plaintiff. It is also important to prove that the plaintiff suffered an injury that has no proximate cause (Klar, 2008, p.32).
An example is the case of Donoghue v Stevenson. In this case, the plaintiff had consumed a soft drink, which led to her illness. Investigations showed that the drink had a decomposing snail-the vector. The snail was invisible to the seller, the person who bought the drink for her, and to her since the packaging bottle was opaque. Even though she would not sue the manufacturer, Mr. Stevenson, for damages, the house agreed that Mrs. Donoghue had a legal claim. Lord Donoghue Atkin based his ruling on the duty of reasonable care. He said that is one of the major unifying principles of the law.
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An intentional tort is a civil wrong resulting from the intentional actions of the defendant. In this case, the action is foreseeable to cause injury to the plaintiff but the defendant goes ahead to commit such an act. For a lawsuit involving an intentional tort to stand, the plaintiff has to prove that the act was intentional, a very hard task especially given that many people do not communicate the intention of such acts verbally or in writing (Klar, 2008, p.32). If the plaintiff were able to prove that the act was intentional, the case would attract punitive damages since the system does not encourage intentional wrongdoing. A good example of such a tort is the battery.
Strict liability on the other hand is the imposition of liability on the defendant without proving a fault. The defendant can raise defense by proving that the injury occurred because of the actions of the plaintiff and thus shifting responsibility to the plaintiff (Klar, 2008, p.32). This kind of tort is imposed on activities considered very dangerous and thus discouraging people from engaging in such activities or encouraging people to be extra vigilant when carrying out such activities. A good example would be the harm caused to consumers by producing a new product.
Negligence Vs malpractice
Supposing on a particular day a doctor fails to treat a patient adequately because he is busy, this would be treated as malpractice as opposed to negligence. The defining clause of negligence is failure to appropriate reasonable care as can be reasonably required in such a position as held by the doctor (Helm, 2003, p. 2). In this case, the doctor did not give the patient adequate attention, which makes it an issue of ethics. This case would pass for negligence only if the doctor treated the patient carelessly without paying attention to the professional requirements. Therefore, it is reasonably arguable that the doctor behaved unethically thus becoming a case of malpractice rather than negligence. This conclusion is based on the fact that the definition clause of malpractice is inclusive, among others the aspect of unethical conduct.
Elements of negligence
Concerning the case of Donoghue v Stevenson, the following discussion will focus on correlating each of the four elements of negligence with the evidence required to prove the tort. The first issue that the plaintiff has to prove is that the defendant owes him a duty of care. This brings up the concept of special relationships between the plaintiff and the defendant. In this case, the relationship between the manufacturer and the consumer was a special relationship in which the manufacturer owes the consumer the duty of care (Helm, 2003, p. 3). The second requirement is that the plaintiff should prove the breach of that duty. This means that he or she has to prove that the defendant acted outside the rules of his or her job. This is evident in the presence of a snail in the drink.
The third element is proof of injury and that the injury is directly connected to the actions of the defendant. In this case, since the plaintiff became ill, a doctor’s report would prove that the injury occurred. The doctor’s report must also prove that the major cause of the illness was the consumption of the snail-contaminated drink. Last but not least, the plaintiff has to prove that the particular tort caused the damage that caused the plaintiff to sue him (Helm, 2003, p. 3). This is to say that one should have evidence that there is no proximate cause of the injury before committing the tort.
Defenses in product liability
In the event of a product liability suit, the defendant can claim several aspects for his defense. The first is when the plaintiff is unable to identify the supplier of the product that caused the injury. This defense is futile in a case whereby the plaintiff cannot identify the particular supplier of a product produced by many manufacturers (Klar, 2008, p.36). In this case, the manufacturers are required to pay for damages according to their market share.
Another defense that the defendant can apply is to prove that the plaintiff substantially altered the product in an unforeseeable way after it had left the control of the manufacturer. For such a defense to stand the defendant has to prove that the injury was caused by such an alteration otherwise, the defense cannot hold water. Last yet important is the defense of the plaintiff’s negligence. Some products contain warnings and using such products implies assuming obvious risks (Klar, 2008, p.36). Another manifestation of the plaintiff’s negligence is if he abuses the product in an unforeseeable way and the injury is because of such abuse.
In the case of an injury caused by medicine that has been tampered with, the best defense that can be claimed to save the day would be that of product alteration. First, the medicine was tampered with after it was out of control of the manufacturer and therefore, the manufacturer has no responsibility for the injury caused by the medicine.
Crimes in Healthcare
Misdemeanors are crimes considered to be less severe and attract lighter penalties compared to others. Felonies on the other hand are more severe crimes, which may attract heavier punishment compared to misdemeanors. There exists no clear-cut line between the two. In some countries, the distinction is based on the amount involved in the crime Mandate (Barry et al. 2010). An example of a misdemeanor in the health care sector would be stealing a dose of a particular medication whose price is average. Stealing much of the same medicine for example up to, worth $500 would be treated as a felony and not a misdemeanor based on the value of money involved.
In a case where a patient is victimized with substandard healthcare, it would be important for the patient to file a well-argued complaint. First, the premise of the complaint should follow the direction of malpractice. This is because the professional requirement and ethics are that the doctor should give the patient quality healthcare and therefore, anything less than that is an unethical Mandate (Barry et al. 2010). The complaint is justified requires action.
The Law and Medical Offices
The confidentiality of a patient is contained in a confidentiality contract in which the physician is required to keep the patient’s information confidential. This contract is based on utmost good faith (Helm, 2003, p. 3). The number of physicians that should be allowed into the medical practice remains undefined. However, given the current demand for healthcare services in the private sector, the current number of physicians is enough. An increase in this number will result in unexpected expenses in the health care sector without increased demand.
An example of a legal healthcare lawsuit might involve the challenging of a proposed Act. The first step in the suit involves the case filing where the plaintiff files the case with a court of law citing the defendants and the accusations. Thereafter, the court set date for the first hearing to determine whether the suit has a claim. If the case is confirmed, the court grants hearing from both sides as they present their facts and arguments before making the ruling. The role of the attorneys is legal representation. They construct legal arguments in the interpretation of the law and of the precedent cases relevant to the case.
There are two major levels of corporate committees. The highest level consists of the top-level managers normally called the board of directors. This committee plays an important role in the management of the organization. Chief among its role is strategic management. They formulate strategies that spearhead the organization into achieving future goals and targets. These committees make financing decisions. Below this committee is the departmental committees. The head of departments heads these committees. Their role is formulating policies, which are aimed at implementing the strategic plans laid by the board of directors. Under the above-defined decision, the departmental committee will be responsible for preparing departmental budgets.
Physicians can perform their tasks extemporary well if provided with the necessary time and facilities. This characterized my visit to the dentist who gave not only expertise but also time to providing quality service. To improve time management for physicians, they need to work on schedules except in cases of emergency. For facilities that receive many emergencies, emergency planning will be important to ensure that such incidences will not distract the schedules of physicians.
Nurses play an important role in ensuring patient safety. In case a nurse disagrees with a doctor’s written order, it is important to hold such prescriptions until points of disagreement are resolved or verified. During that period, the nurse should give the patient support medication, which is important for survival. Nurses do not receive the same recognition as doctors though their services are equally important. This might be the cause of professional bias but in my opinion, civic education might be important.
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Of all professions allied to healthcare, I find nursing most interesting. The main duties include dispensing medication, providing emotional and physical support to patients, establishing IV as well as providing simple medical procedures.
The scope of the definition of the term ‘allied professions’ varies from one nation to another. However, generally allied professions are those health care professionals outside nursing, medicine, and dentistry. One of the allied professions that are interesting to me is a pharmacy. The main duties of a pharmacist include carrying out a medical review and providing information about drugs among others. It also involves traditional tasks like dispensing and administering drugs to patients (Cipolle, Strand & Morley, 2004). They also offer not only medical but also nutritional advice to their clients.
It is important to use some precautionary measures when administering medication to prevent the harmful effects or legal issues that may arise from the administration of the medication. First, it is important to be aware of the national policies and protocols that concern medical administration. One of the most important precautions when administering medications is to acquire factual knowledge, which may include the medical history of the recipient (Cipolle, Strand & Morley, 2004). The other precaution is that the medic must follow the directions of the medication. For instance, he/she should prescribe the directed dosage and well-labeled instructions.
Furthermore, the caregiver must understand the side effects of the medication administered. It is also important for the caregiver to know the patients’ reactions to the medication (Cipolle, Strand & Morley, 2004). This requires informed efforts by the caregiver in administering the medication and therefore prescriptions should be done in well-lit places.
Patients have the right to refuse any medical procedure that the medical practitioners prescribe to them. At times patients may refuse life-saving procedures thus shortening their life span. This refusal may be because of religious belief or a problem arising from the disease. In a case where the patient refuses a life-saving surgery, their decision stands if the patient was competent at the time of the decision, otherwise, the decision is void (Michelle, 2005; Jill, Lucie, & Pippa, 2011). The case of Elizabeth Bouvia who was suffering from severe cerebral palsy and degenerative arthritis is a good example. She demanded the removal of a feeding tube, which was inserted against her will, thus shortening her life span. The court ruled in her favor.
When deciding the amount of information required for informed consent, the physician should present the information in terms of what the patient should know as opposed to what the physician thinks the patient should know (Jill, Lucie, & Pippa, 2011). Therefore, the healthcare specialist should provide information such as the risks inherent in the procedure, the likelihood of success and failure, the frequency of occurrence of those risks, and the reasonable alternatives to that form of treatment. Furthermore, the physician should reveal any conflict of interests and any other information that is material to the decision-making process.
With eldercare abuse on the rise, it is important to implement measures on how to report and handle the vice. One of the best practices that can be put in place is the establishment of elder care abuse-free toll line. Once such cases are reported, investigations into the matter are then initiated to prosecute the culprits of the vice (Jill, Lucie, & Pippa, 2011). Such a plan would work out well since both elders and elder caregivers appreciate the reporting of such cases.
Child abuse raises a conflict between professional values and ethical values. The doctor should not breach the confidentiality of the patient without their consent. However, the law provides for the breach of the contract of confidentiality in a case where the doctor has inherent evidence of child abuse that has already occurred, or that seemingly will occur in the future (Jill, Lucie, & Pippa, 2011). The law provides for the doctor to reveal such information to the relevant authorities even against the consent of the guardian of the victim. In the occurrence of such an event, I would report the case to a child protection agency.
In addition to the above-discussed rights, which the patient has, there are other rights concerning the information that the patient is entitled to concerning their illness. In this case, the patient can ask the physician questions concerning the illness. The patient may require information about the physician primarily responsible for their treatment i.e. identity, professional credentials, and professional status (Jill, Lucie, & Pippa, 2011). Furthermore, the patient has the right to information concerning his or her diagnosis, treatment, procedures, and prognosis. This information should be presented in a way that the patient can understand.
Despite the confidentiality of a patient’s information, sometimes it is important to reveal such information in the interest of the patient. For instance, a healthcare specialist should give such information when the information is critical in protecting the patient from abuse or when such information helps the caregiver of the patient to provide them with better care. The overriding principle in this matter is that the disclosure must be in the best interest of the patient (Jill, Lucie, & Pippa, 2011). The physician must therefore consider why the patient required confidentiality otherwise; the disclosure may not serve the purpose.
Allowing the patient to die is where the doctor withdraws the services of a life-sustaining machine of the procedure thus allowing nature to take its course; the patient dies. This is common when the patient’s quality of life is diminished and therefore they refuse the procedure or treatment an aspect that leads to their death (Jill, Lucie, & Pippa, 2011). On the other hand, physician-assisted suicide occurs when a physician helps a patient terminate his/her life. The physician can do this by administering a certain prescription to the patient that enhances his/her death. Physician-assisted suicide occurs with the patient’s approval. The law favors allowing the patient to die as a right of the patient while physician-assisted suicide is illegal.
The values and the virtues that I consider the highest in the ranking of medical ethics include competence. Lack of competence may result in serious injuries to the health of patients. Second is compassion, which is understanding the concern of the patient’s pain or distress. The next value is autonomy in which case, the decision of what medication is best for a particular patient lies as the responsibility of the physician. Patient rights come next on the hierarchy with the right to information presiding over the others. The fifth of the values is patient protection, which requires the doctor to work for the best interest of the patient especially when breaching confidentiality.
In some circumstances, the health care professional needs to be self-insured. A private-duty nurse is engaged with patients but is not considered an employee. In such a situation, the nurse is justified to obtain personal coverage. Another situation that requires self-coverage is the situation of students who are practicing the profession. This is because they face potential liabilities for their actions and therefore insurance is important (Helm, 2003, 147). These are the most prevalent situation under which self-coverage is critical and justifiable.
The process of risk management is very crucial in addressing the malpractice insurance crisis. The process aims at eliminating the chances of assurance of malpractice and thus eliminating the liability associated with malpractices in the medical field (Helm, 2003; Jos et al. 2004). The awards in this practice have worked greatly in reducing cases of malpractice in the healthcare sector.
The question of whether the statement of a defendant before the internal review committee is classified information is outright. In the process of encouraging a thorough review of the medical staff, it is important to keep this information privileged. This will enable the review committee to achieve its objectives. The claim that “Patients are generally unlearned in the medical sciences and therefore, except in rare instances, the knowledge of patient and physician is not in parity,” is common. This implies that the physicians should have autonomy in choosing the best treatment for their patients and that they owe the patients high levels of competence. Additionally, it is their responsibility to guarantee the safety of the patient.
Key learning points
The legal healthcare environment is characterized by three aspects, which include the legislative policies, the law of torts, and the law of contracts. Learning these legal aspects of the healthcare environment is important, as it is helpful in service delivery and for the protection of the healthcare provider against healthcare lawsuits.
Barry, R. F., Thomas, L. G., Sandra, H. J., Timothy, S. J., & Robert, L. S. (2010). Health Law: Cases, Materials and Problems (American Casebook Series). US, Berkeley: West Group.
Cipolle, R.J., Strand L.M., & Morley P.C. (2004). Pharmaceutical Care Practice (2nd ed.) Toronto: McGraw-Hill.
Davis, M. & Rorem C.R. (1932). The Crisis in Hospital Finance and Other Studies in Hospital Economics. Chicago: University of Chicago Press.
Helm, A. (2003). Nursing malpractice: sidestepping legal minefields. Philadelphia: Lippincott Williams and Wilkins.
Jill G., Lucie R. & Pippa, M. (2011). Virtuous Acts as Practical Medical Ethics: An Empirical Study. Journal of Evaluation in Clinical Practice, 17(5), 948–953.
Jos, D., Michael, G. F., & Helmut, K. (2004). No-fault compensation in the health care sector. New York: Springer.
Klar, L. (2008). Tort Law. Toronto: Thomson Carswell.
Michelle A. G. (2005). Essentials of health information management: principles and practices. New York: Mary Jo Bowie.