The Medical-Legal Aspects of Acute Care Medicine: A Resource for Clinicians, Administrators, and Risk Managers

694 Pages·2021·7.199 MB·English

by  James E. Szalados

The Medical-Legal
Aspects of Acute
Care Medicine
A Resource for Clinicians,
Administrators, and Risk
Managers
James E. Szalados
Editor
123
The Medical-Legal Aspects of Acute Care
Medicine
James E. Szalados
Editor
The Medical-Legal Aspects
of Acute Care Medicine
A Resource for Clinicians, Administrators,
and Risk Managers
Editor
James E. Szalados
Director, Surgical and Neurocritical Care Units
Rochester Regional Health System at Rochester General Hospital
Rochester, NY
USA
The Szalados Law Firm
Hilton, NY
USA
ISBN 978-3-030-68569-0 ISBN 978-3-030-68570-6 (eBook)
https://doi.org/10.1007/978-3-030-68570-6
© Springer Nature Switzerland AG 2021
This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of
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This Springer imprint is published by the registered company Springer Nature Switzerland AG
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This project could not have been possible
without the constant support of my family.
To my mom, who gave me positive energy,
who raised me to work hard and never, ever,
give up.
To my dad, who taught me to stand for what I
believe but also to understand, respect, and
care for others.
For my sister Liz, whose gentle spirit taught
me about the magic in believing.
Finally, but not lastly, for my wife and love of
my life, my constant life companion, my
anchor, my best friend, and soulmate, Doris,
who shares in all that we have accomplished
because she has been there with me and for
me, on every step on this journey.
James E. Szalados
Preface
This book could not have been possible without the hard work and support of so
many. I would like to thank all my contributors for their hard work and insight.
Taking the time to help write a book, especially given the events of the past year, is
an extraordinary commitment and achievement. I would also like to thank my sup-
port staff, especially Abha Krishnan and her editorial team at Springer, for their
patience, hard work, and dedication in helping bring this project to completion.
I have the privilege of practicing multiple professions. On any given day, I have
the opportunity of helping, patients, clients, or others as I work on their behalf as a
physician, attorney, or consultant. I take great satisfaction in being able to help oth-
ers in need; it is my life’s work. This book crosses the boundaries between the pro-
fessions from a single multidisciplinary lens. My hope is that it is both engaging and
practical.
The healthcare team is comprised of many professionals of diverse training and
backgrounds who work in what is possibly the most regulated of any area of public
service or commerce in the USA. To a large extent, deep ethical and moral convic-
tions, internal fortitude, work ethic, and dedication provide the momentum for
healthcare professionals and their support teams to perform the work of patient care.
Healthcare entails enormous personal commitment and sacrifice, from the begin-
ning of one’s training to the daily rigors of practice. Moreover, healthcare is not
devoid of risk, as the recent COVID-19 pandemic has underscored. Throughout the
moment-to-moment and day-to-day controlled chaos, it is often the shared goals
and the team spirit that helps us all make a difference. It is not inconsequential that
when the world ground to a halt in the COVID epidemic, the frontline healthcare
teams were there, every day, every night, making a difference, doing what we were
born to do.
However, take one step back and healthcare workers immediately realize the
regulatory and legal complexity of the system in which we work each day. We seem
to prefer the term “administrative complexity” to address the regulatory framework
in which our healthcare system is embedded. We prefer the term “population health”
to address the deep importance of the social and economic support system upon
which our public health infrastructure is precariously balancing. The law is
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something healthcare practitioners and administrators hope to avoid; however, it is
always there. Nonetheless, there are healthcare attorneys, who also want to help;
healthcare attorneys understand the regulations, laws, and the processes that are so
essential to effective patient care. The task of the healthcare attorney is to help busy
healthcare practitioners focus on patients, their families, and the community. The
goal of healthcare attorneys is to provide guidance and counsel, when needed, to
navigate the regulatory world. In a sense, healthcare attorneys are also a part of the
healthcare team, perhaps not at the front lines, but on the sidelines helping to make
it all work.
Morality and ethics will always be at the foundation of healthcare, as much as
patients and families will always be our focus. Advances in medical technology
should never overtake the relationships we have with our patients, although technol-
ogy helps us provide better care for them. New technology will pose ethical, legal,
and regulatory problems, and technology, as it progresses, will inevitably “force”
new laws and regulations. Laws rarely force technology, although they may enable
innovation; technology, on the other hand, will inevitably and always force new
laws and regulations into existence. It is inevitable that healthcare providers main-
tain their situational awareness and participate fully in their organizations, public
policy development, and regulatory agencies to help develop and drive technology
and laws and to help enable a better tomorrow.
Rochester, NY, USA James E. Szalados
Author’s Note and Disclaimers
This book is intended for students, teachers, clinicians, administrators, and other
attorneys.
The material presented herein is intended to provide readers with a rich and prac-
tical overview of the enormous complexity of the ethical and legal framework in
which healthcare professionals practice. This work is intended to serve both as a
practical reference and also as a basis for further inquiry.
The information presented herein focusses on the laws and regulations related to
the practice of healthcare in the USA and is not intended to address international
laws or procedures.
The material presented herein is not intended to and must not be construed in any
way to represent legal advice. This book in no way implies the existence of an attor-
ney–client relationship. No legal actions should be taken solely in reliance on this
material. The editors and authors disclaim any legal responsibility for actions taken
or not taken in reliance of the material herein to the fullest extent.
The laws of the USA are constantly in flux, with new regulations, statutes, and
case law. In addition, the laws regarding or impacting healthcare vary between states.
Please consult with a qualified attorney for legal advice on any specific legal issue.
The opinions of the editor or the authors represent the opinions of each individ-
ual contributor and may not reflect the opinions or policies of any institutions, firms,
or other entities with which the contributors are, or have previously been, affiliated.
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Contents
1 Morality, Ethics, the Foundations of the American Legal
System, and Ethical Challenges in the Digital Age . . . . . . . . . . . . . . . 1
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2 Traditional and Applied Clinical Ethics: Contemporary
and Evolving Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Margie Hodges Shaw, Marianne Chiafery, and David C. Kaufman
3 The Ethics and Laws Governing Informed Decision-Making in
Healthcare: Informed Consent, Refusal, and Discussions Regarding
Resuscitation and Life-S ustaining Treatment . . . . . . . . . . . . . . . . . . . 43
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4 The Laws and Regulations Governing Hospitals and Healthcare
Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
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5 The Timeline of a Medical Malpractice Lawsuit . . . . . . . . . . . . . . . . . 117
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6 Regulation of Provider Practice: State Oversight, Licensing,
Credentialing, Peer Review, and the National Practitioner Data
Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
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7 Laws and Liability Relating to the Education and Supervision of
Trainees and Allied Health Professionals . . . . . . . . . . . . . . . . . . . . . . . 171
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8 The Science of Teamwork in Healthcare: Importance to Patient
Outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
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9 Medical Error, Quality Management, and the Evolving Culture of
Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
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10 Laws Pertaining to Insurance and Risk Management . . . . . . . . . . . . 229
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11 Overview of the Claims Submission, Medical Billing, and
Revenue Cycle Management Processes . . . . . . . . . . . . . . . . . . . . . . . . . 251
Joette Derricks
12 Regulations and Regulatory Compliance: False Claims
Act, Kickback and Stark Laws, and HIPAA . . . . . . . . . . . . . . . . . . . . 277
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13 Medical Records and Confidentiality: Evolving Liability
Issues Inherent in the Electronic Health Record, HIPAA, and
Cybersecurity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
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14 The Legal and Regulatory Components of Tele-ICU Care . . . . . . . . . 343
Mario V. Fusaro, Christian Becker, Daniel Miller, Zohair Ahmed Al
Aseri, and Corey Scurlock
15 Digital Technologies in Healthcare: Opportunities and
Risk for Health Systems and Providers . . . . . . . . . . . . . . . . . . . . . . . . 353
Peter J. Papadakos and Tiffany M. Ingham
16 The Laws of Professional Negligence: What Is Malpractice –
And How Does Litigation Work? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
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17 Legal Reasoning: Why the Law and Its Application Are
Confusing to Medical Providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
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18 Ethical Conflicts and Legal Liability in Professional Nursing . . . . . . 393
Taylor Hughes
19 Criminal Statutes Affecting Medical Providers . . . . . . . . . . . . . . . . . . 417
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20 Ethical and Legal Issues in Contemporary Pharmacy Practice:
Scope of Practice, Drug Use Stewardship, Medical Error
Management, and Teamwork. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437
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21 Legal Issues in Mental Health Relevant to Acute Care Practice . . . . 453
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