Assessment 2 Context

Physician-Patient Relationship

There are three ways in which a physician can establish a physician-patient relationship:

1. Contracting for care for a certain population who seeks care, such as in managed care.
2. Entering an express contract with a patient by mutual agreement.
3. Engaging in conduct from which an implied contract can be applied.

Ending the physician-patient relationship can often be a bit more complicated. A physician has a duty to continue to provide medical care until the relationship is legally terminated. Those who prematurely terminate medical care can be liable for abandonment. The conditions that make up the legal basis for terminating the physician-patient relationship include:

1. Medical care is no longer needed.
2. The patient withdraws from the relationship.
3. The care of the patient is transferred to another physician.
4. Ample notice of withdrawal is given by the physician to the patient.
5. The physician is unable to provide care.

Hospital-Patient Relationship

Most notably, nondiscrimination laws and restrictions on patient recruiting needs to be addressed. This is closely followed in importance by hospital responsibilities to patients who are in need of emergency care, as well as issues concerning discharge and allocation of scarce resources.Title 6 of the Civil Rights Act of 1964 forbids discrimination on the basis of race, color, or national origin in any institution that receives federal financial assistance. Title 3 of the Americans with Disabilities Act (ADA) also prohibits discrimination based on disability in the full enjoyment of the goods, services, facilities, privileges, and accommodations of any privately owned place of public accommodation. Of particular interest is the 1998 U.S. Supreme Court decision that ruled HIV/AIDS is covered by Title 3 of the ADA. The Rehabilitation Act of 1973 forbids discrimination on the basis of handicap in any institution that receives federal financial assistance. And last but not least is the Age Discrimination Act of 1975, which forbids discrimination on the basis of age in federally assisted programs.Stark 2 legislation strictly forbids patient recruiting, as this practice falls under the rubric of kickbacks. Interestingly enough, under common law a person who does not need emergency care usually does not have a right to be admitted to a hospital. The hospital can legally refuse to admit any person unless one of three exceptions apply:

1. Common law exceptions.
2. Contractual exceptions.
3. Statutory exceptions.

This is where things get a bit more complicated. Common law admissions are based on the reasonableness that the original injury needs hospitalization. In other words, a judgment call. Furthermore, the advent of managed care contracting dictates that certain members must be admitted and treated according to contract. The Hill-Burton Act of 1946 authorizes funding for public and nonprofit hospital construction and modernization in return for 20 years of a reasonable volume of services to persons unable to pay. What has happened over the years is hospitals have refused this federal money in lieu of securing funding through municipal bonds and other sources in order to be able to cut their losses to the indigent.One of the requirements to maintain their tax advantages is to operate an emergency room open to all persons. Moreover, the Emergency Medical Treatment and Active Labor Act (EMTALA) serves to ensure this loophole is essentially closed. Furthermore, hospitals that participate in Medicare are required to have a discharge planning process and to arrange for the initial implementation of the patient’s discharge plan. This becomes centered on the potential for false imprisonment when a person is held against his or her will without lawful authority. Related to the issues surrounding patient admission and discharge are the issues of treatment authorization and refusal.

Consent and Informed Consent

Common law has long recognized the right of persons to be free from harmful or offensive touching, as this constitutes battery. When there is no consent to provide treatment, technically battery has taken place and the person treating the patient is liable for this act. Consequently, there is a flurry of legal decisions striving to determine if consent (either expressed or implied) for medical treatment is enough to invalidate the claim for battery. Most states require some type of informed consent to invalidate claims of battery by patients.Disclosure is an element of informed consent that involves the patient’s medical condition, the nature and purpose of the proposed procedure, its consequences and risks, and the feasible accepted alternatives including the consequences of no treatment.Exceptions to the disclosure requirement include:

1. Emergencies.
2. Therapeutic privilege.
3. Patient waiver.
4. Prior patient knowledge.

The responsibility of obtaining patient consent rests primarily with the treatment provider and secondarily with the hospital. Documentation is a must and several factors must be considered when creating and documenting patient consent, including capacity of the patient, readability, and translation. Research study participants have additional requirements regarding informed consent and applicable documentation. The right to refuse is based on common law rights, statutory rights, and constitutional rights. The only circumstances in which a person’s right to refuse becomes considered “involuntary treatment” is in certain conditions where state interests outweigh the right to refuse, including:

1. Threats to the community due to contagious disease or physical dangerousness.
2. Impaired capacity due to mental illness, substance abuse, or other disorientation.
3. Protection of the lives of others, especially unborn children.
4. In a few cases, protection of dependents from abandonment by the patient’s death.
5. Some criminal law enforcement needs.
6. In unusual cases, management of state institutions.

There are a few other situations in which the decision-making process can be confusing and confounding to providers and hospitals:

Criminal Law Enforcement

Blood can be drawn without patient consent if all five conditions are satisfied:

1. The defendant is arrested.
2. The blood is likely to produce evidence for the criminal prosecution.
3. Delay would lead to destruction of evidence.
4. The test is reasonable and not medically contraindicated.
5. The test is performed in a reasonable manner.

Blood Transfusions

Most notably, Jehovah’s Witnesses refuse blood transfusions based on a literal interpretation of the biblical prohibition against eating blood. Nearly all courts have refused to order involuntary transfusions for competent adults, except to protect a minor dependent or unborn child. However, health care providers can no longer rely on documents signed by Jehovah’s Witnesses releasing the hospital from all liability for not providing blood transfusions (Shorter v. Drury, 1985). Complicating these types of cases is EMTALA, the Emergency Medical Treatment and Active Labor Act.

Advanced Directives and Emergencies

Those of sound mind can elect to sign do not resuscitate (DNR) orders so that no extraordinary life saving measures will be used to prolong their life. Most of these are fairly straightforward and are rarely challenged with the exception of adult children who disagree with their parent’s decision to sign a DNR.

The issue gets more complicated when competent adults later lose their decision-making capacity and change their minds. It gets really complicated when incapacitated adults are involved without prior directives. Who decides treatment? Most courts apply the substituted judgment standard that requires the decision-maker to strive to make the decision the patient would have made if able. Some apply the best interests standard that focuses not on what the patient would want, but on what is best for the patient in the view of the decision-maker.

Treatment of Minors

Treatment of minors is fairly straightforward and requires the consent of the parent or guardian before treatment is administered, unless it is an emergency. Some situations requiring the consent of the minor and those in which court orders and other legal authorization is obtained also provide justification and authorization for treatment. In cases of divorce, the consent of either parent is legally effective, but normally the custodial parent’s consent must be obtained.

Summary

With all of the rules and regulations governing the treatment of patients, in addition to the fear of liability, physicians and hospitals in particular must know the application of this area of law in detail. There are multiple contradictory situations involving the treatment of patients regarding liability and lawsuits, both criminal and civil, regardless of the ethics and morals involved. While some issues are certainly black and white, others are shades of gray. One can only hope to keep abreast of the current statutes in the city and state in which the services are provided in order to follow the pendulum shift of legal decisions.