Medical law ethics & bioethics for the health professions pdf

Lewis, M.A., & Tamparo, C. D. (2012). Medical law, ethics, and bioethics for the health professions. Philadelphia: F. A. Davis.

CHAPTER 1

Medical Law, Ethics, and Bioethics

CHAPTER2

Medical Practice Management

CHAPTER3

Health-Care Team in the Ambulatory Setting

KEY TERMS

Medical Law, Ethics, and Bioethics

((The aim of education is the knowledge, not of facts,

but of values." -William Ralph lnge ( 1860-1954 ); Church of England

clergyman, scholar, and critic

hospitalist Individual who assumes the care of hospitalized individuals in place of their primary care provider.

internal milieu Internal environment. pluralistic Referring to numerous distinct ethnic, religious, and cultural groups that coexist in society.

LEARNING OUTCOMES Upon successful completion of this chapter, you will be able to: 1.1 Define key terms. 1.2 Compare medical law, ethics, and bioethics. 1.3 Discuss some bioethical issues in medicine. 1.4 Explain the importance of medical law, ethics , and bioethics in the practice of medicine. 1.5 List and discuss at least three ethical codes. 1.6 Describe the American Association of Medical Assistants (AAMA) Code of Ethics. 1.7 Interpret the AAMA Creed . 1.8 Compare/ contrast the AAMA and the American Medical Association (AMA) codes of ethics. 1.9 Describe the Patient Bill of Rights. 1.10 Explain the Ethics Check questions. 1.11 Describe characteristics that are important for a professional health-care employee.

COMPETENCIES COMMISSION ON ACCREDITATION OF ALLIED HEALTH EDUCATION PROGRAMS {CAAHEP) • Summarize the Patient Bill of Rights. (CAAHEP IX.C.4) • Differentiate between legal , ethical, and moral issues affecting health care. (CAAHEP X.C.1) • Compare personal, professional, and organizational ethics. (CAAHEP X.C.2) • IdentifY the effect pe,rsonal ethics may have on professional performance. (CAAHEP X.C.S) • Incorporate the Patient's Bill of Rights into personal practice and medical office policies and

procedures. (CAAHEP IX.P.S)

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Chapter 1 Medical law, Ethics, and Bioethics

• Develop a plan for separation of personal and professional eth ics. (CAAHEP X.P.2) • Apply ethica l behaviors, including honesty/ integrity in performance of med ical assisting practice.

(CAAHEP X.A.1) • Examine the impact personal eth ics and morals may have on the ind ividua l's practice.

(CAAHEP X.A.2)

ACCREDITING BUREAU OF HEALTH EDUCATION SCHOOLS (ABHES) • Being cognizant of eth ica l boundaries. (ASHES 11.b.4) • Analyze the effect of hereditary, cultural and environmental influences . (AS HES S.g)

Are You a Professional? A certified medical assistant (CMA) employed by an obstetrician/ gynecologist calls her former medical assistant instructor to inform her of an opening for a clinical assistant in the obstetrics and gynecology (OB-GYN) clinic. After describing the position and its responsibilities, the CMA says, "We really need another person in the clinical area. I'm the doctor's only nurse."

Surprised by the comment, the instructor inquires, "When did you go back to school to become a nurse?"

She replies, "Oh, I didn' t, but everyone thinks I am his nurse. I do everything a nurse does."

The title of this text, Medical Law, Ethics, and Bioethics for the Health Professions, presents three distinct topics: medical law, ethics, and bioethics. Such distinction, however, is for the sake of clarity. Discussion of any one of these topics will include the others. Any study of health law will surface themes of ethics and bioethics. Conversely, discussing ethics and bioethics without considering the law is futile.

LAW

Laws are societal rules or regulations that are prudent or obligatory to observe. Failure to observe the law is punishable by the government and/ or law enforcement agencies. Laws are designed to protect the welfare and safety of society and to resolve conflicts in an orderly and nonviolent manner. They constantly evolve in accordance with an increasingly pluralistic society. Laws have governed humankind and the practice of medicine for thousands of years. Today federal and state govern- ments have constitutional authority to create and enforce laws. A brief look at these laws, their sources, and their definitions appears in subsequent chapters.

Medical law is essential in regulating licensure of health-care professionals and institutions, pro- viding for client safety, protecting the client-provider relationship, and identifying liability for health-care professionals and institutions. Health law also regulates insurance and managed care as well as federal public health programs. It also has established standards for reproduction and birth issues as well as life and death decisions.

ETHICS

Ethics is a set of moral standards or a code for behavior to govern an individual's interactions with other individuals and within society. Joseph Fletcher (1905-1991), an American professor who pio- neered in the field ofbioethics, differentiates morals from ethics, stating, "'morality' is what people do in fact believe to be right and good, while 'ethics' is a critical reflection about morality and the

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rational analysis of it." According to Fletcher, for example, "Should I terminate pregnancy?" is a moral question, whereas "How should I go about deciding?" is an ethical concern.

Although laws are more apt to be rules applied to and observed by all, different cultures have different moral codes. Cultural differences exist relative to age, gender, sexual orientation, ethnic heritage, educational preparation, life experiences, spiritual influences, role models and mentors, economics, values, internal milieu, and health and illness. Every standard for ethics is culture-bound. Therefore, there are few if any universal truths in ethics because it is difficult to identifY customs as being either correct or incorrect. It is also true that one person's moral code has no special status relative to another person's moral code; it is only one among many. See Chapter 12, A Cultural Per- spective for Health Professionals, for further discussion on the influence of culture.

Ethical standards can be personal, organizational, institutional, or worldwide. Ethics refers to the various codes of conduct that have been established through the years by members of many pro- fessional organizations, including the medical profession. A number of medical codes appear in the appendices and on DavisPlus.

BIOETHICS

Bioethics refers to the ethical implications of biomedical technology and its practices. Bio refers to life, and issues in bioethics are often life-and-death issues. Edmund D. Pellegrino, Professor Emeritus of Medicine and Medical Ethics at Georgetown University, states that "bioethics, still in its infancy, is routinely called on by the government to provide political cover for controversial public health decisions involving the life and death of Americans." In other words, political leaders often look to bioethical discussions to guide them in making decisions regarding controversial public health issues. Specialists in the field ofbioethics provide the platform for this decision making.

Since former President Clinton established a National Bioethics Advisory Commission (NBAC) in 1995, subsequent presidents have established their own commission to provide input to the pres- ident and national leaders on issues ofbioethics. In April2010, President Barack Obama appointed members to his Presidential Commission for the Study ofBioethical Issues. Obama mandated that this Commission address potential bioethical issues through advancements in biomedicine and "related areas of science and technology." The Commission plays a key role in keeping the President informed about bioethical issues.

The challenge to bioethics created by modern medicine and research in the past few decades is staggering. Rapid changes in medicine and technology offer unique and sometimes overwhelming choices to clients and their families. Consumers more actively involved in their health care and quite knowledgeable of medical technology and its implications question medical professionals as they have never before been questioned. The public carefully scrutinizes medical technology and how it relates to their daily lives. Thus, the application ofbioethics in everyday life provides opportunities, challenges, enthusiasm, and sometimes difficult choices.

COMPARING MEDICAl lAW, ETHICS, AND BIOETHICS

Law, ethics, and bioethics are different yet related concepts. Laws are mandatory rules to which all citizens must adhere or risk civil or criminal liability. Ethics often relate to morals and set forth uni- versal goals to try to meet, but there is no temporal penalty for failing to meet ethical goals as there is apt to be in law. However, law in the United States has been and continues to be a driving force in shaping ethics.

Confusion over the interpretation oflaw, ethics, and bioethics is understandable. They sometimes conflict. Consider the following example for further clarification:

The U.S. Supreme Court addressed the issue of abortion in Roe v Wade, 410 U.S. 113, 1973. The law states that during the first trimester, pregnant women have a constitutional right to abortions, and the state has no vested interest in regulating them at this time. During the second trimester, the state may regulate abortions and insist on reasonable standards of medical practice if an abortion

Chapter 1 Medical Law, Ethics, and Bioethics 5

is to be performed. During the third trimester, the state's interests override pregnant women's rights to abortions, and the state may deny abortion except when necessary to preserve the health or life of the mother.

The personal ethics of a provider or health-care professional may dictate non participation in an abortion or any abortion-related activities. Bioethics and the allocation of scarce resources are evi- denced by some state statutes that have denied the use of state funds for an abortion or strive to make abortions less available. As demonstrated by this example, sometimes law, ethics, andbioethics conflict.

IN THE NEWS

As a result of two U.S. Supreme Court rulings that prohibit parents from havi ng a bsolute veto over their daughters' decision to have an a bortio n, many state

legislatures rushed to tighten controls on abortions . As of 2011, only Washingto n, Oregon , New Yo rk, Vermont, Connecticut, Hawaii , Ma in e, and Washingto n DC had no pare nta l notifi- cation or consent laws related to minors seeking abortion (see Fig. 1-1 ). Thirty-six states re- quire some involvement in a minor's dec is ion; 22 states require parental consent, 10 states req uire only parenta l notification , and 4 states require both parental consent and notification . This information changes yearly as state legislative bodies struggle to exercise control over a bortions in their state. Sometimes, such legislation is later overt urned by the U.S. Supreme Court . Legal attempts continue the move to rescind Roe v Wade.

Figure 1-1. U.S. map showing states requ iring no parent notification and/or consent for a minor's abortion.

THE IMPORTANCE OF MEDICAl lAW, ETHICS, AND BIOETHICS

There are many reasons that make medical law, ethics, and bioethics important for health-care pro- fessionals. It is necessary to follow health-care laws and to examine one's actions in light of both laws and ethics. It is helpful to learn more from the bioethical issues that clients face and to appre- ciate differences in moral reasoning among individuals and various cultures. Also, there is the need to confront personal biases and bigotry.

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In addition, there are political and economic factors that are relevant to the importance of medical law, ethics, and bioethics. They include:

• Demands of society for quality health care at minimal personal cost • The debate over whether health care is a right or a privilege • The equality of the distribution of and access to emerging medical technology • The controversy among the political arena, national health-care reform, and the consumer

over who pays for health care and how it is paid • The powerful role of medical insurance and managed care.

Thoughtful consideration of the reasons identified here as well as the political and economic factors fosters mature decision making and quality health care for clients.

TODAY'S HEALTH-CARE CLIMATE

There is much in today's health-care environment to challenge any health-care professional's ethics, values, and practices. Just a few are identified here for reflection.

• Consumers are bombarded with medical information. The media, both printed and elec- tronic, report on many aspects of health care. This immediate access of information empow- ers consumers to ask more questions of medical professionals, allowing them to be better informed about choices.

• Increasingly, hospitals and ambulatory care centers are establishing ethics committees and/or institutional review boards (IREs) that enable community resource persons, educators, and providers to grapple with ethical dilemmas both before and after they occur in the clinical setting. Laws and ethical standards designed to protect clients and establish guidelines for the medical community represent an effort to create a climate for an equitable exchange between client and provider. The primary goal of an ethics committee is to have a plan in place before a crisis occurs. IRBs have been empowered by the U.S. Food and Drug Adminis- tration (FDA) and the Department of Health and Human Services (DHHS) to monitor, review, and oversee any medical research involving human subjects. An IRB is required if there is either direct or indirect support from the DHHS.

• Medical technology is advancing at a more rapid rate than legal and ethical standards can address. Consider the time without antibiotics, when premature infants died due to lack of neonatal intensive care and when invasive surgery rather than a computed tomography scan was the only method to reveal problems with internal organs. There are a number of medical advances likely to occur in the next decade. Many may come with a flurry of ethi- cal and bioethical implications that will create debate in the medical community. They include: • Restoring irreversibly damaged hearts by replacing dead heart muscle with new laboratory-

grown muscle after a heart attack • Using harvested skin cells obtained through a small biopsy and suspended in a solution to

be sprayed directly _onto a major burn area. These cells rapidly divide to cover the wound up to 80 times larger than the donor site

• Using computer-assisted therapy sessions to identify depression and excessively negative thoughts in the treatment of clients

• Using high-technology brain scans to detect the earliest signs of both plaques and tangles found in Alzheimer disease and using a vaccine to stimulate the body's own immune response to wipe out the plaques once identified

• Increasing numbers of specialists in medicine make it more difficult to coordinate client care. It is quite conceivable that a client has a primary care provider, a neurologist, a nephrologist, and an oncologist, all providing care. If hospitalization is necessary, is the pri- mary care provider or a hospitalist in charge? Who coordinates, and who approves care? Who decides the appropriate course of action in the case of conflicting medical opinions?

Chapter 1 Medical law, Ethics, and Bioethics

Although specialization may enhance quality health care, it demands greater coordination for clients to benefit, and it increases the cost of medical care. Managed care policies and providers will in part dictate how medical choices are made.

• Costs of medical care have risen exponentially. In 1940, a normal infant delivery cost

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$35 for 10 days of inpatient hospital care. The delivering physician received an additional $35. In 1990, a normal delivery cost an average of $3300 for a 2- to 3-day inpatient hospital stay. In 2005, hospitalization for normal delivery and a 1- to 2-day hospital stay was $5200. The factors affecting the cost of a birth are: whether it is a vaginal or cesarean delivery, if there are complications, and the length of the hospital stay. Infant delivery is most expen- sive in the Northeast and on the West coast and least expensive in the South. In 2010, the typical cost of a vaginal delivery without complications ranged from about $9000 to $17,000 or more. The typical cost for a cesarean delivery without complications or a vaginal delivery with complications ranged from $14,000 to $25,000 or more. .

The importance of these issues is further evidenced by the struggle that has been made through the past couple of decades to pass some form of a national health-care reform in the nation's capital. It finally happened in 2010, but not without a great deal of political maneuvering and posturing.

ETHICAL ISSUES IN MODERN MEDICINE

Many situations arise in the practice of medicine and in medical research that present problems requiring moral decisions. A few of these can be illustrated by the following questions.

Should a parent be able to refuse a mandated immunization for his or her child? Does public safety supersede an individual's right? Is basic health care a right or a privilege? Who dictates client care- the client, the provider, or the health insurance company? Who pays for the care of children with very serious and life-threatening birth defects? Should more medical attention be paid to a "cure" or for "prevention?" How should legal abortions be funded? Is it important that everyone receive equal treatment in medical care? What are the issues related to prolonging life or assisted death for individuals with terminal illnesses? What criteria determine who receives donor organs? Should stem cell research be limited or advanced?

None of these questions has an easy answer, and most individuals do not even think about them unless suddenly and personally faced with one or more of them. These questions and other possi- bilities are the reason for entering into a discussion of pertinent bioethical issues. For some, answers can be found in ethical codes.

CODES OF ETHICS

For generations ethical codes have been written to further clarify medical law and ethics. Many codes have become law. Professional codes have evolved throughout history as practitioners grappled with various ethical and bioethical issues. Increasingly, groups of medical professionals have defined how members of their profession ought to behave. Below are a few examples.

The Hippocratic Oath (see Appendix 1), although not prominent in medical schools today, still carries significant weight among the medical community. The oath, which was first written in the fifth century B.C., was Christianized in the lOth or 11th century A.D. to eliminate reference to pagan gods. The Hippocratic Oath protected the rights of clients and appealed to the inner and finer instincts of the physician without imposing penalties.

The Geneva Convention Code of Medical Ethics, established by the World Medical Association in 1949, is similar to the Hippocratic Oath. This code refers to colleagues as brothers and states that religion, race, and other such factors are not a consideration for care of the total person. This code reflects the fact that medicine was becoming available to all during this era.

The Nuremberg Code was established between 1946 and 1949 as a result of the trials of war criminals after World War II. This code suggests guidelines for human experimentation and is

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directed to the world. The writers hoped that the code would ensure the safety of humans in the years to come.

The Declaration ofHelsink1~ written between 1964 and 1975, is an update on human experimen- tation. Much more detailed than the Nuremberg Code, it includes guidelines for both therapeutic and scientific clinical research. Unlike the Nuremberg Code, the Declaration of Helsinki is directed to the world of medicine rather than the world at large.

The American Medical Association (AMA) established the Principles of Medical Ethics in 1847 and updated it in 1957, 1980, and again in 2001 (see Appendix 1). The preamble and nine princi- ples have served as guidelines for physicians for many years. The document "Current Opinions of the Judicial Council of the American Medical Association" is intended as an adjunct to the revised Principles of Medical Ethics. Both documents are pertinent to physicians and their assis- tants today.

The number of professional medical organizations with written ethics codes is numerous. The codes are available on the Internet by searching the particular association and then for its code of ethics. A few are identified here:

• American Academy of Professional Coders (AAPC) • International Medical Informatics Association (IMIA) • National Association of Emergency Medical Technicians (NAEMT) • American Osteopathic Association (AOA) • American Association of Naturopathic Physicians (AANP) • American Chiropractic Association (ACA) • National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM) • National Medical Association (NMA) • American Nurses Association (ANA)

By far the most important code directed to the ambulatory care professional is the AAMA Medical Assistant Code of Ethics and AAMA Medical Assistant Creed directed to the medical assistant (MA) in the ambulatory setting (see Appendix 1). The code was adopted by the American Association of Medical Assistants and appears in its constitution and bylaws. It provides guidelines to assist MAs in serving their profession in an ethical and professional manner. This code, as well as most other ethical codes, identifies to society at large what the standards are for the profession.

A number of codes have appeared that deal more with the rights of clients than the responsibil- ities and guidelines for health-care providers. They include numerous Patient Bill of Rights estab- lished by the American Hospital Association (AHA) and federal and state governments as well as individual hospitals and institutions. Contact the hospital nearest you for a sample of a patient bill of rights, or refer to DavisPlus for the sample from the AHA; they are all quite similar in content. Increasing in popularity are patient bills of rights specific for ambulatory health care. They are usu- ally written by specific clinics and generally include the right to be respected, right to access your medical record, right to receive a second opinion, right to participate in your health care, and the right to have your privacy protected at all times. A number of samples can be seen on the Internet by searching for entities such as the Cleveland Clinic and the Mayo Clinic.

The 2010 Healthcare Reform Bill includes a Patient Bill of Rights that has an entirely different scope. This portion of the bill is designed to ensure that there is affordable health care for everyone; it is designed to put consumers back in charge of their health coverage and prevent insurance carriers from certain practices to ban clients from coverage. The purpose of any patient bill of rights is to make certain clients know their rights. It can be helpful to recognize that in some cases clients always had these rights but were not aware of them.

The most challenging aspect of any ethical code is its personal application. Many books have been written on the subject, and decades of scholarly debate have sought effective criteria for making ethical decisions. No one method is the result. What is certain, however, is that how each individual makes an ethical decision is very personal. The Ethics Check questions identified below may be helpful as you begin to think about medical law, ethics, and bioethics as a health- care professional. ·

Chapter 1 Medical Law, Ethics, and Bioethics

ETHICS CHECI< Blanchard and Peale, in The Power of Ethical Management, developed a set of questions to serve as an "ethics check" that is a useful tool for a person facing an ethical dilemma. These

questions suggest that ethics is a very personal concept and a personal decision. Consider Blanchard and Peale's three questions to include in a personal code of ethics:

1. Is it legal or in accordance with institutional or company policy? 2. Does it promote a win-win situation with as many individuals (client/employee/employer)

as possible? 3. How would I feel about myself ifi read about my decision or action in the daily newspaper?

How would my family feel? Could I look myself in the mirror? (Fig. 1-2.) e According to Blanchard and Peale, if the answer to any one of the three questions is no, consider

the action unethical. If the answer to all three questions is yes, the action is ethical. The identification of such a simple personal code of ethics can help to clarify actions, and these Ethics Check questions may provide further guidelines on how to act when in a difficult situation.

An individual will have greater difficulties remaining ethical in an organization in which the highest leaders are not ethical in their actions. It helps if the leader of a group is ethical, setting the standard and making it easier for everyone else to be ethical. However, ethical actions may and should come from anyone, regardless of status.

Case Study You are the clinic manager in a large multi provider medical center. There is no upward mobil- ity in this center, and you relish a new challenge. It is a rather slow day, and you use your office computer to access the Internet to do a job search. You find four jobs that are exciting, and you send your resume via the Internet. As you disconnect from the Internet, you recall that it is easy to trace access to sites on the Internet that you have just used for personal business.

Apply the Ethics Check to this case study. What is your conclusion?

Figure 1-2. Ethics Check question: How would I feel if I saw my decision in the newspaper?

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APPLYING MEDICAL LAW, ETHICS, AND BIOETHICS AS A PROFESSIONAL HEALTH-CARE EMPLOYEE

The significant conflict that often arises among medical law, ethics, and bioethics mandates that individuals choosing the health professions be people of high moral standards. They should be clear, open, and knowledgeable about their personal choices and beliefs and be able to recognize vast diversity in a pluralistic society. Health-care professionals must feel comfortable in a "servant" role while maintaining their own integrity and the respect of their clients.

Individuals employed in a service-oriented industry such as health care are expected to have cer- tain characteristics. The health professional must always be tactful and should know instinctively when speaking is wise and when listening is better. The health-care employee is an important com- munication link between the client and the provider.

Anyone in a health-care profession is in a nonreciprocal relationship with clients. The professional serves the client and gives the client full respect even when the client is disrespectful. Health-care professionals will want to act and speak nonjudgmentally of their clients and their activities, offering information rather than opinions. Clients expect to be treated with courtesy and understanding. Only the most caring and sensitive of employees can handle day after day of sick, hurting, and com- plaining clients and remain objective yet compassionate and positive.

Physician- and provider-employers require that their employees be diligent and knowledgeable in every detail of the job. Such knowledge and training can come only through professional prepa- ration that is demanding and exacting and continues throughout employment. Professionals who are flexible and take initiative will be an asset to their employers.

Honesty and integrity are traits required of the employee. Health-care professionals must always remember to practice only within the scope of their professional training and never misrepresent themselves. Confidentiality must be tenaciously protected, and both the clients' and the providers' best interests must be guarded.

Wise and prudent health-care employees will select employers for whom they have respect and to whom they can remain loyal. Matching your personal understanding of how to care for clients to that of your employer avoids conflicts at a later time. The majority of health-care professionals have a concern for quality health care, and that concern is often reflected in community efforts and contributions.

Refer to the following Case Law that illustrates a disregard of personal and professional ethics on the part of a medical provider.

Case Law A physician in Lehi, Utah was accused in August 2009 of the following: 1. Fondling his female medical assistant (MA) while pretending to teach her how to diagnose

heart murmurs (Civil Suit) 2. Two counts of forcible sex abuse (Criminal Case) 3. Two counts of voyeurism (Criminal Case) 4. One count of obstruction of justice (Criminal Case)

Dr. Steven Pack also faces an investigation by the Division of Occupational and Professional Licensing.

Dr. Pack allegedly called his 18-year-old MA to an examination room to teach her how to diagnose heart murmurs. He asked her to lie on an examination table, lifted her shirt and bra, and fondled her breasts as he told her he was "feeling" for heart murmurs. Pack allegedly again inappropriately touched the woman while teaching her how to use a heart monitor and elec- trocardiograph machine. The MA became upset and told a nurse practitioner at the office what happened. This civil lawsuit comes 1 day after Lehi police arrested Pack for allegedly recording

Chapter 1 Medical Law, Ethics, and Bioethics

with a concealed digital camera his female patients undressing in an examination room. In August 2010, Judge Samuel McVey sentenced Steven Pack to 1 year in jail without any early release and a second year with global positioning system (GPS) monitoring. Pack's license to practice was suspended by the Utah Division of Occupational and Professional Licensing. Civil suits brought by the victims were settled before the sentencing, but the civil remedies were not made public.