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do? Nursingconnections. 1993;6:46–47. Murphy EK. Applications of the ’captain of the ship’ doctrine. AORN J. 1990;52:863, 865–866. O’Keeffe RM Jr, O’Keeffe CE. Becoming brother’s keeper: legal responsibilities of those supervising care by residents. NC Med J. 1993;54:166–168. O’Sullivan J. Healthcare changes bring increased liability risk for nurses. Mo Nurse. 1995;64:4. Oehlert WH. Standard clinical protocols are important to your survival. J Okla State Med Assoc. 1996;89:131–134. Pepe PE, Mattox KL, Duke JH, Fisher PB, Prentice FD. Effect of full-time, specialized physician supervision on the success of a large, urban emergency medical services system. Crit Care Med. 1993;21:1279–1286. Plumeri PA. Endoscopic training directors: a few legal and ethical considerations. Gastrointest Endosc Clin N Am. 1995;5:447–455. Purdom DT, Griffith RS, Weaver DL. A positive, systematic approach to improve inpatient medical record completion in a family practice residency program. Fam Med. 1996;28:411–414. Reuter SR. Professional liability in postgraduate medical education: who is liable for resident negligence? J Leg Med. 1994;15:485–531. Rhodes AM. Liability for unlicensed personnel, part II. MCN Am J Matern Child Nurs. 1997;22:327–328. Sheehan JP. Safeguard your license: the disciplinary process. RN. 1997;60:53–55. Tammelleo AD. Nurse’s duty to guard against sexual predators on staff. Regan Rep Nurs Law. 1997;38:2. Tekavec C. ’Vicarious’ liability pinpoints weak staff management. Dent Econ. 1997;87:88. Trott MC. Legal issues for nurse managers. Nurs Manage. 1998;29:38–41; quiz 42. Wagner KD, Pollard R, Wagner RF Jr. Malpractice litigation against child and adolescent psychiatry residency programs, 1981–1991. J Am Acad Child Adolesc Psychiatry. 1993;32:462–465. Weekley AS Jr. Vicarious malpractice liability. J Fla Med Assoc. 1991;78:498–501. Wohlberg JW, Rosen D, Jorgenson LM. New developments in response to boundary violations: proceedings of the Harvard Residency Teaching Day. Harv Rev Psychiatry. 1997;5:28–35. Source: From Journal of Legal Medicine, Vol. 443, p. 473, E.P. Richards and T.R. McLean, Taylor & Francis, Philadelphia, PA. Reproduced with permission. All rights reserved. 433
XIV. Peer Review and Deselection HIGHLIGHTS Introduction Peer review is governed by state and federal law. Federal law provides protections for peer reviewers if the process meets federal standards. Improper peer review can result in civil and criminal liability. Adverse peer review decisions must be reported to the National Practitioner Data Bank. Physicians have few rights in managed care deselection procedures. In the 1980s, peer review of physicians for hospital medical staff privileges was the central legal battle ground for professional review. Physicians who were denied privileges or removed from hospital medical staffs sued, claiming unfair or illegal treatment. Physicians who conducted the reviews demanded legal protection because of the potential liability and costs associated with defending an action brought by a physician denied privileges. The federal government responded with sweeping immunity from damages in peer review–related lawsuits, effectively limiting the legal review of these decisions, if the peer review committee complied with the due process standards of the federal law. This has made peer review for hospital privileges less important as a legal issue, just as deselection by managed care organizations (MCOs) rises in importance. Deselection is the process by which an MCO terminates a physician’s contract to provide services. The term deselection is used, rather than peer review, because deselection is usually done for reasons that do not implicate preserving or improving the quality of medical care. This section reviews the law on traditional peer review, then discusses deselection and the laws that are applicable to deselection decisions. A. Peer Review Hospitals conduct peer review to determine if a physician may be admitted to or can stay on the medical staff. MCOs conduct peer review, as opposed to deselection, when they hire a physician or terminate a physician because of problems with the quality of care the physician provides. These reviews share many characteristics of hospital privileges reviews. The hospital medical staff model for peer review is the best starting point for understanding the laws governing peer review. The law grants the professions remarkable latitude in disciplining their own, a practice rooted in a historical context that is very different from current practice. This discretion was often abused. Historically, it was acceptable to discriminate against practitioners for racial, cultural, ethnic, gender, and anticompetitive reasons. The essence of peer 434
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Public Health Law Map - Beta 5.7 I.
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1942.] The English statutory and co
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health or individual health officer
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actions through the district attorn
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3. The Judicial Branch The federal
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consumer protection, such as requir
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With these exceptions, most litigat
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the court in Los Angeles might allo
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subject matter and may also have in
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2. Implementing ADR The major benef
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III. Tort Claims against Private Pa
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cannot be proved, but it is clear t
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uterus, triggering a miscarriage. T
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first were passed immediately after
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years. If the practitioner violates
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defendant’s conduct or (for the d
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proving a case against a physician
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e important for their adult medical
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emoving the plantar wart. This emph
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Blake BL. Sgt. Friday, Dr. Welby, a
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Walter C, Richards EP. Keeping junk
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earning capacity. b) Medical Expens
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simple as installing wheelchair ram
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cases do not give rise to injury-re
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medical costs from the lawsuit. Som
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compilation of legal principles. It
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traditional sense. Fetal heart moni
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oxygen saturation. When saturation
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1993;56:12-14. King JY. Practice gu
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are handled through an administrati
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U.S.C. § 1491. As such, the Court
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waiving immunity provide the only m
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against the United States in federa
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A discretionary function is an act
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deviant sexual conduct by an Air Fo
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The government can be liable under
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decision of the hospital officials
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constitutional rights have been vio
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case basis. The critical element in
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allegedly defective product was a m
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that state law is displaced if it i
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adopted. Therefore, Congress may au
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alleged. The “color of state law
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Importantly, the DeShaney analysis
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In the context of public health, on
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Also, immunity from suit is preserv
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The mere fact a private corporation
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1. Absolute Immunity Absolute immun
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prisoners were infected with HIV an
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against physicians who sold prescri
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The key distinction between crimina
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it almost impossible for practition
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forced to give hair samples, blood
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medical care practitioner does not
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assume that a hospital has an incen
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fined not more than $25,000 or impr
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charitable, religious, or philanthr
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(2) The Everyone-Does-It Defense De
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automatically invoke attorney-clien
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The Federal government, and several
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e of no benefit to the community, t
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activities of the large professiona
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Some of these provisions, such as t
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not support the scheme to reduce ho
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(1) Sentencing Guideline Standards
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did not provide full information ab
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5. If an employee chooses not to re
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documents until the court had made
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Frech HE III, Danger KL. Exclusive
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1998;29:16-18. Stahl DA. Consolidat
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tampering. b) Search Warrants If th
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defense lawyers to fight claims tha
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a) Service of Process One distressi
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provide as little speculation from
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place for the deposition. Each part
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should include a signed release by
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juries will disregard scientific ev
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the jury may be out of the room for
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entered the patient’s description
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the information being presented is
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are situations where what is genera
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test so generously that it also gav
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defendant’s failure to render the
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fees may be construed as attempting
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Fish R, Rosen P. Physicians should
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$150,000 to fight a case that could
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case; rather, it encourages the att
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were below the acceptable standard
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A. Establishing Agencies For its fi
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local level because the employees a
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dispute before the court. The lawye
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c) The Goldberg Rights Persons whos
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the cost of butter. A public intere
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standards and who agree to complian
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a) Agency Interpretation of Law All
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Johnson JA. Court limits board of m
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persons—business law, constitutio
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5. Corporate Employers and Institut
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prohibited the attorney from asking
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supervising the work. A more fundam
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medical problems. Whether it is can
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for buying insurance is that it pay
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Lawyers working on a contingency do
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Review deposition summary: 30 Novem
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of an effective preventive law plan
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ibes were in the form of consulting
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detailed summaries of important doc
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A very important part of the invest
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cases. Houston Bar Assoc. 1996;34:2
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state civil rights laws and health
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must carry out these actions correc
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c) Informal Consultations One of th
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on relinquishing care and follow-up
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The manufacturers of emergency kits
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equire a consultation before certai
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any differences of opinion between
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to refer a patient to such an insti
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help the patient deal with the insu
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diagnostic interest to the physicia
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attendant duties. When they exercis
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physician must be notified at once.
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to find a specialist willing to see
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physicians, a recent U.S. Supreme C
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The law requires a physician to pro
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proper diagnosis. The physician los
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possible, the letter should be sent
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states than in others.) The best ra
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Medical licensing agencies and medi
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If there is a physician-patient rel
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(1) In general If any individual (w
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subject to a civil money penalty of
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condition described in paragraph (1
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(A) Placing the health of the indiv
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may not transfer the individual unl
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sent by certified mail, return rece
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Berlin L. Communication of the sign
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evaluation of distance medicine tec
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consent: reducing conflicts with pa
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) Children in the Emergency Room A
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such as cancer should be withheld f
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eing challenged over their good- fa
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would not require that the risk be
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usual in the community, and in othe
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consent to risks of the treatment b
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) Reasonable-Patient Standard This
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candidates for treatment if their u
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prospective reimbursement systems r
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The child’s legal status should b
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litigation. Most states allow a phy
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should be reported to the child pro
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mental suffering and injury. 5. No
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ensure that all other participants
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(1) The research involves no more t
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different dialects but with differe
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to consent to medical care. Convers
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person. The power of attorney may b
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eligious reasons. Parents may refus
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life-support technologies, patients
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use every possible avenue to prolon
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decision? The court found that Miss
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Cruzan really dead? Justice Rehnqui
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discussed in terms of the patient
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) Following the Patient’s Wishes
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Few termination of life-support cas
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than any element of human behaviora
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Law Policy. 1997;361. Brody, H. Com
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Furthermore, a physician who withdr
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Cunningham N. Fear and informed con
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Invest Radiol. 1996;31:109-113. Nic
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interests test. J Leg Med. 1991;12:
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esearch subjects: proposed guidelin
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1994;8:19-27. Silverman HJ. Ethical
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Insurance Portability and Accountab
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physician, just as the records of c
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and if the patient is the victim of
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Disabilities Act (ADA) limits an em
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that is part of routine medical car
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A description of each purpose of th
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services to the medical care provid
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Access to the records is subject to
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Use appropriate safeguards to preve
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when they were designing research s
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such as an antitrust or false claim
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contain, the potential for harm in
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identification of abnormal findings
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Anything that indicates special tre
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put in the chart to document that t
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keep personal notes, and often the
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night unless she has a serious conc
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difficult to authenticate, unless t
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225. Smith J. Good medical records
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Page 389 and 390: physician fail to obtain a proper i
Page 391 and 392: When a physician recommends unneces
Page 393 and 394: Because employers attempt to limit
Page 395 and 396: utilization review organization den
Page 397 and 398: to influence a treating doctor’s
Page 399 and 400: important if the employee injures a
Page 401 and 402: these rules vary greatly from state
Page 403 and 404: If, as frequently happens, the pati
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Page 407 and 408: protocols become generic documentat
Page 409 and 410: the physician is directly supervisi
Page 411 and 412: a. Penicillin V potassium 250 mg q.
Page 413 and 414: they hospitalize or refer a patient
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Page 417 and 418: Medical students are often enthusia
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Page 421 and 422: staff knows that the orders are onl
Page 423 and 424: is injured by a fellow workers’ n
Page 425 and 426: limited due process restrictions on
Page 427 and 428: agreeing to reimburse the MCO for a
Page 429 and 430: collective action, a close reading
Page 431 and 432: Med Soc. 1996;148:341-343. Maurer W
Page 433: Fiesta J. Delegation, downsizing an
Page 437 and 438: the development of new legal theori
Page 439 and 440: juror’s perspective, peer review
Page 441 and 442: to deal fairly with citizens, these
Page 443 and 444: 5. There is an overriding national
Page 445 and 446: a) Notice of a Right to a Hearing T
Page 447 and 448: equest, to the physician or practit
Page 449 and 450: subchapter. Information about malpr
Page 451 and 452: the standards set forth in the Act,
Page 453 and 454: 2. The Problem of Bias Until recent
Page 455 and 456: from general disclosure, but it sho
Page 457 and 458: do cost-cutting that the physicians
Page 459 and 460: Med. 1997;18:521-538. Maguire D. Te
Page 461 and 462: Introduction All medical care pract
Page 463 and 464: we are due for another worldwide ep
Page 465 and 466: include nurses, dentists, veterinar
Page 467 and 468: marital disharmony. In the classic
Page 469 and 470: criticisms of the cost of contact t
Page 471 and 472: diseases such as the Marburg or Ebo
Page 473 and 474: organized, powerful political lobby
Page 475 and 476: homosexual activists and the religi
Page 477 and 478: eligion or conscience. Thus, he can
Page 479 and 480: high, amounting to several dollars
Page 481 and 482: 1. Birth Certificates Normally the
Page 483 and 484: caused or contributed to by infecti
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D. Law Enforcement Reporting Every
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campus police. The campus police de
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the law enforcement authorities are
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when they are acting as officers of
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eporting practices. J Emerg Med. 19
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Starr P, Starr S. Reinventing vital
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October;51:132]. J Am Med Womens As
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laws governing air and water pollut
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the widespread occurrence of tooth
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within the power of the judiciary t
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[specify fluoridation measure at is
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Still other arguments center on all
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(Wash. 1955); Rogowski v. City of D
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adverse effects would occur was arb
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Kaul v. City of Chehalis, 277 P.2d
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Introduction There are special cons
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Under no circumstances should medic
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patients about high-risk behavior a
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arrier method that is only 70% effe
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injectable contraceptive that lasts
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that HIV is less of a threat than a
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for procedures affecting reproducti
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funded services to coerce a person
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The person who obtains the consent;
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The recognition of personal privacy
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medically necessary: On their face,
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Although abortion is still a surgic
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The presumption of legitimacy was a
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Unfitness is also narrowly defined
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consistent with public health and s
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constitutional protections or feder
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information in violation of confide
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Mary Sue’s ova were successfully
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But the rule does not contemplate t
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as not to violate this prohibition.
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committed before she knows the stre
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1. Adoption 2. Family Planning and
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Soderberg H, Andersson C, Janzon L,
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Hum Reprod. 1992;7:1029-1033. Snowd
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condition. This conflict can take t
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eaching a level of 1 per 11 births
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who has finally conceived after thr
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should be sure that she understands
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The treatment of infertility poses
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disorder should not be helped to co
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Choosing a sperm donor can be legal
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prevent the spread of disease, and
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problems before they cause accident
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Beyond a structured prenatal care s
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patient’s decisions. The patient
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covered in signs that ask women if
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decisions not to use medical interv
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lifesaving care. Many physicians ig
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profound differences in the underly
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midwife’s skills and judgment, as
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who might sue on her behalf or on t
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contraception, but contraception ha
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One example has been the developmen
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Marshall BM. Ethical issues in assi
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1995;115:39-43. Greely HT. Genetic
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3. General Obstetrics Abrams FR. Co
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King NM. Informed consent and the p
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XIX. Occupational Medicine and Disa
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and balances inherent in having gen
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putative illness, requesting an exc
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compensation system. The company ma
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In some circumstances, the union ma
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ethical obligations concerning the
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Records concerning voluntary employ
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employee’s health status.” In t
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films shall be preserved in their o
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Employees may also have a financial
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available information on the proper
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lood tests that are medically neces
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hospital. Both the medical care pro
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Section 504 was a remedial statute
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or recurrent, that the key word was
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government officials investigating
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incorrect, so this area of the law
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is to ensure that patients have eno
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problems. The Court also reiterated
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the medical problems have affected
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normal eyes and kidneys and no peri
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not constitute a disability. The pa
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workplace, their legal status is no
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hepatitis A, the onset of the disea
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(2) The nature and severity of the
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Many diseases are spread by insects
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eporting duties that apply to the c
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9. Bloodborne Pathogens All workpla
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this includes all types of medical
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clinics or home health visits. An i
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Purtilo RB. Ethical issues in the h
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Disabilities Act: a decision analys
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occupational accidents and diseases
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1998;13:241-272. Pollack R. Update
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legislation, set minimum standards
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hearing seems to be rooted in the l
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ates among drug addicts. Beyond the
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Team physicians’ duties are to th
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first aid and training programs are
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equired by the school is not accept
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interfere with getting the child pr
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4. Handicapped Children Handicapped
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1996;35:237-242. Cheng TL, Savageau
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Med Sci Law. 1995;35:45-47. Mitten
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handling prisoners in a burns unit.
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legislation. The FDA, DHHS, HCFA, a
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of a lower court to a higher, appel
Page 703 and 704:
assaulted will bring a legal action
Page 705 and 706:
anesthesiologists and nurses with i
Page 707 and 708:
Negligence to consider the plaintif
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declaratory judgments about the con
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Durable Power of Attorney ensurance
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fiduciary relationship, as is the r
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Hearsay Rule Testimony of what anot
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In Loco Parentis Literally, in the
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to dangerous products such as drugs
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filing of all official documents. I
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Perjury The willful act of giving f
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had that reasonable person been in
Page 727 and 728:
RICO The common abbreviation for st
Page 729 and 730:
person seeks damages or other legal
Page 731 and 732:
appropriateness. Vacate When a cour
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