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legitimate competition is encouraged, but it is wrong to destroy a competitor’s business with lies or improper interference. For example, assume that there are two surgeons on the medical staff of a hospital. Assume further that this is a small town with only one hospital. If surgeon Y starts a rumor that surgeon X is a drunk and is dangerous to his patients, this is slander. If surgeon Y starts this rumor to improve his or her practice by destroying surgeon X’s practice, this is also tortious interference with surgeon X’s business relationships. Another form of tortious interference is to entice business associates not to honor their contractual obligations. For example, a physician group that tries to persuade a hospital to break its exclusive contract with a radiology group could be liable for tortious interference with a contractual relationship. In many states, tortious interference resembles invasion of privacy more than it does defamation. The truth of the accusation used to inflame the physician’s business associates is not a defense. Even if the physician does cheat patients, it is improper to use this information to persuade the physician’s business associates to change their allegiance. The proper course is to initiate appropriate disciplinary proceedings. 2. Federal Law Violations Peer review actions are most commonly contested in federal court under federal laws. This allows the aggrieved physician to escape state law protections for peer review actions. More important, the federal courts do not recognize state laws that protect peer review committee minutes and related records from discovery. Some federal laws also provide for treble damages and attorney’s fees if the plaintiff prevails. Without the possibility of this increased recovery, it would not make economic sense to contest most improper peer review actions. Laws that pay a bonus to a successful plaintiff are called private attorney general laws. These provisions are intended to encourage private enforcement of the law through civil litigation, saving the government the cost of prosecuting violators in the criminal justice system. Both the antitrust laws and RICO contain these private attorney general provisions. 3. Due Process Violations Due process is legal shorthand for a set of notions regarding fairness. Daniel Webster defined this phrase to mean a law that “hears before it condemns, which proceeds on inquiry, and renders judgment only after trial.” [Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).] Courts divide their inquiry into the fairness of the law (substantive due process) and the fairness of the application of the law (procedural due process). Due process is a consideration in peer review in two situations: when the hospital or other entity carrying out the review is a governmental entity and if the review is governed by specific state or federal laws that impose due process requirements. In governmental entities, such as a city or county hospital, the actions of the peer review committee are imputed to the state. Since the Constitution requires the states 439
to deal fairly with citizens, these entities are required to provide some level of due process. The more severe the deprivation that might result from the state action, the more formal the required procedure. In the medical context, the criminal prosecution of a physician for violating the controlled substances act would require the most comprehensive protection of the physician’s rights. If a due process hierarchy were established, it would be the following: (1) criminal law prosecutions, (2) state or federal civil law prosecutions, (3) private civil law actions, (4) actions involving the physician’s license, (5) peer review actions at governmental entities, (6) private peer review regulated by state or federal law, (7) private peer review of independent contractors, and (8) private peer review of employee physicians. With two exceptions, the due process requirements for peer review in private institutions are limited to the contractual provisions of the medical staff bylaws. This is sometimes extended by state law provision, but the major exception is the federal Health Care Quality Improvement Act (HCQIA) of 1986. This law does not set due process requirements. It encourages private institutions to provide due process protections by giving them conditional immunity from state and federal lawsuits over peer review activities if they provide due process described in the law. What is usually called due process is more accurately called procedural due process: It refers to fair procedure. Procedural due process refers to the procedure used to conduct the peer review. The procedure must be fair. Accused physicians must be allowed to present their case to an impartial decision maker. This may include examining the evidence, presenting and questioning witnesses, and appealing the decision to a neutral reviewer. It is not necessary to conduct the proceedings as if they are part of a court proceeding. The process may be informal, as long as it is consistent and the physicians subject to review know the rules. Substantive due process is an old legal notion that more nearly approximates a lay idea of fairness. Courts use a substantive due process standard to invalidate rules or laws with which they disagree. A peer review example would be a medical staff rule banning osteopaths from the staff. A court might find that this rule, however fairly and uniformly applied, violates substantive due process. This would be an expression of the court’s belief that the exclusion of osteopaths would not serve to enhance the quality of the medical care in the hospital. The court would be ruling on the substance of the rule rather than its fair application. Substantive due process is a consideration in peer review only if the review criteria exclude classes of practitioners without evidence that this exclusion is reasonably related to the quality of medical care. An example of a current controversy is the blanket exclusion of podiatrists from many medical staffs. Podiatry is not a medical specialty, but its practitioners are licensed by the state to provide medical care. These state licensing laws also establish the scope of a professional’s practice. In some states, hospital care is within the allowable practice of a podiatrist. In these states, a podiatrist could argue that a governmental hospital that excluded all podiatrists was violating their right to substantive due process. Whether the courts would agree is another question. 440
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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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The legal consequences of the corpo
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to set up their own practices or wo
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California. Independent Contractor:
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
Page 405 and 406: eviewed completely by the supervisi
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 and 434: Fiesta J. Delegation, downsizing an
Page 435 and 436: XIV. Peer Review and Deselection HI
Page 437 and 438: the development of new legal theori
Page 439: juror’s perspective, peer review
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
Page 485 and 486: D. Law Enforcement Reporting Every
Page 487 and 488: campus police. The campus police de
Page 489 and 490: 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
Page 579 and 580:
problems before they cause accident
Page 581 and 582:
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
Page 597 and 598:
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
Page 611 and 612:
and balances inherent in having gen
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putative illness, requesting an exc
Page 615 and 616:
compensation system. The company ma
Page 617 and 618:
In some circumstances, the union ma
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ethical obligations concerning the
Page 621 and 622:
Records concerning voluntary employ
Page 623 and 624:
employee’s health status.” In t
Page 625 and 626:
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
Page 669 and 670:
Purtilo RB. Ethical issues in the h
Page 671 and 672:
Disabilities Act: a decision analys
Page 673 and 674:
occupational accidents and diseases
Page 675 and 676:
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
Page 681 and 682:
ates among drug addicts. Beyond the
Page 683 and 684:
Team physicians’ duties are to th
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first aid and training programs are
Page 687 and 688:
equired by the school is not accept
Page 689 and 690:
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
Page 701 and 702:
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
Page 709 and 710:
declaratory judgments about the con
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Durable Power of Attorney ensurance
Page 713 and 714:
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
Page 721 and 722:
filing of all official documents. I
Page 723 and 724:
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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