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1993;48:777–778. Rommal C. Risk management issues in the perinatal setting. J Perinat Neonatal Nurs. 1996;10:1–31. Sanders RC. Legal problems related to obstetrical ultrasound. Ann NY Acad Sci. 1998;847:220–227. Schifrin BS. Medicolegal ramifications of electronic fetal monitoring during labor. Clin Perinatol. 1995;22:837– 854. Sloan FA, Whetten-Goldstein K, Githens PB, Entman SS. Effects of the threat of medical malpractice litigation and other factors on birth outcomes. Med Care. 1995;33:700– 714. Sloan FA, Whetten-Goldstein K, Stout EM, Entman SS, Hickson GB. No-fault system of compensation for obstetric injury: winners and losers. Obstet Gynecol. 1998;91:437– 443. Smith DH. How to be a good doctor in the 1990s: stand and deliver. Am J Obstet Gynecol. 1994;170:1724–1728. Stanley F. Cerebral palsy: the courts catch up with sad realities. Med J Aust. 1994;161:236. Stratton WT. Birth-related neurological injury compensation programs [published erratum appears in Kans Med. 1995 Spring;96:9]. Kans Med. 1994;95:266–267. Sureau C. Ethical problems in gynaecology and obstetrics. Eur J Obstet Gynecol Reprod Biol. 1992;44:27–30. Symonds EM. Fetal monitoring: medical and legal implications for the practitioner. Curr Opin Obstet Gynecol. 1994;6:430–433. Taylor DH Jr, Ricketts TCd, Berman JL, Kolimaga JT. One state’s response to the malpractice insurance crisis: North Carolina’s Rural Obstetrical Care Incentive Program. Public Health Rep. 1992;107:523–529. Tussing AD, Wojtowycz MA. Malpractice, defensive medicine, and obstetric behavior. Med Care. 1997;35:172–191. Vincent C. The causes of obstetric accidents. Nurs Times. 1991;87:56. Walker R, Rollins L, Husain M, Kahler V, Powell W, Porta AM. Do obstetrical charts present a liability risk? Tex Med. 1991;87:82–86. Wall EM. Family physicians performing obstetrics: is malpractice liability the only obstacle? J Am Board Fam Pract. 1992;5:440–444. Watts RW, Marley JE, Beilby JJ, MacKinnon RP, Doughty S. Training, skills and approach to high-risk obstetrics in rural GP obstetricians. Aust NZ J Obstet Gynaecol. 1997;37: 424–426. 607
XIX. Occupational Medicine and Disability Law HIGHLIGHTS Introduction Occupational medicine poses difficult conflicts of interest between practitioners and employees. The laws governing the physician–patient relationship are modified in occupational medicine. Occupational medicine practitioners must understand the applicable state and federal laws. Occupational medical records in private offices are subject to inspection by OSHA and labor unions. Communicable diseases pose special workplace risks. Occupational medicine is characterized by conflicts between the employee’s interests and those of the employer. These conflicts arise from the employer’s obligation to pay for workplace injuries and disabilities, and potential regulatory sanctions against employers who have disproportionate numbers of OSHA (Occupational Safety and Health Administration) reportable events. It is to the employer’s benefit to minimize injuries and to attribute them to off the job activities or personal illness. Conversely, in today’s marketplace, many employees have limited or no personal health benefits. This gives the employee an incentive to claim that personal medical problems are workplace related so that they must be paid for by the employer. State and federal law recognizes that the physician–patient relationship is different in occupational medicine, and that there are situations where physicians make medical evaluations of patients without forming a legal physician–patient relationship. Conversely, the law expects occupational medicine practitioners of all types to be honest with their patients and to respect their autonomy and their right to consent to, and be informed about, their medical care. This section discusses the basic state and federal laws governing occupational medical practice, special legal problems such as communicable disease control in the workplace, and occupational medical services in general medical care settings. Occupational medicine is a recognized medical specialty, and nonspecialist physicians who are not experts in occupational medicine can incur substantial legal risks. Unlike most other areas of medical practice, providers of occupational medical services must comply with very intrusive federal regulations on access to and retention of medical records, including the right of OSHA and others to enter the practitioner’s office and go through all the occupational medical records. A. Legal And Ethical Problems in Occupational Medicine 608
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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:
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physician fail to obtain a proper i
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When a physician recommends unneces
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Because employers attempt to limit
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utilization review organization den
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to influence a treating doctor’s
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important if the employee injures a
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these rules vary greatly from state
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If, as frequently happens, the pati
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eviewed completely by the supervisi
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protocols become generic documentat
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the physician is directly supervisi
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a. Penicillin V potassium 250 mg q.
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they hospitalize or refer a patient
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patient’s right of privacy should
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Medical students are often enthusia
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unauthorized practice of medicine.
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staff knows that the orders are onl
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is injured by a fellow workers’ n
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limited due process restrictions on
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agreeing to reimburse the MCO for a
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collective action, a close reading
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Med Soc. 1996;148:341-343. Maurer W
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Fiesta J. Delegation, downsizing an
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XIV. Peer Review and Deselection HI
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the development of new legal theori
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juror’s perspective, peer review
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to deal fairly with citizens, these
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5. There is an overriding national
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a) Notice of a Right to a Hearing T
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equest, to the physician or practit
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subchapter. Information about malpr
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the standards set forth in the Act,
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2. The Problem of Bias Until recent
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from general disclosure, but it sho
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do cost-cutting that the physicians
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Med. 1997;18:521-538. Maguire D. Te
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Introduction All medical care pract
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we are due for another worldwide ep
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include nurses, dentists, veterinar
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marital disharmony. In the classic
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criticisms of the cost of contact t
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diseases such as the Marburg or Ebo
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organized, powerful political lobby
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homosexual activists and the religi
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eligion or conscience. Thus, he can
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high, amounting to several dollars
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1. Birth Certificates Normally the
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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
Page 557 and 558: 1. Adoption 2. Family Planning and
Page 559 and 560: Soderberg H, Andersson C, Janzon L,
Page 561 and 562: Hum Reprod. 1992;7:1029-1033. Snowd
Page 563 and 564: condition. This conflict can take t
Page 565 and 566: eaching a level of 1 per 11 births
Page 567 and 568: who has finally conceived after thr
Page 569 and 570: should be sure that she understands
Page 571 and 572: The treatment of infertility poses
Page 573 and 574: disorder should not be helped to co
Page 575 and 576: Choosing a sperm donor can be legal
Page 577 and 578: 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
Page 583 and 584: patient’s decisions. The patient
Page 585 and 586: covered in signs that ask women if
Page 587 and 588: decisions not to use medical interv
Page 589 and 590: lifesaving care. Many physicians ig
Page 591 and 592: profound differences in the underly
Page 593 and 594: midwife’s skills and judgment, as
Page 595 and 596: who might sue on her behalf or on t
Page 597 and 598: contraception, but contraception ha
Page 599 and 600: One example has been the developmen
Page 601 and 602: Marshall BM. Ethical issues in assi
Page 603 and 604: 1995;115:39-43. Greely HT. Genetic
Page 605 and 606: 3. General Obstetrics Abrams FR. Co
Page 607: King NM. Informed consent and the p
Page 611 and 612: and balances inherent in having gen
Page 613 and 614: putative illness, requesting an exc
Page 615 and 616: compensation system. The company ma
Page 617 and 618: In some circumstances, the union ma
Page 619 and 620: 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
Page 627 and 628: Employees may also have a financial
Page 629 and 630: available information on the proper
Page 631 and 632: lood tests that are medically neces
Page 633 and 634: hospital. Both the medical care pro
Page 635 and 636: Section 504 was a remedial statute
Page 637 and 638: or recurrent, that the key word was
Page 639 and 640: government officials investigating
Page 641 and 642: incorrect, so this area of the law
Page 643 and 644: is to ensure that patients have eno
Page 645 and 646: problems. The Court also reiterated
Page 647 and 648: the medical problems have affected
Page 649 and 650: normal eyes and kidneys and no peri
Page 651 and 652: not constitute a disability. The pa
Page 653 and 654: workplace, their legal status is no
Page 655 and 656: hepatitis A, the onset of the disea
Page 657 and 658: (2) The nature and severity of the
Page 659 and 660:
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
Page 681 and 682:
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
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
Page 697 and 698:
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
Page 715 and 716:
Hearsay Rule Testimony of what anot
Page 717 and 718:
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
Page 725 and 726:
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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