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employer’s attempt to prove him unfit. Compliance with the ADA provides no defense, however, if the employee assaults a customer. The injured customer may sue the employer for negligently hiring a known rapist. Although the ADA requires that accommodations be reasonable, it often seems to employers that the law itself is unreasonable. Interestingly, there are only two U.S. Supreme Court decisions on the meaning of “direct threat” and both deal with communicable disease. The first arose under the Rehabilitation Act and involved a teacher who was infected with tuberculosis. [School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987).] The school district wanted to remove her from the classroom because it feared that the children would be infected. The teacher had an expert from the public health department who certified that she was not infectious at the time. The Court found that she did not pose a direct threat and could not be excluded from the workplace. However, the Court stated forcefully that if she became infectious to others, she would pose a direct threat and would have to be excluded from the workplace. (This case is discussed more fully later in this section.) The second case is the dentist case discussed earlier in this section. The dentist refused to do dental work, including drilling, on an HIV–infected person in his office. The dentist claimed that he was concerned that he could not do adequate infection control in his office and offered to do the work at no extra charge at the hospital. (There was no discussion of whether there would be a charge by the hospital, but it is assumed there would be.) The patient refused and sued, alleging that the dentist violated the ADA. The dentist asserted the direct threat defense. He lost in the lower courts, but the U.S. Supreme Court ruled that he should be allowed to present evidence that HIV posed a threat to him or others unless he did the procedure at the hospital. This is an important precedent, although not necessarily the best facts. The case was remanded for trial and at the time of publication it was not determined if the jury accepted his defense. J. The Legal Risks of the Ada Although not specifically addressed in the law, the presumption that it is improper for employers to inquire into potential and current employees’ disability status could be used in litigation against occupational medicine physicians. Prior to the ADA, the employer could not discriminate based on disability status, but it was proper for the examining physician to provide the employer with such information. Under the ADA, the inquiry itself is suspect. Even when such inquiries are permitted, the employer has only limited access to the information. The courts may find that the occupational medicine physician has a duty to refuse to make improper inquiries and examinations. This policy of noninquiry poses new ethical problems for occupational medicine physicians. The problem posed by the ADA is that it encourages employees and employers to make decisions without information, rather than to make informed choices about the risks of employment. This can create ethical conflicts for physicians, whose usual role 641
is to ensure that patients have enough information to make an informed choice. Concomitant with that duty to provide full information is the duty to evaluate the patient’s full medical status. Legally, the ADA does not provide any immunity for certifying physicians or employers. Employers remain strictly liable under workers’ compensation for any injuries the employee suffers due to workplace conditions. If the occupational medicine physician is an independent contractor (or in states that recognize the dual capacity doctrine), the injured employee may also sue the examining physician for malpractice for improperly certifying the employee as fit for the job. These legal and ethical problems make it questionable to agree to undertake pre-employment and job placement examinations that do not fully explore the examinee’s medical condition. The provisions of the ADA do not preempt specific federal laws and regulations on evaluating persons in certain public safety positions such as aviation and transportation. However, the regulations do make it difficult for an employer to disqualify a person based on a threat of harm to themselves or to others. This conflicts with the increasing pressure on employers to protect fellow employees and the public from dangerous employees. The ADA’s limitations on preemployment inquiries on behavioral problems also conflict with efforts to encourage employers in businesses such as child care and delivery services to protect the public by screening for sexual offenders and other dangerous individuals. The ADA does not give employers immunity for liability for injuries caused by a dangerous employee. 1. Drug and Alcohol Testing under the ADA Congress intended the ADA to be neutral on testing for substance abuse. Persons using drugs or alcohol are specifically exempted from the coverage of the ADA, and tests for substance abuse are not regulated by the ADA. This means that employers can do preemployment drug screening and refuse to hire persons testing positive (as allowed by other laws and union agreements) without violating the ADA. Persons in the workplace may also be screened and disciplined without violating the ADA. However, the ADA does apply to a person who has “successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use” or “is participating in a supervised rehabilitation program and is no longer engaging in such use.” The employer may adopt policies, including periodic drug testing, to ensure that such persons are not engaging in substance abuse. The employer may prohibit the use of alcohol and illegal drugs at the workplace, may require that employees not be under the influence of illegal drugs or alcohol while at work, and may hold “an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.” The employer may also regulate or ban smoking in the workplace without violating the ADA. 642
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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
Page 549 and 550:
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
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
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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 and 608: King NM. Informed consent and the p
Page 609 and 610: XIX. Occupational Medicine and Disa
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: incorrect, so this area of the law
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
Page 661 and 662: eporting duties that apply to the c
Page 663 and 664: 9. Bloodborne Pathogens All workpla
Page 665 and 666: this includes all types of medical
Page 667 and 668: 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
Page 677 and 678: legislation, set minimum standards
Page 679 and 680: 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
Page 685 and 686: 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
Page 691 and 692: 4. Handicapped Children Handicapped
Page 693 and 694:
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.
Page 699 and 700:
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
Page 711 and 712:
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
Page 719 and 720:
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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