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 Contents
Preface xi
Letter to the Student xv
How to Interpret Case Citations xvii
About the Author xix
Reviewers xxi

1 Introduction to Medical Law, Ethics, and Bioethics 1

Why Study Law, Ethics, and Bioethics? 3
Medical Law 7
Ethics 9
Models for Examining Ethical Dilemmas 18
What Ethics Is Not 21
Bioethics 22
The Role of Ethics Committees 23
Quality Assurance Programs 23
Medical Etiquette 24

Part i thE LEgaL EnvironmEnt 29

2 The Legal System 29

The Legal System 31
Sources of Law 33
Classification of Laws 36
The Court Systems 44
The Trial Process 46

3 Essentials of the Legal System for Healthcare

Professionals 55
Medical Practice Acts 57
Licensure of the Physician 58
Standard of Care 61 vii
Confidentiality 62
viii Contents

Statute of Limitations 63
Good Samaritan Laws 64
Respondeat Superior 65
Risk Management 67

4 Working in Today’s Healthcare Environment 75

Today’s Healthcare Environment 77
Types of Medical Practice 83
The Ethics of Fee Splitting 86
Medical Specialty Boards 87
Allied Health Professionals 90

Part ii thE hEaLthcarE EnvironmEnt 99

5 The Physician-Patient Relationship 99

Physician’s Rights 101
Physician’s Responsibilities 102
Professional Practice Responsibilities 103
Patients’ Rights 112
Rights of Minors 118
Patients’ Responsibilities 119
Role of the Healthcare Consumer 124

6 Professional Liability and Medical Malpractice 129

Professional Negligence and Medical Malpractice 132
The Tort of Negligence 133
Fraud 138
Office of Inspector General 140
Defense to Malpractice Suits 142
Professional Liability 145
Alternative Dispute Resolution 150
Liability of Other Health Professionals 151
Tort Reform 154
Malpractice Prevention 155

7 Public Duties of the Healthcare Professional 163

Public Health Records and Vital Statistics 165
Controlled Substances Act and Regulations 175
Protection for the Employee and the Environment 178
 Contents ix

8 Workplace Law and Ethics 187

Professionalism in the Workplace 189
Discrimination in the Workplace 190
Privacy and the Workplace 190
Cultural Considerations 191
Religious Considerations 192
Effective Hiring Practices 194
Legal and Illegal Interview Questions 195
Federal Regulations Affecting the Professionals 196
Equal Employment Opportunity and Employment Discrimination 197
Employee Health and Safety 202
Compensation and Benefits Regulations 206
Consumer Protection and Collection Practices 209

9 The Medical Record 219

Purpose of the Medical Record 221
Contents of the Medical Record 222
Ownership of the Medical Record 228
Confidentiality and the Medical Record 228
Retention and Storage of Medical Records 231
Reporting and Disclosure Requirements 234
Use of the Medical Record in Court 234

10 Patient Confidentiality and HIPAA 241

Confidentiality 243
Privacy Act of 1974 245
Health Insurance Portability and Accountability Act (HIPAA) of 1996 245
Ethical Concerns with Information Technology (Informatics) 258

Part iii mEdicaL Ethics 267

11 Ethical and Bioethical Issues in Medicine 267

Early History 269
Ethical Standards and Behavior 270
Codes of Ethics 271
Codes of Ethics for Other Medical Professionals 273
Bioethical Issues 274
Ethical Issues and Personal Choice 279
x Contents

The Ethics of Biomedical Research 279

Human Genome Project 283
Genetic Engineering 284

12 Ethical Issues Relating to Life 295

Fetal Development 297
Assisted or Artificial Conception 298
Contraception 303
Sterilization 304
Abortion 307
Genetic Counseling and Testing 313
Wrongful-Life Suits 317

13 Death and Dying 325

The Dying Process 327
Legal Definition of Death 327
Stages of Dying 337
Quality-Of-Life Issues 338
Use of Medications 338
Hospice Care 339
Palliative Care 340
Viatical Settlements 341
Advance Directives 341
Choices in life and death 342

14 Future Trends in Healthcare 353

Problems in the Current Healthcare System 355
New Advances and Improvement in Healthcare 359
Healthcare Trends and Reform 361
The Ethics of Care under the Affordable Care Act 365

Appendix A. Codes of Ethics 373

Appendix B. Case Citations 377
Glossary 381
Index 391
Preface
T he allied health professional has always been an important member of the
medical team. This team awareness is even more critical in today’s health-
care environment, because the physician no longer practices medicine alone.
Therefore, the text discusses medical law and ethics as it relates to allied healthcare
professionals, as well as the physician’s duties and responsibilities.
Medical Law and Ethics is written in straightforward language that is aimed at
the nonlawyer health professional who must be able to cope with multiple legal and
ethical issues. This text is appropriate for those studying in a college or university who
are working toward careers in the allied health field in a variety of settings, such as
medical offices, hospitals, clinics, laboratories, rehabilitation facilities, and skilled-
nursing facilities. Because most allied healthcare professionals work either with or for
a physician, it is important to understand the physician’s responsibilities and duties
to the patient. Therefore, they are covered in this book. Included are examples of
common legal and ethical issues that affect those working in the healthcare field.
A wide range of pertinent topics are discussed, such as the legal system, professional
liability and medical malpractice, public duties of the physician, the medical record,
and ethical and bioethical issues. There is an in-depth discussion of the regulations
affecting the healthcare professional, including up-to-date information about the
Health Insurance Portability and Accountability Act of 1996 (HIPAA) as well as the
Patient Protection and Affordable Care Act of 2010 (PPACA). The intent is to help
healthcare professionals to better understand our ethical obligation to ourselves, our
patients, and our employers. A new addition to stimulate discussion is the Critical
Thinking Exercise at the end of each chapter.
Many legal cases are sprinkled throughout the text to demonstrate the history
of the law as it pertains to subjects such as patient confidentiality, managed care,
federal regulations affecting the employee, death and dying, and abortion. In some
examples, the cases may seem old, but because we as a country have a legal system
based on case law, these laws are still pertinent today. A legal icon (scales of justice)
appears in the margin to indicate legal case citations.
A special feature called Med Tips provides quick information about law and eth-
ics. These brief scenarios and hints help to maintain interest in this vital subject. Each
chapter includes glossary terms highlighted in bold on first reference, extensive end-
of-chapter exercises, and one actual practice case. The appendices include a sample
of codes of ethics that form a basis for current practice and legal case citations.
This text provides an overview of medical law and ethics. Practicing healthcare
professionals should know the legal requirements in their own jurisdictions.
xi
xii Preface

Finally, many educators have offered thoughtful comments as reviewers of this

text. I am extremely grateful that they have shared their time and experience to help
develop this textbook.

Chapter StruCture
◗ Learning Objectives. These include an overview of the basic knowledge
discussed within the chapter and can be used as a chapter review.
◗ Key Terms. Important vocabulary terms are listed alphabetically at the begin-
ning of each chapter and printed in bold the first time they are defined in the text.
◗ Introduction. Each chapter begins with an introductory statement that reflects
the topic of the chapter.
◗ Review Challenge. A selection of short answer, matching, and multiple-choice
questions are included to test the student’s knowledge of the chapter material.
◗ Case Study. The case studies are based on real-life occurrences and offer
practical application of information discussed within the chapter. These are
included to stimulate and draw upon the student’s critical-thinking skills and
problem-solving ability.
◗ Critical Thinking Exercise. These exercises at the end of each chapter
challenge the student to answer the question “What would you do if …” relating
to many current healthcare and legal dilemmas in today’s environment.
◗ Bibliography. These useful resources provide further information on the topics
included within the chapter.

SpeCial FeatureS
◗ Med Tip. Med Tips are placed at strategic points within the narrative to provide
helpful hints and useful information to stimulate the student’s interest in the topic.
◗ Legal Case Citations. Discipline-specific cases are used throughout the text to
illustrate the topic under discussion. The cases reflect the many medical disciplines,
including that of the physician, that come together in the care of the patient. While
this book is not meant to be a law book, the cases cited in the book are meant to
emphasize the importance of the law for the students.
◗ Points to Ponder. Thought-provoking questions give students an opportunity
to evaluate how they might answer some of the tough, medically related ethical
dilemmas in today’s society. These questions can also be used for critical debate
among students during a class activity.
◗ Discussion Questions. These end-of-chapter questions encourage a review of
the chapter contents.
◗ Put It into Practice. These thought-provoking activities appear at the end of
each chapter. They provide a clinical correlation with the topics discussed in the
chapter and stimulate the student’s own contemplation of legal and ethical issues
that are apparent in everyday life.
 Preface xiii

◗ Web Hunt. This end-of-chapter Internet activity encourages the student to access
the multitude of medical resources available through this medium.
◗ Appendices. Codes of Ethics are included in Appendix A; useful healthcare
websites are listed online; the case citations used throughout the book are listed in
Appendix B.
◗ Additional Examination Review Questions. These are included in the
Instructor’s Resource Manual.

Visit our new Resource Page to accompany Medical Law and Ethics, 5th Ed.
(http://www.pearsonhighered.com/healthprofessionsresources/) for a collection
of downloadable quizzes, and reference materials.

aCknowledgmentS
This book would not have been possible without the assistance and guidance of many
people. I am grateful to the editorial and production staffs at Pearson Education for
their skill and patience with this project. I thank, Marlene Pratt Acquisitions Editor
and, Faye Gemmellaro Program Manager, for their leadership and guidance with this
project, and whose courtesy and thoroughness are greatly appreciated; Pat Walsh,
whose calm presence is always available.
This page intentionally left blank
Letter to the
Student
I t’s a natural tendency to read some of the case examples in this book and think that
they must be fictional as no well-trained healthcare professional would ever be so
negligent. However, the short ethics cases at the beginning of each chapter, with the
exception of the historical cases, are indeed real. All of these cases are drawn from
the author’s experience.
Throughout the book there are numerous examples of actual legal cases that usu-
ally resulted in suffering for patients, as well as for physicians and other healthcare
professionals. The cases discussed are not meant to focus on particular healthcare
disciplines, nor to exclude any disciplines. And these cases are not meant to frighten
but, rather, to alert all of us to the potential risks to patients when healthcare profes-
sionals are not diligent about the care they provide. Do not memorize the case cita-
tions, but rather try to understand the circumstances and why the case was included
in this book.
I have a great respect for all the disciplines mentioned in this book. My intent is
to prepare students to promote good patient care, as well as to protect themselves
and their employers from lawsuits.
For a successful start to your study of medical law and ethics, consider following
the ABCs of classroom success: Actively participate, Benefit from the experience,
and Commit to learning. It is necessary for you to attend class to truly benefit from
your ethics education. So much happens in the classroom—especially the interaction
between you and your classmates. The discussion portion of an ethics class is one of
the most important components. You must be present to contribute. The text serves as
an information source and as the first step in your education—the dynamics of class-
room interaction between you, your instructor, and the other students is critical for
success in learning.

Actively participate when you attend class. It is necessary to absorb what

takes place during the class session. Listen carefully to what your instructor and
fellow students say. If you don’t share your ideas, experiences, and questions, then
the rest of the class is losing what you have to offer. The dialogue about ethics
that you have with your instructor and fellow classmates can be one of the most
meaningful learning experiences.

xv
xvi Letter to the Student

Benefit from the experience and ideas of your peers (classmates). Listen to the
opinions of others during class discussions. Pay particular attention to the opinions
that differ from your own. As a member of the healthcare team, you will frequently
hear opinions that differ from your own—both from your coworkers and your
patients. You do not have to change your opinions or beliefs, but try to keep an
open mind to the opinions of others.
Commit to learning by carefully reading and analyzing the textbook material.
Look for new information and also for discussion points that both agree and dis-
agree with your own perspective. Take this course seriously so that it is not a waste
of your time. In fact, your ethics class can be one of the most important classes that
you take! Communicate what you have learned. Your perspective is important for
others to hear. Use your time wisely in class, share your ideas, and listen to the
thoughts of others.

The law is dynamic and often is revised as changes take place in society. For
example, two of the newest laws affecting healthcare are the Healthcare Insurance
Portability and Accountability Act (HIPPA) of 1996 and the Patient Protection and
Affordable Care Act of 2010 (PPACA), also known as the Affordable Care Act. They
have both had an impact on healthcare organizations as well as physician’s offices.
This textbook is not meant to be a study of the law, but rather to introduce students
to the impact that law and ethics have on their professional lives.
Finally, our goal as teachers is to help our students learn how to judge themselves
and their actions. Because you won’t have us with you in the workplace, we want
you to be able to evaluate your own actions in light of their ethical and legal impact
on others.
How to Interpret
Case Citations
S elected legal cases are used in this textbook to illustrate various legal principles.
At the end of each case summary is a citation, such as Moon Lake Convalescent
Center v. Margolis, 433 N.E.2d 956 (Ill. App. Ct. 1989). This citation, similar to a
street address, tells you where you can find this case among the many sets of reported
cases (called reporters) in the library. Most case citations end with information in pa-
rentheses, such as (Ill. App. Ct. 1989), which tells you what court (the Illinois Appellate
Court) decided the case and the year (1989) of the decision, but you do not need that
information when you are simply trying to locate a particular case in the library. The
small v. between the litigants’ names stands for “versus.” A case citation consists of
◗ The italicized case name—usually the name of the plaintiff and the defendant. In
our example, Moon Lake Convalescent Center (defendant) and Margolis (plaintiff).
◗ The name of the reporter(s) where the case is published ( Northeast Reporter,
2d series).
◗ The volume number(s) of the reporter(s) where the case is published (433).
◗ The page number of the volume where the case begins (956).
◗ The year the case was decided (1989).
◗ For federal Court of Appeals cases, a designation of the circuit; for federal District
Court cases, the state and judicial district where the court is located; for state
cases, an indication of the state if it is not apparent from the name of the reporter
(Illinois Appellate Court).

Therefore, our example case between Moon Lake Convalescent Center and
Margolis is found in volume 433 of the Northeast Reporter, 2d series, on page 956.
Abbreviations for other reporters (books) are:

A (Atlantic Reporter)
P (Pacific Reporter)
U.S. (United States Reporter)
F.Supp. (Federal Supplement)
F (Federal Reporter)
NE (Northeast Reporter)
NW (Northwest Reporter)
NYS (New York Supplement)
So (Southern Reporter)
xvii
SW (Southwestern Reporter)
xviii How to Interpret Case Citations

Most reporters have been published in two or more series, such as 2d, meaning
second series. The student should not be concerned with memorizing the names of the
reporters. The abbreviations for them are found at the beginning of most of the legal
research publications that we use. As you do research within your own state, you will
become familiar with the abbreviations that are most commonly used. Legal research
can be done through a law library or via the Internet from Lexis-Nexis, which is a sub-
scription service used by law firms and libraries.
About the Author
B onnie F. Fremgen, Ph.D., is a former associate dean of the Allied Health Program
at Robert Morris College and was vice president of a hospital in suburban
Chicago. She has taught medical law and ethics courses as well as clinical and
administrative topics. She has broad interests and experiences in the healthcare field,
including hospitals, nursing homes, and physicians’ offices. She currently has two
patents on a unique circulation-assisting wheelchair.
Dr. Fremgen holds a nursing degree as well as a master’s in healthcare admin-
istration. She received her Ph.D. from the College of Education at the University of
Illinois. She has performed postdoctoral studies in medical law at Loyola University
Law School in Chicago.
Dr. Fremgen has taught ethics at the University of Notre Dame, South Bend,
Indiana; University of Detroit, Detroit, Michigan; and Saint Xavier University,
Chicago, Illinois.

xix
This page intentionally left blank
Reviewers

FiFth edition reviewerS

Rosana Darang, MD Fort Lauderdale, FL
Bay State College Lori Warren Woodard, MA, RN,
Boston, Massachusetts CPC, CPC-I, CCP, CLNC
Amy DeVore, CPC, CMA (AAMA) Spencerian College
Butler County Community College Louisville, Kentucky
Butler, PA Mindy Wray, BS, CMA, RMA
Candace Lynn Doyle, M.S.Ed. ECPI—Greensboro Campus
Midlands Technical College Greensboro, North Carolina
West Columbia, South Carolina Andrew Rucks, BS, MBA, MD
Gail High, CMOA Adjunct Instructor—Health Care Ethics
YTI Career Institute—Altoona Campus American International College
Altoona, Pennsylvania Springfield, MA
Cecelia Jacob, MA Diana Alagna, RN, RMA, AHI, CPT
Southwest Tennessee Community College Program Director—Medical Assisting
Memphis, Tennessee Stone Academy
Ana M. Linville, M.Ed. BAAS, Waterbury, CT
MT(AMT), MLT(ASCP) Donna M. Rowan, MAT, RMA
University of Texas at Brownsville/Texas Program Coordinator—Medical
Southmost College Assisting
Brownsville, Texas Community College of Baltimore
Michelle Lovings, MBA County
Missouri College Baltimore, MD
Brentwood, Missouri George Strothmann, CPhT, RPhT
Lorraine Papazian-Boyce, MS, CPC Program Director—Pharmacy
Colorado Technical University Online Technician
Hoffman Estates Illinois Sanford-Brown Institute
Fort Lauderdale, FL
Donna M. Rowan, MAT
Harford Community College Lisa Huehns, MA. Ed, AHI(AMT)
Bel Air, Maryland Instructor—Allied Health
Lakeshore Technical College
George W. Strothmann, CPhT
Cleveland, WI
Sanford Brown Institute xxi
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