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Legal Aspects of Health Care Administration, Tenth Edition
by
George D. Pozgar
Publisher: Jones and Bartlett
Publishing Date: 2006/12/20
eText ISBN-10
0-7637-6231-8
eText ISBN-13
978-0-7637-6231-5
Print ISBN-10
0-7637-3927-8
Print ISBN-13
978-0-7637-3927-0
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Legal Aspects of Health Care Administration, Tenth Edition
by
George D. Pozgar
eTextbook $52.95
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Title Page, i
Copyright, ii
Contents, iii
Preface, xiii
Acknowledgments, xvii
Chapter 1. Historical Per...
Chapter 2. Introduction t...
Chapter 3. Tort Law, 27
Chapter 4. Criminal Aspec...
Chapter 5. Contracts and ...
Chapter 6. Civil Procedur...
Chapter 7. Corporate Stru...
Chapter 8. Medical Staff,...
Chapter 9. Nursing and th...
Chapter 10. Liability by ...
Chapter 11. Information M...
Chapter 12. Patient Conse...
Chapter 13. Legal Reporti...
Chapter 14. Issues of Pro...
Chapter 15. Patient Right...
Chapter 16. Acquired Immu...
Chapter 17. Health Care E...
Chapter 18. Professional ...
Chapter 19. Labor Relatio...
Chapter 20. Employment, D...
Chapter 21. Managed Care ...
Chapter 22. Tort Reform R...
Chapter 23. Patient Safet...
Chapter 24. Worldwide Sea...
Chapter 25. Journey to Ex...
Glossary, 489
Index, 495
Table of Contents
Title Page, i
Copyright, ii
Contents, iii
Preface, xiii
Acknowledgments, xvii
Chapter 1. Historical Perspective, 1
Early Hindu and Egyptian Hospitals, 1
Greek and Roman Hospitals, 1
Hospitals of the Early Christian Era, 2
Mohammedan Hospitals, 2
Early Military Hospitals, 3
Medieval Hospitals—The Dark Ages, 3
Hospitals of the Renaissance, 4
Hospitals of the 18th Century, 4
Early Hospitals in the United States, 5
Late 19th-Century Renaissance, 6
20th-Century Progress, 8
Health Care and Hospitals in the 21st Century, 9
Just a Beginning, 9
Chapter Review, 10
Review Questions, 10
Web Site Resources, 10
Chapter 2. Introduction to Law, 13
Sources of Law, 13
Government Organization, 18
Department of Health and Human Services, 21
Chapter Review, 24
Review Questions, 24
Chapter 3. Tort Law, 27
Negligence, 28
Summary Case, 36
Intentional Torts, 37
Strict/Products Liability, 46
Chapter Review, 50
Review Questions, 52
Chapter 4. Criminal Aspects of Health Care, 53
Criminal Law, 53
Criminal Procedure, 54
False Claims, 55
Kickbacks, 55
HIPAA and Health Care Fraud, 56
Falsification of Records, 59
Misuse and Theft of Drugs, 59
Physicians Can Be Victims of Fraud, 60
Patient Abuse, 61
Murder , 65
Petty Theft, 68
Sexual Assault, 69
Chapter Review, 69
Review Questions, 69
Chapter 5. Contracts and Antitrust, 71
Purpose of a Contract, 72
Types of Contracts, 72
Elements of a Contract, 73
Breach of Contract, 73
Corporate Contracts, 73
Partnerships, 74
Agents, 74
Independent Contractor, 75
Legality of Object, 75
Conditions, 75
Performance, 75
Nonperformance Defenses, 76
Statute of Limitations, 76
Remedies, 76
Employment Contracts, 77
Medical Staff Bylaws: A Contract, 80
Exclusive Contracts, 82
Restraint of Trade, 84
Federal Trade Commission, 84
Sherman Antitrust Act, 84
Hospital Staff Privileges, 86
Patient Transfer Agreement, 87
Insurance Contract, 89
Chapter Review, 90
Review Questions, 91
Chapter 6. Civil Procedure and Trial Practice, 93
Pleadings , 94
Discovery and Examination Before Trial, 96
Attorney-Client Privilege, 96
Incident and Investigative Reports, 97
Preparation of Witnesses, 97
Motions, 98
Pretrial Conference , 98
Motion to Dismiss, 98
Summary Judgment , 99
Notice of Trial, 99
Memorandum of Law, 99
The Court, 99
The Jury, 100
Subpoenas, 100
Burden of Proof, 101
Statutory Violation, 101
Policy and Procedure Violations, 101
Res Ipsa Loquitur, 101
Opening Statements, 103
Examination of Witnesses, 103
Evidence, 104
Expert Testimony, 108
Defenses Against Plaintiff's Allegations, 109
Closing Statements , 117
Judge's Charge to the Jury, 117
Jury Deliberation and Determination, 118
Awarding Damages, 118
Joint and Several Liability, 122
Appeals, 122
Execution of Judgments, 123
Chapter Review, 123
Review Questions, 124
Chapter 7. Corporate Structure and Liability, 127
Authority of Health Care Corporations, 128
Corporate Organization and Committee Structure, 129
Sarbanes-Oxley Act, 131
Doctrine of Respondeat Superior, 131
Corporate Negligence, 133
Duties of Health Care Corporations, 135
CEO/Administrator's Role and Responsibility, 145
Medical Staff, 147
Corporate Reorganization, 147
Chapter Review, 154
Review Questions, 155
Chapter 8. Medical Staff, 157
Medical Staff Organization, 157
Medical Director, 158
Medical Staff Privileges, 159
Physician Supervision and Monitoring, 162
Disruptive Physicians, 162
Physician Negligence, 163
Misrepresentation of Credentials, 163
Limitations on Requested Privileges, 163
Misdiagnosing Unconscious Accident Victim, 163
Failure to Respond to Emergency Call, 163
Delaying Treatment, 165
Inadequate History and Physical Examinations, 165
Choice of Treatment: Two Schools of Thought, 166
Failure to Order Diagnostic Tests, 166
Failure to Promptly Review Test Results, 167
Efficacy of Test Questioned, 167
Imaging Studies/Radiology, 168
Failure to Obtain Second Opinion, 170
Failure to Refer, 170
Practicing Outside Field of Competency, 171
Timely Diagnosis, 171
Misdiagnosis, 173
Failure to Read Nursing Notes, 175
Medication Errors, 176
Failure to Follow Different Course of Treatment, 177
Failure to Provide Informed Consent, 177
Surgery, 177
Improper Performance of a Procedure, 180
Failure to Maintain an Adequate Airway, 180
Pathologist Misdiagnoses Breast Cancer, 180
Aggravation of a Preexisting Condition, 181
Loss of Chance to Survive, 181
Possibility of Survival Destroyed, 182
Lack of Documentation, 182
Premature Discharge, 183
Failure to Follow Up, 183
Infections, 183
Obstetrics, 184
Psychiatry, 185
Abandonment, 189
Physician-Patient Relationship, 189
Chapter Review, 190
Review Questions, 191
Chapter 9. Nursing and the Law, 193
Broadening Scope of Practice, 195
Nursing Diagnosis, 195
Nurse Licensure, 195
American Nurses Association, 196
National League for Nursing, 196
Nursing Negligence, 196
Nurse Anesthetist, 199
Nurse Practitioner, 200
Clinical Nurse Specialist, 201
Nurse Midwife, 201
Nurse Managers, 201
Special-Duty Nurse, 202
Float Nurse, 202
Nursing Assistant, 202
Agency Staff, 203
Student Nurses, 203
Medication Errors, 204
Negligent Injection, 206
Failure to Follow Physician's Orders, 207
Failure to Record Patient's Care, 207
Failure to Identify Correct Patient, 208
Burns, 208
Infections, 208
Inappropriate Care, 209
Delay in Treatment, 209
Failure to Follow Instructions, 210
Two Standards: Which is Right?, 210
Failure to Monitor Vital Signs, 211
Failure to Report Physician Negligence, 213
Failure to Question Discharge, 213
Failure to Note Changes in Patient's Condition, 215
Prompt Notification Required, 215
Failure to Report Deteriorating Condition, 216
Failure to Report Patient Symptoms, 216
Timely Reporting of Patient Symptoms, 216
Failure to Report Defective Equipment, 216
Failure to Correctly Transcribe Telephone Orders, 216
Switching of Infants, 216
Patient Falls, 217
Restraints, 217
Negligent Care, 218
Surgery: Foreign Objects Left in Patients, 218
Improper Sterilization, 219
Negligent Procedure/Cutting an IV Tube, 220
Monitor Alarm Disconnected, 220
Chapter Review, 221
Review Questions, 221
Chapter 10. Liability by Departments and Health Care Professionals, 223
Chiropractor, 224
Dentistry, 225
Emergency Department, 227
Emergency Medical Treatment Under EMTALA, 228
Laboratory, 235
Medical Assistant, 238
Medical Imaging, 238
Nutritional Services, 240
Paramedic, 240
Pharmacy, 241
Physical Therapy, 245
Physician's Assistant, 246
Podiatrist, 246
Respiratory Therapist, 246
Security, 247
Sexual Improprieties, 248
Surgery, 249
Certification of Health Care Professionals, 250
Licensing Health Care Professionals, 250
Suspension and Revocation of License, 251
Helpful Advice for Caregivers, 251
Chapter Review, 252
Review Questions, 252
Chapter 11. Information Management and Health Care Records, 255
Managing Information, 256
Contents of the Medical Record, 256
Ownership and Release of Medical Records, 256
Retention of Records, 259
Computerized Records, 260
Medical Record Battleground, 261
Patient Objects to Record Notations, 261
Failure to Record Patient's Condition, 261
Falsification of Records, 261
Tampering with Record Entries, 264
Inaccurate Record Entries, 265
Rewriting and Replacing Notes, 265
Illegible Entries, 266
Failure to Maintain Records, 266
Improper Record Keeping, 266
Charting by Exception, 266
Charting and Reimbursement, 267
Incomplete Records: Suspension of Privileges, 267
Legal Proceedings and the Medical Record, 267
Confidential and Privileged Communications, 267
Health Insurance Portability and Accountability Act, 272
Charting—Some Helpful Advice, 274
Chapter Review, 275
Review Questions, 276
Chapter 12. Patient Consent, 277
Introduction, 278
Informed Consent, 278
Assessing Decision-Making Capacity, 278
Nurses and Informed Consent, 279
Physicians and Informed Consent, 279
Course of Treatment: Patient's Decision, 281
Lack of Consent, 281
Information to be Disclosed, 282
Hospital's Role in Informed Consent, 285
Adequacy of Consent, 285
Verbal Consent, 286
Written Consent, 286
Consent for Routine Procedures, 286
Consent for Specific Procedures, 287
Temporary Consent, 287
Implied Consent, 287
Statutory Consent, 287
Judicial Consent, 288
Who May Consent, 288
Right to Refuse Treatment, 291
Release Form, 292
Exculpatory Agreements, 292
Claims: Proving Lack of Consent, 292
Claims: Available Defenses, 293
Informed Consent: Dialogue Between Physician and Patient, 293
Chapter Review, 294
Review Questions, 295
Chapter 13. Legal Reporting Requirements, 297
Child Abuse, 297
Elder Abuse and Neglect, 299
Communicable Diseases, 300
Births and Deaths, 300
Suspicious Deaths, 300
Health Care Quality Improvement Act, 300
National Practitioner Data Bank, 301
Incident Reporting, 302
Sentinel Events and The Joint Commission, 303
Corporate Compliance Programs, 305
Chapter Review, 306
Review Questions, 306
Chapter 14. Issues of Procreation, 309
Abortion, 309
Sterilization, 318
Artificial Insemination, 319
Wrongful Birth, Life, and Conception, 320
Chapter Review, 324
Review Questions, 325
Web Site Resources, 326
Chapter 15. Patient Rights and Responsibilities, 329
Patient Self-Determination Act, 330
Patient Rights, 330
Patient Responsibilities, 338
Patient Advocacy, 341
Chapter Review, 342
Review Questions, 342
Web Site Resources, 342
Chapter 16. Acquired Immune Deficiency Syndrome, 345
Spread of AIDS, 345
AIDS and Health Care Workers, 347
Surgeon's Refusal to Treat HIV Patient, 347
Suspension of Surgical Privileges, 348
Confidentiality, 348
Right to Treatment, 350
Mandatory Testing, 350
News Media and Confidentiality, 350
Discrimination, 351
Negligence, 352
Criminal Actions , 354
Reporting Requirements, 354
AIDS Emergency Act, 354
Occupational Safety and Health Act, 354
AIDS Education, 354
Chapter Review, 355
Review Questions, 356
Chapter 17. Health Care Ethics, 357
Ethics, 357
Morality, 360
Virtues and Values, 360
Situational Ethics, 360
Autonomy, 360
Organizational Ethics, 361
Professional Ethics, 361
Paternalism, 362
Ethics Committee, 362
Autonomy and Removal of Life Support, 364
Euthanasia, 370
Advance Directives, 374
Patient's Obligation to Make Medical Wishes Known, 379
Futility of Treatment, 379
Withdrawal of Treatment, 380
Do-Not-Resuscitate Orders, 381
Autopsy, 382
Organ Donations, 384
Research and Experimentation, 385
Chapter Review, 388
Review Questions, 389
Web Site Resources, 389
Chapter 18. Professional Liability Insurance, 393
The Insurance Policy, 394
Liability of the Professional, 394
The Insurance Agreement, 395
Medical Liability Insurance, 397
Self-Insurance, 398
Trustee Coverage, 398
Mandated Medical Staff Insurance Coverage, 399
Investigation and Settlement of Claims, 399
Chapter Review, 400
Review Questions, 400
Chapter 19. Labor Relations, 403
U.S. Department of Labor, 404
Unions and Health Care Organizations, 404
National Labor Relations Act, 404
Norris-LaGuardia Act, 405
Labor-Management Reporting and Disclosure Act, 406
Fair Labor Standards Act, 406
Civil Rights Act, 407
Occupational Safety and Health Act, 407
Rehabilitation Act, 409
Family and Medical Leave Act, 409
State Labor Laws, 409
Limitations on Number of Bargaining Units, 411
Labor Rights, 411
Management Rights, 412
Equal Employment Opportunity--Affirmative Action Plan, 413
Patient Rights During Labor Disputes, 414
Injunctions, 414
Administering a Collective Bargaining Agreement, 414
Discrimination in the Workplace, 414
Chapter Review, 419
Review Questions, 420
Web Site Resources, 420
Chapter 20. Employment, Discipline, and Discharge, 423
Employment at Will, 424
Public Policy Issues, 425
Interference with Employment Activities, 427
Defamation Actions, 427
Retaliatory Discharge, 427
Fairness: The Ultimate Test, 428
Unemployment Compensation, 429
Termination, 430
Effective Hiring Practices, 433
Clear Communications, 434
Chapter Review, 434
Review Questions, 435
Chapter 21. Managed Care and Organizational Restructuring, 437
Common Models of Managed Care Organizations, 437
Horizontal Consolidations, 439
Federally Qualified HMOs, 439
State Laws, 440
Case Management Firms, 440
Third-Party Administrators, 440
Utilization Review, 440
Liability for Nonparticipating Physicians, 441
Employee Retirement Income Security Act, 441
Reducing Exposure to Liability, 442
Health Care Quality Improvement Act of 1986, 442
Managed Care and Legal Actions, 442
Chapter Review, 446
Review Questions, 447
Chapter 22. Tort Reform Risk Reduction, 449
Arbitration and Mediation, 450
Structured Awards, 450
Pretrial Screening Panels, 450
Collateral Source Rule, 451
Contingency Fee Limitations, 451
Countersuits: Frivolous Claim, 451
Joint and Several Liability, 452
Malpractice Caps, 452
No-Fault System, 452
Peer Review, 452
Professional Misconduct, 453
Regulation of Insurance Practices, 454
Requirement Implementation of Best Practices, 454
Risk Management, 454
Continuous Quality Improvement, 455
National Health Care Reform, 458
Chapter Review, 459
Review Questions, 459
Chapter 23. Patient Safety and Zero Tolerance, 461
Developing a Culture of Safety, 461
Tool for Evaluating Safe Patient Care, 463
Chapter 24. Worldwide Search, 475
Introduction, 475
Ethics-Related Web Sites, 477
Legal-Related Web Sites, 478
Government-Related Web Sites, 478
Medical-Related Web Sites, 478
International Medical-Related Web Sites, 481
Chapter 25. Journey to Excellence, 483
A Patient's Illness: A Difficult Journey, 483
The Journey , 484
Ideas for Getting Started, 485
Adopt a Hospital, 486
Post Your Dream Boards, 487
Glossary, 489
Index, 495
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