An Introduction to Healthcare Law

Introduction

Health care law is not simple. It is derived from many sources, and because it deals with things that are often out of one's control such as disease processes, it is even more complex. Then, throw in the variety of agencies that regulate the delivery of health care and it becomes even more complicated. Yet, as Staff Nurses, Managers and Administrators, we are all held accountable to knowing what does and does not apply to our facility, staff, medical staff, and many other entities. You must have an understanding of governmental and other agencies that govern this industry and it helps to know on what basis the law is based. We will explore those in some detail.

Likewise, criminal law has an impact on the health care industry. It is important to distinguish between intentional torts and the often complicated concept of negligence. While you will always have legal counsel available when needed in your facility, you must have a working knowledge of these concepts to implement strategies to reduce your liability. Unfortunately, it is inevitable that you will be faced with these issues at some point during your careers, either personally or related to acts of your employees or co-workers.

The Legal System and Sources of Law

Our system of government was based on the concept of federalism and checks and balances. Recall that we have a central federal government with fifty state governments with three branches of government. The purpose of this was to separate power and create a system where each entity keeps an eye on the other. Does this make sense to you? This also means that we must be aware of our role in knowing how our individual states might regulate or administer health care compared to national or federal regulations. States can set laws that are more restrictive than the federal laws as long as they are not violative of certain rights as guaranteed to all citizens. This is important to know, because it means that there may be fifty slightly different sets of rules. Sound complicated, well it is. Keep in mind, too, that there are federal and state court systems. Each has advantages and disadvantages, and depending on which law or agency is at issue, many times determines in which court system you end up.

Laws are derived from a variety of sources. Many come from Constitutional and Statutory Sources. The Constitution applies to everyone in every state. There are certain federal statutes which states must adhere to, but recall that each state has its own constitution with other statutes or rules. Again, these can be more restrictive than federal statutes. I cannot stress the importance of having an understanding of those that govern your facilities. Another important source, and one that I use daily, is common law or case law. This body of law is derived from court decisions. Basically, this body of law is based on how a judge or court interprets the law to a particular case. It often sets new precedents that other subsequent cases follow.

Administrative Law

Much of health care is regulated or governed by rules and regulations of agencies established by Congress or state governments. This body of law is called Administrative Law. Begin to think about these agencies and what they mean to you. Some include Medicare, Medicaid, the IRS, and State licensing boards. Others include the JCAHO, NCQA, and other industry and professional associations. Violation of these rules can result in criminal or civil actions. We will talk more about these in later issues.

Criminal Law

Criminal laws were established to protect us, the public, from wrongs by others. This body of law defines socially intolerable conduct and sets up punishments to address these wrongs. It requires one to prove what has been done beyond reasonable doubt. This is important because it is a heavy burden to prove. Most criminal acts must show a criminal intent. It must have been done with purpose. Statutes usually provide specific sanctions depending on the severity of the criminal act. The Constitution set up important safeguards to protect citizens against wrongful prosecution. Most of these are in Amendments to the Constitution.

Civil Law

Civil Law can be described as relationships between persons and the government. Anything that is not criminal. Sound simple? It is furthered divided into tort law (acts resulting in harms to another) and contract law (promises or agreements). We will see that much of health care focuses in these areas.

Tort-a wrongful act committed against another person or property. There must be harm. A tort may be intentional or unintentional. Intentional torts are usually those that appear obvious. Here are some intentional torts and examples related to the healthcare setting:

- assault (threatening to harm a patient)

- battery (performing surgery or a procedure on a patient without permission)

- false imprisonment (refusing to allow a patient to leave the facility when he/she wants to)

- defamation of character (making a negative statement about another physician's or nurse's ability)

- fraud (promising a cure or recovery)

- invasion of privacy (permitting personal information to become public without the patient's permission)

An unintentional tort includes negligence. This is the tort that is most often problematic as it involves the issue of a standard of care and the violation of that standard-many times called Medical or Professional Malpractice. Most cases involve this type of tort. We must be aware of applicable standards of care for all health care professionals practicing in our facilities. This is most complicated. Also, what standard of care is applied? I will tell you that it is becoming a national standard. In other words, what a Specialist is doing in New York should be the same as one in rural Florida. You can see that it is getting more complicated. This issue will be discussed in more detail in future issues.

Contract Law-this type of law addresses a breach or neglect of a legally binding agreement between two parties. Basically, a contract is a voluntary agreement between two parties (it should be in writing) where each side benefits. Something of value, consideration, is required. This consideration may be money or it may be love and affection. A breach occurs when either party fails to comply with the terms. There are many examples in the health care field - failure to perform a procedure, provide competent care, provide adequate staffing, safe and comfortable facility, the list goes on and on. Additionally, contracts may be related to goods and products delivered to our facilities, staffing provided by agencies and physician services. Keep in mind, too, that it might involve contracts with insures and third party services. It gets more difficult with each step, doesn't it?

Our Role

Let's try to put things in perspective. There is no way that we are going to be able to know everything about every law or legal issue out there. Nor are we expected to do so. However, we must know the basics and know what is right and wrong. We must know when and who to consult when issues arise. We must begin to formulate an understanding of liability and what is going to be involved in the legal process. What is our role to be in all this? This is the question that I want each of you to begin to think about and explore. We will examine many of these topics in the coming months.

In future issues, I want to explore issues that interest you. Please send me suggestions at [email protected].