Legal Issues with Physicians - Term Paper Example

? Legal Issues with Physicians No: Legal Issues with Physicians Introduction Study of the healthcare legislation of the United States of America indicates many aspects relating to Tort law, contracts, antitrust, insurance, and so on. The figures of 1990 show that the United States of America spent around 500 billion USD on healthcare in a year, which, of course, is more than 11 percent of GDP. During the years 1991 to 2012, noticeable increase in the expense on the health programs has been witnessed. As per the predictions of CMS, the expenses may further grow by 7.3% yearly. This year USA will spend 3.1 trillion USD on healthcare programs. Medical Malpractice The key area within the healthcare law is medical malpractice. Professionally, the term is used for delinquency or associated with a person having less than the required skills in medical treatment or providing patients with medical services. The victims that fall prey to medical malpractice are eligible for compensation with regard to their physical injuries (Sage & Kersh, 2006). A physician at fault will be accountable for medical misconduct, provided that the patient, who faced the misconduct, has established that medical practitioner crossed the limits in which the practitioner is bound to work that may be set of rules/procedures of accepted standards. In this case, the person, who receives damage, should be compensated, since the physicians violated the set procedure of care that caused the injury (Sage & Kersh, 2006). Hence, in order to protect oneself against the sizeable costs of such claims, the physician will definitely seek refuge in the physician’s malpractice insurance cover. It has been observed that physicians’ malpractice costs reach billions of dollars each year. This has further inflamed substantial costs of healthcare. As far as the specialties are concerned, 50 percent costs of medical services go to providers’ malpractice premiums. Many physicians found themselves on a tight rope as the trend of misconduct premiums raised, e.g., the “defensive medicine” by the way of methods and analysis administered by the physicians to the patients, although they were not necessary. The record of such attitude of a physician speaks for it and attracts malpractice compensation. Several studies in this respect show that big amounts are spent on defensive tests and procedures each year (Sage & Kersh, 2006). The misconduct accountability is able to be extendable to hospitals and other such facilities. For serious damages, plaintiff patient may have the benefit to avail additional compensation. Hence, we have found that the complicated historical doctrine disallows the corporate practice of not permitting physicians to be employed. In the United States, the government does not allow the medical practitioner to practice medicine corporately, claimants might not be given the right to lodge medical malpractice claims under HMOs or hospitals where the doctors are not considered employees of the hospital (Sage & Kersh, 2006). In the remote past, it was a difficult task to track malpractices information with regard to the physicians. In the United States of America, the federal government is responsible for maintaining the desired data bank of practitioners at national level besides misconduct values about $20,000. For the purpose of secrecy, it is not in the reach of public. However, the details are being passed on to medical boards, hospitals, and other organizations for their reference. Keeping in mind the great demand of patients for cited information, a number of states is in the process of legislation so as to make it easily available to all people involved. We may quote here the example of Washington State, which provides access to information about physicians through certain channels: a) insurance company claim records, b) Data Bank of the Nationwide Medicine Practitioners, and c) medical board. The Massachusetts State follows the suit of Washington State, whereas California, New York and Florida are actively adopting similar practice (Lamm, 2004). To make rule for said touchy area aims at complying with the historical rule devised for hospitals that enables them to act reasonably and justifiably in their decisions to treat patients. Hospitals should know about common practices to provide medical treatment to all patients in case of emergency, to create expectation with regard to their care whenever and wherever a patient searches ease in an “unmistakable emergency.” However, changed care in case of responsive emergency might help avoiding lifelong damage or life loss. Therefore, there is no matter of surprise that hospitals are held responsible for not complying with the reasonable duty standards as far as admissions of patients for treatment are concerned (Lamm, 2004). Keeping in view the exorbitant service charges of emergency care, some private hospitals as far back as 1980 are reluctant to admit indigent patients in their hospitals. They prefer to refer them to emergencies of public healthcare centers. The hospitals, which receive federal assistance, cannot deny emergency treatment just on the ground that the patient is unable to afford expenses of the hospital. EMTALA, a government sponsored body, allows proceedings and organizational fines for medical health care centers which are not abiding by the rules and regulations. The federally assisted hospitals are bound to receive patients for treatment of patients that also take patients whose health condition is delicate and those women having pregnancy. EMTALA exonerates itself provided he or she might be comforted when a patient is in better condition and his or her transfer to another hospital may not add material deterioration to his or her health condition (Lamm, 2004). The Court in the case of Roberts v. Galen of Virginia held that patients in emergency medical condition, if transferred from one hospital to another hospital before being medically fit, might have the right to take legal action against the hospital. The Court interprets that EMTALA allows patients sue the hospital under the stabilization requirement. In this category, dumping patients are also included. According to the decision, a patient may place a claim without taking into account if the medicine practitioner had given the patient’s shift order as many patients have no health insurance, or further influential reasons. The subordinate courts have divergent views on the question of further features of EMTALA, besides the influenced patient should prove unjustified reason. It is true that all sorts of conflicts have not been resolved (Sage & Kersh, 2006). The identical federal statutes require hospitals to treat all those patients having capacity to pay off the bill. Therefore, hospitals that receive such funds and involve facilitation activities are excluded from any “otherwise handicapped criterion” (Sage & Kersh, 2006). Common Theme A common scenario that comes to the notice is wrong-site surgery due to miscommunication between the three: a) doctor(s) b) members related to the health care team and c) the ill person. It is a matter of fact that during surgical process and the pre-operation procedures, communication is necessary and is utilized for verifying operating location. Pre-operative assessment of a patient is a must before initiating surgery. As the first step, assurance of availability of all kinds of information relating to patient in the operation theatre is essential, which should be checked and verifies by the heath care staff well before the beginning of the operation. A conference in this respect by the team leader of surgical operation regarding roles of the teams and what is expected from the team is required. Operating team must have the knowledge of its members before operation. It is also necessary for the surgical team to make patients or his or her nominee part and parcel of the operative process, informing him or her about the exact location of operation. A formal procedure to finalize the correct patient and the identified surgical site requires participation of all stakeholders. After performing the operation, it is important to verify the location and the operation staff at which the operation is being done and patient’s relevant medical history by the operating team is utmost important (ACOG, 2010). The credentialing process remains the responsibility of each hospital. The required guidelines and proficient documentation should be a published competency data with no minimum numbers of procedures in order to have privileges. It should be the sole responsibility of team leader to recommend individuals for privileges and other areas to be performed by members of his or her department (SAGES, 2007). Who is to blame? A patient who is approaching a doctor must have an expectation of healing up of wounds/treatment of illness due to knowledge and skills that a doctor usually has. The relationship established between a doctor and a patient comes under the law of Tort. By virtue of the profession, a doctor owes certain liabilities to the patients. Therefore, crossing the bounded limits of committed duties becomes a reason of misconduct and doctors make their self responsible for that. The medical officer has the responsibility to seek former reports of patient before certain investigative examinations and therapies are done. Accordingly, a patient may seek redress of grievances at the hands of a doctor or his or her teammates from the Consumer Courts. In the mentioned scenario, the case laws become the foundation of law in deciding the issues under discussion alighted as a result of fair or mistaken medical treatment (Pandit & Pandit, 2009). Conclusion The above discussion reveals that it is a necessary duty of a hospital to perform in superior belief and with sensible care to make assurance that a surgeon has qualified to practice the process he or she is approved rights to perform. In other situation, both the surgeon and the hospital are liable for prosecution and compensation under the American laws. References Lamm, R. D. (2004). The brave new world of health care. Golden, Colo.: Fulcrum. Pandit, M. S., & Pandit, S. (2009). Medical negligence: Coverage of the profession, duties, ethics, case law, and enlightened defense – A legal perspective. Indian Journal of Urology, 25(3). Sage, W. M., & Kersh, R. (2006). Medical malpractice and the U.S. health care system. Cambridge: Cambridge University Press. The American College of Obstetricians and Gynecologists (ACOG). (2010). Patient safety in the surgical environment. Retrieved from http://www.acog.org/Resources_And_Publications/Committee_Opinions/Committee_on_Patient_Safety_and_Quality_Improvement/Patient_Safety_in_the_Surgical_Environment The Society of American Gastrointestinal and Endoscopic Surgeons (SAGES). (2007). Granting of privileges for gastrointestinal endoscopy. Retrieved from http://www.sages.org/publications/publication.php?id=11 Read More