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Glossary of Ethics-7,5,8,9

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Each corporation has a governing body that has ultimate...
responsibility for the operation of the organization
Governing body is legally responsible for...
establishing and implementing policies regarding the management and operation of the organization
Responsibility for the day-to-day operations of an organization is generally accomplished by appointing a _______
CEO (chief executive officer)
Although health care organizations may operate as _________ or _________, most function as __________
sole proprietorships; partnerships; corporations
An important source of law applicable to governing boards and to the duties and responsibilities of their members is found in...
state incorporation laws
Duties of governing board members can include...
Holding meetings, establishing policies, being financially scrupulous, providing adequate insurance, and paying taxes
Health care organizations have certain powers expressly or implicitly granted to them by...
state statutes
Members of a governing body have both ______ and _______ corporate authority
express; implied
Power specifically delegated by statute
Express corporate authority
A health care corporation derives its authority to act from the laws of the ______ in which it is incorporated
state
Hospitals have a(n) __________ duty to select competent physicians and supervise physicians
implied
Acts in which a governing body acts beyond its scope of authority, either expressed or implied
Ultra vires acts
Ultimate responsibility for the functioning of a health care corporation rests with the...
governing body
The business of a governing body is generally conducted through...
a variety of committees
__________________ is invoked in cases in which authority not specifically granted in the articles of incorporation is required to carry out its purpose
Implied corporate authority
Executive committee...
has the authority to act on behalf of the full board
Bylaws committee...
reviews and recommends bylaws to the governing body
Finance committee...
oversees financial affairs and makes recommendations to the governing body
Joint conference committee...
acts as a forum for discussion of policy and practice matters regarding patient care
Nominating committee...
develops and recommends criteria for governing body membership
Patient care committee...
reviews the quality of patient care and makes recommendations for its improvement
Audit and regulatory compliance committee...
assesses various functions and control systems of the organization and provides management with analysis and recommendations for activities reviewed
SOX
SARBOX; Sarbanes-Oxley Act of 2002
Why was SOX enacted?
To protect investors by improving the accuracy and reliability of corporate disclosures. It was enacted as a response to executive misconduct in companies such as Enron and Tyco
SOX requires top executives of public corporations to...
vouch for the financial reports of their companies
Major provisions of SOX include:
-Certification of financial reports by CEOs and CFOs
-Ban on personal loans to any executive officer and director
-Accelerated reporting of trades by insiders
-Prohibition on insider trades during pension fund blackout periods
-Public reporting of CEO and CFO compensation and profits
-Inside audit board independence
-Criminal and civil penalties for securities violations
-Obligation to have an internal audit function, which will need to be certified by external auditors
-Significantly longer jail sentences and larger fines for corporate executives who knowingly misstate financial statements
-Codes of ethics and standards of conduct for executive officers and board members








_____________ organizations are not legally required to adopt SOX
Not-for-profit
Respondeat superior, aka _________, means "___________"
vicarious liability; let the master respond
In ___________, an employer is answerable for the torts committed by employees
vicarious liability
What is respondeat superior?
A legal doctrine holding employers liable, in certain cases, for the wrongful acts of their agents (employees)
The question of liability frequently rests on whether persons treating a patient are ________ or __________
independent agents; employees of the organization
Employer, if sued, may seek _______ from the employee
indemnification
Hospitals can be __________ for the negligent acts of independent contracted emergency department physicians
vicariously liable
If a physician is not subject to supervision or control by a hospital, is the hospital liable for the physician?
No
An independent contractor is responsible for his or her...
own negligent acts
Is an officer or director of a corporation personally liable for the torts of corporate employees?
No. He/she is only liable if he/she authorized, directed, or participated in a tortious act
What is corporate negligence?
A doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed to the patient, which is to ensure the patient’s safety and well-being while at the hospital. Corporate negligence occurs when a health care corporation fails to perform those duties it owes directly to a patient or to anyone else to whom a duty may extend.
Describe the organization, responsibilities, duties, and legal risks of a governing body.
The governing body of a health care corporation ideally includes representatives from both the community and the organization’s medical staff. Business of a governing body is generally conducted through a variety of committees. A governing body has the ultimate responsibility for the operation of the organization. The governing body oversees and controls the corporation’s activities. Its duties include appointing a CEO; complying with the law; complying with Joint Commission standards if it is accredited by the Joint Commission; holding meetings; establishing policies; avoiding self-dealings and conflicts of interest; being financially scrupulous; providing adequate staff, facilities, equipment, and insurance; providing a safe environment; and paying taxes. It is legally responsible for establishing and implementing policies for the management and operation of the organization.
Why is the Darling case described as a benchmark case?
In the Darling case, the court enunciated a corporate negligence doctrine under which hospitals have a duty to provide an adequately trained medical and nursing staff and to establish policies and procedures (such as credentialing, evaluation, and review) for monitoring the quality of medicine practiced within the hospital. The hospital was found liable for the negligent acts of its employees and physicians.
Does the legal doctrine respondeat superior apply to an independent contractor? Explain your answer.
In general, no. An independent contractor is responsible for his or her own negligent acts, and there is no liability on the theory of respondeat superior. However, there are some cases in which an organization may be held liable for an independent contractor’s negligence. For example, if independent contractor status is not readily known to the injured party, the organization may be liable. Also, an employer is liable for the torts or negligence of an independent contractor in certain circumstances, like negligence of the employer in selecting, instructing, or supervising the contractor.
Courts first recognized that hospitals could be liable for the negligence of their employees under...
the theory of respondeat superior
Nondelegable duties that hospitals owe directly to their patients include duties to:
-Use reasonable care in the maintenance of safe facilities and equipment
-Select and retain competent physicians
-Oversee all persons who practice medicine within their walls
-Formulate, adopt, and enforce rules and policies to ensure quality care


What was the benchmark case in the health care field that had a major impact on the liability of health care organizations?
Darling v. Charleston Community Memorial Hospital
Health care organizations have a responsibility to ensure the _____ of their medical staffs and to ______ the quality of medical treatment rendered on their premises.
competency; evaluate
A hospital is liable to a patient under the doctrine of ___________ for the negligence of independent physicians and surgeons who are neither employees nor agents of the hospital.
corporate negligence
Joint liability is based on the concept that...
all joint or concurrent tort-feasors are independently at fault for their own wrongful acts
Both a ______ and its _________ can be held jointly liable for damages suffered by patients
hospital; physicians
Duties of health care corporations include:
-Appoint a CEO
-Comply with the law
-Comply with Joint Commission standards
-Provide timely treatment
-Avoid self-dealing and conflicts of interest
-Provide adequate staff
-Provide adequate facilities and equipment
-Provide adequate insurance
-Be financially scrupulous
-Require competitive bidding
-Provide a safe environment
-Prevent falls
-Safeguard valuables











Administrators must be licensed in accordance with ________ law
state
Can health care organizations be held liable for delays in treatment that result in injuries to their patients?
Yes
Conflict of interest is presumed to exist when a board member or a firm with which he/she is associated with...
may benefit or lose from the passage of a proposed action
What does "RACE" stand for?
Rescue or remove patient, sound an Alarm, Contain fire, Extinguish fire
How can fall frequency be reduced?
Maintenance of a safe environment as well as ongoing patient and staff education
CEO is responsible for supervision of...
administrative staff and managers who assist in the daily operations of the organization
CEO derives authority from...
owner or governing body
Governing body should ensure that medical staff bylaws, rules, and regulations include:
-Applilcation requirements for clinical privileges and admission to the medical staff
-A process for granting emergency staff privileges
-Requirements for medical staff consultations
-A peer-review process
-A process auditing medical records
-A process for addressing disruptive physicians and substance abuse
-A process for instituting corrective action





Disciplinary actions can take the form of...
a letter of reprimand, suspension, or termination of privileges
The permissible boundaries of practice for health care professionals; defines the actions, duties, and limits of various health care professionals
Scope of practice
Joint Commission requires __ forms of patient identification before rendering care or treatment
2
Falls represent the _____ leading cause of death among senior citizens
fifth
Mortality rate from falls for people 75+ is ___x higher than those in the 65-74 age group
5
If you fail to report deteriorating condition so patient can be given prompt care, you are...
negligent
Organizations are attempting to develop restraint-free environments because of...
patient rights issues, injuries, and improper and indiscreet use of restraints
When a monitor alarm is disconnected in breach of orders, and monitor fails to warn those caring for patient about patient distress, who is liable?
All those caring for patient
What is a contract?
A special kind of agreement, either written or oral, that involves legally binding obligations between two or more parties
Major purpose of a contract is to...
specify, limit, and define the agreements that are legally enforceable
Contracts minimize ___________ and offer a means for the parties of a contract to resolve any _________ that may arise
misunderstandings; disputes
Describe the differences between an express and an implied contract.
An express contract is one in which the parties have an oral or written agreement. An implied contract is one that is inferred by law and is based on the conduct of the parties, such as a handshake.
What are the elements of a contract?
-Offer/communication
-Consideration
-Acceptance (must have a meeting of the minds, be definite and complete, have a duration, and be complete and conforming)



Discuss the remedies available for nonperformance of a contract.
Remedies for nonperformance of a contract include:
-Specified performance of duties set forth in contract
-Monetary (compensatory) damages
-General and/or consequential damages


Discuss the importance of disclaimers in employee handbooks.
Unless employee handbooks provide legally acceptable disclaimers, employee handbooks can be seen as a binding contract between employer and employee.
Discuss why the courts often consider medical staff bylaws a contract.
If an employer presents the bylaws to an employee, and that employee accepts and agrees to abide by the terms set forth in the bylaws, then the bylaws can be considered a contract between employer and employee.
What is an insurance contract?
In an insurance contract, the insurer has an obligation to indemnify the insured for losses caused by specified events. In return, the insured must pay a fixed premium during the policy period.
Discuss the importance of delineating clinical privileges.
Delineation of clinical privileges is the process by which the medical staff determines what procedures a physician is authorized to perform based the physician’s credentials. This process helps to ensure that only physicians who are competent in performing a procedure are allowed to perform that procedure.
Why is it important that the governing body approve the appointment and reappointment of physicians to the medical staff?
The governing body has ultimate responsibility for selection of the medical staff and ensuring that members of the medical staff are competent and qualified. The governing body can be held liable for failure to adequately screen physicians.
Is a poor outcome always an indication of a negligent act? Explain.
No. A physician won’t be held liable for exercising best judgment in following a course of treatment that is supported by a reputable, respected body of medical experts. A physician would not be considered negligent if he or she did not deviate from the accepted standard of care.
When is a physician considered to have abandoned his or her patient?
When the physician terminates the physician-patient relationship by a unilateral act of the physician and doesn’t provide notice to the patient
Contract in which one party, but not the other, has the right to escape from its legal obligations under the contract
Voidable contract
Contract in which something remains to be done (performed) by one or more of the parties
Executory contract
Contract in which all of the obligations of the parties have been performed fully
Executed contract
Contract that is a valid, legally binding agreement
Enforceable contract
Contract in which, because of some defect, no legal remedy is available if breached by one of the parties to the contract
Unenforceable contract
Real estate or interests in real estate
Realty
Movable objects, with the exception of money and securities
Goods
Human energy
Services
The law will enforce contracts only when they are executed between persons who are ________
competent
What classes of persons may be considered incompetent, or lacking in legal capacity, to make a binding contract?
Minors, insane, prisoners
A promise by one party to do (or not to do) something if the other party agrees to do (or not do) something
Offer
Are preliminary negotiations offers?
No
What is consideration?
When each party to a contract gives up something of value in exchange for something of value
Only when _________ has been given will a court treat an agreement as a contract.
legal consideration
Upon proper ________ of an offer, a contract is formed.
acceptance
What is meeting of the minds?
Mutual assent; parties must understand and agree on the terms of the contract
Terms of a contract should be _________ and _________
definite; complete
Offeror may revoke an offer any time prior to a valid __________.
acceptance
When offeror revokes the proposal, the revocation is not effective until...
the offeree receives it
Once the offeree has accepted the offer, any attempt to revoke the agreement...
is too late and is invalid
Acceptance must comply with all terms of the...
offer
When does breach of contract occur?
When there is a violation of one or more terms of the contract
Individual who agrees to undertake work without being under the direct control or direction of another
Independent contractor
___________ are personally responsible for their own negligent acts
Independent contractors
Whether a physician is an ______ or an _________ is of primary importance in determining liability for damages.
employee; independent contractor
Generally, is a health care organization liable for injuries resulting from negligent acts or omissions of independent physicians?
No
A physician is an independent contractor as long as the physician:
-Is not an employee of the organization
-Is not compensated
-Maintains a private practice
-Is chosen directly by his/her patients


If independent contractor status is not readily known to the injured party, can an organization be liable for an independent contractor?
Yes
Act or event that must happen or be performed by one party before the other party has any responsibility to perform under the contract
Condition precedent
An _______ condition is formally written into the contract in specific terms.
express
An _______ condition is one in which, although the parties may not have specifically mentioned the condition, it can reasonably be assumed that the parties intended the condition to be enforced.
implied
Defenses permitting nonperformance of a contract include:
Fraud, mistakes, duress, illegal contract, impossibility, and statute of limitations (IFMIDIS)
_____ occurs when one party intentionally misrepresents a material fact or term of the contract and intends that the other party relies on that misinterpretation.
Fraud
2 types of mistakes
Mistakes of fact and mistakes of law
Incorrect belief regarding a fact
Mistake of fact
For mistake of fact to be a defense, ________ must have made the mistake
both parties (not just one)
Incorrect judgment of the legal consequences of known facts
Mistake of law
If parties to a suit make a mistake of law...
they usually must accept their plight without remedy
Use of unlawful threats or pressure to force an individual to act against his/her will
Duress
Damages that can be expected to arise from a breach of contract
General damages
_______ damages are foreseeable and common in the circumstances. ________ damages are unexpected
General; consequential
If the party who breached the contract could have foreseen the damages that followed, that person could be liable for what damages?
Consequential and general damages
Every injured party has a duty to ______ damages caused by the breach of another person or entity.
mitigate
What is an employment contract?
An agreement between an employee and employer that specifies the terms of employment, including wages, hours, and type of work
Conditions of employment should usually include:
Terms of employment, duties and responsibilities of employee, compensation, confidentiality requirements, a noncompete clause, and provisions for termination of the agreement
Restrictive covenants are not considered unreasonable if they...
protect the legitimate interest of the employer, impose no undue hardship on the employee, and are not adverse to public interest
In order for an employee handbook to constitute a contract, thereby giving enforceable rights to the employee, the following elements must be present:
1. A policy statement that clearly sets forth a promise that an employee can construe to be an offer
2. The policy statement must be distributed to the employee, making him/her aware of the offer
3. After learning about the offer and policy statement, the employee must "begin" or "continue" to work

Can insubordination be grounds for termination of an employment contract?
Yes. Insubordination is an act of refusal to do what is required of you by your superiors, and it can be considered a breach of contract.
Can medical staff bylaws be considered a contract?
Yes, if it contains the elements of a binding contract: a promise of employment on stated terms and conditions by the employer and the promise by the employee to continue employment under those conditions
An organization often enters into an exclusive contract with physicians or medical groups for the purpose of...
providing a specific service to the organization
What is the FTC?
Federal Trade Commission; federal agency responsible for monitoring the marketplace and enforcing federal antitrust laws
Who has primary responsibility for enforcing federal antitrust laws, which includes investigation of possible violations of both the criminal and civil provisions of the Sherman, Clayton, and Robinson-Patman Acts?
Antitrust Division of U.S. Department of Justice
The FTC is authorized to enforce Section...
5 of the FTC Act, which prohibits unfair methods of competition and unfair or deceptive acts or practices
Together with the department of justice, the FTC enforces...
the Clayton Act sections that prohibit discrimination, exclusive dealings and similar arrangements, certain corporate acquisitions of stock or assets, and interlocking directorates
What is the primary federal law that comes into play in health care?
The Sherman Antitrust Act
What does the Sherman Antitrust Act state?
1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states...is declared to be illegal.
2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states...shall be deemed...guilty of a felony...
Why should a health care organization be aware of potential problems that may exist when limiting the number of physicians it will admit to its medical staff?
Closed staff determinations can effectively limit competition from other physicians
Interpretation of an insurance contract can give rise to a legal action when...
the insurer refuses to indemnify the insured
A form of risk management used primarily to hedge against the risk of potential loss
Insurance
Staff privileges are both _____ and ________ important to health care professionals
professionally; economically
Health care organizations must be ______ in the granting of staff privileges to maintain quality standards, but every effort must be made to prevent ________ ________.
selective; anticompetitive abuses
What increases the potential for denial of privileges to prevent competitors from effectively entering the marketplace and practicing their professions?
Competition for patients
Denial of staff privileges should be to ___________, not to ____________
an individual on a quality basis; an entire group of professionals
Generally, a moratorium is for a _________ and is lifted __________
specified period of time; at such time as the purpose for which it was instituted no longer exists
An HAL closed staff is of a more ________ nature and relates to the ________ of the institution
permanent; mission
Why might an organization adopt a moratorium policy?
If there is a high inpatient census and difficulties would be encountered in accommodating new physicians
Health care organizations should have a _____ ______ _______ in effect with other organizations to ensure smooth transfer of patients from one facility to another when such is determined appropriate by the attending physician.
written transfer agreement
What is a transfer agreement?
A written document that sets forth the terms and conditions under which a patient may be transferred to a facility that more appropriately provides the kind of care required by the patient
When might a hospital transfer a patient to another hospital?
When it is not capable of providing a specialty required by the patient or of caring for the patient for an extended period of time
Basic elements of a transfer agreement include:
-Identification of each party to the agreement
-Purpose of the agreement
-Policies and procedures for transfer of patients
-Organizational responsibilities for arranging and making the transfer
-Exchange of information
-Retention of autonomy
-Procedure for settling disputes
-Procedure for modification or termination of the agreement
-Sharing of services
-Publicity
-Exclusive versus nonexclusive agreement









A ________ is usually lifted at some point, but a ________ is more permanent in nature.
moratorium; closed staff
An employer may be liable for the torts committed by an independent contractor in certain circumstances, which include negligence of the employer in _______, __________, or _________ the contractor.
selecting; instructing; supervising
The right of an employer to terminate an employee can be limited through an...
employment contract
Employee handbooks and medical staff bylaws can be viewed by a court as a binding contract between an employer and employee, unless such documents provide...
legally acceptable disclaimers
______ _______ allow organizations to contract with physicians and medical groups to provide specific services to the organization.
Exclusive contracts
Executive committee of medical staff...
oversees activities of medical staff
Medical staff is formally organized with _____, _______, and _______
officers; committees; bylaws
Membership on the executive committee of the medical staff generally includes...
the chief of staff as chairperson, medical staff officers, and departmental chairman; chief executive and chief nursing officers are generally nonvoting members of the committee
Bylaws describe the various ________ _________ of the medical staff as well as the process for obtaining ________
membership categories; privileges
Blood and transfusion committee...
develops blood usage policies and procedures
Credentials committee...
oversees the application process for medical staff applicants, requests for clinical privileges, and reappointments to the medical staff
Infection control committee...
develops policies and procedures for investigating, controlling, and preventing infections
Medical records committee...
Develops policies and procedures as they pertain to the management of medical records, including release, security, and storage
Pharmacy and therapeutics committee...
develops policies and procedures relating to selection, procurement, distribution, handling, use, and safe administration of drugs, biologicals, and diagnostic testing material
Quality improvement council...
functions as a patient care assessment and improvement committee
Tissue committee...
reviews surgical procedures
Utilization review committee...
monitors and evaluates utilization issues such as medical necessity and appropriateness of admission and continued stay, as well as delay in provision of diagnostic, therapeutic, and supportive services
Appointment to the medical staff and medical staff privileges should be granted only after there has been a thorough _________ of the applicant
investigation
Delineation of clinical privileges should be _______-specific and based on appropriate predetermined _______ that adhere to national standards
discipline; criteria
Committees of the medical staff review and analyze their _________, _______ ______, and ________ ____ ______.
responsibilities; clinical experiences; opportunities for improvement
Before appointment to the medical staff, applicant should...
Submit application, agree to abide by medical staff bylaws, undergo a medical evaluation, give consent for release of information, provide a certificate of insurance, show evidence of state licensure, be queried in the NPDB, give references, and go through an interview
Health care organizations must query the NPDB every __ years
2
________ __ _______ __________ is the process by which the medical staff determines precisely what procedures a physician is authorized to perform.
Delineation of clinical privileges
An appeal process should be described in the medical staff bylaws to cover issues such as...
denial of professional staff privileges, grievances, and disciplinary actions
Who should reserve the right to hear any appeals and be the final decision maker in the organization?
Governing body
Medical staff must provide mechanisms for monitoring and evaluating the quality of _____ ____ and the clinical performance of _______.
patient care; physicians
Who has a responsibility to appoint competent members to its professional staff?
Governing body
The measure of quality and degree of quality control in a hospital are the direct responsibilities of the...
medical staff
Physician monitoring is best accomplished through a system of...
peer review
A physician may be considered _______ if he/she is unable to work with others.
disruptive
Will a physician be held liable if he/she uses an unprecedented procedure that causes harm?
Yes
Failure to obtain an adequate history and perform an adequate physical examination violates a ______ ____ ______ owed to the patient.
standard of care
Only when a patient is ______ ______ is there no liability for erroneous diagnosis.
examined adequately
_________ in general, and especially ______ _____ ___ _____ _______, represents a significant amount of malpractice litigation.
Misdiagnosis; misdiagnosis related to medical imaging
Malpractice lawsuits in medical imaging can often result from:
-Failure to order appropriate tests
-Misinterpretation of an imaging study
-Failure to consult with a radiologist
-Failure to review imaging studies
-Delay in relaying test results
-Failure to relay imaging results




Failure to provide a timely diagnosis can constitute _________ if a patient suffers injury as a result of such failure.
malpractice
___________ is the most frequently cited injury event in malpractice suits against physicians.
Misdiagnosis
A physician is only liable for misdiagnosis if...
deviation from the accepted standard of care and injury can be established
Negligent administration of medications is often due to errors, such as wrong...
medication, patient, dosage, route
Negligence in surgery can include...
wrong surgery, wrong patient, wrong site, foreign objects left in patients, and hidden mistakes
The most common methods of preventing OR objects from being left in a surgical wound:
-Sponge and instrument counts
-Use of surgical sponges with radiopaque threads
-Use of x-rays for detecting foreign objects left in an operative wound

Lack of __________ such as patient records may be sufficient evidence for finding a physician guilty of negligence.
documentation
If failure to follow up results in injury to patient, physician can be held...
liable
_______ (hospital-acquired) infections are a leading cause of injury and unnecessary deaths.
Nosocomial
CDC estimates _______ patients per year get nosocomial infections
2 million
If a patient contracts an infection after an operation, will the surgeon be liable for negligence?
Not necessarily
Premature termination of treatment is often the subject of legal action for...
abandonment
To decrease the probability of malpractice suits:
Personalize your treatment
Conduct a thorough assessment/history and physical examination
 Develop a problems list and comprehensive treatment plan that addresses patient’s problems
 Provide sufficient time and care to each patient. Take time to explain treatment plans and follow-up care to patient, patient’s family, and other professionals caring for patient
 Request consultations when indicated and refer if necessary
 Closely monitor patient’s progress and, as necessary, make adjustments to treatment plan as patient’s conditions warrants
 Maintain timely, legible, complete, and accurate records. Don’t make erasures
 Don’t guarantee treatment outcome
 Provide for cross-coverage on days off
 Don’t overextend your practice
 Avoid prescribing over telephone
 Don’t become careless because you know the patient
 Seek advice of counsel should you suspect possibility of malpractice claim













Patient history should include:
-Chief complaint
-History of present illness
-Past medical history
-Social history
-Family history
-Allergies
-Current medications
-Review of systems






Physical examination should include:
-General appearance
-Vital signs
-Mental status
-Skin
-Lymph nodes
-Head, ears, eyes, nose, throat
-Neck
-Thorax, lungs
-Breasts
-Cardiovascular system
-Abdomen
-Genitalia
-Rectum
-Musculoskeletal
-Neurologic













In a malpractice case, the standard of care applied will be that pertaining to...
the specialty in which the physician is treating, regardless of whether or not that physician is credentialed in that specialty

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