Are there competing interests based on loyalty, conflict of interest, who represents whom, etc.?
There are varying health care relationships in any organization, such as physician and patient, hospital and patient, and hospital and physician. The most prevalent health care relationship is the physician and patient. We appreciate the importance of the legal protections to ensure that this relationship is upheld in trust. Many times, the relationship is connected throughout contracts to hospitals, clinics, and physician groups. Therefore, these distinctions must be made between express and implied consent and how to differentiate between them in the case of potential liability allegations.
Keep in mind that all relationship configurations hold a duty whereby the patient is protected by law from harm. If a breach does occur, then the patient has recourse in tort. Before a lawsuit can be filed, it must be ascertained which specific relationships had direct or indirect liability in the incident facilitating the suit. If there is no duty, then a claim in tort may be difficult, if not impossible, to prove. Therefore, to reiterate, a duty must be established before any claim can be brought against a potential defendant physician, hospital, or other health care provider.
Professional liability (also known as medical malpractice) is medical misconduct resulting in harm to another person. It is a failure of the medical professional to follow the standard of care for their specific profession. The health care industry utilizes many bars in the various processes of clinical care, health information technology, to business operations. Standards on the clinical side of health care delivery may include clinical practice guidelines (CPG’s) that guide appropriate treatment based on research and/or scientific evidence or professional standards of conduct by professionals such as physicians, nurses, administrators, etc.
Negligence is determined by a formula of factors that contain a duty of care, breach of the duty of care, causation, and associated damages. It must prove all four elements of the claim: the duty of care, breach of duty, causation/proximate cause, and damages.
Patient care is demanding, and the medical decision-making in the industry is even more complex. Every patient must consent to the procedure and/or treatment to have an explanation and opportunity for questions – informed consent. While this may sound rather simplistic, the physician must obtain consent before a treatment based on the legal concept of battery, which is unlawful touching without implied (patient voluntarily submits) or expressed (either spoken or written) consent. Most organizations have specific written consent forms, which become a part of the patient’s medical record. Moreover, under the PSDA or Patient Self-Determination Act of 1990, healthcare facilities are required to provide written information on the health care consumer’s right to execute advance directives and either accept or decline recommended medical treatment.
Ethics requires judgment and decision-making, with many of these decisions not clear cut but instead based on guiding ethical principles.
- Autonomy: Ensure that patients and/or their representatives make informed decisions regarding access to their health information
- Beneficence: Ensure the information is released only to the individuals who need it in the clinical operations to help the patient or payment of a claim by an insurance company
- Nonmaleficence: Ensure that information is not released to someone who does not have authorization or who might harm a patient, such as a newspaper that wants to release the information about a famous person
- Justice: Required to ensure rules are fairly and consistently applied without preferential treatment or exceptions based on personal or organizational preference, such as a preferred physician’s office.
Now, think about the legal rights, which are often ethical concerns related to informed consent, advanced directives including Do Not Resuscitate (DNR), the patient bill of rights under the Patient Self-Determination Act of 1990, etc. When thinking about this list, many of these are regarding the continuation of life support services to terminally ill patients. Remember, unless patients have expressed their wishes in advance, family members or state laws are the ones to decide if a patient is incompetent or comatose.
There are ethics committees to help with ethical decision-making in many healthcare organizations, particularly acute care hospitals. They are multidisciplinary, including physicians, nurses, clergy, social workers, legal representatives, administrators, etcetera, whose primary responsibility is to resolve medical ethical issues and/or situations.
Health care is very personal – not only for the patient and their family but also for the clinical providers, administrators, etc. Many clinical providers are presented with ethical dilemmas when balancing competing needs and demands utilizing current evidence-based health care standards and guidelines, understanding patient wishes, upholding their professional standards, financial costs, etcetera. Are there competing interests based on loyalty, conflict of interest, who represents whom, etc.? Be an informed administrator – know your state and federal compliance and ethical regulations.
