Healthcare Law essay

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Third Party Patient

The Doctrine of Apparent Agency


June, a 34-year-old divorced woman diagnosed with severe anorexia, is hospitalized. Her doctors feel she may need to be placed on a feeding tube soon to save her life. Initially June agreed to the feeding tube. However, in the evening (before the tube has been placed), she became combative, disoriented, and refused to have the feeding tube placed. Her mother and father insisted that the feeding tube be inserted despite her refusal to allow it. Her ex-husband wishes to uphold June's decision. The hospital administrators seek risk management for legal counsel.

Explain how the Patient Bill of Rights applies to this situation.

The Patient Bill of Rights articulates U.S. federal law on the doctor-patient relationship, and is consistent with laws on informed consent where licensed professional practice respective to patient well being is in order. Confidentiality of patient record is perhaps the one critical factor in June's capacity as a party to her own treatment once her retracted decision to feeding tube insertion is overruled. June retains the right to confidentiality, yet unless she has signed a non-disclosure agreement that includes circulation of record to other healthcare institutions or third parties, the stipulation to protection of her legal identity may be suppressed in case of emergency. Enter the agency of her parents and physician responsible for her well being.

Relevant elements to the Patient Bill of Rights in June's care are in respect: 1) To safe, considerate and respectful care, provided in a manner consistent with patient beliefs; 2) To expect all communications and records pertaining to patient care will be treated as confidential to the extent permitted by law; 3) To know the physician responsible for coordinating patient care; 4) To receive complete information about diagnosis, treatment, and prognosis from the physician, in terms that are easily understood; 5) If it is medically inadvisable to provide such information, it will be given to a legally authorized representative; 6) To receive information necessary for you to give informed consent prior to any procedure or treatment, including a description of the procedure or treatment, any potential risks or benefits, the probable duration of any incapacitation, and any alternatives; and 7) Exceptions will be made in the case of an emergency.

2. Based on the facts given in the scenario, would the patient be considered competent to decide?

If June is deemed unable to make a reasonable decision to decline intervention where prior consent was given while cogent, licensed medical Staff part of the treatment team are most likely protected from malpractice by professional immunity. Reinsertion of the feeding tube by medical staff would be supported by the emergency rule; and especially where it became apparent that the physician must make a decision on behalf of the patient in response to her incompetent state of mind. The classification of anorexia as a 'mental health' disorder, is significant, because any forthcoming negligence accusation, or other tortious complaint like battery should be dismissed as the patient must be treated according to professional opinion, rather than patient decision (Staunton and Chiarella, 2007).

Incapacitated parties may be represented in medical decisions by family members serving as interveners. In the case of June, her mother and father insisted that the feeding tube be inserted despite her refusal to allow it. Her ex-husband wishes to uphold June's decision. However, unless it is recorded in prior court decision that he retains 'power of attorney' akin to his former status as 'spouse' -- an agent by custom and nature -- then he no longer has the authority to agree to treatment on her behalf (Showalter, 2008). Exception to the assignment of agency to the parents would be if June has been ascribed to conservatorship under her husband's care by court order. In spite of the fact that physicians and hospital administrators will obviously seek risk management from legal counsel to attend to June's condition, consensus with her parents will further protection of the institution from liability, and defense would be sustained if the patient should later attempt to file a medical malpractice complaint.

In the Doctrine of Apparent Agency, a rule element to commercial contract law, may be referred to within court decision in some states and allows separation and regulation in relationships between parties defined as: 1) Agents and Principals (i.e. physician/parents v. ex-husband); 2) Agents and the Third Parties with whom they deal on their Principals' behalf; and 3) Principals and the Third Parties when the Agents purport to deal on their behalf (Showalter, 2008).

4. Explain the primary responsibility of June's doctors.

Where determined that an earlier act of informed consent should be overruled, either the patient's parents or her ex-husband may be permitted as agents or principles in the decision. Informed consent is a standard policy to medical practice intended to: 1) protect patient rights; 2) ensure that all information and forthcoming treatment related to patient care has been made foreseeable; and 3) ensures forewarning as described in the negligence rule has been fulfilled; up to the point 4) that physician immunities are secured.

The four (4) elements to the common law Negligence rule respective to informed consent and subsequent medical malpractice complaint involve physician responsibility that: 1) There must be a duty of care owed to the patient; 2) The physician must fail to meet the standard of care reasonably to be expected in the circumstances; 3) The patient must suffer harm; and 4) The physician's shortcoming must be causally related to the harm (Staunton and Chiarella, 2007).

In addition to attention to the rule of negligence applied to enforcement of Informed Consent in determining the appropriate decision for June, the physician will also be accountable to the 'Erosion of Captain-of-the-Ship and Borrowed-Servant Doctrines;' where medical authority in healthcare institutions may be personally held responsible in cases where patients no longer show that they are equipped to make 'reasonable' decisions on their own behalf (Showalter, 2008). Here, the physician is not necessarily protected by emergency rule immunities, and is subject to potential review if 'duty to a reasonable standard of care' is called into question.

5. Explain the primary responsibility of the hospital administrators.

Authorization of contract by third party, June's parents' in confirmation of her earlier, 'reasonable' decision as third party authority is supported by the U.S. federal Duty to Rescue law, and is defined as a 'special relationship.' In spite of her age of 34 years old, she is incapacitated (Staunton and Chiarella, 2007). Her legal identity and its well being are integrally an obligation of the parents where they are: 1) evidenced to be 'rationale'; and 2) show well intentioned support of their daughter up to the point of taking responsibility for her release upon successful treatment, including aftercare follow-up.

Where the definition of the 'duty' in the United States deviates from the interpretation of 'reasonable standard' in other common law countries such as Canada, in that the hospital institutions must act according to what is deemed the standard of care to the profession, rather than merely determine if the patient appears to have the capacity to make the decision themselves (Bullough, 1980). Agents and other third party principles are also entitled to serve as 'reasonable' parties on behalf of patients in the U.S., so that physicians and other practitioners must always meet the national standard of informed consent. To not do so leaves medical professionals and their institutions open to deep pockets litigation.

6. Explain the hospital's ethical obligations in this situation.

In the American Cancer Association's (2010) How is shared decision-making different from informed consent?, the Association offers recommendation to shared decision-making. The U.S. Department of Health and Human Services (HHS) enforces the Federal privacy regulations commonly known as the HIPAA Privacy Rule (HIPAA). HIPAA is mandated, provider-based decision model that allows physicians to discuss patient diagnosis and care with family, friends or others involved in ongoing care or payment.

Permission to discuss information involving patients supports the shared decision-making model. Shared decision-making advances patient and/or third party intervener / agents inclusion in treatment decision and rearticulates the Patient Bill of Rights' "if it is medically inadvisable to provide such information, it will be given to a legally authorized representative" as counter-productive to active patient involvement in wellness. This is of course not relevant to June's treatment in the hospital once the ethical dilemma over the feeding tube emerges, but may be productive at point of after care.

7. Explain the hospital's legal obligations in this situation.

In Showalter (2008) The Law of Healthcare Administration in depth analysis is given the landscape of medical malpractice law in the United States. Tort laws on negligence and liability (i.e. Battery) are examined as the framework to institutional and national policies and rules to conduct. Showalter explores the complications to the rule of professional negligence, and looks at how healthcare workers, by act or omission, face ethical and legal dilemmas in the practice setting. Pertinent to the discussion is the 'expert witness' factor within…[continue]

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