Description
Module 2 Discussion (400 WORDS 3 REFSERENCES – RUBRIC ATTACHED)
Please respond to ONE of the following prompts.
Do you agree that individual states should be able to place reasonable restrictions or waiting periods for abortions? Who should determine what is reasonable?
OR
Examine this statement: “The inherent risk is that society’s faith in doctors as healers would become subverted if doctors participate in physician-assisted suicide.
Required Material (I ATTACHEDED THE CHAPTERS)
Pozgar, G. D. (2020). Legal and ethical issues for health professionals (5th ed.). Jones and Bartlett. ISBN: 9781284144185. Read Chapters 2 & 3
Module 3 Discussion (400 WORDS 3 REFSERENCES RUBRIC ATTACHED)
Please respond to ONE of the following prompts.
Provide an illustrative example of a negligence suit that meets all of the required elements (using a hypothetical situation)
OR
Which classifications of law are more commonly applied to professional nursing? From a current media source (e.g. Internet, newspaper article) describe a health-care related incident that depicts one of the classifications of law.
Required Material
Guido, G. W. (2020). Legal and ethical issues in nursing (7th ed.). Prentice Hall. ISBN: 9780134701233. Read Chapters 1, 2, 5, 6, & 7.
Pozgar, G. D. (2020). Legal and ethical issues for health professionals (5th ed.). Jones and Bartlett. ISBN: 9781284144185. Read Chapters 5 & 6.
Unformatted Attachment Preview
21/01/2024, 00:10
Preview Rubric: Graduate Discussion Question Rubric v1 – Legal and Ethical Issues in Health Care – SHMK8 – 01-16-24 – Sect2 – Aspen University Classroom
Graduate Discussion Question Rubric v1
Course: Legal and Ethical Issues in Health Care – SHMK8 – 01-16-24 – Sect2
Criteria
Does Not Meet 0%
https://classroom.aspen.edu/d2l/le/content/96243/viewContent/5059371/View
Approaches 70%
Meets 80%
Exceeds 100%
Criterion Score
1/5
21/01/2024, 00:10
Criteria
Content of Initial
Thread/Post
Weight: 40%
Preview Rubric: Graduate Discussion Question Rubric v1 – Legal and Ethical Issues in Health Care – SHMK8 – 01-16-24 – Sect2 – Aspen University Classroom
Does Not Meet 0%
Approaches 70%
Meets 80%
Exceeds 100%
Criterion Score
0 points
5.6 points
6.4 points
8 points
/8
Response contains
Major required
Response addresses
Content includes
little to none of the
required aspects of
the prompt; Content
is off topic;
references are not
included. APA
reference/citation
format is not used.
aspects of the
prompt are not
addressed or the
response speaks in
vague generalities.
Information is too
general; 1 reference
is present, but it is
non-scholarly (if
required) and/or it
does not
appropriately reflect
the topic. APA
reference/citation
prompt requirements.
Content is relevant
and germane to the
intent of the prompt;
1 or more references
are scholarly (if
required) and/or
appropriately reflect
topic, and have few
APA formatting
errors.
additional or novel
points beyond the
intent of the prompt.
References are
sufficient, scholarly in
nature, and are
formatted correctly in
APA format.
format may be
inaccurate in the
response.
https://classroom.aspen.edu/d2l/le/content/96243/viewContent/5059371/View
2/5
21/01/2024, 00:10
Criteria
Critical Thinking of
Thread/Post
Weight: 10%
Preview Rubric: Graduate Discussion Question Rubric v1 – Legal and Ethical Issues in Health Care – SHMK8 – 01-16-24 – Sect2 – Aspen University Classroom
Does Not Meet 0%
Approaches 70%
Meets 80%
Exceeds 100%
Criterion Score
0 points
1.4 points
1.6 points
2 points
/2
Little analysis or
insight is displayed;
Little or no logical
Some illogical
statements and poor
reasoning displayed;
Response indicates
that thought, insight,
and analysis has
Response is rich in
critical thinking, and
full of thought,
support or reasoning
is present
argument is unclear
or convoluted
taken place;
Argument is solid and
logical
insight, and analysis;
Argument is clear and
concise
https://classroom.aspen.edu/d2l/le/content/96243/viewContent/5059371/View
3/5
21/01/2024, 00:10
Criteria
Quality of Written
Communication in
Initial Thread/Post
Weight: 20%
Preview Rubric: Graduate Discussion Question Rubric v1 – Legal and Ethical Issues in Health Care – SHMK8 – 01-16-24 – Sect2 – Aspen University Classroom
Does Not Meet 0%
Approaches 70%
Meets 80%
Exceeds 100%
Criterion Score
0 points
2.8 points
3.2 points
4 points
/4
Style and voice
inappropriate or do
not address given
Style and voice are
somewhat
appropriate to given
Style and voice are
appropriate to the
given audience and
Style and voice are
not only appropriate
to the given audience
audience, purpose,
etc. Word choice is
excessively
redundant, clichéd,
and unspecific.
Inconsistent
grammar, spelling,
punctuation, and
paragraphing. Surface
errors are pervasive
enough that they
impede
communication of
meaning.
audience and
purpose. Word
choice is often
unspecific, generic,
redundant, and
clichéd. Repetitive
mechanical errors
distract the reader.
Inconsistencies in
language, sentence
structure, and/or
word choice are
present.
purpose. Word
choice is specific and
purposeful, and
somewhat varied
throughout. Minimal
mechanical or
typographical errors
are present, but are
not overly distracting
to the reader. Correct
sentence structure
and audienceappropriate language
are used.
and purpose, but also
show originality and
creativity. Word
choice is specific,
purposeful, dynamic
and varied. Free of
mechanical and
typographical errors.
A variety of sentence
structures and
effective figures of
speech are used.
Writer is clearly in
command of
standard, written,
academic English.
https://classroom.aspen.edu/d2l/le/content/96243/viewContent/5059371/View
4/5
21/01/2024, 00:10
Criteria
Discussion
Responses to
Classmates’
Threads/Posts
Weight: 30%
Preview Rubric: Graduate Discussion Question Rubric v1 – Legal and Ethical Issues in Health Care – SHMK8 – 01-16-24 – Sect2 – Aspen University Classroom
Does Not Meet 0%
Approaches 70%
Meets 80%
Exceeds 100%
Criterion Score
0 points
4.2 points
4.8 points
6 points
/6
Did not make an
Occasionally makes
Frequently attempts
Shows astute
effort to participate
in learning
community as it
develops; Displays
meaningful reflection
on group’s efforts;
Marginal effort to
become involved
to direct the
discussion and
present relevant
viewpoints for
awareness of needs
of community;
Frequently attempts
to motivate the group
lack of engagement
with discussion
with group; Made
one response to
consideration by
group; Interacts
discussion; Presents
creative approaches
forum; Did not make
the minimum of 2
responses to
classmates.
classmates
freely; Met the
minimum of 2
responses to
classmates
to topic; Made at
least 2 responses to
classmates
Total
/ 20
Overall Score
Level 1
Level 2
Level 3
Level 4
0 points minimum
14 points minimum
16 points minimum
20 points minimum
https://classroom.aspen.edu/d2l/le/content/96243/viewContent/5059371/View
5/5
Chapter 6
Introduction
to Law
Learning Objectives (1 of 2)
• Understand the meaning and objectives of tort
law.
• Describe the elements of negligence.
• Explain how the commission and omission of an
act differ.
• Describe the importance of foreseeability in a
negligence case.
• Describe intentional torts and how they might
occur in the healthcare setting.
Learning Objectives (2 of 2)
• Describe the various crimes and give examples
of how they might occur in the healthcare
setting.
• Explain the various elements of a contract.
• Describe the pretrial and trial process.
Tort Law
A tort is a wrong, other than a breach of
contract, committed against a person or property
for which a court provides a remedy, generally in
the form of monetary damages.
Objectives of Tort Law
• Preservation of peace between individuals
• Fault-finding for wrongdoing
• Deterrence to wrongful acts
• Indemnify injured person(s)
Negligence
Commission or omission of an act that a
reasonably prudent person would or would not
do under given circumstances.
Commission of an Act
• Administering wrong medication
• Administering wrong dosage of a medication
• Administering medication to the wrong patient
• Performing a procedure without patient consent
• Performing procedure on wrong patient
• Surgically removing the wrong body part
• Failing to assess and reassess a patient’s
nutritional needs
Omission of an Act
• Failure to administer medication(s)
• Failure to order required diagnostic tests
• Failure to follow up on abnormal test results
• Failure to perform “time-out” prior to the start of
surgery to ensure the correct procedure is being
conducted on the correct patient at the correct
site
Malpractice
• Negligence of a professional person:
– Surgeon who conducts surgery on the wrong
body part.
– Nurse who administers wrong medication,
injuring patient.
– Pharmacist who mislabels a medication and
the patient is harmed.
Forms of Negligence
•
•
•
Malfeasance
Misfeasance
Nonfeasance
Malfeasance
• Execution of an unlawful or improper act.
– Performing a partial birth abortion when
prohibited by law.
– Performing a procedure without having the
appropriate credentials.
Misfeasance
• Improper performance of an act.
– Wrong-sided surgery.
– Leaving an instrument in the patient’s body.
Nonfeasance
• Failure to act when there is a duty to act.
– Failure to prescribe antibiotics when
indicated.
– Failure to respond to emergency call.
Four Elements of Negligence
1. Duty to care
2. Breach of duty
3. Injury
4. Causation
Duty to Care
• Legal obligation of care imposed on one to
safeguard rights of others.
• Duty created by statute:
– Defendant must have been within specified class of
persons outlined in the statute.
– Plaintiff must have been injured in a way statute was
designed to prevent.
– Plaintiff must show that injury would not have
occurred if the statute had not been violated.
Standard of Care
Actual performance of an individual in a given
situation will be measured against what a
reasonably prudent person would or would not
have done.
Duty to Hire Competent Staff
• A nurse was hired sight unseen over the
telephone. The applicant falsely stated in his
application that he was a licensed LVN. In
reality, he was not an LVN and he had
committed 56 criminal offenses of theft. He
eventually assaulted a resident.
• Court ruled for plaintiff as nursing center failed in
its duty to care by not validating the nurse’s
license.
Breach of Duty
• Must be a deviation from recognized standard of
care.
• Must be failure to adhere to an obligation.
– When a physician fails to respond to on-call
emergency room duties.
– Failure to perform an adequate history and physical in
the emergency department.
• Example: Failure to properly diagnose a patient at
risk for Ebola and discharging that patient back
into the community.
Injury/Actual Damages
• Actual damages must be established.
• Without injury, damages cannot be awarded.
Causation/Proximate Cause (1 of 2)
• Must be a reasonable, close, and causal
connection between the defendant’s negligent
conduct and resulting damages suffered.
• Example: In the Hastings case, a person
does not bleed to death in a hospital
emergency department over a 2-hour period
without some surgical intervention.
Causation/Proximate Cause (2 of 2)
•
Test for foreseeability is whether a person of
ordinary prudence and intelligence should have
anticipated danger to others caused by a
negligent act.
– In the Hastings case, it was highly probable
that the patient would die if the bleeding was
not stopped.
– “The broad test of negligence is what a
reasonably prudent person would foresee and
would do in the light of this foresight under the
circumstances.”
Intentional Torts
• Assault and battery
• False imprisonment
• Defamation of character
• Invasion of privacy
• Infliction of mental distress
Assault and Battery
• Assault: Deliberate threat, coupled with apparent
ability to do physical harm to another. Actual
contact not necessary.
• Battery: Intentional touching of another’s person
in socially impermissible manner without
person’s consent.
Assault
• Person attempting to touch another unlawfully
must possess apparent present ability to commit
battery.
• Person threatened must be aware of or have
actual knowledge of an immediate threat of a
battery and must fear it.
False Imprisonment
Unlawful restraint of individual’s personal liberty
or unlawful restraining or confining an individual.
Defamation of Character
• Involves communications to someone other than
the person defamed that tends to hold that
person’s reputation up to scorn and ridicule.
– Slander (verbal defamation)
– Libel (written defamation)
Invasion of Privacy
• Right to
– Be left alone
– Be free from unwarranted publicity
– Be free from exposure to public view
– Be free from unwarranted intrusions into a
one’s personal affairs
– Personal privacy
– Have records/kept confidential
Infliction of Mental Distress
Conduct that is so outrageous that it goes beyond
bounds tolerated by decent society.
Criminal Law
• A crime is any social harm defined and made
punishable by law.
• Purpose of criminal law:
– Maintain public order and safety.
– Protect the individual.
– Use punishment as a deterrent to crime.
– Rehabilitate the criminal for return to society.
Classification of Crimes
• Misdemeanor: An offense punishable by less
than 1 year in jail and/or a fine.
– Example: Petty larceny
• Felony: A much more serious crime that is
generally punishable by imprisonment in a state
or federal penitentiary for more than 1 year.
– Examples: Rape, murder
Criminal Procedure
• Arrest
• Arraignment
• Indictment
• Conference
– Prosecutor
– Defense attorney
• Criminal trial
Healthcare Fraud
Unlawful act, generally deception for personal
financial gain.
Schemes to Defraud (1 of 3)
• Billing for services not rendered.
• Falsifying a patient’s diagnosis to justify tests,
surgeries, or other procedures that are not
medically necessary.
• Misrepresenting procedures performed to obtain
payment for services not covered.
• Upcoding services (billing for a more costly
service than the one actually performed).
Schemes to Defraud (2 of 3)
• Upcoding medical supplies and equipment
(billing for more expensive equipment than
delivered to the patient).
• Unbundling (billing each stage of a procedure as
if it were a separate procedure).
• Billing for unnecessary services not medically
indicated.
• Accepting kickbacks for patient referrals.
Schemes to Defraud (3 of 3)
• Waiving patient copays or deductibles and
overbilling the insurance carrier or benefit plan.
• Billing a patient more than the copay amount for
services that were prepaid or paid in full by the
benefit plan under the terms of a managed care
contract.
• Overbilling the insurance carrier or benefit plan.
Billing for Unnecessary Procedures
• Physician receives 45-year prison sentence for
fraud.
• The U.S. Supreme Court refused to hear Dr.
Fata’s appeal of his conviction for running a
scheme that involved billing the government for
medically unnecessary cancer and blood
treatments.
Home Care Fraud
• On the rise
• Not easy to detect
Pharmacist Billing Scam
A pharmacist dispensed the generic equivalent of
a drug and billed for the higher-cost brand name.
• Discuss the ethical and legal issues.
Self-Referrals
Dr. L ordered unnecessary highly expensive
esoteric lab tests for his patients. Dr. L referred his
patients to a private lab, in which he had 30%
ownership.
• Discuss the ethical and legal issues.
Ethical and Legal Issues
• Ethical issues
– Truthfulness
– Professional codes of ethics
• Legal issues
– Fraud
Other Criminal Acts
• Manslaughter
• Murder
• Theft
– Medical identity theft
Contracts
A contract is a special kind of agreement, either
written or oral, that involves legally binding
obligations between two or more parties.
Elements of a Contract
1. Offer/Communication
2. Consideration
3. Acceptance
Kinds of Contracts
• Employment contracts
• Exclusive contracts
• Commercial ethics and noncompetition
agreements
Trial Procedure: Pleadings
• Summons and complaint
• Answer
• Bill of particulars
Trial Procedure: Discovery
• Process of investigating the facts of a case
before trial.
– Obtain evidence that might not be obtainable at the
time of trial.
– Isolate and narrow the issues for trial.
– Gather knowledge of the existence of additional
evidence that may be admissible at trial.
– Obtain leads to enable the discovering party to gather
further evidence.
Trial Procedure:
Preparation of Witnesses
• The manner in which a witness handles
questioning at a deposition or trial is often as
important as the facts of the case.
• Each witness should be well prepared before
testifying.
• Preparation should include a review of all
pertinent records.
Trial Procedure: Participants
• The court
– Decides questions of law
• The jury
– Determines questions of fact
Trial Procedure: Subpoenas
• Subpoena: A legal order requiring the
appearance of a person and/or the presentation
of documents to a court or administrative body.
• Subpoena ad testificandum: Orders the
appearance of a person at a trial or other
investigative proceeding to give testimony.
• Subpoena duces tecum: A written command to
bring records, documents, or other evidence
described in the subpoena to a trial or other
investigative proceeding.
Trial Procedure: Opening Statements
• Opening statements are provided by:
– The plaintiff(s)
– The defendant(s)
Trial Procedure: Burden of Proof
• The plaintiff is required to show that the
defendant violated a legal duty.
• The case is dismissed if the evidence does not
support the defendant’s allegations.
Trial Procedure: Kinds of Evidence
• Direct evidence
• Demonstrative evidence
• Documentary evidence
• Examination of witnesses
– Expert witnesses
Defense of One’s Actions
• Assumption of a risk
• Comparative negligence
• Contributory negligence
• Good Samaritan laws
Defenses Against Recovery
• Ignorance of fact and unintentional wrongs
• Statute of limitations
• Sovereign immunity
Trial Procedure
• Closing statements
• Judge’s charge to the jury
• Jury deliberation
• Damages
• Appeals
Review Questions
1. Describe the objectives of tort law.
2. Discuss the distinctions among negligent torts,
intentional torts, and strict liability.
3. Explain the difference between a commission
and omission of a negligent act.
4. Explain the difference between negligence and
malpractice.
Review Questions
5. What are the elements that must be proven in
order to be successful in a negligence suit?
Illustrate your answer with a case. (The facts of
the case can be hypothetical.)
6. Describe the categories of intentional torts.
7. How does slander differ from libel? Give an
example of each.
8. Describe the objectives of criminal law.
Review Questions
9. Describe the difference between a
misdemeanor and a felony. Give an example of
each.
10.Discuss why physicians have been so reluctant
to remove a patient’s life-support systems.
11.Describe a scheme to defraud.
12.Explain the elements of a contract.
13.Describe why exclusive contracts are so
controversial.
Review Questions
14.Describe the trial process, including pretrial
motions and the functions of the judge, jury, and
attorneys.
15.Describe the kinds of evidence that a plaintiff
can present in order to establish a negligent act.
16.What defenses can a defendant present in
order to refute a plaintiff’s evidence?
Review Questions
17.Describe how statutes of limitations favor
defendants in a lawsuit.
18.Describe the various types of damages that can
be awarded a plaintiff.
19.Explain why either the plaintiff or defendant
may wish to appeal a jury’s verdict.
Chapter 5
Development
of Law
Learning Objectives
• Understand the development and sources of
law.
• Describe how the government is organized
through the three branches of government.
• Explain the principle of separation of powers.
• Describe what is meant by conflict of laws.
• Describe the functions of the Department of
Health and Human Resources and its various
operating divisions.
Law
• A system of principles and processes by which
people in a society deal with their disputes and
problems, seeking to solve or settle them without
resorting to force.
• General rules of conduct enforced by
government.
Development of Law
– Tradition
– Culture
– Customs
– Beliefs
Why Laws Change
• Political climate
• Social change
• Religious beliefs
• Values change
Categories of Law
• Public law: The laws that control relationships
between individuals and the government.
• Private law: The laws that control relationships
between individuals.
Sources of Law
• Common law
• Statutory law
• Administrative law
Common Law (1 of 2)
• Derived from judicial decisions.
– Origins in English common law.
– Responds to issues beyond written law.
• Often differs from state to state.
• Common-law principles prevail unless a statute
governs.
• Judicial decision in one state does not set
precedent for another.
Common Law (2 of 2)
• Principles of common law:
– Precedent
– Res judicata
– Stare decisis
Statutory Law
• Written law that emanates from legislative
bodies.
• Courts often interpret how various statutes apply
to each set of facts.
• U.S. Constitution is highest in hierarchy of
enacted law.
– http://constitutionus.com/?t=Bill%20of%20Rig
hts
Bill of Rights
• Amendments to the U.S. Constitution added to
protect the rights of citizens.
– Freedom of religion
– Right to keep and bear arms
– Freedom of speech
First Amendment
The First Amendment guarantees freedoms
concerning religion, expression, assembly, and the
right to petition. It forbids Congress from both
promoting one religion over others and also
restricting an individual’s religious practices. It
guarantees freedom of expression by prohibiting
Congress from restricting the press or the rights of
individuals to speak freely. It also guarantees the
right of citizens to assemble peaceably and to
petition their government.
Administrative Law
• Public law is issued by administrative agencies
to direct enacted laws.
• Administrative Procedures Act states the
procedures under which federal agencies
operate.
• Rules and regulations are administered within
intent of law.
• Regulations are subject to judicial review.
Government Organization:
Legislative Branch
• Enacts laws.
• Amends or repeals existing legislation.
• Creates new legislation.
Government Organization:
Judicial Branch
• Resolves legal disputes.
• Supreme Court
– Nation’s highest court
– Eight Associate Justices and one Chief
Justice
As I have said in the past, when government
bureaus and agencies go awry, which are adjuncts
of the legislative or executive branches, the people
flee to the third branch, their courts, for solace and
justice.
—Justice J. Henderson, Supreme Ct. of South Dakota
Government Organization:
Executive Branch
• Administers and enforces the law.
• Executive power vested in the president.
• Cabinet advises the president.
Separation of Powers
• System of checks and balances.
• No one branch of government dominant over the
other two.
• Each may affect and limit the activities,
functions, and powers of the other branches of
government.
Conflict of Laws
Article VI, Paragraph 2 of the U.S. Constitution is
commonly referred to as the Supremacy Clause. It
establishes that the federal constitution, and federal
law generally, take precedence over state laws, and
even state constitutions. It prohibits states
from interfering with the federal government’s
exercise of its constitutional powers, and from
assuming any functions that are exclusively
entrusted to the federal government. It does not,
however, allow the federal government to review or
veto state laws before they take effect.
U.S. Department of Health
and Human Services
• Cabinet-level department.
• Responsible for carrying out national health and
human services policy.
• Main source of regulations affecting the
healthcare industry.
Department of Health and Human
Services: Divisions and Agencies (1 of 2)
• Administration on Aging
• Centers for Medicare and Medicaid Services
• Public Health Service
• National Institutes of Health
• Centers for Disease Control and Prevention
• Food and Drug Administration
Department of Health and Human
Services Divisions and Agencies (2 of 2)
• Substance Abuse and Mental Health Services
Administration
• Health Resources and Services Administration
• Agency for Healthcare Research and Quality
• Agency for Toxic Substances and Disease
Registry
• Indian Health Service
Review Questions
1. Define the term law and describe the sources
from which law is derived.
2. Describe and contrast the legal terms res
judicata and stare decisis.
3. Describe the function of each branch of
government.
4. What is the meaning of separation of powers?
Review Questions
5. What is the function of an administrative
agency?
6. Describe the various operating divisions and
agencies within the DHHS.
Chapter 3
End-of-Life
Dilemmas
When we finally know we are dying, and all other
sentient beings are dying with us, we start to have
a burning, almost heart-breaking sense of the
fragility and preciousness of each moment and
each being, and from this can grow a deep, clear,
limitless compassion for all beings.
—Sogyal Rinpoche
Learning Objectives (1 of 2)
• Describe the human struggle to survive.
• Discuss end-of-life issues, including:
– Euthanasia
– Right to self-determination
– Defining death
– Legislative response
Learning Objectives (2 of 2)
• Describe how patient autonomy has been
impacted by case law and legislative
enactments.
• Assisted suicide
• Patient Self-Determination Act of 1990
• Advance directives (e.g., living will, durable
power of attorney)
• Futility of treatment
• Withholding and withdrawal of treatment
Human Struggle to Survive
• Dreams of immortality
• Race to prevent and cure illness
• Advances in medicine prolong life
• Process of dying prolonged
• Artificial body organs
• Exotic machines
• Medications
Euthanasia
• Greek: euthanatos, meaning “good death” or
“easy death”
• Euthanasia: “The mercy killing of the hopelessly
ill, injured or incapacitated.”
Active or Passive Euthanasia
• Active euthanasia is the intentional commission
of an act that results in death.
– Example: Administration of a lethal dose of
medication.
• Passive euthanasia is when a life-saving
treatment is withdrawn or withheld.
– Example: Taking a patient off a respirator.
Voluntary or Involuntary Euthanasia
• Voluntary euthanasia: Suffering person makes
decision to die.
• Involuntary euthanasia: Person other than the
one with the incurable condition makes the
decision to terminate life.
Questions of Values:
Involuntary Euthanasia
• Who should decide whether to withhold or
withdraw treatment?
• On what factors should such a decision be
based?
• What viable standards are there to guide the
courts?
• Should criminal sanctions be imposed on a
person assisting in ending life?
• When does death occur?
Right to Self-Determination
Every human being of adult years has a right to
determine what shall be done with his own body;
and the surgeon who performs an operation
without his patient’s consent commits an assault
for which he is liable for damages.
—Schloendorff v. Society of New York Hospital
In re Storar
Every human being of adult years and sound
mind has the right to determine what shall be
done with his own body.
In re Quinlan
• Constitutional right to privacy protects patient’s
right to self-determination.
• A state’s interest does not justify interference
with one’s right to refuse treatment.
Superintendent of Belchertown State
School v. Saikewicz
• Saikewicz allowed refusal of treatment.
• Questions of life and death with regard to an
incompetent person should be the responsibility
of the courts.
• Court took a “dim view of any attempt to shift
ultimate decision-making responsibility away
from duly established courts of proper
jurisdiction to any committee, panel, or group, ad
hoc or permanent.”
In re Dinnerstein
“No code” orders are valid to prevent the use of
artificial resuscitative measures on incompetent
terminally ill patients.
In re Spring
Patient’s mental impairment and medical
prognosis with or without treatment must be
considered prior to seeking judicial approval to
withdraw or withhold treatment from an
incompetent patient.
Court Involvement
• Court involvement is required when:
– Family members disagree as to the
incompetent person’s wishes.
– Physicians disagree on the prognosis.
– A patient’s wishes are unknown because he
or she always has always been incompetent.
– Evidence exists of wrongful motives or
malpractice.
Defining Death
• Irreversible cessation of brain function.
• American Medical Association in 1974:
– Death is when there is “irreversible cessation
of all brain functions including the brain stem.”
Evidence of Patient’s
Intention Not to Prolong Life
• Patient’s intention to reject prolongation of life by
artificial means can be determined by:
– Persistence of statements regarding an
individual’s beliefs
– Commitment to beliefs
– Seriousness of statements made
– Inferences drawn from surrounding
circumstances
Nancy Cruzan Case
The Supreme Court analyzed the issues
presented in Cruzan in terms of a Fourteenth
Amendment liberty interest. They found that a
competent person has a constitutionally
protected right grounded in the due process
clause to refuse lifesaving hydration and
nutrition.
Legislative Response
• After the Cruzan decision, states began to draft
new legislation in the areas of living wills,
durable powers of attorney, healthcare proxies,
and surrogate decision making.
• Chief Justice Dore, Washington Supr. Ct. stated:
As was the case in Cruzan, our legislature is
far better equipped to evaluate this complex
issue and should not have its power usurped
by this court.
Assisted Suicide
• Assisted suicide presents profound questions of
ethics, religious beliefs, and public policy issues.
• Issue in which public input is vital.
• Courts not equipped to conduct the type of
comprehensive review required.
• Legislative and executive branches of
government are equipped to pursue these
issues.
Physician-Assisted Suicide
• Physician-assisted suicide is an action in which
a physician voluntarily aids a patient in bringing
about his or her own death.
• U.S. Supreme Court rejected Kevorkian’s
argument that assisted suicide is a constitutional
right.
Physician-Assisted Suicide:
Supreme Court Rulings
• U.S. Supreme Court, in two unanimous and
separate decisions, ruled:
1. Laws prohibiting assisted suicide are
constitutional.
2. Laws allowing doctors to assist in suicide of
their terminally ill patients are constitutional.
New Mexico Court
A New Mexico judge has ruled that terminally ill,
mentally competent patients have the right to get
a doctor to end their lives. The ruling by Judge
Nan Nash of the New Mexico Second Judicial
District would make Ne Mexico the fifth state to
allow doctors to prescribe fatal prescriptions to
terminal patients.
—Steve Siebold, Huffington Post, March 17, 2014
Quill v. Vacco
• Supreme Court found that neither the assisted
suicide ban nor the law permitting patients to
refuse medical treatment treats anyone
differently from anyone else or draws any
distinctions between persons.
• There is a distinction between letting a patient
die and making one die. Most legislatures have
allowed the former but have prohibited the latter.
• The Court disagreed with the respondents’ claim
that the distinction is arbitrary and irrational.
Washington v. Glucksberg
The U.S. Supreme Court held that assisted
suicide is not a liberty protected by the
Constitution’s due process clause. A majority of
states now ban assisted suicide. These rulings,
however, do not affect the right of patients to
refuse treatment.
Oregon’s Death with Dignity Act
• Allows terminally ill Oregon residents to obtain a
lethal dose of medication from their physician.
• Legalizes physician-assisted suicide.
• Prohibits physician or other person from directly
administering medication to end another’s life.
Patient Self-Determination Act of 1990
• Patients have right to formulate advance
directives.
• Healthcare providers receiving federal funds
under Medicare need to comply with regulations.
Advance Directives
Patients have a right to make decisions about their
health care with their physician. They may agree to
a proposed treatment, choose among offered
treatments, or refuse a treatment.
Living Will
Instrument or legal document that describes
treatments individual wishes or does not wish to
receive should he or she become incapacitated
and unable to communicate treatment decisions.
Durable Power of Attorney
A legal device that permits one individual, known
as the “principal,” to give to another person,
called the “attorney-in-fact,” the authority to act
on his or her behalf. The attorney-in-fact is
authorized to handle banking and real estate
affairs, incur expenses, pay bills, etc.
Durable Power of Attorney
for Health Care
An agent makes health and personal care
decisions for the patient in the event the patient
becomes unable to make his or her own
decisions.
Surrogate Decision Making
A surrogate decision maker is an agent who acts
on behalf of a patient who lacks the capacity to
participate in a particular decision.
Substituted Judgment
Substituted judgement is a form of surrogate
decision making where the surrogate attempts to
establish what decision the patient would have
made if that patient were competent to do so.
Guardianship
Guardianship is a legal mechanism by which court
declares a person incompetent and appoints a
guardian.
Healthcare Proxy
A healthcare proxy is a document that allows a
person to appoint a healthcare agent to make
treatment decisions in the event he or she
becomes incompetent and is unable to make
decisions for him- or herself.
Futility of Treatment
• Physician recognizes that effect of treatment will
be of no benefit to the patient.
• Morally, the physician has a duty to inform the
patient when there is little likelihood of success.
• The determination as to futility of medical care is
a scientific decision.
Withholding and Withdrawal
of Treatment
• Withholding of treatment is a decision not to
initiate treatment or medical intervention for the
patient. This is a decision often made when
d
