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express corporate authority

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power specifically delegated by statute

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implied corporate authority

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the right to perform any and all acts necessary to exercise a corporation's expressly conferred authority and to accomplish the purpose(s) for which it was created.

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Ultra Vires Ats

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a governing body can be held liable for acting beyond its scope of authority, which is either expressed or implied in law.

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committees

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ultimate responsibility for the functioning of a healthcare corporation rests with governing body. Ideally governing body includes representation from both community and organization's medical staff.

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Sarbanes-Oxley Act of 2002

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encourages self-regulation and the need to promote due diligence; selecting a leader with morals, and core values; examining incentives; constantly monitoring the organization's culture; establishing strong standards of conduct and a code of ethics that encourages employees to report unethical or fraudulent behavior without fear of retribution. p. 148

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Respondeat superior (let the master respond)

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legal doctrine holding employers liable, in certain ccases, for the wrongful acts of their agents (employees). AKA vicarious liability.

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Respondeat superior (for liability to be imputed to the employer)

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1. Master-servant relationship must exist between the employer and the employee. 2. The wrongful act of the employee must have occurred within the scope of his or her employment.

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Independent Contractor

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relationship is established when the principal has no right of control over the manner in which the agent's work is to be performed. Responsible for his/her own negligent acts.

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Corporate Officer/Director

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is not personally liable for the torts of corporate employees

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Corporate Negligence

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doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being while at the hospital. This theory of liability creates a non-delegable duty which the hospital owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party.

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Hospitals owe some nondelegable duties strictly to just patients

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Duty to: -use reasonable care in the maintenance of safe facilities and equipment -Select and retain competent physicians -Oversee all persons who practice medicine w/in their walls -Formulate, adopt, and enforce rules and policies to ensure quality care.

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Corporate Negligence Doctrine

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Hospitals have a duty to provide an adequately trained medical and nursing staff. Hospital is responsible, in conjunction w/ its medical staff, for establishing policies and procedures for monitoring the quality of medicine practiced w/in the hospital.

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Darling v. Charleston Community Memorial Hospital

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Benchmark case in the healthcare field that had a major impact on the liability of healthcare organizations.

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Joint Commission

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Standards for hospital accreditation

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Governing Body Responsibilities

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exercise due care and diligence in supervising and managing and organization. Can be liable if the level of patient care becomes inadequate b/c of their failure to supervise properly the management of the organization. CEO selection, comply w/ law, comply w/ standards of accrediting bodies, provide timely treatment, avoid conflicts of interest, provide adequate staff,.

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CEO

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Responsible for day-to-day operations of the organization, overall management of the organization., supervision of the administrative staff and managers who assist in the daily operations, derives authority from owner or governing body, implement and interpret policies

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Conflicts of Interest

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Involves those situations in which a person has opportunity to promote self-interests that could have a detrimental effect on an organization w/ which he or she has a special relationship.

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RACE

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Rescue or remove the patient first An alarm should be sounded second Contain the fire third Extinguish the fire last

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Non-profit

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Does not give rise to any tax obligation if the receiver of such benefit is exempt from taxation under any of several subsections of Section 501 (c) of the Internal Revenue Code provided that exempt activities are the organization's main source of income and expense.

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Drive purpose of organization

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The desire to develop alternative sources of revenue and/or to streamline management of multi-institutional systems. Any discussion of corporate reorganization undertaken by hospital must involve the medical staff. Development of a business involving equity participation must be considered in the light of the state/federal securities laws and other laws.

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Duty to Prevent Falls

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Maintaining a safe environment, as well as providing ongoing staff and patient education, can reduce the frequency of falls. Parking lot safety, hospital lobby safety, stretcher safety, slippery floors etc.

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Certificate of Need

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Generally hospitals may not add additional programs or services and may not expend monies for the acquisition of capital in excess of specified threshold limits w/o first obtaining approval from appropriate state regulatory agencies.

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Safe-Harbor Regulations

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Describe how healthcare providers should structure financial arrangements in order to be exempt from prosecution by the Department of Justice and the FTC. Cover 1.) Investment interests 2.) Space rentals 3.) equipment rentals 4.) Personal services and mandatory contracts 5.) Sales of practice 6.) Referral services 7.) Warranties 8.) Discounts 9.) Employees 10.) Group purchasing organizations 11.)Waivers

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Elements of negligence

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1. Duty to care 2. Breach of duty 3. Injury 4. Causation

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Privileging and Credentialing Process

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Purpose of the appointment process is to evaluate the competency of the applicant to determine whether he or she is qualified for appointment to the medical staff

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Application

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Establish non-discrimination policy. Provide information regarding residence, office location, medical school, internship, residency, license to practice medicine, board certification, fellowship, malpractice coverage, etc.

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Medical Staff Bylaws

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Should be approved by the medical executive committee & gov body, staff required to sign statement affirming that bylaws have been read and must be followed.

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Physical and Mental Status

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Must address issues regarding a doc's physical and mental capacity before granting of med staff privileges.

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Consent for Release of Info

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Information from third parties should be obtained from applicant

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Certificate of Insurance

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Applicant should provide evidence of professional liability insurance. Policy should provide minimum levels of insurance coverage w/ limits determined by organization.

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State Licensure

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Grounds for revocation of license to practice includes: clear demonstration of lack of good moral character, deliberate falsification of patient's med record, intentional fraudulent advertising, gross incompetence, sexual misconduct, substance abuse, performance of unnecessary medical procedures, billing for services not performed, disruptive behavior.

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National Practitioner Data Bank

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Created by Congress as a national repository of information w/ the primary purpose of facilitating a comprehensive review of physicians' and other healthcare practitioners professional credentials.

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References

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Failure to thoroughly checked can lead to corporate liability for a physician's negligent acts. Both written and oral should be obtained from previous organizations that applicant has been affiliated.

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Interview Process

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must receive all required documents beforehand, obtain answers to several questions

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Delineation of Clinical Privileges

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process by which medical staff determines precisely what procedures a physician is authorized to perform.

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Governing Body Responsibility

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Ultimate responsibility for the selection of organization's professional staff and ensuring applicants are qualified to perform clinical privileges requested.

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Appeal Process

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Described in the med staff bylaws to cover issues such as the denial of professional staff privileges, grievances, and disciplinary actions.

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Reappointments

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Each physician's credentials and departmental evaluations should be reviewed every 2 yrs.

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Two Schools of Thought

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Potential for liability affects the choice of treatment a physician will follow w/ his or her patient. Only applicable in medical malpractice cases in which there is more than one method of accepted treatment for patient's disease or injury. Physician will not be liable for medical malpractice if he or she follows a course of treatment supported by reputable respected and reasonable medical experts.

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Doctrine of Informed Consent

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Independent from malpractice. Physician's duty to disclose known dangers associated w/ a proposed course of treatment imposed by law.

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Abandonment

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Medical care was unreasonably discontinued, the discontinuance of medical care was against the patient's will. Termination of the physician-patient relationship must have been brought about by a unilateral act of the physician, the physician failed to arrange for care by another physician, foresight indicated that discontinuance might result in physical harm to the patient, actual harm was suffered by patient.

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Physician-patient relationship

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Physician's primary commitment must always be the patient's best welfare and best interests

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Master-servant relationship

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Determines control

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Standard of Practice

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Failure to obtain an adequate family history and perform an adequate physical examination violates a standard of care owed to the patient.

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Duty to Warn

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There is a duty to exercise reasonable care to protect the forseeable victims and to warn them of any impending danger. Discharge of this duty also may include notifying the police or taking whatever steps are reasonably necessary under the circumstances.

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Under Nebraska Law

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Relationship between a psychotherapist and a patient gives rise to an affirmative duty to initiate whatever precautions are reasonably necessary to protect the potential victims of a patient.Duty develops when a therapist knows or should know that a patient's dangerous propensities present an unreasonable risk of harm to others.

Healthcare Law Midterm Chapters 7&8 – Flashcards

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