Legal and Ethical

Category: Education

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Legal and Ethical ConsiderationsGeriatrics : 

Legal and Ethical ConsiderationsGeriatrics Gerontology

Objectives : 

Objectives Explain the malpractice concerns for therapists in gerontology. Discuss the significance of obtaining informed consent from geriatric patients. Discuss elder abuse and neglect: signs and reporting requirements. Distinguish between living wills, advanced directives, and power of attorney. Explain the laws that pertain to employment protection for the elderly.

Topics To Be Considered : 

Topics To Be Considered Malpractice Informed consent Elder abuse Patient self-determination Employment protection

Malpractice : 

Malpractice Everyone faces potential malpractice Majority –geriatric clientele as plaintiffs with legal action against health care provider US society is litigation “happy” Risk is significant

PT Claims by Practice Setting : 

PT Claims by Practice Setting Non-hospital clinic 77% Home health 7% Nursing home (most severe claims*) 6% Hospital IP therapy area 2% *While most closed claims with an indemnity payment occurred at non-hospital physical therapy offices or clinics, the most severe closed claims occurred in nursing homes, with an average paid indemnity of $76,215.

Health Care Malpractice : 

Health Care Malpractice Physical and/or mental injury incurred by a patient in the course of health-care examination or intervention, coupled with a legal basis for imposing civil liability on a health-care provider for the harm suffered by the patient.

Professional Negligence or Substandard Care : 

Professional Negligence or Substandard Care Basis for imposing malpractice liability. Patient must prove four core elements by a preponderance or greater weight of evidence.

Core Elements of Malpractice : 

Core Elements of Malpractice 1) The defendant health-care professional owed a specific duty of care to the plaintiff-patient. 2) In the course of health-care delivery, the professional breached or violated the duty owed by failing to meet at least minimal, acceptable care standards.

Core Elements of Malpractice : 

Core Elements of Malpractice 3) The breach of duty by the health-care provider caused injury to the patient. 4) The patient sustained injuries of the type for which a judge or jury may legally order compensation in the form of money damage judgment designed to make the patient “whole” again.

Additional Responsibilities : 

Additional Responsibilities Indirectly responsible for conduct of support personnel acting under the supervision of a licensed/certified professional. Responsible for clearly communicating orders Responsible for establishing ongoing competency standards and assessing competency for support personnel.

Additional Legal Bases for Malpractice : 

Additional Legal Bases for Malpractice Intentional misconduct, including battery and sexual battery. Strict product liability for patient injury by dangerously defective treatment –related equipment supplied to the client.

Additional forms of Malpractice : 

Additional forms of Malpractice Breach of contract liability – failure to fulfill a therapeutic promise made to a patient.

Risk Management : 

Risk Management Minimizing malpractice risk exposure Maintain high standards of care and professionalism Have risk management policies and procedures Be respectful of the rights of patients Document thoroughly Acquire malpractice insurance

Patient Informed Consent : 

Patient Informed Consent Patient with full mental capacity has the right to give informed consent before evaluation or treatment Based upon respect for patient autonomy or self-determination Disclosure statements vary from state to state.

Common Elements of Informed Consent : 

Common Elements of Informed Consent Disclosure of patient’s diagnosis and information about the intervention Disclosure of serious risks of possible harm or complication associated with a proposed intervention that would influence the patient’s decision

Common Elements of Informed Consent : 

Common Elements of Informed Consent Discussion about expected benefits or goals associated with the intervention. After the above are done, provider is obligated to solicit and answer patient questions and formally ask for the patient’s consent to proceed, before doing so!

Informed Consent : 

Informed Consent May not be necessary to document in patient’s record each consent for routine care Agency may elect to “memorialize” an informed consent policy document

Managed Care “Gag” Clause : 

Managed Care “Gag” Clause Requires providers to refrain from discussing with patients care options not offered by the patient’s insurance plan Always unethical and often illegal

Elder Abuse : 

Elder Abuse The abuse, neglect or exploitation of the elderly.

Kinds of Elder Abuse : 

Kinds of Elder Abuse Domestic Abuse Abuse of the elder by someone with a familial relationship to the elder. Usually a spouse, child, or friend who resides with the elder.

Kinds of Elder Abuse : 

Kinds of Elder Abuse Institutional Abuse of the elder who resides in a nursing home, group home, or care facility. Usually by someone who is paid to provide care.

Kinds of Elder Abuse : 

Kinds of Elder Abuse Neglect Behavior that places an elder’s health or safety at risk. Can be by self or other.

Elder Abuse Law : 

Elder Abuse Law In place in all states for physical abuse and neglect. Not for financial exploitation. Federal law provides definitions of abuse and allocates $$ to organize elder abuse prevention and awareness activities.

Elder Abuse : 

Elder Abuse Patient Restraints Physical or chemical Clinical justification Physician’s order Patient or surrogate informed consent Less restrictive alternatives must be tried and found inadequate

Adult Protection Services Laws : 

Adult Protection Services Laws Provides means for reporting and investigating cases Offers social services to victims Serves only people with legal disabilities (not everyone is covered) Some states cover only domestic abuse

Who is required to reportelder abuse? : 

Who is required to reportelder abuse? Elder or dependent care custodians Health practitioners Adult Protective Services employees Law enforcement personnel

Where to report? : 

Where to report? Local law enforcement agencies APS agencies Local LTC Ombudsman if it happens in a long term care facility Penalties for not reporting

Immunity : 

Immunity Most state laws on reporting abuse provide for qualified immunity from defamation or other bases of liability for persons making good faith reports.

Signs and Symptoms of Abuse : 

Signs and Symptoms of Abuse Unexplained or untreated injuries Reticence Poor hygiene Malnutrition and dehydration

Indications of Elder Abuse in the Abusers : 

Indications of Elder Abuse in the Abusers Aggression toward elder Verbal abuse of elder Speaking for client during examination Indifference to instructions or suggestions offered by provider

Break the Silence: Elder Abuse in America : 

Break the Silence: Elder Abuse in America

Patient Self-Determination Act : 

Patient Self-Determination Act 1990 federal statute Rights of residents of LTC centers to exercise control over health care decision making Premised on respect for patient autonomy


PSDA Requires hospitals and long-term care facilities to ask patients about advance directives they have in effect Requires same facilities to honor the advanced directives

Advanced Directives : 

Advanced Directives Omnibus Budget Reconciliation Act of 1990 Legal instruments that memorialize patient’s desires regarding care options in the event of incapacitation

Advanced Directives Types : 

Advanced Directives Types Living Wills States the patient’s wishes concerning the scope of permissible health-care interventions in the event of patient incapacity Durable Power of Attorney for Health Care Decisions Empowers third parties to act on behalf of incapacitated person

Employment Protection for Older Workers : 

Employment Protection for Older Workers 3 Federal statutes that protect older workers Age Discrimination Employment Act of 1967 (ADEA) Prohibits employer discrimination against workers age 40 and older Amended in 1986: ended most mandatory retirement

Labor Force Participation Rates : 

Labor Force Participation Rates 1994 2005

Employment Protection : 

Employment Protection Americans with Disabilities Act of 1990 Prevents discrimination against mentally or physically disabled employees Provides for reasonable accommodations Title III of the ADA protects rights of consumers to equal access to public accommodations –privately owned health-care facilities

Employment Protection : 

Employment Protection Family and Medical Leave Act of 1993. Employers with 50 or more employees(full time) –allow employees to take up to 12 weeks per year, job protected leave, unpaid for personal or family illness. Administered by federal Dept. of Labor

Slide 40: 

I don't think about my age. It's only a number. James Biggs (at age 104)

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