Hospital Liability

James Walker Smith

Detailed Table of Contents

CHAPTER 1: HOSPITAL ORGANIZATIONAL STRUCTURE
§ 1.01 Introduction 1-2.1
[1] Public Hospitals 1-3
[2] Private Hospitals 1-3
[a] Voluntary 1-3
[b] Investor-Owned 1-3
[c] Multi-Unit 1-3
§ 1.02 Governing Body 1-4
[1] Duties 1-4
[a] Bylaws 1-4
[b] Committees 1-5
[i] Executive 1-5
[ii] Joint Conference 1-5
[iii] Institutional Planning 1-5
[c] Supervision of Medical Staff 1-6
[i] Medical Staff Bylaws 1-6
[ii] Privileges 1-6
[d] Chief Executive Officer 1-7
[e] Governing Body Membership 1-7
[f] Member Liability 1-7
§ 1.03 Medical Staff 1-9
[1] Introduction 1-9
[2] Organization 1-9
[3] Membership 1-9
[a] In General 1-9
[b] Application of Appointment 1-9
[c] Delineation of Clinical Privileges 1-10
[d] Staff Categorization 1-11
[4] Committees 1-11
[a] Executive 1-11
[b] Review Committees 1-12
[i] In General 1-12
[ii] Tissue Committees 1-13
[iii] Pharmacy 1-13
[iv] Medical Records 1-13
[v] Blood 1-14
[vi] Antibiotics 1-14
[vii] Other Committees 1-14
[5] Staff Privileges 1-14
[a] Due Process 1-14
[i] In General 1-14
[ii] State Action 1-15
[iii] Procedural Due Process 1-17
[iv] Substantive Due Process 1-17
[b] Bylaw as Contract 1-19
[c] Grounds for Denial 1-20
[i] School for Practice 1-20
[ii] Maintenance of Adequate Liability Insurance 1-21
[iii] Personality 1-21
[iv] Miscellaneous Grounds 1-22
§ 1.04 Antitrust Liability 1-25
[1] Introduction 1-25
[2] Applicable Antitrust Law 1-25
[a] The Sherman Act 1-25
[b] The Clayton Act 1-28
[3] Antitrust Immunity 1-29
[a] State Action 1-29
[b] Local Government Antitrust Act of 1984 1-30
[c] The Noerr-Pennington Doctrine 1-31
[d] Health Care Quality Improvement Act 1986 1-31
[4] Specific Applications of Antitrust Law
in Health Care 1-34
[a] Hospital Mergers 1-34
[b] Medical Staff 1-37
§ 1.05 Nursing Staff 1-40.2
§ 1.06 Health Care Fraud 1-42
[1] Self-Referrals 1-42
[a] Federal Law 1-42
[b] State Statutes 1-44
[2] Kickbacks and False Claims 1-44
[a] Civil Monetary Penalties Law 1-44
[b] Criminal Penalties 1-45
§ 1.07 Malpractice Information Available to the Public
[1] Physician Profiles
[2] Hospital Report Cards
[3] Other Provisions

CHAPTER 2: IMMUNITY
§ 2.01 In General 2-2
§ 2.02 Governmental Immunity 2-3
[1] In General 2-3
§ 2.03 Federal Immunity 2-5
[1] Federal Tort Claims Act 2-5
[a] In General 2-5
[b] Exceptions 2-6
[i] Discretionary Function 2-6
[ii] Intentional Torts 2-7
[c] Employee vs. Independent Contractor 2-8
[d] The Feres Doctrine 2-9
[e] Damages 2-12
§ 2.04 State Immunity 2-12.1
[1] Statutory Limitations 2-12.1
[a] In General 2-12.1
[b] Monetary Limits 2-13
[c] Insurance 2-14
[d] Common Statutory Immunity Exceptions 2-15
[2] "Sue or be Sued" Provisions 2-16
[3] Government-Proprietary Test 2-16
§ 2.05 Immunity of State Political Subdivisions 2-18
[1] Statutory Constraints 2-18
[2] "Sue or be Sued" Provisions 2-19
[3] Discretionary Function 2-20
[4] Monetary Limits 2-20
[5] Governmental-Proprietary Test 2-20.1
§ 2.06 Charitable Immunity 2-22
[1] Historical Perspective 2-22
[2] Rationale for Immunity Rule 2-22
[3] Exceptions to Immunity 2-23
[4] Current Status of Charitable Immunity 2-23
[a] Monetary Limits 2-25
[b] Insurance 2-25
§ 2.07 Conclusion 2-26

CHAPTER 3: HOSPITAL TORTIOUS LIABILITY
§ 3.01 Introduction 3-2
§ 3.02 Vicarious Liability 3-4
[1] The Hospital Exception 3-4
[2] The Hospital Exception Rejected 3-5
[3] The Private Attending Physician 3-7
[4] The HMO Physician
§ 3.03 The Corporate Negligence Doctrine 3-9
[1] Darling v. Charleston Memorial Hospital 3-9
[a] The Opinion 3-9
[b] Darling's Progeny 3-9
[2] Bestowal and Revocation of Staff Privileges 3-11
[a] Non-Delegable Duty 3-11
[b] Medical Staff Liability 3-12
[c] Governing Board Liability 3-15
[d] Notice of Physician Incompetency 3-17
[i] Strict Standard 3-17
[ii] Liberal Standard 3-19
[3] Failure to Supervise 3-21
[a] Illinois—Post Darling 3-21
[b] Other Jurisdictions 3-22
[i] In General 3-22
[ii] Informed Consent 3-23
[iii] Ostensible Agency 3-24
§ 3.04 Claims for Possible Future Harm 3-28
[1] In General 3-28
[2] AIDS Phobia 3-30
§ 3.05 Conclusion 3-37

CHAPTER 4: STANDARD OF CARE
§ 4.01 Contract 4-2
§ 4.02 Standard of Reasonable Care And Skill 4-4
[1] In General 4-4
[2] Simple Negligence vs. Malpractice 4-4
[3] Locality Rule 4-8
[a] In General 4-8
[b] Exception to the Locality Rule 4-9
[4] Same or Similar Community Rule 4-10
[5] National Standard 4-11
[6] Ad Hoc Approach 4-12
§ 4.03 Evidence of Standards of Care 4-14
[1] Expert Testimony 4-14
[2] Voluntarily Assumed Standards 4-15
[3] Res Ipsa Loquitur 4-17
[a] In General 4-17
[b] Pre-Conditions 4-18
[c] Expert Testimony 4-18
[d] Application 4-19
[i] Foreign Objects 4-20
[ii] Infections 4-20.1
[iii] Foreign Substances 4-20.1
[iv] Burns 4-20.2
[e] Evidentiary Effect 4-20.2
[f] Control of the Instrumentality 4-21
[i] In General 4-21
[ii] Surgery 4-21
§ 4.04 Hospital Obligation to Patients 4-23
[1] Following Orders 4-23
[2] Independent Duty 4-23
§ 4.05 The Patient's Right to Dignity 4-25
[1] Mentally Ill Persons 4-25
[2] Terminal Patients 4-25

CHAPTER 5: HOSPITAL PROFESSIONAL LIABILITY INSURANCE
§ 5.01 Standard Policies 5-2
[1] In General 5-2
[2] Coverage 5-2
[a] Negligence and Malpractice 5-2
[b] Directors and Officers 5-3
[3] "Claims Made" or "Occurrence" Policies 5-3
[4] Risk Placement 5-4
[5] Conditions of Coverage 5-4
[6] Duty To Defend 5-5
[a] In General 5-5
[b] Duty to Settle 5-6
[c] Duty to Appeal 5-6
[7] Excess And Other Insurance 5-7
§ 5.02 Alternatives to Traditional Liability Insurance 5-8.1
[1] Inadequacy of Present Approach 5-8.1
[2] Alternatives 5-8.1
[3] Group Policies 5-10
[4] Tort Reform 5-10
[a] In General 5-10
[b] Litigation Alternatives 5-13
[i] Moore-Gephardt Bill 5-15
[ii] Third Party No-Fault 5-16
[iii] First Party No-Fault 5-18
[5] Punitive Damages 5-19
[a] In General 5-19
[b] Deterrence 5-20
[c] Punitive Damage Standards 5-21
[d] Frequency and Size of Punitive Damage
Awards 5-25
[e] Exclusion of Coverage and Public Policy 5-29

CHAPTER 6: ADMISSION AND EMERGENCY TREATMENT
§ 6.01 Admission 6-2.1
[1] Common Law Rule 6-2.1
[2] The Emergency Exception to the Common Law Rule
6-3
[a] In General 6-3
[b] The Nature of an Emergency 6-4
[c] Scarce Medical Resource 6-5
[3] Discrimination 6-5
[a] Reasonableness 6-5
[b] Ability To Pay 6-6
[i] Hill-Burton Act 6-6
[ii] Federal Tax Exemption 6-7
[iii] State Legislation 6-8
[iv] The Emergency Treatment and Active Labor Act 6-8
[A] Statutory Overview 6-9
[B] Jurisdiction and Preemption 6-12
[C] Defendants' Motivation 6-14.1
[c] Child Abuse and Rape 6-14.5
[4] The Admission Process 6-14.7
[a] Precondition of Duty to Treat 6-14.7
[b] Medical Evaluation 6-14.7
[i] Service Patients 6-14.7
[ii] Private Patients 6-14.8
[c] Consent 6-14.8
[i] Blanket Consent 6-14.8
[ii] Informed Consent 6-14.8
§ 6.02 Emergency Treatment 6-14.11
[1] Obligation to Treat 6-14.11
[a] Criminal Liability 6-14.11
[b] Civil Liability 6-15
[c] Liability of Individual Medical Professionals 6-15
[2] Reliance 6-16
[3] JCAH Standards 6-16
[a] Level I 6-16
[b] Level II 6-17
[c] Level III 6-17
[d] Level IV 6-17
[e] Department Director 6-17
[f] Staff Coverage 6-17
[g] Nursing Coverage 6-18
[h] Laboratory Services 6-18
[i] Hospital Policies 6-18
[4] Hospital Liability 6-18
[a] In General 6-18
[b] Liability for Private Attending Physicians 6-19
[i] Corporate Negligence 6-19
[ii] Agency 6-20
[5] Discrimination 6-23
[6] Alternatives to Agency Analysis 6-24
[a] In General 6-24
[b] Enterprise Liability 6-24
[7] Good Samaritan Legislation 6-25
[8] Responding to Terrorist Attacks
§ 6.03 Ambulance Services 6-27
[1] Immunity 6-28
[2] The Emergency Treatment and Active Labor Act (EMTALA) 6-31
[3] Delays 6-31
[4] Vicarious Liability 6-34
[5] In-Hospital Patients and Third Parties 6-35
[6] Expert Testimony 6-35
[7] Discovery 6-36
§ 6.04 Interpreters
[1] In General
[2] Sign Language

CHAPTER 7: NOSOCOMIAL INFECTIONS
§ 7.01 JCAH Standards 7-1
[1] In General 7-1
[2] Multi-Disciplinary Committee 7-3
[3] Records 7-3
[4] Written Policies for Each Service 7-3
§ 7.02 Liability 7-5
[1] Duty 7-5
[2] Proximate Causation 7-5
[a] Expert Testimony 7-5
[b] Difficulty of Proof 7-6
[i] Strict Approach 7-6
[ii] Liberal Approach 7-7
§ 7.03 Common Problems 7-8
[1] Failure To Diagnose or Monitor 7-8
[2] Eye Infections 7-8
[3] Surgery 7-9
[a] Accepted Risks 7-9
[b] Consent 7-10
[4] Employee and Visitor Infection 7-10
[a] Hospital-Patient Relationship 7-10
[b] Hospital as Land Owner 7-11

CHAPTER 8: EQUIPMENT RELATED PATIENT INJURIES
§ 8.01 Introduction 8-2
§ 8.02 Negligence and Malpractice 8-5
[1] Duty to Ensure Equipment is Reasonably Safe 8-5
[2] Duty to Provide Necessary Equipment 8-6
[3] Balancing Tests 8-8
[4] Failure to Warn and Informed Consent 8-8
[5] Failure to Test 8-9
[6] Alleviating the Burden of Providing Negligence 8-9
[7] Negligence or Malpractice 8-10
§ 8.03 The "Sale" Requirement 8-12
[1] In General 8-12
[2] Warranty 8-12
[3] Strict Liability 8-14
§ 8.04 Application of Strict and Warranty Liability to Hospitals for Defective Medical Equipment 8-17
[1] Warranty 8-17
[a] Hybrid Transaction 8-17
[b] Non-Medical Products 8-18
[2] Strict Liability 8-18
[a] Generally Inapplicable to Hospitals 8-18
[b] Unique Medical Relationship 8-20
[c] The Ultimate Consumer 8-20
[d] Equipment Inspection 8-20.1
[e] Spreading Risks 8-21
[f] Conclusion 8-22

CHAPTER 9: DISCHARGE, TRANSFER AND REFERRAL
§ 9.01 Discharge 9-2
[1] Medically Appropriate Basis 9-2
[2] Tests 9-2
[3] Discharge Clearance 9-3
[a] Medical Professional 9-3
[b] Clinical Judgment 9-3
[4] Instructions 9-4
[a] In General 9-4
[b] The Medical Record 9-4
[5] Utilization Review and Eviction 9-5
[6] Against Medical Advice 9-7
[a] Informed Refusal 9-7
[b] Medical Staff Member's Obligation 9-7
[c] The Chart and Release Forms 9-7
[7] Missed Appointments 9-8
§ 9.02 Transfer and Referral 9-10
[1] In General 9-10
[2] Referral 9-10
[3] Physical Examination 9-10
[4] Patient's Best Interests 9-11
[5] Procedure 9-11

CHAPTER 10: PARTICULAR HOSPITAL SERVICES
§ 10.01 Blood 10-4
[1] Strict and Warranty Liability 10-4
[2] Rationale 10-5
[3] Cunningham v. MacNeal Memorial Hospital 10-5
[4] Negligence 10-7
[a] In General 10-7
[b] The Obligation to Test 10-7
[c] Consent 10-8
[5] Blood Bank 10-8
[6] Availability 10-8.1
[7] Incompatibility 10-8.1
[a] In General 10-8.1
[b] Rh Factor 10-9
[8] Acquired Immune Deficiency Syndrome (AIDS) 10-10
[a] Definitions 10-10
[b] Manner of Transmission 10-11
[c] Prevalence in the Workplace 10-12
[d] Blood Transfusions: Strict Liability and Warranty 10-13
[e] Blood Transfusions: Negligence 10-16
[f] Informed Consent for Transfusion 10-20
[g] Hospital Liability for HIV Transmission Among Hospital Personnel 10-23
[h] Duty to Treat 10-28
[i] Related Issues 10-31
[i] Confidentiality 10-31
[ii] Testing 10-35
[iii] Statute of Limitations 10-39
[9] Intraoperative Autologous Transfusions 10-40
[10] Umbilical Cord Blood 10-44
[11] Conclusion 10-47
§ 10.02 Radiology 10-48
[1] Slip and Fall Litigation 10-48
[a] The Patient's Condition 10-48
[b] Adequate Personnel 10-48
[2] Hospital Responsibility for Radiologist 10-49
[3] Radiation Diagnostics and Therapy 10-50
[a] In General 10-50
[b] Strict Liability 10-50
[4] Negligence 10-51
[a] In General 10-51
[b] Equipment 10-52
[c] Contrast Media 10-52
[d] Consent 10-53
[5] Radiology Record Retention 10-53
§ 10.03 Anesthesia 10-54
[1] Hospital Responsibility 10-54
[a] In General 10-54
[b] The "Captain of the Ship" Doctrine 10-55
[2] General Anesthesia 10-56
[a] Intubation 10-56
[i] Teeth 10-56
[ii] Misplacement of Tube 10-56
[b] Administration of Anesthesia 10-57
[i] Personnel 10-57
[ii] Overdose 10-57
[iii] JCAH Standards 10-57
[c] Extubation 10-58
[3] Spinal Anesthesia 10-59
§ 10.04 Obstetrical Suite 10-60
[1] Facilities 10-60
[a] Common Law Rule 10-60
[b] Adequacy 10-60
[c] Pregnancy Related Actions 10-61
[i] In General 10-61
[ii] Wrongful Diagnosis 10-62
[iii] Wrongful Pregnancy 10-62
[iv] Wrongful Birth and Wrongful Life 10-64
[v] Wrongful Death 10-68
[2] Deviations from Accepted Obstetrical Standards 10-68.1
[a] Imminent Delivery 10-68.1
[b] Complications 10-68.2
[c] Monitoring 10-68.2
[3] Delayed Caesarean Section 10-68.4
[4] Attendance at Delivery 10-68.4
[a] Obstetrician 10-68.4
[b] Husband 10-68.5
[c] Neonatologist 10-68.5
§ 10.05 Surgery 10-68.6
[1] Vicarious Liability—"Captain of the Ship" 10-68.6
[a] In General 10-68.6
[b] Control 10-68.7
[c] Two Masters 10-68.7
[2] Direct Liability 10-68.8
[a] Hospital Residents and Interns 10-68.8
[b] Medical Judgments 10-68.9
[c] Palpably Improper Judgments 10-68.9
[d] Pathology Department 10-68.10
[e] Res Ipsa Loquitur 10-68.10
[i] Foreign Object 10-68.10
[ii] Nerve Damage 10-68.12
[iii] Burns 10-68.12
[f] Equipment 10-68.12
[g] Post-Surgical Period 10-68.13
[h] Sales Representatives
§ 10.06 Autopsy and Donation 10-70
[1] Autopsy 10-70
[a] Consent 10-70
[b] Statutory Authority 10-70
[c] Scope of Authority 10-71
[2] Donation 10-71
[a] Uniform Anatomical Gift Act 10-71
[b] Revocation 10-73
[c] Presumed Consent 10-73
[3] Transplants 10-74
§ 10.07 Psychiatric Services 10-74.2
[1] Escape by a Patient 10-74.2
[2] Self-Inflicted Injuries 10-76
[a] Negligent Supervisor 10-76
[b] Unsafe Premises 10-77
[c] Failure to Notify a Physician 10-77
[d] Decision to Confine a Patient 10-77
[e] Suicide 10-78
[3] Liability to Third Parties 10-80
§ 10.08 Medication 10-82
§ 10.09 Corpses 10-83

CHAPTER 11: NURSING
§ 11.01 Nursing Professionalism and Its Legal Implications 11-2
[1] Subservient Status 11-2
[2] Negligence Standard 11-2
[3] Changed Roles 11-3
[a] The Nurse Practitioner in General 11-3
[b] Nurse Anesthetists and Midwives 11-5
[4] Communications 11-6
§ 11.02 Malpractice Litigation 11-8
[1] In General 11-8
[2] Ministerial vs. Professional Judgments 11-8
[3] Standard of Care 11-9
[4] Expert Testimony 11-9
[5] Statute of Limitations 11-11
§ 11.03 The Realities of Nursing Practice 11-12
§ 11.04 Nursing Duties 11-14
[1] Following Orders 11-14
[2] Observation and Consultation 11-15
[a] Patient Condition 11-15
[b] Patient Activity 11-16
[3] Injections and Unsterile Equipment 11-17
[4] Operating Room 11-18
[a] In General 11-18
[b] Ministerial Acts 11-19
CHAPTER 11A: THE HOSPITAL PHARMACY
§ 11A.01 Introduction 11A-2
§ 11A.02 Ownership and Location of a Pharmacy Within a Hospital 11A-4
§ 11A.03 Regulations 11A-6
[1] Conditions of Participation in Medicare
Programs 11A-6
[2] State Boards of Pharmacy 11A-7
[3] Joint Commission on Accreditation of Healthcare Organizations 11A-8
[4] Controlled Substances 11A-9
§ 11A.04 Pharmacy Recordkeeping 11A-10
§ 11A.05 Pharmacy Personnel 11A-11
[1] Non-Pharmacists 11A-11
[2] Pharmacy Residents 11A-11
§ 11A.06 Manufacture and Marketing 11A-13
§ 11A.07 Learned Intermediary 11A-14
§ 11A.08 Medication Errors 11A-15
§ 11A.09 Use of Experimental Drugs Under Investigation 11A-18
§ 11A.10 Authority of Non-Physicians to Prescribe
Medications 11A-19
[1] Physician's Assistants 11A-19
[2] Nurse Practitioners or Clinical Nurse Specialists 11A-19
[3] Optometrists 11A-20
[4] Certified Nurse Midwives 11A-20
§ 11A.11 The Future of the Hospital Pharmacy 11A-21
[1] Introduction 11A-21
[2] Quality of Care 11A-21
[3] Cost Containment 11A-22

CHAPTER 12: INFORMED CONSENT
§ 12.01 Introduction 12-1
§ 12.02 Self-Determination vs. Medical Paternalism 12-3
[1] Theoretical Basis 12-3
[2] The Medical Tradition 12-6
[3] The Legal Tradition 12-7
§ 12.03 Battery or Negligence? 12-10
§ 12.04 The Modern Era 12-12
§ 12.05 Scope of Disclosure 12-15
[1] Professional Standard vs. Lay Standard 12-20
§ 12.06 Proximate Causation 12-26
§ 12.07 Exceptions to Informed Consent 12-29
[1] Consent Implied in Fact 12-29
[2] Consent Implied in Law 12-32
[3] Excused Absence of Consent 12-33
[4] Emancipated Minor 12-36
§ 12.08 Hospital Responsibility 12-38

CHAPTER 13: REFUSAL OF TREATMENT
§ 13.01 The Right of a Competent Adult to Refuse Treatment 13-2
[1] General Acceptance 13-2
[a] Common Law 13-2
[b] Constitutional Law 13-6
[i] Right of Privacy 13-6
[ii] Free Exercise of Religion 13-8
[2] State Interests 13-9
[a] Preservation of Life 13-10
[b] Protection of Innocent Third Parties 13-11
[c] To Safeguard the Integrity of the Medical Profession 13-12
[d] Prevention of Suicide 13-14
[3] Informed Refusal 13-15
§ 13.02 Foregoing Life-Sustaining Treatment for Incompetents 13-19
[1] The Right to Death 13-19
[a] Common Law and Constitutional Right 13-19
[b] Criminal and Civil Liability 13-21
[2] Incompetency 13-23
[a] In General 13-23
[b] Brain Death 13-25
[c] Permanent Vegetative State or
Demented Condition 13-26.1
[3] Surrogate Decision-Making Standards 13-28
[a] Substituted Judgment 13-28
[b] Best Interests 13-31
[i] Objective Standard 13-31
[ii] Limited-Objective Test 13-34
[iii] Quality of Life 13-34
§ 13.03 Nutrition and Hydration 13-37
[1] In General 13-37
[2] The Act/Omission Distinction 13-40
[3] Ordinary/Extraordinary Distinction 13-40.1
§ 13.04 Decision-Making Process 13-40.3
[1] Advance Directives 13-40.3
[a] Natural Death Acts 13-40.3
[b] Power of Attorney Acts 13-44
[c] Health Care Proxy 13-45
[d] Assisted Suicide 13-46
[2] Family and Physician 13-47
[a] In General 13-47
[b] Minors 13-48.1
[c] Fetus
[3] Hospital Role 13-51
[a] In General 13-51
[b] DNR Policy 13-52
[c] Ethics Committees 13-54
§ 13.05 Assisted Suicide 13-56
§ 13.06 Pain Relief Management
[1] Philosophical Background
[2] Federal
[3] State

CHAPTER 14: PATIENT MEDICAL RECORDS
§ 14.01 Patient Medical Records 14-4
[1] Maintenance Requirements 14-4
[2] Government Requirements 14-4
[a] State 14-4
[b] Federal 14-4
[3] Categories 14-5
[4] Authorized Entries 14-5
[5] Counter Signature 14-6
§ 14.02 Retention of Records 14-7
[1] Amorphous Standard of Retention 14-7
[2] Applicable State Statutes and Regulations 14-7
[3] Federal Regulation 14-8
[4] Statute of Limitations 14-8
[a] Contract 14-9
[b] Negligence and Malpractice 14-9
[c] Tolls 14-9
[d] Accrual 14-9
[5] Uniform Act 14-10
§ 14.03 Particular Records 14-11
[1] Admission Record 14-11
[a] Identification 14-11
[b] Delay in Treatment 14-11
[2] Patient's Medical History 14-11
[a] In General 14-11
[b] Substituted History 14-11
[c] Effect on Litigation 14-12
[3] Physical Examination 14-12
[a] In General 14-12
[b] Liability 14-12
[4] Order Sheet 14-13
[a] In General 14-13
[b] Verbal Orders 14-13
[c] Effect on Litigation 14-13
[5] Clinical Record 14-14
[a] In General 14-14
[b] Consultation 14-14
[c] Nurses' Notes 14-14
[6] Testing and Procedure Reports 14-15
[7] Evidence of Informed Consent 14-15
[a] Procedures and Treatments 14-15
[b] Contents of Form 14-15
[c] Signature and a Presumption of Validity 14-16
[8] Discharge Summary 14-16
§ 14.04 Confidentiality and the Patient Hospital Record 14-18
[1] Ethical Principle 14-18
[2] Legal Principle 14-19
[a] Evidentiary Privilege 14-19
[b] Exceptions 14-20
[i] Disclosures Outside of Relationship 14-20
[ii] Public Interest 14-20
[iii] OSHA 14-21
[iv] Quality Assurance 14-21
[v] Patient Access to His Records 14-22
[A] In General 14-22
[B] Paternalism 14-22.1
[C] Fiduciary Relationship and Public Record Exceptions 14-23
[D] Property Interest 14-23
[E] Medical Consumer
Legislation 14-24
[F] Federal Legislation 14-25
[3] Health Insurance Portability and Accountability Act (HIPAA)
[a] Introduction
[b] Covered Entities and Business Associates
[i] Covered Entities
[ii] Business Associates
[c] Confidentiality
[iI Introduction
[ii] Safeguards
[iii] Electronic Transactions
[iv] Patient Notification
[v] Consent and Authorizations
[A] Introduction
[B] Consent
[C] Authorizations
[vi] Patient Access to Information
[A] Inspecting and Amending
[B] Accounting of Disclosures
[vii] Penalties
§ 14.05 Waiver of Confidentiality 14-26
[1] Non-Confidential Information 14-26
[2] Placing Medical Condition in Controversy 14-26
[3] Analysis of Which Issues Are in Controversy 14-27
[4] Child Custody Cases 14-28
[a] No Waiver 14-28
[b] Waiver 14-29
[5] Authorizations 14-29
[a] Form and Content 14-29
[b] Inspection and Copying 14-29
[6] Ex Parte Interviews 14-30
[7] Non-Litigants 14-32
[a] In General 14-32
[b] Parent and Siblings 14-33
[c] Corporate Negligence 14-34
§ 14.06 Admissibility of Patient Hospital Records 14-36
[1] Hearsay 14-36
[2] Business Record Exception 14-36
[a] In General 14-36
[b] Conclusions and Opinions 14-36.1
[i] State Rules 14-36.1
[ii] Federal Rules 14-36.2
[3] Admission Against Interest 14-36.2
§ 14.07 Incident Reports 14-37
[1] Risk Management and Incrimination 14-37
[2] Discovery 14-37
[a] Privilege 14-37
[b] Protecting the Privilege 14-37
[3] Admissibility 14-38
§ 14.08 Liability Consequences 14-40
[1] In General 14-40
[2] Negative Observations 14-40
[3] Proximate Causation 14-41
[4] Alterations 14-42
[5] Unauthorized Release 14-43
[a] Privileges to Release 14-44
[b] Hospital Policy 14-44
[c] Disclosures to Law Enforcement Agencies 14-45
[6] Subpoenas 14-46

CHAPTER 15: HOSPITAL ACCREDITATION
§ 15.01 Joint Commission on Accreditation of Hospitals 15-2
[1] History 15-2
[2] Hill-Burton and Medicare 15-2
[3] Standards 15-3
[4] Accreditation 15-3
[5] JCAH Records 15-4
[6] Reform 15-4
§ 15.02 Review Organizations 15-6
[1] PSRO 15-6
[2] PRO 15-6
[3] Hospital Review Committees 15-7
[a] Legal Requirements 15-7
[b] Review Committee Deficiencies 15-10
[c] Discovery of Review Records 15-11
[i] Retrospective and Prospective 15-12
[ii] Exceptions and Confidentiality 15-14
[iii] Physician's Use of Records 15-16
[iv] Racial Discrimination 15-17

CHAPTER 16: HOSPITAL LIABILITY FOR EMPLOYMENT LAW VIOLATIONS
§ 16.01 Coverage and Effective Dates for The Americans With Disabilities Act and Applicable Regulations 16-2
[1] Overview of the Act 16-2
[2] Scope of Coverage Under Title I of ADA 16-3
[a] Covered Entities 16-3
[b] Protected Individuals 16-4
[c] Covered Physical or Mental Impairments 16-6
[d] Determining Status as a "Qualified Individual" 16-9
[i] Essential Functions of a Job 16-10
[ii] Reasonable Accommodation vs. Undue Hardship 16-11
[e] Exclusion for Illegal Use of Drugs 16-13
[3] Prohibited Conduct Under Title I of the ADA 16-14.1
[a] In General 16-14.1
[b] Pre-Employment Inquiries and
Medical Exams 16-16
[4] Defenses 16-18
[a] Business Necessity in
General—Section 12113(a) 16-18
[b] Qualification Standards Based Upon
Safety and Health Concerns
Generally—Section 12113(b) 16-19
[c] Special Rules for Food
Handlers—Section 12113(b) 16-20
§ 16.02 Sexual Harassment 16-22
[1] Introduction 16-22
[2] Legal Principles 16-22
[a] Determining Illegal Conduct 16-22
[b] Liability for Actions of Supervisors 16-24
[c] Liability for Actions of Co-Workers 16-25
[d] Liability for Third-Party Harassment 16-26
[3] Suggestions for Prevention 16-26
§ 16.03 Retaliatory Discharge 16-28

CHAPTER 17: HMO LIABILITY FOR MEDICAL MALPRACTICE
§ 17.01 Introduction 17-1
§ 17.02 Types of Managed Care Arrangements 17-2
[1] In General ......................
[2] Fiduciary Duty and Jurisdiction ...........
§ 17.03 ERISA and the Preemption Issue 17-4
[1] Preemption in General 17-4
[2] The Controversy Over Preemption 17-6
[a] Arguments in Favor of Preemption 17-7
[b] Arguments Against Preemption 17-8
[c] Possible Resolution of the Conflict 17-9
§ 17.04 Theories of Liability 17-12
[1] Respondeat Superior 17-12.1
[2] Ostensible Agency 17-14
[3] Corporate Negligence 17-15
[4] Negligent Selection of Participating Physicians 17-15
[5] Negligent Utilization Review 17-16
[6] Express or Implied Warranty 17-17
[7] Breach of Contract 17-17
[8] The Federal False Claims Act
CHAPTER 17A: TELEMEDICINE
§ 17A.01 Introduction 17A-1
§ 17A.02 Physician Licensing 17A-4
§ 17A.03 Privacy 17A-7
§ 17A.04 Third Party Payment 17A-8
§ 17A.05 Malpractice 17A-9

CHAPTER 18: ENVIRONMENTAL HAZARDS
§ 18.01 Introduction 18-2
§ 18.02 Definitions 18-3
[1] Solid Waste 18-3
[2] Hazardous Waste 18-3
[3] Infectious Waste 18-5
§ 18.03 Regulations 18-7
[1] Centers For Disease Control 18-7
[2] Resource Conservation and Recovery Act 18-7
[3] The Medical Waste Tracking Act 18-8
[4] CERCLA 18-10
[5] OSHA 18-10
[6] Transportation of Wastes 18-10
[7] Water Pollution Legislation 18-12
[8] Miscellaneous Federal Regulations 18-12
[9] Individual States 18-13
[a] California 18-13
[b] Georgia 18-13
[c] Illinois 18-13
[d] New Jersey 18-13
[e] New York 18-13
[f] West Virginia 18-13
§ 18.04 Treatment of Medical Waste 18-14
[1] Introduction 18-14
[2] Incineration 18-14
[3] Recycling 18-16
[4] Violations 18-17

CHAPTER 19: NONMEDICAL LIABILITY
§ 19.01 Premises Liability 19-1
[1] Slip and Fall
[2] Security
[3] Other Negligence Actions
§ 19.02 Bystander Actions For Emotional Distress 19-6
[1] The Physical Injury Rule 19-7
[2] Zone of Danger 19-8
[3] Misdiagnosis 19-10
[4] Labor and Delivery 19-12
§ 19.03 Consumer Fraud
§ 19.04 Kidnapping Infants
§ 19.05 Hospital Violence

CHAPTER 20: NURSING HOME LIABILITY
§ 20.01 Introduction
§ 20.02 Regulatory Framework
[1] Regulatory Assumptions
[2] Resident Assessments
[3] Quality of Care
[4] Resident Rights
[5] Facility Staffing
[6] Compliance
§ 20.03 Common Law Actions
[1] Causes of Action
[2] Arbitration and Mediation
[3] Presuit Requirements
[4] Pleading
[5] Prima Facie Case
[6] Negligence
[7] Survival Damages and. Wrongful Death
[8] Sexual Assault
[9] Discovery
§ 20.04 Statutory Private Right of Action
§ 20.05 State Deceptive Trade Practice Statutes
§ 20.05 Conclusion

Glossary G-1
Index I-1

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