This section addresses some of the situations that regularly arise and have legal consequences in a medical office or ambulatory clinic where medical assistants work, including general policies and instructions that apply to those situations. Keep in mind that the law is an inexact science, subject to widely varying circumstances, and can differ from state to state.
The information in this chapter cannot substitute for the advice of an attorney. Medical assistants and hospital staff members are encouraged to consult with their employer, legal department, or area law offices on issues with which they are uncomfortable.
Legal Implications in Medical Care
Medical assistants must understand the policies and laws pertaining to consent for medical treatment, incident reports, and release of medical information, bearing in mind that almost all aspects of providing medical care treatment have some sort of legal implications.
Every time a patient encounters a medical office, clinic, and its staff members, directly or indirectly, the potential for legal ramifications exists. Although the law has become more and more involved in the operation of medical offices, clinics, and hospitals, the exercise of common sense combined with knowledge of those situations that require special care will protect the facility and its staff from most difficulties.
CONSENT REQUIREMENTS FOR MEDICAL TREATMENT
With limited exceptions, every person has the right not to be touched without having given permission first. In other words, it is every patient’s right that consent must be given before medical treatment is initiated. Failure to obtain consent may result in the medical assistant being responsible for an assault and battery upon the patient. By law the patient must have been provided with complete, honest and truthful information regarding medical treatments or medical care that will be provided by any member of the medical and health care team.
While the term “consent” in the medical setting refers to a patient’s expressed or implied agreement to submit to an examination or treatment, the doctrine of “informed consent” requires that the medical assistant give the patient all the information necessary for a knowledgeable decision on the proposed procedure. When courts say that a patient’s consent must be informed, they are saying that a patient’s agreement to a medical procedure must be made with full awareness of the consequences of the agreement. If there is no such awareness, there has been no lawful consent.
THIS RESPONSIBILITY CANNOT BE DELEGATED: The duty to inform and explain diagnoses, highly technical and complext medical procedures, and possible risks and outcomes of treatment rests with the provider. This responsibility cannot be delegated to the medical assistant.
The medical assistant may describe the proposed procedure in lay terms so the patient understands the nature of what is proposed. The risks of the treatment must be explained by the doctor. If there are any alternative medical options they should be disclosed and discussed with the physician, clinician, practitioner, or responsible health care provider.
For common medical procedures that are considered simple and essentially risk free, a medical assistant is not required to explain consequences that are generally understood to be remote. A determination of what is simple and common should be made from the perspective of appropriate medical standards. Where the harm that could result is serious or the risk or harm is high, the duty to disclose is greater.
Methods should be developed within each medical office or clinic to acquaint patients with the benefits, risks, and alternatives to the proposed treatment. In some departments, prepared pamphlets or information sheets may be desirable. In others, oral communication may be the best method. Some states (e.g., Texas) have laws that are very specific about what is required.
Consent before treatment is not necessary when treatment appears to be immediately required to prevent deterioration or aggravation of a patient’s condition, especially in life-threatening situations, and it is not possible to obtain a valid consent from the patient or a person authorized to consent for the patient. The existence and scope of the emergency should be adequately documented.
Who May Consent
The determination of who has authority to consent to medical treatment is based on an evaluation of the competency of the patient. If competent, usually the patient alone has the authority to consent. Competency refers to the ability to understand the nature and consequences of one’s decisions. In the absence of contrary evidence, it may be assumed that the patient presenting for treatment is competent. If the patient is incompetent, either by reason of statutory incompetence (e.g., a minor) or by reason of a physical or mental impairment, the inquiry must turn to whoever has the legal capacity to consent on behalf of the patient. Parents and guardians will usually have the authority to consent for their minor child or children. In many states, though not all, a husband or wife may give consent for an incompetent spouse. It is the law of the state in which the hospital is located that controls the question of “substitute consent.”
Forms of Consent
Consent for medical treatment should be obtained through an open discussion between the provider and patient during which the patient expressly agrees to the procedure. The consent should then be documented by having the patient sign any appropriate forms, which the medical assistant is responsible to check and assure these documents are included, properly filled out
and attached to the patient’s chart. The provider may also note any important details of the discussion in the medical record.
In certain limited circumstances, the consent of an individual to simple medical treatment may be implied from the circumstances. Implied consent arises by reasonable inference from the conduct of the patient or the individual authorized to consent for the patient. Reliance on this form of consent is strongly discouraged except in the most routine, risk-free examinations and procedures.
Witness to Consent
Any competent adult may witness the patient’s consent. It is preferable that the witness be a staff member of the hospital who is not participating in the procedure. It is not advisable for a relative of the patient to act as a witness.
Duration of Consent
A consent is valid as long as there has been no material change in the circumstances between the date that consent was given and the date of the procedure. It is desirable that a new consent be obtained if there is a significant time lapse or if the patient has been discharged and readmitted due to postponement of the procedure.
Medical assistants are expected to know and follow their local policies and procedures regarding the administration of medications. An error, which also includes omissions, can seriously affect a patient, even to the point of causing death. Each medical assistant is held accountable and responsible for his/her own actions, and this responsibility cannot be transferred to another.
Understandably, no one individual is expected to know all there is to know about all patients and medications, however, in every healthcare environment, the medical assistant can access nurses and physicians, who can assist in clarifying orders; explaining the purposes, actions, and effects of drugs; and, in general, answer any questions that may arise concerning a particular patient and that patient’s medications.
There should be basic drug references, magazines, pamphlets and brochures available to all personnel handling medications, including the Physician’s Desk Reference and a phone number to a local hospital formulary or pharmacy. It is their responsibility of the medical assistant to consult these members of the team and these references for assistance in any area in which he/she is not knowledgeable or whenever there are questions, or doubts. References and the continued in-service or continuing education training (CEUs) devoted to medication administration at all medical offices and clinics support the importance of accurate preparation and administration of drugs
When an event occurs that harms an individual, illustrates a potential for harm, or evidences serious dissatisfaction by patients, visitors, or staff, then a risk-management incident has taken place. Examples of such episodes could include the following:
1. A patient’s family member helps him off the examination table or out of bed despite
directions to the contrary by the medical office staff members. The patient falls and is injured.
2. Excessive silver nitrate is put into the eyes of a newborn, impairing vision.
3. The mother of the child complains about the care that has been given to her child and informs a staff member that she is going to talk to her lawyer about what has happened.
When a medical assistant becomes aware of an incident, he/she has a responsibility to make the doctor and supervising staff (supervising nurse, medical office manager, senior medical assistant) aware of the situation. The mechanism for doing this is the incident report system.
Incident Report System
Incident reports are designed to promptly document all circumstances surrounding an event, to alert the doctor, supervising nurse, quality assurance coordinator, and other involved administrators and clinicians of a potential liability situation, and, in a broader sense, to establish an information base on which to monitor and evaluate the number and types of incidents that take place in the facility.
Because incident reports, by their very nature, contain a great deal of information that would be of interest to persons filing claims or lawsuits against the health care provider’s alleged substandard medical care, and because the law recognizes the need for medical offices, clinics, or hospitals to have a reliable means of discovering and correcting problems, most states have enacted laws that make incident reports confidential. In other words, a person cannot obtain a copy of an incident report to help in their legal action against the provider, medical assistant, or hospital unless subpoenaed by the court; however, incident reports can lose their “protected” status if they are misused or mishandled.
Mailing the Incident Report
It is therefore important to treat these incident reports like other confidential documents. Medical assistants must strictly limit the number of copies made and the distribution of the reports. Do not include the report in the patient’s treatment record. The report should be limited to the facts and must not contain conclusions. Finally, the report should be addressed and forwarded directly to the authorized person, mailed by 1st class certified mail and return receipt.