Legal and Ethical Aspects of Sonography



Legal and Ethical Aspects of Sonography



Objectives


Students who successfully complete this chapter will be able to do the following:


• Differentiate between statutory, administrative, and common law.


• Define the term tort and cite examples that may involve sonographers.


• Define the terms negligence, liability, and malpractice.


• Explain the standard of care expected of a reasonably prudent sonographer.


• Describe the different kinds of patient consent.


• Identify situations in which employers or supervisors share liability.


• Describe professional accountability.


• Identify factors that contribute to a suit being instituted against a sonographer.


• Discuss the steps sonographers should take to protect themselves against malpractice suits.


• Explain the various aspects of giving a deposition and/or testifying for a legal proceeding.


• State what important factors must be considered in purchasing professional liability insurance.


• Describe ethical theories that may be used when working on ethical problems.


• Explain how sociocultural factors affect ethical decision making.


• Identify the recent trends in health care and society that have affected current ethical and legal issues.


• Describe the sonographer’s role in relation to medical ethics.


• Discuss the importance of professional confidentiality.


• Explain the National Standard of Care required of sonographers.


• Explain the ethical interaction between patients, peers, and other health care professionals.



Key terms





Legal aspects of sonography


Professional sonographers must be aware of the legal and ethical issues associated with the patient care environment. Although sonographers often work under the direction of a physician, they are still responsible for any harm that a patient may suffer as a result of their actions.


We live in an era that strongly emphasizes the legal rights of patients and health care professionals. The threat of legal consequences highlights the need for professional accountability. Accountability is responsibility for events for which you may have to give a judicial explanation. Therefore this chapter provides an overview of the legal issues sonographers are most likely to encounter in their work. Understanding and fulfilling the dual obligations of legal and ethical constraints are essential to the practice of sonography. As a sonographer, you must be aware of your responsibilities and the consequences of your actions and understand to whom you are responsible for your actions.



Defining the law


Laws are the rules of conduct enforced by a controlling authority. Laws may be recognized by custom or formal enactment, which a community considers binding upon its members. Medical law deals with a particular sphere of human activity, namely patient care. It is the goal of medical law to protect people, to correct injustice, and to compensate for injury. Along with the permission to practice medicine, society demands that health care professionals conduct their practices according to accepted standards. Any failure to meet adequately these codes of conduct leaves all health care professionals open to civil actions. (Civil laws are those that affect the individual rather than society as a whole.)


Sonographers should follow their professional scope of practice (available at http//:www.sdms.org) and should understand the concepts and mechanisms of law and the legal restrictions placed on health care. A basic knowledge of the law and how it works can help sonographers avoid litigation and allow them to practice their profession confidently.


The underpinnings of the law are the following:



The primary concepts for managing the complex interactions that occur within a society are justice and fairness. Laws must be pliable enough to change to reflect ongoing technologic and societal advances. Because individuals with similar education, experience, and background are expected to act in a similar manner, a sonographer’s actions will be judged by universally accepted standards of what a prudent and reasonable sonographer with similar education and training would do in a similar situation. The final factor to remember is that although each person possesses inherent rights, the more rights a person claims, the greater are his or her responsibilities.



Types of laws


All law is based ultimately on natural law: the inherent human desire to do good and to avoid evil. Statutory laws are enacted and enforced by federal or state legislators to help maintain the governmental right to uphold social order and to protect the rights of individuals. Rights can be defined as entitlements deserved according to just claims, legal guarantees, or moral principles. Three categories of rights exist: freedom of choice, legal rights, and moral rights. Statutory laws include rules and regulations established by governmental agencies. In states requiring licensure of sonographers, the regulations formulated by the state agency are an example of statutory law.


Administrative law is a form of law made by administrative agencies appointed by the president or governor. Such agencies make rules under authority established by acts of the legislature. One example that directly involves the practice of sonography is that of the federal agency the Occupational Safety and Health Administration (OSHA).


Common law, on the other hand, is court-made law based on custom and usage. In fact, most malpractice laws are court-made laws. For example, no statutory law dictates that sonographers cannot leave any seriously ill patients until they have ensured that someone else will care for them, yet it is a customary and common practice. Failing to meet such a standard would be considered a violation of common law. Of the two, statutory law carries more weight, but the final decision involving either statutory or common lawsuits rests with the court.



Torts


When sonographers fail to meet their professional responsibilities, patients may file suit. Most cases brought against sonographers are called tort actions. A tort is a wrongful act, other than a breach of contract, for which the law provides a remedy. Torts can be divided into two categories: intentional and unintentional.



Intentional Torts


Intentional torts include assault, battery, invasion of privacy, and false imprisonment. Assault is an intentional attempt or threat to inflict injury upon a person, coupled with an apparent present ability to cause harm, which creates a reasonable fear of bodily harm or offensive contact in another. Any sonographer who causes a patient to be fearful of injury could be held personally liable for any damages caused by that fear. For example, assault is to say to an unruly or uncooperative patient, “If you don’t stop moving and start cooperating during this exam, I will have to restrain you.” Battery is the harmful, intentional touching of another person (directly or with an object) in a harmful or offensive manner, without his or her consent. For example, if a patient consents to a vaginal examination but changes her mind during the course of the study, any sonographer who continues the exam could be found liable for battery.


Confidentiality and the right to privacy, with respect to one’s personal life, are basic concerns in our society. The growing use of computerization in health care has made easier retrieval and cross-referencing of patient information available from a variety of sources. Consequently, the public has become increasingly concerned about the potential for invasion of privacy and the wrongful intrusion into a person’s private life, including publication of private facts. The law of privacy covers the following:



All information regarding a patient belongs to the patient. Any sonographer who gives out patient information without authorization can be held liable. Only professionals involved in a patient’s care and with a need to know about the patient can be allowed access to the patient’s records. As a sonographer, you must be cautious about what information you share verbally and with whom. A sonographer who discusses privileged and confidential information obtained from the attending physician or the patient’s medical record can be sued for invasion of privacy.


Your employer’s policy and procedure manual should provide specific guidelines about what can be revealed without violating confidentiality. The recent HIPAA legislation has caused most hospitals, clinics, and physician offices to create or revise policies and procedures related to patient information. Privacy standards became mandatory for all hospitals, clinics, office practices, and other health care settings on April 14, 2003. On April 20, 2005, HIPAA Security Standards became effective. Complete information can be obtained online at http://www.hhs.gov/ocr/hipaa.


Sonography educators, lecturers, and writers also are held accountable by the privacy law when they reproduce, distribute, or display images of patient exams without removing patient identification from those images.


Another legal consideration to the sonographer is false imprisonment. The illegal detention of a person without his or her consent constitutes false imprisonment. Sonographers could be charged with false imprisonment if they unnecessarily confine or restrain a patient without obtaining permission from the patient to be so restricted. In hospital settings, applying restraints requires that a physician’s order be documented in the patient’s medical record. A patient who is forced to stay by the use of verbal means (e.g., threats) also constitutes false imprisonment. All patients have the right to make decisions for themselves, regardless of the consequences. As a sonographer, you must be careful about what you say to patients who refuse an exam to try to convince them to change their minds. You can protect yourself by recording your efforts and reporting the behavior to your supervisor and the referring physician.



Unintentional Torts


The most common type of unintentional tort is called negligence. Negligence is the failure to use reasonable care. It is doing something that a reasonably prudent person would not do or failing to do something that a reasonably prudent person would do, under similar circumstances. The law of malpractice is an outgrowth of negligence law. Generally, medical malpractice occurs when a negligent act or omission by a medical professional results in harm to the patient. In a malpractice action against a sonographer, the most likely scenario is misdiagnosis, and the sonographer’s actions would be judged by universally accepted standards of what a prudent and reasonable sonographer with similar education and training would do in a similar situation.


To prevail in a medical malpractice action, an injured patient (the plaintiff) must prove the following four elements: duty, breach, harm, and causation. Duty refers to the standard of care that the medical professional (defendant) is required to follow. Breach refers to the defendant’s failure to meet that standard of care. Harm refers to the injury suffered by the plaintiff. Causation requires that the defendant’s failure to meet the standard of care was the actual cause of the plaintiff’s injury. Expert testimony is required to establish the standard of care required of the medical professional and that the medical professional failed to adhere to that standard of care, thereby causing harm to the patient.


It is usually the plaintiff’s burden to prove that the defendant was negligent. In certain cases, however, especially in medical malpractice, the burden can shift to the defendants to prove that they were not negligent. This is a rule of evidence known as res ipsa loquitur (the thing speaks for itself). A classic example of this is the case in which a medical instrument is left inside a patient after surgery. Typically, the medical records will not state, “Dr. X left a towel in patient’s abdomen,” and no recorded proof of why or how the negligence occurred may exist. Clearly, however, a towel would not be left in a patient’s abdomen under normal circumstances. Accordingly, under the theory of res ipsa loquitur, the burden falls not on the patient to prove who left the towel but on the individual health care providers to try to establish that it was not their negligence that resulted in the injury. Appropriately, this leaves the bulk of the finger-pointing to those who were conscious at the time the incident occurred.



Informed consent


Informed consent is a unique area of medical malpractice law. It does not involve a question of the standard of care within a particular medical field but instead involves a failure to obtain a patient’s informed consent regarding diagnostic testing or treatment. Although cases alleging a lack of informed consent are usually negligent actions, they can give rise to a cause of action for battery. The concept of informed consent is based on the principle that a patient has the right to prevent unauthorized contact with his or her person. Accordingly, the health care professional has a duty to disclose information that will allow the patient to make a knowledgeable decision regarding any proposed procedures or treatment.


Informed consent can be either express or implied. Express consent is given by the patient either in writing or verbally (Box 7-1). Implied consent is neither written nor spoken by the patient but instead is understood from the circumstances surrounding the procedure at issue. For example, consent is implied for necessary procedures a surgeon may perform during the course of a surgery to which the patient granted express consent.



Box 7-1   Legal Requirements for Informed Consent


Consent must be given voluntarily by a mentally competent patient. If the patient speaks a foreign language or is deaf, an interpreter must explain the procedure. The procedure must be described to the patient.


Consent to treat a minor patient usually is given by a parent/guardian. If the patient is at least 7 years old, he or she should be included in the decision-making process. To ensure informed consent, sonographers should do the following:



An exception to the requirement of informed consent often occurs in emergency situations. These circumstances do not always allow sufficient time to obtain informed consent, or the patient may be unconscious and unable to communicate. Accordingly, when an emergency involves a risk to the patient’s life, or if the patient is not able to communicate, consent may be implied under the theory that the patient would have consented to an emergency procedure or treatment in the face of a life-threatening situation.


Consent forms are useful tools to help inform patients about procedures and to document consent (Figure 7-1). The role of imaging professionals is to follow the established policies and procedures of their institution and to identify when informed consent is needed. Although the legal responsibility lies with the physician in charge, most facilities also have adopted policies requiring their staff to ensure that informed consent is obtained.


image
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Figure 7-1 Sample Consent Form.

A growing trend in many hospitals is the use of interactive programs that can take nervous patients through the consent process, step-by-step, explaining the invasive procedure or operation, its risks and benefits, and even answering the patient’s questions. One such program is called The Emmi Solutions Program (http//:www.emmisolutions.com/informed_consent_improvement.html).



Liability


Negligence is based on five doctrines of liability: (1) master-servant, (2) ostensible agency, (3) borrowed servant, (4) captain of ship, and (5) res ipsa loquitur (see above). Liability is defined as a legal responsibility for the consequences of one’s actions. Other parties can be held liable for the wrongful acts of sonographers. Under the theory of respondeat superior (let the master answer), a sonographer’s employer can be held liable for the sonographer’s negligence as long as the sonographer was acting within the scope of employment.


Under the ostensible agency doctrine, a hospital or healthcare facility, even if not the employer, can be held liable for a sonographer’s negligence, if the sonographer is a contractor or independent agent. This can happen if the facility states or implies that the sonographer is an employee, and the patient relies on that representation when seeking care at the facility.


The liability theories of the “borrowed servant” and “captain of the ship” doctrines have been abandoned as a result of rapidly evolving changes in patient care. Under the borrowed servant theory, all actions of hospital employees were attributable to the patient’s attending physician, and the physician was liable for the negligent acts of those employees. The borrowed servant doctrine evolved because, until recently, many hospitals were nonprofit corporations entitled to charitable immunity and therefore could not be sued. As an alternative to denying relief, courts created this doctrine so that plaintiffs would have someone to sue. Most hospitals today are for-profit corporations capable of being sued. In addition, most states have gotten rid of charitable immunity. Consequently, the borrowed servant doctrine has been modified to allow for a more individual assessment of liability.


The captain of the ship doctrine was in effect in operating rooms and held that the head surgeon was liable for all negligent actions of his or her surgical team. The captain of the ship doctrine evolved at a time when the operating room had only one physician—the surgeon. In the modern operating room, with many physicians and highly trained nurses or technicians present, holding the surgeon responsible for the negligent acts of others has become untenable. The theory also has been modified to allow for an individual assessment of liability.

Related posts:

Professional Development and Leadership Communication and Critical Thinking Skills The Sonographer as Student Sonographer Safety Issues The Origins and Evolution of Diagnostic Medical Sonography Medical Techniques and Patient Care

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Aug 20, 2016 | Posted by in ULTRASONOGRAPHY | Comments Off on Legal and Ethical Aspects of Sonography

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