Chapters 10, 11, and 12 of the Pozgar text each address a different area of practice within the healthcare environment. Identify the chapter that most closely applies to your personal area of practice (current or aspirational), read that chapter, and be prepared to explore the legal and ethical issues in that practice area.

  • Chapter 10: Medical staff organization and malpractice
  • Chapter 11: Nursing and the law
  • Chapter 12: Hospital departments and allied professionals

Prompt: Based on the chapter you selected, your personal experience, ,  identify and analyze the legal and ethical issues specific to your area of practice.

Your analysis must be supported by at least 4 scholarly sources, including the textbook chapter(s) and the Bible, cited in current APA format.

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Chapter 10 Medical Staff Organization and Malpractice
Medical Staff Organization

▸ MEDICAL STAFF ORGANIZATION
The medical staff is formally organized with officers, committees, and bylaws. At

regular intervals, the various committees of the medical staff review and analyze

their responsibilities, clinical experiences, and opportunities for improvement. The

responsibilities of a variety of medical staff committees are described here.

Executive Committee. The executive committee oversees the activities of the

medical staff. It is responsible for recommending to the governing body such

things as medical staff structure, a process for reviewing credentials and

appointing members to the medical staff, a process for delineating clinical

privileges, a mechanism for the participation of the medical staff in performance

improvement activities, a process for peer review, a mechanism by which medical

staff membership may be terminated, and a mechanism for fair hearing

procedures. The executive committee reviews and acts on the reports of medical

staff departmental chairpersons and designated medical staff committees.

Actions requiring approval of the governing body are forwarded to the governing

body for approval. Executive committee members generally include the chief of

staff, medical staff officers, and department chairs. The chief executive and chief

nursing officers are generally nonvoting members of the committee.

Bylaws Committee. The functioning of the medical staff is described in its bylaws,

rules, and regulations, which must be reviewed and approved by the

organization’s governing body. Bylaws must be kept current, and the governing

body must approve recommended changes. The bylaws describe the various

membership categories of the medical staff (e.g., active, courtesy, consultative,

and allied professional staff) as well as the process for obtaining privileges.

Blood and Transfusion Committee. The blood and transfusion committee

develops blood usage policies and procedures. It is responsible for monitoring

transfusion services and reviewing indications for transfusions, blood ordering

practices, each transfusion episode, and transfusion reactions. The committee

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Chapter 10 Medical Staff Organization and Malpractice
Medical Director

▸ MEDICAL DIRECTOR
The medical director serves as a liaison between the medical staff and the

organization’s governing body and management. The medical director should

have clearly written agreements with the organization, including duties,

responsibilities, and compensation arrangements. State nursing home codes

often provide for the designation of either a full-time or part-time physician to

serve as medical director. The responsibilities of a medical director include

enforcing the bylaws of the governing body and medical staff and monitoring

the quality of medical care in the organization.

The medical director of an organization can be liable for failing to perform his

or her duties and responsibilities. When a Texas nursing home was indicted by

a grand jury in 1981 for the deaths of several residents, the medical director

was also indicted. His plea that he merely signed papers and attended

meetings did not absolve him of the responsibility to ensure the adequacy and

the appropriateness of medical services in the organization.

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Chapter 10 Medical Staff Organization and Malpractice
Medical Staff Privileges

▸ MEDICAL STAFF PRIVILEGES
Medical staff privileges are restricted to those professionals who fulfill the

requirements as described in an organization’s medical staff bylaws. Although

cognizant of the importance of medical staff membership, the governing body must

meet its obligation to maintain standards of good medical practice in dealing with

matters of staff appointment, credentialing, and the disciplining of physicians for

such things as disruptive behavior, incompetence, psychological problems, criminal

actions, and substance abuse.

Appointment to the medical staff and medical staff privileges should be granted

only after there has been a thorough investigation of the applicant. The delineation

of clinical privileges should be discipline-specific and based on appropriate

predetermined criteria that adhere to national standards. The appointment,

privileging, and credentialing process are discussed below.

Application
The application should include information regarding the applicant’s medical school;

internship; residency program; license to practice medicine; board certification;

fellowship; medical society membership; malpractice coverage; unique skills and

talents; privileges requested and specialty; availability to provide on-call emergency

department coverage where applicable; availability to serve on medical staff and/or

organization committees; medical staff appointments and privileges at other

healthcare organizations; disciplinary actions against the applicant; unexplained

breaks in work history; voluntary and/or involuntary limitations or relinquishment of

staff privileges; and office location (geographic requirements should not be

unreasonably restrictive; if the applicant does not meet the organization’s

geographic requirements for residence and office location, provision should be

available in the bylaws for exceptions that might be necessary to attract high-quality

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consulting staff). Board certification alone is generally not acceptable criteria for

determining eligibility for medical staff appointment.

T

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Chapter 10 Medical Staff Organization and Malpractice
Common Medical Errors

▸ COMMON MEDICAL ERRORS
The NPDB 2012 Annual Report shows that between 2003 and 2012, the number of

adverse actions reported to the NPDB related to physicians and dentists increased

from 6,149 to 7,765, representing a 26% increase. The trend indicates that a small

percentage of physicians are responsible for a large proportion of malpractice

dollars paid to injured parties.

This section provides an overview of some of the more common medical errors as

they relate to patient assessment, diagnosis, treatment, and follow-up care.

Infections, obstetrics, and psychiatry are discussed later in this chapter to introduce

the reader to other common physician risks in the practice of medicine. As with

many cases reviewed in the text, there are often multiple headings under which a

case could be placed. For example, a poor assessment could lead to ordering the

wrong lab tests, resulting in inappropriate treatment and follow-up care, which

could result in patient injury or even death. It is important that the reader begin to

critically analyze each case and see its application in the overall provision of quality

patient care.

It is not enough to perform an assessment and order and get the correct lab test

that supports a physician’s order for a potassium infusion, which is started by a

nurse. Quality care requires that each caregiver be aware of all the hazards that

could lead to patient harm the moment he or she walks into that patient’s room

(e.g., is the infusion infiltrating the patient’s tissue?).

The reader should keep in mind when reading this section that “Ethical values and

legal principles are usually closely related, but ethical obligations typically exceed

legal duties . . . The fact that a physician charged with allegedly illegal conduct is

acquitted or exonerated in civil or criminal proceedings does not necessarily mean

that the physician acted ethically.”

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Chapter 10 Medical Staff Organization and Malpractice
Patient Assessments

▸ PATIENT ASSESSMENTS
Patient assessments involve the systematic collection and analysis of patient-specific

data that are necessary to determine a patient’s care and treatment plan. A patient’s

plan of care is dependent on the quality of those assessments conducted by the

practitioners of the various disciplines (e.g., physicians, nurse practitioners,

dietitians, physical therapists).

The physician’s assessment must be conducted for elective admissions within 24

hours of a patient’s admission to the hospital. Emergency patients are, out of

necessity, evaluated and treated promptly on arrival to the hospital’s emergency

department. The findings of the clinical examination are of vital importance in

determining the patient’s plan of care. The assessment is the process by which a

doctor investigates the patient’s state of health, looking for signs of trauma and

disease. It sets the stage for accurately diagnosing the patient’s medical problems. A

cursory and negligent assessment can lead to a misdiagnosis of the patient’s health

problems and/or care needs and, consequently, to poor care.

Failure to conduct a thorough patient assessment and reassessment can result in

disciplinary action against a physician, as noted in the following case.

PHYSICIAN FAILS TO CONDUCT A COMPLETE ASSESSMENT

Citation: Moheet v. State Bd. of Regis. for Healing Arts, 154 S.W.3d 393 (Mo. Ct.
App. 2005).

Facts
J.D., a 40-year-old male suffering from high blood pressure, felt a sudden and severe
headache while driving. Soon after he returned home, he asked his son Jason to call
an ambulance. When the paramedics arrived, they took J.D.’s history, which included

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hypertension (high blood pressure), and a list of J.D.’s medications, one of which was
to treat the hypertension.

The nurse manager of the emergency department, Bouldin, RN, was waiting to
perform triage on J.D. when he arrived. Bouldin filled in an Emergency Room Record
form (the “E.R. form”) with J.D.’s vital signs. J.D.’s blood pressure was 170/130 at
4:50 PM. J.D.’s wife gave Nurse Brooks J.D.’s medical history, which in addition to
high blood

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Chapter 10 Medical Staff Organization and Malpractice
Diagnosis

▸ DIAGNOSIS
Medical diagnosis is not always an easy task. Making an accurate diagnosis involves

the process of identifying a patient’s illness. Patient assessments, reassessments,

and test results (e.g., imaging and laboratory studies) are some of the tools of

medicine that assist providers in diagnosing the possible causes of a patient’s

symptoms and medical problems. An accurate diagnosis provides the practitioner

with alternative treatment options. The cases presented here describe a variety of

lawsuits that have occurred due to misdiagnoses.

Failure to Order Diagnostic Tests
A plaintiff who claims that a physician failed to order proper diagnostic tests must

show the following:

It is standard practice to use a certain diagnostic test under the circumstances of the

case.

The physician failed to use the test and therefore failed to diagnose the patient’s

illness.

The patient suffered injury as a result.

Ophthalmologist Fails to Order Tests

In Gates v. Jensen, a lawsuit was brought against Dr. Hargiss, an ophthalmologist,

and others for failure to disclose to Mrs. Gates that her test results for glaucoma

were borderline and that her risk of glaucoma was increased considerably by her

high blood pressure and myopia. Hargiss failed to perform a field vision test and to

dilate and examine the eye. He wrote off the patient’s problem of difficulty in

focusing and gaps in vision as being related to difficulties with her contact lenses.

Gates visited the clinic 12 times during the following 2 years with complaints of

blurriness, gaps in her vision, and loss of visual acuity. Gates eventually was

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diagnosed with glaucoma. By the time Gates was properly treated, her vision had

deteriorated from almost 20/20 to 20/200. The court held that a duty of discl

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Chapter 10 Medical Staff Organization and Malpractice
Treatment

▸ TREATMENT
This section focuses on negligence cases that relate to medical treatment and

various legal and ethical issues that healthcare professionals encounter when

treating patients. Medical treatment is the attempt to restore the patient to health
following a diagnosis. It is the application of various remedies and medical

techniques, including the use of medications for the purpose of treating an illness or

trauma. Treatment can be active treatment, directed immediately to the cure of the
disease or injury; causal treatment, directed against the cause of a disease;
conservative treatment, designed to avoid radical medical therapeutic measures or
operative procedures; expectant treatment, directed toward relief of untoward

symptoms but leaving cure of the disease to natural forces; palliative treatment,

designed to relieve pain and distress with no attempt to cure;

preventive/prophylactic treatment, aimed at the prevention of disease and illness;
specific treatment, targeted specifically at the disease being treated; supportive
treatment, directed mainly to sustaining the strength of the patient; or symptomatic
treatment, meant to relieve symptoms without effecting a cure (i.e., intended to
address the symptoms of an illness but not its underlying cause, as in scleroderma,

lupus, or multiple sclerosis, for example).

Medical practice guidelines are evidence-based best practices that are developed to

assist physicians in the diagnosis and treatment of their patients. It should be

remembered that best practices are not ironclad rules. Skillful medical judgment

demands that the physician determine how to use best practices and interpret the

information.

Choice of Treatment
There can be two schools of thought regarding which treatment would be in the
best interest of the patient. The potential for liability affects the choice of treatment

a physician will follow with his or her patient. Use of unprecedented procedures that

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create an untoward result may cause a physician to be found negligent even though

due care was followed. A physician will not be held liable for exercising his or her

judgment in a

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Chapter 10 Medical Staff Organization and Malpractice
Discharge and Follow-Up Care

▸ DISCHARGE AND FOLLOW-UP CARE
The premature discharge of a patient is risky business. The intent of discharging

patients more expeditiously is often a result of a need to reduce costs. As pointed

out by Dr. Nelson, an obstetrician and board member of the American Medical

Association, such decisions “should be based on medical factors and ought not be

relegated to bean counters.”

As noted in Doan v. Griffith, discharge instructions must be clear and complete. In

this case, an accident victim was admitted to the hospital with serious injuries,

including multiple fractures of his facial bones. The patient contended that the

physician was negligent in not advising him at the time of discharge that his facial

bones needed to be realigned by a specialist before the bones became fused. As a

result, his face became disfigured. Expert testimony demonstrated that the

customary medical treatment for the patient’s injuries would have been to realign

his fractured bones surgically as soon as the swelling subsided and that such

treatment would have restored the normal contour of his face. The appellate court

held that the jury reasonably could have found that the physician failed to provide

timely advice to the patient regarding his need for further medical treatment and

that such failure was the proximate cause of the patient’s condition.

Untimely Discharge
Barbara Jupiter, executrix of the estate of Warren Jupiter, brought an action against

the Department of Veterans Affairs (VA) in Jupiter v. U.S. The suit alleged that Mr.

Jupiter sustained personal injury, pain, and suffering prior to his death, which was

allegedly caused by the negligence of the defendant’s agents and employees while

he was a patient at the VA hospital. A bench trial was conducted over a period of 7

days.

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Chapter 10 Medical Staff Organization and Malpractice
Infections

▸ INFECTIONS
The Centers for Disease Control and Prevention estimates that nearly 2 million

patients are stricken annually with hospital-acquired infections. There are estimates

that as many as 90,000 of these patients die annually as a result of these

infections.

The mere fact that a patient contracted an infection after an operation will not, in

and of itself, cause a surgeon to be liable for negligence. The reason for this,

according to the Nebraska Supreme Court in McCall v. St. Joseph Hospital, is as

follows:

Neither authority nor reason will sustain any proposition that negligence can

reasonably be inferred from the fact that an infection originated at the site of a

surgical wound. To permit a jury to infer negligence would be to expose every

doctor and dentist to the charge of negligence every time an infection originated

at the site of a wound. We note the complete absence of any expert testimony or

any offer of proof in this record to the effect that a staphylococcus infection

would automatically lead to an inference of negligence by the people in control

of the operation or the treatment of the patient.

Several cases that have lead to infection-related lawsuits are reviewed below.

Failure to Effectively Manage Infections
Making a case for using clinical guidelines is demonstrated in McKowan v. Bentley,

in which the patient, Mrs. Bentley, sought advice about gastric bypass surgery from

Dr. McKowan in January 1993. On March 8, 1993, McKowan, assisted by Dr. Day,

performed gastric bypass surgery on Bentley to alleviate her morbid obesity. Bentley

was discharged from the hospital 2 days later with no indication of complications.

On March 14, Bentley returned to see McKowan with redness and swelling around

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Chapter 10 Medical Staff Organization and Malpractice
Psychiatry

▸ PSYCHIATRY
The major risk areas of behavioral health professionals include commitment,

electroshock, duty to warn, and suicide. Matters relating to admission, consent, and

discharge are governed by statute in most states. Several areas where behavioral

healthcare lawsuits occur more frequently are described next.

Commitment
The recent emphasis on patient rights has had a major impact on the necessity to

perform an appropriate assessment prior to commitment. State statutes often

provide requirements granting an individual’s rights to legal counsel and other

procedural safeguards (e.g., patient hotline) governing the admission, retention, and

discharge of patients.

Most states have enacted administrative procedures that must be followed. The

various statutes often require that two physicians certify the need for commitment.

Physicians who participate in the commitment of a patient should do so only after

first examining the patient and reaching their own conclusions. Reliance on

another’s examination and recommendation for commitment could give rise to a

claim of malpractice. Commitment is generally necessary in those situations in

which a person may be in substantial danger of injuring himself or herself or third

persons.

Involuntary Commitment

In In re Detention of Meistrell, proof of dangerousness was found adequate to

support an order for involuntary commitment. There was testimony that on two

occasions, the patient jumped off a teeter-totter, causing his two small children to

fall to the ground. A substantial risk of physical harm to others also was

demonstrated by testimony that the patient threatened his wife’s ex-husband.

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Involuntary Commitment Ordered

There was clear and convincing evidence in Luis A. v. Pilgrim Psychiatric Center

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Chapter 10 Medical Staff Organization and Malpractice
Principles of Medical Ethics

▸ PRINCIPLES OF MEDICAL ETHICS
The medical profession has long subscribed to a body of ethical guidelines

developed primarily for the benefit of the patient. As a member of this profession, a

physician must recognize responsibility to patients first and foremost, as well as to

society, to other health professionals, and to self.

The following principles adopted by the American Medical Association are not laws,

but rather standards of conduct that define the essentials of honorable behavior for

the physician.

Code of Medical Ethics
I. A physician shall be dedicated to providing competent medical care, with

compassion and respect for human dignity and rights.

II. A physician shall uphold the standards of professionalism, be honest in all

professional interactions, and strive to report physicians deficient in character or

competence, or engaging in fraud or deception, to appropriate entities.

III. A physician shall respect the law and also recognize a responsibility to seek changes

in those requirements that are contrary to the best interests of the patient.

V. A physician shall respect the rights of patients, colleagues, and other health

professionals, and shall safeguard patient confidences and privacy within the

constraints of the law.

V. A physician shall continue to study, apply, and advance scientific knowledge;

maintain a commitment to medical education; make relevant information available

to patients, colleagues, and the public; obtain consultation; and use the talents of

other health professionals when indicated.

VI. A physician shall, in the provision of appropriate patient care, except in emergencies,

be free to choose whom to serve, with whom to associate, and the environment in

which to provide medical care.

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