Chapter 9:

Professional and Legal Knowledge

As a medical assistant, you must be familiar with the regulatory and legal aspects of medical practice. You are not expected to be a lawyer, but in a general way, you should know the key legal issues that medical assistants encounter in their work. Medical assistants are employed in medical offices, hospitals, clinics, and insurance companies performing a variety of clinical and administrative tasks including billing, collections, coding, accounting, EKGs, phlebotomy, and giving injections (in some settings). The variety of work depends on the setting and state laws.

Laws relating to the practice of medicine are found in each state’s constitution under medical practice acts. Licensure is the strongest form of professional regulation. Mandatory licensure proves a minimal level of competence. Physicians and nurses are licensed. Often, states have agreements to allow a person licensed in one state to practice in another state. This is called reciprocity. Licensure allows the state to control the behavior of professionals. Licensed health care workers who engage in criminal behavior, unprofessional conduct, or are incapacitated can have their license revoked. Licensing boards determine the renewal requirements, which may include continuing education and renewal fees, enforcement of statutes related to the profession, and the approval and supervision of training institutions.

Medical assistants can either be certified or registered. Programs accredited by the Commission for Accreditation of Allied Health Education Programs (CAAHEP) prepare their graduates to sit for a voluntary national certification exam. Programs accredited by the Accrediting Bureau of Health Education Schools (ABHES) prepare students to take the Registered Medical Assisting exam. Students attaining a CMA or RMA status are attaining a level of recognition that showcases their knowledge.

Medical Law And Malpractice

When a person makes a mistake that breaks the law in health care, it falls under civil law. Civil laws are different from criminal laws. There are two types of civil crimes: torts and breach of contract.

Torts can be intentional or unintentional. Intentional torts are always crimes committed against a person or property and are punished with fines. It is essential that a health professional know what situations can lead to an intentional tort. A patient can recover monetary damages in situations where an intentional tort has been committed. The following are examples of torts:

1. Assault: the threat and perceived ability to touch a person without permission
2. Battery: the intentional act of touching someone without that person’s consent
3. False imprisonment: constraining a person against his or her will
4. Defamation of character: slander is false information spoken to a third party with the intent of harming a person; libel is false information written with the intent of inflicting harm
5. Invasion of privacy: divulging or sharing information without patient consent
6. Infliction of mental distress: causing a patient serious emotional suffering
7. Malicious betrayal of professional secrets: unauthorized disclosure of privileged information
8. Fraud in the fiduciary relationship: intentional misrepresentation of information
9. Abandonment: improper termination of patient care by physician

Unintentional torts are those commissions or omissions by the health professional that a reasonable or prudent person would not do under similar circumstances. This is called negligence and may result in a charge of malpractice. Unintentional torts are just as illegal as intentional torts. Negligence is punished with fines, but in order for a plaintiff to recover damages, all four “Ds of negligence” must be present.

1. The defendant must have an established duty toward the plaintiff.
2. The defendant must be derelict in performing the duty.
3. The action must be the direct cause of injury.
4. Damages or injury must have occurred as a result of the action.

Based on the action, malpractice can be categorized as misfeasance, malfeasance, or nonfeasance.

• Misfeasance is the incorrect performance of a legal act. Caring for a patient includes accepting the responsibility to deliver a prevailing standard of care, i.e., delivering care similar to what a reasonably prudent person would do in similar circumstances. The legal standard defining “reasonable action” takes into consideration the person’s age, sex, physical condition, education, knowledge, training, and mental capacity. For that reason, it is important to never represent oneself improperly. The medical assistant must be careful not to refer to herself as “the nurse” lest she be held to different standards. An example of misfeasance would be not using a clean needle to give an injection.
• Malfeasance is the performance of an illegal act. In most states, giving intravenous drugs would be malfeasance.
• Nonfeasance is failure to perform when a duty exists. Forgetting to apply a dressing ordered by the physician would be nonfeasance.

There are several types of defense against malpractice, but there is no defense in ignorance of the law. A defense of denial places the burden of proof on the plaintiff to prove that the 4 Ds of negligence exist.

• In a contributory defense, the plaintiff is found to be at least partially responsibility for injury and so the health care provider is not held liable for negligence.
• In a comparative defense, damages are awarded based on a percentage of negligence for both plaintiff and defendant. With intervening cause, an independent factor affected the outcome. Assumption of risk means that the patient voluntarily accepted the risks.
• A technical defense is decided by a judge as a point of law. When the evidence is so overwhelmingly against the health practitioner that the burden of proof shifts to the defendant, it is called res ipsa loquitur (the thing speaks for itself). Suppose a patient who complains of pain in the abdomen after surgery and is later found to have a towel clamp in the abdomen. Obviously, the surgeon left the foreign object there and is responsible. The burden to prove otherwise is incumbent on the surgeon. Criminal negligence is outrageous carelessness or disregard for patient safety.