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Chapter 5: Ethics, Professionalism, and the Law in Healthcare

Introduction

Healthcare professionals must uphold both ethical and legal standards. This chapter explores the relationship between these standards, how they may align or conflict, and the systems in place to enforce accountability. The content also examines how institutional culture can affect ethical behavior and reporting.

 

Learning Objectives
  • 5.1 Define liability, law of agency, and respondeat superior.
  • 5.2 Describe the reasonable person standard, standard of care, and duty of care.
  • 5.3 Explain the four elements necessary to prove negligence.
  • 5.4 Outline the phases of a lawsuit.
  • 5.5 Identify when alternate dispute resolution is most effective in malpractice claims.
  • 5.6 Explain the doctrine of informed consent.

 

Foundations: Liability, Agency, and Employer Responsibility

Liability in Healthcare

Liability is the legal responsibility for actions or omissions that cause harm to a patient or violate laws or standards. A person or entity (e.g., doctor, nurse, hospital, clinic) may be held liable for injuries, negligence, or breaches of duty that occur during patient care.

Law of Agency

The law of agency governs the relationship between a principal and an agent, where the agent is authorized to act on behalf of the principal in dealings with third parties. In healthcare, this often applies to employers (hospitals, physicians) and their employees or representatives (nurses, medical assistants, billing staff).

Core Elements of the Law of Agency

Element Definition
Principal The person or entity who authorizes another to act (e.g., physician, hospital)
Agent The person who acts on behalf of the principal (e.g., nurse, office staff)
Authority The power granted to the agent to make decisions or take actions
Third Party The individual or organization with whom the agent interacts

Types of Authority

Type Definition Healthcare Example
Express Authority Directly granted by the principal A physician instructs a medical assistant to call in a prescription
Implied Authority Reasonably necessary to carry out express duties A receptionist reschedules appointments
Apparent Authority Third party reasonably believes the agent is authorized A patient assumes a nurse can explain test results

Liability Under the Law of Agency

Scenario Who Is Liable?
Agent acts within authority Principal is liable
Agent acts outside authority, but appears authorized Principal may be liable (apparent authority)
Agent acts negligently or illegally Principal may be liable; agent may also be personally liable
Independent contractor acts negligently Principal usually not liable unless direct control is proven

Types of Liability in Healthcare

Type Description
Professional Liability Provider responsibility for errors in clinical judgment or treatment (medical malpractice)
Vicarious Liability Employer liability for employee actions under agency law
Corporate Liability Organization liable for its own failures (e.g., unsafe policies)
Product Liability Manufacturer/distributor liable for defective devices or drugs
Criminal Liability Intentional acts such as fraud, assault, or unlawful prescribing

Common Causes of Liability

Cause Example
Medical negligence Failure to diagnose; surgical errors
Breach of confidentiality Sharing patient information without consent
Improper delegation Assigning tasks beyond scope
Failure to obtain consent Performing a procedure without informed consent
Failure to follow policy Ignoring institutional or legal procedures

Who Can Be Held Liable?

Individual/Entity Liability Example
Physicians Misdiagnosis, surgical error, failure to follow up
Nurses and medical staff Wrong medication, failure to report decline
Hospitals/clinics Unsafe environments, improper staffing
Pharmacists Dispensing incorrect medication/dose
Healthcare corporations Systemic failures; lack of safety procedures

Minimizing Liability

Strategy Effect
Maintain accurate documentation Provides legal protection and continuity of care
Follow standard of care Aligns care with accepted practices
Ensure informed consent Protects patient rights and supports decisions
Adhere to scope of practice Prevents unauthorized or negligent actions
Provide supervision and training Reduces risk of staff mistakes

Respondeat Superior

Respondeat superior (“let the master answer”) is a tort law doctrine that holds employers vicariously liable for employees’ acts or omissions within the scope of employment.

Key Features and Examples

Aspect/Scenario Explanation/Liability
Legal doctrine Form of vicarious liability
Applies to Employers (hospitals, clinics, physicians)
Covers Acts/omissions during job duties
Does not cover Independent contractors; actions outside the scope of employment
Nurse administers wrong medication on shift The hospital may be liable
Receptionist releases private information Clinic liable for confidentiality breach
Physician assistant misreads results The supervising physician or facility may be liable
A doctor assaults a patient Typically outside scope (not covered)

Standards and Duties of Care

Standard of Care

The standard of care is the level and type of care that a reasonably competent and skilled healthcare professional, with a similar background and in the same medical community, would provide under similar circumstances.

Definition and Key Elements

Element Description
Professionally accepted Based on what most competent professionals would do
Specialty-specific Varies by role (nurse vs. surgeon vs. paramedic)
Location-sensitive May differ by community/resources
Guideline-driven Often based on evidence-based protocols or laws

When Applied and How to Uphold

Scenario/Strategy Application/Why It Matters
Medical malpractice lawsuits Actions compared to the expected standard
Disciplinary actions/licensing Boards evaluate for breach
Internal audits/peer reviews Assess protocol adherence
Patient safety evaluations Prevent errors, improve quality
Follow clinical guidelines Aligns care with best evidence
Maintain continuing education Keeps knowledge current
Document thoroughly Supports legal and clinical decisions
Communicate clearly Ensures informed consent and shared decisions
Practice within scope Reduces risk of overreach

Breach of Standard of Care and Negligence:

If harm occurs and the standard of care is breached, negligence may be found. To prove negligence, all four elements must be shown: duty, breach, causation, and damages.

Duty of Care

Duty of care is a provider’s legal and ethical obligation to act in the patient’s best interest, delivering care that meets accepted professional standards. It is the first element in establishing negligence.

Definition, Characteristics, and Timeline

Characteristic/Phase Explanation
Legal obligation Arises once a provider–patient relationship is established
Professional obligation Adhere to medical ethics and standards
Context-dependent Varies by role and situation
Time-limited Ends upon proper termination, discharge, or referral
Begins When a provider agrees to treat/assess, when emergency care is initiated, when an implied contract is formed
Ends When treatment is completed, the patient is discharged or referred; when care is legally/ethically terminated

Examples and Upholding Duty

Scenario Duty of Care?
The doctor agrees to treat the new patient Yes
Nurse questions risky order Yes—duty includes acting on concerns
The paramedic arrives at the emergency Yes, once care begins
Off-duty physician overhears a complaint No—unless care is initiated
  • Provide care consistent with the standard of care
  • Communicate clearly with patients and colleagues
  • Stay within the scope of practice and competence
  • Follow informed consent procedures
  • Maintain accurate documentation

Reasonable Person and Reasonable Provider Standard

A legal benchmark asking whether a reasonably prudent person with similar training, in similar circumstances, would have acted the same way. In healthcare, it becomes the “reasonable healthcare provider” standard and informs negligence analysis (duty, breach, causation, damages).

Applications

Standard Applies To Example
A general reasonable person Laypeople Driving safely during a storm
Reasonable healthcare provider Clinicians Double-checking a high-risk medication dose

Example Applications: Delaying a standard test may breach the standard; immediately documenting a medication error likely meets the standard.

Professional Fault: Negligence and Related Doctrines

Negligence

Negligence is the failure to provide the standard of care a reasonably prudent provider would offer in a similar situation, resulting in harm. It may occur by action or inaction.

Four Legal Elements

Element Description
Duty Provider–patient relationship existed
Breach Violation of the standard of care
Causation Breach directly caused harm
Damages Actual harm occurred

Common Examples and Types

Scenario Negligence Type
Failure to diagnose Misdiagnosis or delayed diagnosis
Wrong medication Medication error
Instrument left in body Surgical negligence
No pre-op risk disclosure Failure to obtain informed consent
Ignoring abnormal results Failure to act on findings
No post-op monitoring Inadequate follow-up
Type Description
Ordinary negligence Basic carelessness
Professional negligence (malpractice) Failure by licensed provider to meet professional standards
Gross negligence Reckless disregard for safety
Comparative negligence Patient shares responsibility

Preventing Negligence

Best Practice How It Helps
Follow guidelines Aligns decisions with standards
Maintain documentation Creates defensible record
Communicate effectively Reduces misunderstandings
Verify orders and identity Prevents errors
Stay within scope Avoids unauthorized actions

Malfeasance, Misfeasance, and Nonfeasance

Malfeasance (Intentional Wrongdoing)

Action Why It Is Malfeasance
Falsifying records Deliberate fraud/deception
Procedure without consent Intentional rights violation
Narcotic prescribing for profit Illegal and unethical
Abusing a patient Intentional harm
Bribes for referrals Unlawful conduct

Misfeasance (Improper Performance of a Lawful Act)

Scenario Why It Is Misfeasance
Incorrect catheter insertion Lawful act done improperly
Prescription without allergy check Careless performance
Blood draw without sanitizing Unsafe technique
Wrong exercise method Lawful treatment applied wrongly

Nonfeasance (Failure to Act)

Scenario Why It Is Nonfeasance
No test ordered despite symptoms Failure to diagnose
Ignoring chest pain complaints Missed emergency intervention
No notification of critical labs Patient fails to receive needed care
EMT fails to provide care Duty existed but care withheld

Res Ipsa Loquitur

“The thing speaks for itself.” A doctrine allowing inference of negligence without direct evidence when the injury normally would not occur absent negligence and was under the defendant’s control.

Requirements and Examples

Element Explanation
Unusual injury Would not occur without negligence
Exclusive control Defendant controlled the situation/instrument
No patient contribution Injury not caused by patient

Examples: Surgical sponge left in a patient; wrong-limb amputation; burns from improperly grounded equipment. The burden may shift to the defendant to show the absence of negligence.

Lawsuits and Resolution

Stethoscope and gavel, symbol of law and medicine

Elements of a Lawsuit

Element Description
Duty Defendant owed a legal duty of care
Breach of Duty Defendant failed to meet that duty
Causation Breach directly caused harm
Damages Actual loss or injury occurred

Example (Malpractice Suit): Physician–patient duty exists; misread test is a breach; worsened condition shows causation; disability and costs show damages.

Steps in Filing a Civil Lawsuit

  1. Filing a complaint
  2. Service of process
  3. Response or answer
  4. Discovery phase
  5. Pre-trial motions
  6. Trial
  7. Verdict
  8. Appeal (if applicable)

Pretrial Screening

Procedures to evaluate malpractice claims before trial to reduce frivolous suits and costs. (Many claims are dropped, denied, or dismissed without trial.)

  • Filter baseless claims
  • Protect providers
  • Encourage early settlement
  • Preserve judicial efficiency

Common Screening Tools

Tool Description
Affidavit/Certificate of Merit Expert states claim has merit
Medical Review Panel Independent physicians issue opinion
Expert Witness Requirement Qualified expert testimony
Initial Complaint Review Court/board assesses sufficiency
Mediation/Arbitration ADR to resolve early

Phases of a Medical Malpractice Lawsuit

Phase Description
Pre-Lawsuit Evaluation Record review, expert consultation, screening
Filing the Complaint Formal claim submitted
Response by Defendant Answer, defenses, motions
Discovery Evidence exchange, depositions, expert reports
Pretrial Motions/Screening Panels Rulings and panel opinions
Settlement Negotiations Most cases resolve here
Trial Verdict on liability and damages
Appeal Legal/procedural review

Subpoenas

A subpoena orders a person to testify or produce documents. In healthcare, often used for medical records or provider testimony.

Type Purpose
Subpoena ad testificandum Requires personal testimony
Subpoena duces tecum Requires production of documents
  • Verify validity and authority
  • HIPAA: require authorization, court order, or assurances
  • Meet deadlines; consult counsel as needed

Depositions

Sworn, out-of-court testimony recorded during discovery. Common in malpractice cases.

  • Who may be deposed: patient/plaintiff, defendant providers, expert witnesses, staff/witnesses
  • Best practices: tell the truth; review records; answer only what is asked; ask for clarification; take breaks as needed

Interrogatories

Written questions requiring sworn written answers within a set timeframe. Used to gather facts, narrow issues, obtain admissions, and support claims.

Witness Testimony

Type Description
Fact witness Firsthand knowledge of events
Expert witness Professional opinion on standard of care, breach, causation
  • Credibility factors: consistency, professionalism, command of details, clarity, objectivity

Courtroom Conduct Tips for Healthcare Professionals

Tip Why It Matters
Dress professionally; be punctual Shows respect and credibility
Remain calm and composed Demeanor influences juries/judges
Listen carefully; pause before answering Accuracy and allows objections
Avoid jargon; don’t volunteer extras Keeps testimony clear and focused
Be honest Credibility is essential

Alternative Dispute Resolution (ADR)

Non-court methods to resolve disputes, often used in malpractice cases to save time and costs.

Type Description
Mediation Neutral facilitator helps parties agree
Arbitration Neutral decision-maker issues ruling (binding or non-binding)
Negotiation Parties reach agreement directly
Early Neutral Evaluation Preliminary opinion on case strengths/weaknesses
  • Benefits: faster, cost-effective, private, preserves relationships; flexible outcomes
  • Drawbacks: limited appeals (binding arbitration), potential resource imbalance
  1. Initiation (contract clause or agreement)
  2. Selection of mediator/arbitrator
  3. Exchange of information
  4. Mediation session or arbitration hearing
  5. Resolution or proceed to court (if not binding)

Consent and Special Topics

Informed Consent

Consent is a patient’s voluntary agreement to care after understanding risks, benefits, and alternatives. Failure to obtain valid consent can result in liability for battery or negligence. Laws vary by state, especially for minors, incapacity, and emergencies. Documentation is critical.

Types of Consent

Type Definition
Informed consent Agreement after full disclosure
Express consent Clearly given verbally or in writing
Implied consent Assumed by actions/situation
General consent Routine care consent at admission
Consent to treat a minor Parent/guardian unless exceptions apply

Key Elements

Element Description
Disclosure Procedure, risks, benefits, alternatives
Comprehension Patient understands the information
Voluntariness Free of coercion
Competence Mental/legal capacity
Consent Explicit agreement

The Doctrine of Informed Consent

Providers must obtain voluntary, knowledgeable agreement before treatment.

Element Explanation
Disclosure Diagnosis; nature and purpose; risks/complications; benefits; alternatives (including no treatment)
Comprehension Patient understands the information
Competence Legal/mental capacity
Voluntariness Free choice
Consent Affirmative agreement
  • Legal implications: failure may constitute battery or negligent nondisclosure
  • Courts assess reasonable person and provider disclosure standards

When Consent Is Not Required

Situation Explanation
Medical emergency Implied consent to save life/prevent serious harm
Incapacity without representative Act in patient’s best interest if delay endangers
Court-ordered treatment Mandated by law
Public health mandates Testing/reporting/isolation permitted under law
Therapeutic privilege (rare) Withholding information to prevent serious harm
Minor exceptions Emergency care; sexual/reproductive; mental health; substance treatment; emancipation (jurisdiction dependent)

Individuals Who Cannot Provide Informed Consent

Category Reason Consent Is Invalid
Minors (typically under 18) Lack legal capacity unless emancipated or specific exceptions
Cognitive impairment Cannot fully understand information
Unconscious/incapacitated Unable to comprehend/respond
Incompetent due to mental illness (as deemed) Lack decision-making capacity
Under coercion/duress Consent not voluntary
Severely intoxicated/drugged Impaired judgment

Authorized Decision-Makers

Ineligible Individual Substitute Decision-Maker
Minor child Parent or legal guardian
Incapacitated adult Court-appointed guardian, DPOA agent, or next of kin (state law)
Unconscious patient Medical proxy or next of kin (depends on laws/emergency)

Abortion Law and Informed Consent

Informed consent requirements for abortion vary by jurisdiction and may include specific disclosures, waiting periods, parental involvement for minors, and ultrasound provisions.

  • Typical requirements: explanation of procedure and risks; discussion of alternatives; gestational assessment (varies); voluntariness; sometimes waiting periods
  • Ethical principles: autonomy, non-maleficence, beneficence, justice

HIV and Informed Consent

Laws govern consent for HIV testing, treatment, and disclosure to protect rights and confidentiality.

  • Informed consent for testing: voluntary consent with pre-test information; understanding implications; opportunity to ask questions
  • Exceptions: medical emergencies; newborn testing (in some states); court-ordered testing; occupational exposure
  • Confidentiality: protected by HIPAA and state laws; partner notification may be allowed/required by health departments

Risk Management, Insurance, and Good Samaritan Protections

Medical Malpractice Insurance and Damage Awards

Professional liability insurance protects providers from financial loss due to negligence claims.

Feature Description
Who needs it Licensed providers and facilities
What it covers Legal fees, settlements, judgments
Exclusions Criminal acts, sexual misconduct, illegal activity
Who provides it Private insurers, risk groups, state funds

Policy Types

Type Explanation
Claims-made Covers incidents reported while policy is active (tail coverage relevant)
Occurrence Covers incidents during policy period regardless of report date

Damage Awards

Type of Damages Purpose Example
Compensatory (economic) Tangible losses Medical bills, lost wages
Compensatory (non-economic) Pain/suffering Loss of enjoyment, distress
Punitive Punish egregious conduct Rare

Factors Affecting Premiums

  • Specialty risk and claims history
  • State laws (e.g., damage caps)
  • Geography and practice setting
  • Policy type and limits

Wrongful Death Statutes

Wrongful death laws allow survivors to sue when negligence causes death.

  • Purpose: compensate survivors, ensure accountability, deter future harm
  • Who may sue (varies by state): spouse/children; parents of a deceased minor; estate representatives; other dependents (limited)

Damages

Type Examples
Economic Lost wages, funeral expenses, medical bills
Non-economic Pain and suffering, loss of companionship
Punitive For gross negligence or intentional acts (some states)

Healthcare Examples: Wrong-organ surgery leading to death; delayed diagnosis causing preventable death; fatal medication error.

Good Samaritan Law

Good Samaritan laws protect individuals who voluntarily provide reasonable emergency assistance from civil liability, provided actions are in good faith and without compensation.

Key Features

  • Applies to emergencies
  • Protection from civil liability for unintentional harm
  • No compensation expected
  • Actions must be reasonable and within training

Limitations and Exclusions

  • Does not protect gross negligence or intentional harm
  • May not apply if acting outside scope of competence (e.g., surgery by a non-surgeon)
  • Does not override consent laws (if the patient is conscious and refuses care)
  • Varies by state and country—each jurisdiction defines it differently

Where It Applies

Region Overview
United States All 50 states have some form of Good Samaritan law, but rules vary significantly.
Canada & United Kingdom Similar protections under common law, though not always called “Good Samaritan” laws.
Other Countries Protections vary; some mandate bystander assistance (e.g., Germany, France).

Examples of Protected Acts: Performing CPR on a stranger; using an AED in public; providing first aid at an accident scene (within competence and not reckless).

Adapted from Oregon Health & Science University, funded by the U.S. Department of Health and Human Services

Media Attributions

  • Female doctor wearing stethoscope and glasses reviewing legal documents at desk with gavel in foreground symbolizing medical malpractice or healthcare law
  • Stethoscope and gavel on white background, symbol of law and medic

License

Health 1010 Copyright © by Wyatt Slauson. All Rights Reserved.

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