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Health Care Laws OverviewEssay

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Healthcare Law

Informed consent is the doctrine wherein patients can only consent to certain procedures if they have been informed of, and understand, and assent to, the risks involved. Medical staff cannot simply do as they please -- they need to get consent from the patient, but the patient needs to be informed, and understand to what they are consenting.

The doctrine of informed consent is relatively new in health care law. A famous narrative with respect to informed consent is the story of Henrietta Lachs, a black cancer patient whose cells were harvested without her consent. Those cells are the most common cells used in medical research, which highlights the ethical dilemma of informed consent. Had the doctrine existed, she might never have given consent, to the detriment of subsequent decades of medical research. However, harvesting cells is considered by many to be an invasion of privacy, and certainly would require informed consent today.

The development of the legal framework regarding informed consent began with early 20th-century cases, the most important of which was Schoendorff v. Society of New York Hospital. In this case, the justice summarized "every human being of adult years in sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits a battery for which he is liable for damages" (Murray, 1990). The court would later allow that a doctor can and should attempt to explain the procedure to the patient, effectively adding the idea of "informed" to the consent from Schoendorff. While these cases pre-dated Lachs, her status as a black woman was a critical factor in why informed consent was not applied in her case.

By the mid-20th century, the doctrine of informed consent was developed further. Cases arose that concerned different types of procedures, and the level to which a patient must be informed. In Bang v. Charles T. Miller Hospital in 1955, it was determined that the patient was entitled to know the risks and results of surgery. Prince v. Massachusetts established the limits of informed consent with respect to minors. This Supreme Court case contained the following judgment: "Parents may be free to become martyrs themselves, but it does not follow that they free, in identical circumstances, to make martyrs of their children (Murray, 1990). This case therefore established the first boundaries for state intervention in informed consent cases where minors are at risk. Reif v. Weinberger in 1974 further clarified that consent cannot be given when the person is under physical or mental duress. There are nevertheless provisions for informed consent in emergency conditions -- treatment that cannot be delayed should not be delayed simply because the patient is unable to give consent (Murray, 1990).

Even the laws with respect to informed consent do not address the inherent lack of medical knowledge that most patients have. Physicians are bound to provide certain information about procedures and treatments as antecedent to gaining informed consent. As a result of Canterbury v. Spence in 1972, there are six components to informed consent. These are that the patient must be aware of the diagnosis; that the patient must be aware of any diagnostic procedures required; that the surgical procedure must be described in non-technical terms; that the patient must be informed of inevitable risks; that the patient must be informed of alternative methods and that the expected results and their probability should be discussed in sufficient detail (Murray, 1990).

Thus, the doctrine of informed consent has been forged by 100 years of case law. The doctrine is still being formed in medical practice, but has been widely adopted, because of the benefits it conveys to patients and protections it conveys to healthcare practitioners.

B. The doctrine of employment-at-will refers to the structure of most employment in the United States, where there is no contract to state the specific terms and conditions of employment. Employment-at-will is a legal doctrine that "employment is for an indefinite period of time, and may be terminated either by employer or employee" (Cornell, 2015). This basically means that in the absence of a contract, employees can basically no protections against being fired or laid off. An employee can thus be fired for good cause, bad cause or for no cause at all, no matter his or her tenure (Muhl, 2001).

Employment at will has a long legal history in the United States, and was the default term of employment for most people prior to the rise of labor unions. In the early 20th century, court presumed that there was relatively equal bargaining power between employers and employees. This was not true at the time nor is it true today, but that presumption is embedded in the employment-at-will doctrine. Neither employer nor employee is bound to anything with respect to employment, and employment can be terminated by either party at any time. As a consequence of this doctrine, many in healthcare work under employment-at-will, and thus their ongoing employment is never subject to guarantee. Where contracts exist, either with unions or with some classes of employees, the employment-at-will doctrine does not apply.

Unions were able to secure contracts for their employees, and any employee who has a contract is not employed at will. The legal doctrine has been curtailed and adapted in other ways as well. For example, states have the right to adapt the employment at will concept. Many have used this ability to institute protections for employees who are injured on the job, for example (Cornell, 2015). The Civil Rights Act of 1964 also provides protections for certain classes of workers. While they are employed at will, they cannot be fired on the basis of certain characteristics. Later acts such as the Americans with Disabilities Act have extended civil rights act provisions. It is worth noting that employees is special classes are only protected from being fired because of those attributes, and not for other reasons, and thus have to prove discrimination to win a case.

In addition to these statutory exceptions, some states offer protection for an employee's legal off-duty activities, meaning that an employer cannot necessarily fire someone for their off-duty activities. There are usually laws that prohibit explicitly an employer from firing an employee as a form of retaliation, thought the effectiveness of such whistleblower protection is not as robust as might appear on paper.

In recent years, many states have opted out of the employment-at-will doctrine altogether, as a means of increasing employee protection, given the substantial differential bargaining power between employees and employers (Cornell, 2015). Montana is one state where the doctrine does not apply (NCSL, 2015). There are three main exceptions to the employment-at-will doctrine. The first of these is public policy, which means that the doctrine shall not apply when its application would be against the public interest. As an example, an employee cannot be fired for refusing to perform an act prohibited by state law, or for reporting a violation of the law (NCSL, 2015).

Where there are implied contracts, the doctrine of employment-at-will is said to no longer hold. However, while most states grant protections based on implied contracts, they are difficult to prove in a court of law. An implied contract can arise when there is an oral contract, or when "an employer's handbooks, policies, practices or other written assurances" may create an implied contract (NCSL, 2015). The third major exception to this doctrine is not widely recognized, but is in some states. This is the implied covenant of good faith and fair dealing. This protects employees against terminations that are found to be in bad faith, or motivated by malice.

C. The Health Insurance Portability and Patient Privacy Act of 1996 -- HIPAA -- protects a patient's right to privacy. The law mandates that only specific people are allowed to see someone's health information -- doctors, nurses and the patient's insurance company. Employers in particular are not allowed access to a person's private medical history or other health information. HIPAA also provides a provision for a person to contact their insurance company and provide a list of individuals or agencies that would not be allowed access to that information, as sometimes this is necessary for, say, former spouses who may once have had access to this information (HHS.gov, 2015).

The privacy of medical records is a provision in HIPAA known as the Privacy Rule. The privacy rule has the following main elements. The underlying principle is that an individual's health information "is properly protected while allowing the flow of health information needed to provide and promote high quality health care" (HHS.gov, 2015). The privacy rule covers health plans, health clearinghouses, and any health care provider, allowing for a high level of protection of the privacy rights of individuals.

The Privacy Rule established national standards for the protection of health information. There were no rules before the Privacy Rule, and HIPAA also created the Office for Civil Rights within HHS, the body… [END OF PREVIEW]

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