Case in Point: Good Samaritan Home
In Albert Lea, Minnesota, several nursing aides were charged with various criminal actions including disorderly conduct by a healthcare provider. The nursing aides (all teenagers at the time) reportedly verbally and physically abused elderly patients at the Good Samaritan Home. In addition to the criminal charges, the families of the victims alleged negligence by the Good Samaritan Home, claiming the nursing aides were not properly supervised. The criminal trial resulted in a guilty verdict for all the defendants with various sentences, including jail time. The civil suit was settled out of court.
Some statutory laws provide remedies for wrongs committed against society or individuals. Wrongs against individuals are called torts. Torts can be divided into two main categories: intentional and unintentional. Intentional torts that are most common in health care include assault and battery, false imprisonment, defamation of character, invasion of privacy, fraud, and embezzlement.
• Assault and battery: Historically, assault meant the threat of harm, and battery was the actual physical harm to a person. Currently, most states consider both the threat and the act to come under the single term of assault. This includes unwanted touching. In the preceding Good Samaritan Home example, the teenage perpetrators were likely liable in the civil suit for committing intentional torts against the victims due to unwanted touching. While violent physical acts upon a person do occasionally happen in healthcare settings, most assault cases involve unwanted touching or performing a procedure without consent. Patients generally sign consent forms before having any medical procedure. Oral consent is also considered legally binding but can be much more difficult to prove in court. If a patient agrees to a procedure, he or she must be told if there will be any changes to that procedure prior to the change (e.g., additional tissue removed, change of surgeon). Changing procedures or medical professionals without consent damages the healthcare provider–patient relationship and can result in lack of trust. If the patient is not informed of these changes and the procedures are completed, the provider can be charged with assault.
• False imprisonment: Holding a patient against his or her will is considered false imprisonment. This includes the use of restraints for nonmedically approved reasons.
• Defamation of character: Defamation of character occurs when a person’s reputation is damaged by the spreading of untrue information. While gossiping about coworkers or patients is unethical, if the information is true, it is not defamation of character. Defamation of character has two subcategories: slander and libel. Slander is spoken, and libel is written.
• Invasion of privacy: The intrusion into the private life of another person without medical cause can be considered invasion of privacy. This is different than a violation of HIPAA’s Privacy Rule because invasion of privacy extends farther than protected health information. Any damaging information that is made public regarding any employee or patient in a healthcare setting can be considered invasion of privacy.
• Fraud: Deceitful practices that deprive someone of his or her rights can be considered fraud. Fraud can occur in many ways in health care. False promises, upcoding, and insurance fraud are only a few examples. Upcoding involves charging insurance companies for a procedure that is reimbursed at a higher rate than the procedure that was actually performed. An example of upcoding would be if a therapist meets with several patients in a group but bills the sessions individually, rather than as a group therapy session. Individual therapy sessions are generally reimbursed at a higher rate than group therapy sessions. Medicaid and Medicare fraud has also become quite common and costly to taxpayers. In particular, you should never promise an outcome to a patient because, as we all know, no outcome is ever guaranteed. For example, you have a patient, Mrs. Lee, who has been a patient at the clinic where you work for more than 20 years and has always been kind and likeable, even when she is ill. She has just been told that she has cancer, and you are sad about this. You go into the examination room with Mrs. Lee and she reaches out for a hug. As you hug her, you say, “Don’t worry, Mrs. Lee. We are going to beat this cancer.” If you make a statement like this or any statement that promises a particular outcome, you have risked a possible lawsuit. Promises not kept in health care are considered fraud and can be brought to legal action as an intentional tort, even if you mean well. Always be careful of your words and actions; they can come back to haunt you if you have acted improperly.
• Embezzlement: The conversion to your own use of property that you can rightly access but do not own can be considered embezzlement. Generally, this involves an employee taking money from business accounts to which the employee has rightful access. Embezzlement is not the same as stealing because in cases of embezzlement, the employee has legal access to the funds, but chooses to take some for his or her personal use.