Case Study #1 Healthcare Law

Facts: A physician licensed in the State of Florida and who specializes in general surgery performs a surgical procedure on a patient to remove a non-essential bodily organ for the patient. However, the surgeon inadvertently and unintentionally misses the non-essential bodily organ and instead removes other bodily tissue surrounding the organ. At the time the surgeon performs the surgical procedure, the surgeon has limited experience performing this particular type of surgical procedure, and he has been on emergency call coverage for twenty-four (24) hours prior to performing the procedure. Additionally, he has performed numerous other procedures and is extremely tired at the time he performs the procedure in question. Although another surgeon ultimately re-performs the surgical procedure and correctly removes the non-essential organ several days after the botched first procedure, the patient does suffer some post-operative infection from the procedures and some health issues and problems post-operatively. She also misses several weeks of work in order to recover and loses income/wages because of it. The patient also incurs additional healthcare costs because of the additional procedure and extended stay in the hospital. Ultimately, the hospital where the procedure was performed investigates the issue through an ad hoc investigative peer review committee. Additionally, the patient seeks legal counsel for the matter. Please identify the various issues involved for the physician, and the applicable laws, rules and regulations, as well as legal principles which may apply. Legal Issues: The surgeon missed the intended organ and removed other bodily tissue surrounding it. The surgeon has limited experience performing this particular type of surgical procedure. The surgeon was on emergency call coverage for twenty-four hours prior to performing the procedure. The surgeon was fatigued after performing numerous other procedures prior to the one in question. The patient received another surgery several days after the first procedure, the patient suffer some post-operative infection from the procedures and some health issues and problems post-operatively. The patient misses several weeks of work, needs to recover lost wages/income. The patient incurred additional healthcare costs because of the additional procedure and extended stay in the hospital. The hospital permitted the surgery without properly vetting to see if that surgeon was qualified to perform the procedure. Applicable laws, rules and regulations: Under Title XXXII Chapter 456 [456.072] subsection (z) of the Florida Statutes and Constitution: Being unable to practice with reasonable skill and safety to

patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. Under Title XXXII Chapter 456 [456.072] subsection (bb) of the Florida Statutes and Constitution: Performing or attempting to perform health care services on the wrong patient, a wrong-site procedure, a wrong procedure, or an unauthorized procedure or a procedure that is medically unnecessary or otherwise unrelated to the patients diagnosis or medical condition. Under Title XXXII Chapter 458 [458.331] subsection (v) of the Florida Statutes and Constitution: Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform. Under Title XXXII Chapter 458 [458.331] subsection (w) of the Florida Statutes and Constitution: Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them. Respondeat superior (vicarious liability): Let the superior respond for the negligence of agents or employees, in this case the hospital is responsible for this surgeons actions and job duties. A tort was committed, the person was an agent or an employee of the hospital, and the tort was committed within the scope of the agents or employees duties. Liability for Breach of Contract: A physician who uses a different procedure from the one that was promised will also be liable for breach of contract. Tort liabilities: 1) Negligence, a person intends no harm but fails to do what a reasonably careful person would do under the circumstances. There was proof that duty, breach, injury, and causation is breach 2) Assault and battery, acts done without legal authority or permission, the patient was not informed of the surgical procedure removing other bodily tissue surrounding the organ of intent. Ad hoc investigative peer review committee: A discreet retrospective evaluation of a physicians performance or undesired outcome to see if accepted standards of care were met and to suggest quality improvements if they were not. Two major legal issues arises; confidentiality and potential liability. This surgeon is not protected from confidentiality, being licensed in the state of Florida it is by law to make physicians peer review records public, Amendment 7 Patients Right to Know about Adverse Medical Incidents Title XXIX Chapter 395 [395.0193].

Work Cited
Showalter, J. S. (2008). The Law of Healthcare Administration. Chicago: Health Administration Press.