Legal Issues in

Clinical Education



Copyright 2008 by The Health Alliance of MidAmerica LLC
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Objectives
Present essential basic legal concepts
Reduce risk
Faculty role
Student policies and practicesexceptions
FERPA
HIPAA
Allocation and management of risks
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Faculty Status:
Role and Risk; Risk and Role
Teaching offers personal and professional
satisfaction.

To teach is to learn twice.
Joseph Joubert (1754-1824)
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Because of its value in our society, the law
offers some protections to those who
engage in teaching.
Doctrine of Academic Abstention

Sovereign Immunity

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Understanding Risks:
A parade of horribles
Balancing Professional Expectations, Patient
Welfare, and Instructional Needs

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Understanding Risks
Duties are owed to patients, employers,
students, the institution, and the profession
but they are congruent.
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Understanding Risks
DUTY + BREACH { Present Causation and
Damages } = Liability
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Understanding Risks
Duty and Standard of care

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Understanding Risks
Public institutions have Constitutional Duties
and Private institutions often contract to
protect these values.
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Understanding Risks
The secret of education is respecting the pupil.
Ralph Waldo Emerson

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Frequently Asked Questions
Am I liable for what a student I am instructing or
acting as preceptor does or fails to do?
Should I have insurance to serve in this clinical
educator role?
When I initial notes in a chart entered by a
student am I attesting to their veracity?
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Understanding Risks
Due Process
Is there a property interest or a contractual
obligation?

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Understanding Risks
Due Process
Is this academic or a conduct based
dismissal?

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Understanding Risks
Due Process
If there is a property interest or a contractual
obligation what process is due?

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Understanding Risks
Procedural Due Process Basics
Notice
Opportunity to tell your side of the story and
to have the decision reviewed
At a meaningful time and in a meaningful
manner

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Understanding Risks
Substantive Due Process
Whether the decision was fundamentally fair

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Understanding Risks
All persons are entitled to Equal Protection

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Understanding Risks
All persons are protected from discrimination
on the basis of race, sex, age, disability, color,
national origin, religion, veterans status, and
sometimes marital or family status or sexual
orientation.
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Understanding Risks
Harassment is a form of discrimination.
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Student Issues: Policies
Take time to become familiar with the policies
affecting the students and your responsibilities
(know where to find them when needed).
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Student Issues: Policies
Family Educational Rights and Privacy Act
1974
FERPA
Buckley Amendment

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Student Issues: Policies
FERPA
Regulates disclosure of student records
Offers students the ability to review and
challenge records

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Student Issues: Policies
FERPA
Covers records which contain information
that identifies student
Disclosure must follow guidelines

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Student Issues: Policies
FERPA
Schools designate Directory information that
can be shared.
Students can request that their Directory
information not be shared.
Release should be by school officials.

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Student Issues: Policies
Grading
Due process and developmental instruction
favor frequent evaluation and feedback. A
failing grade should not be a surprise to the
student.
Learning is not compulsory neither is
survival. W. Edwards Deming
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Student Issues: Policies
Syllabi
Evidence of our contract with our students.
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Student Issues: Policies
Academic Assessment Issues
measurement of performance
ability to perform
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Student Issues: Policies
Misconduct
academic integrity (cheating)
ethics
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Student Issues: Practices
Assumptions are the termites of relationships.

Henry Winkler, actor (1945- )

Be familiar with customs, expectations and
actual practices regarding confidentiality, fair
(or due process) procedures, and professional
and academic integrity.
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Student Issues:
Exceptional Circumstances
Ignorance more frequently begets confidence
than does knowledge.
Charles Darwin, naturalist and author
(1809-1882)
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Student Issues:
American with Disabilities Act
Accommodations are intended to provide
equal opportunity to otherwise qualified
students who meet the technical standards.
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Student Issues:
Americans with Disabilities Act
Faculty are not to make accommodation
decisions without consultation.
Accommodations cannot fundamentally
alter the nature of the program, lower
standards or cause an undue burden.
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Health Insurance Portability and
Accountability Act (HIPAA)
Protects medical record information from
release without consent and one's ability to
challenge ones records for accuracy.
There are financial and criminal penalties for
violations.
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Allocation And Reduction Of Risks
Affiliation Agreements: Define Duty and
Allocate Risk
Specify which party is responsible for activities
and who makes decisions.
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Allocation And Reduction Of Risks
Affiliation Agreements: Define Duty and
Allocate Risk
Role Distinction (by duty and expertise)
Indemnification language
Realistic commitments, i.e. training and
criminal clearance v. promise to perform
Responsibility for Student Conduct
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Insurance
Different types of insurance include
professional liability, general liability and
medical/health.
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Risk Management Through:
Using good communication
Maintaining appropriate documentation
Protecting sovereign immunity
Protecting academic abstention by
exercising professional judgment
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Risk Management Through:
Understanding the tort formula
Dont breach duty
Follow standard of care
Understanding the appropriate orchestration
of roles
Maintaining insurance is appropriate
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Summary Slide
Conclusion and Your Questions
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Conclusion and Your Questions
Teaching people skills without giving them a
vision for a better future a vision based on
common valuesis only training.

Nido Qubein