Legal Issues in Case Management

Introduction

This ever-changing and developing healthcare produces more opportunity and comes along with greater responsibility, as well as greater legal risks to all healthcare professionals.  As one of the key players, case managers are exposed to legal risk more than ever before.  Therefore, it is very important to case managers to familiar with general legal concepts to avoid liability exposure and stay up – to – date to with legal chances.  The following I will discuss some  concepts which are confidentiality and Health Insurance Portability and Accountability Act  (HIPAA), standard of practice, informed consent and patient’s rights, and negligence that are the parts of legal issues in case management.

Confidentiality Mandates and HIPAA

Confidentiality in the health care has been a major issue to deal with because of the different record systems used to keep patients information.  Confidentiality is the agreement between the patient and the health care professional to keep everything involving the patient private unless the patient gives permission for their information to be release.  The information about the patient is to be kept private unless it poses a threat to the public. In the case of communicable diseases, child/elder abuse, domestic violence case, and other criminal cases.  The clients’ needs for confidentiality and privacy are important.  Confidentiality mandates are put in place in order to protect patients’ records.  The law state that patients need to be aware that their health records are protected and that there are penalty if they are release without permission.  With technology advancing, healthcare management is moving most information to computerized databases.  Electronic data are easy to access and patient consents are not always obtained for use in these managed are modalities.   Therefore, case managers become very crucial in protecting patient right of confidentiality through either obtain patient signed consents or ensure that the organization is not using patient identifiers.

Compares to confidentiality, Health Insurance Portability and Accountability Act (HIPAA)  is intended to improve the portability and continuity of health insurance by protecting individuals against laws regarding preexisting conditions and other restrictions.( Powell & Tahan, 2010).  HIPAA law was enacted in 1997.   And it becomes the national mandated standard.   So case managers are not only acting as patients’ advocate to protecting their rights under HIPAA, but also ensuring that their wishes are being considered when developing the case management plan. Especially patients’ care involved with multidisciplinary, confidentiality and HIPAA are mandated that only necessary information could be released.  Otherwise, breach of laws may result great harm to the patients and lead to criminal action to the professionals.

Standard of Practice

Like other health professionals, the Case Management Society of America (CMSA) developed the Standard of Practice for case management in 1995, and then updated in 2016.  The standards are generic and provide a framework for case managers in a variety of setting and specialties.  The Standard of Practice for Case management consists four parts (CMSA, 2002): describes the concepts of case management related to history, philosophy, goals and roles; addresses the case management process and explains its steps; addresses the qualification of a case manager; explains the evidence-based care, case management plan of care and other filed terminologies.  The standards are not only acting as guideline for practice excellence, but also as one of gold standards that lawyers use to prove that the case manager did or did not breach the standard of care in legal issues.

Informed Consent and Patient’s Right

As confidentiality, informed consent is also a legal right provided to every patient for treatments and procedures that are invasive or that have potential dangerous side effects or complications.  Except in an emergency situation and patient becomes unconscious, then the implied consent might be applied for life saving purpose ( Busquets & Cais, 2017).  Otherwise, patients with capacity of making decision must be provided with accurate and understandable information regards to their treatments.  Especially for those who have language barriers, the interpreter must be provided.

Generally, informed consent is involved two steps: disclosing information and signing the consent (Powell & Tahan, 2010).   According to the law, before a procedure, the patient and family must be fully disclosed on the issues of his or her condition, the purpose of procedure, any hazards and resulted potential complications, any alternatives, expected outcome, and possible risks if without any treatment. Inadequate disclosure consequently may lead to harm to the patient and legal liability to the providers.  For example, the provider in Kansas case of Natanson v. Kline (1960) is charged for malpractice due to failure of providing adequately information on the risks of cobalt radiation therapy which followed patient’s mastectomy, and resulted radiation burns.

Although case managers are not legally obligated to provide medical information and obtain informed consent, and the doctors still retain this responsibility.  As patients advocate, however, case managers have legal and ethical responsibility to protect patients from misinformation, omissions and errors (Powell & Tahan, 2010).  Especially in above legal case, if a skilled case manager could assess the adequacy of the information and patient comprehensive, then communicate to her provider, so the tragically ending might be avoided completely.

In addition, even if the competent patients are fully informed about the risks and benefits of a treatment, they still have a right to refuse. Except in the situation of refusal could threaten a child’s life.  For legal requirement, case managers need to document promptly, objectively and accurately from their observation and what they have done. A good documentation also is a protection for case managers in legal issues.

Negligence

According to (Powell & Tahan, 2010), Negligence describes a situation in which a person acts in a careless manner, which results in someone else getting hurt or property being damaged. If negligence occurs during professional practice is called malpractice, which is the most common law suit in current healthcare system.  Malpractice is based on the idea that someone with specialized knowledge and skill, by virtue of education and experience, should know how to act in his or her specified field.

As stated by the Joint Commission, “over 40% of malpractice claims reported are caused by administrative errors and poor client communication”.  Some examples of case management negligence are: premature discharge from a hospital or home care, negligent referrals to care centers, inadequate communication with doctors and patients, and violation of HIPAA laws ( Powell & Tahan, 2010). Communication seems to be a factor in many legal matters. The case manager should establish effective communication with all disciplines involved in the patient care as well as with the patient and family.

In addition, avoidance of malpractice is crucial for all professionals to maintaining their licensure.  Such as there are most of the common malpractice claims against nurses fall in the category of failure to follow standards of care, failure to use equipment in a responsible manner, failure to communicate, failure to document, failure to access and monitor, and failure to act as a patient advocate (Resing & Allen, 2012).  In order to avoid negligence the case managers should follow organization protocols, follow the standards of practice of case management, document all findings, provide relevant discharge information, advocate for their patients, and communicate important data to the physician, patient, and family ( Powell & Tahan, 2010).

Cultural Competency

In case management, understanding the client’s culture and traditions are important part of understanding their human behavior. Patients make decisions based on their belief, tradition and practices.  As a case manager, understanding that culture and legal system can create a conflict.  In an article titled, “The doctrine of informed consent: A tale of two cultures and two legal traditions, the author compares western legal system with the traditional Jewish system.  He states that western traditions focus on self-decision making and independence when it comes to their health, whereas Jewish traditions base their decisions on their belief and their faith.   The Jewish faith believes that they do not have control over themselves and cannot make medical choices without consenting God or religious authorities (Walter, 1999).  Cultural competence will improve legal issues in case management because, the case manager will be aware of the reasons why people make or not make certain decisions when it comes to their health.

Summary

 Case managers should understand these legal issues in order to provide better quality care for the patients.  And case managers are also responsible to follow the standard of practice, enforce the laws and regulation such as Confidentiality, HIPAA and Patients’ rights to maximum avoid the risks of malpractice and build trusting relationships with the patients.

Reference

Busquets. M., & Cais, J., (2017). Informed consent: A study of patients with life-threatening illness. Nursing Ethics. 24(4), 430-440.

Case Management Society of America (CMSA). (2002). Standards of practice for case management. Little Rock. AR: CMSA.

Court cases (n.d.). Retrieved from https://web.stanford.edu/~mvr2j/sfsufall/extra/courtcases.pdf

 

The Law of Negligence. (n.d.). Suite101.com. Retrieved November 27, 2012, from http://suite101.com/article/the-law-ofnegligence-a105023

 

Powell, S. K., & Tahan, H. A. (2010). Case management: A practical guide for education and practice. Philadelphia: Wolters Kluwer Health/Lippincott Williams & Wilkins.

 

Reising, D. L. & Allen, P. N. (2012). Protecting yourself from malpractice. Retrieved from http://www.americannursetoday.com/article.aspx?id=4186&fid=4172.

 

The Joint Commission. (n.d.). National Patient Safety Goals. Retrieved from http://www.jointcommission.org/standards_information/npsgs.aspx

 

Walter, P. (1999). The doctrine of informed consent: A tale of two cultures and two legal traditions. Issues in Law & Medicine, 14(4), 357.