Explain why caregivers are considered patient advocates. When and how does one become a patient advocate? Discuss the legal implications of being a
Explain why caregivers are considered patient advocates. When and how does one become a patient advocate? Discuss the legal implications of being a patient advocate. What resources can patient advocates access to help them perform their roles/responsibilities?
19
Patient Rights and Responsibilities
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It’s Your Gavel… |
A MOTHER’S RIGHT: A CHILD’S DEATH
Harrell, a Jehovah’s Witness, was 6 months pregnant when physicians discovered a life-threatening blood condition that could deteriorate and place both her life and the life of the fetus in jeopardy. Because of religious beliefs, Harrell objected to a blood transfusion. After an emergency hearing, the court ruled that a blood transfusion could be given to Harrell if it was necessary to save the life of the fetus and that after the child was born, a blood transfusion could be given to the child if necessary to save the child’s life. The Harrells appealed. The child was delivered by cesarean section and died 2 days later. No blood transfusion was given to Harrell or to the child. As a result, the hospital and the state claimed that the appeal of the trial court’s order is moot. Because of the hospital’s misunderstanding about its standing to bring such proceedings, the Florida District Court of Appeals addressed the issue as capable of repetition yet evading review.
The Florida Constitution guarantees that a competent person has the constitutional right to choose or refuse medical treatment. In cases where these rights are litigated, a party generally seeks to invoke the power of the state, through the exercise of the court’s judicial power, either to enforce the patient’s rights or to prevent the patient from exercising those rights. The state has a duty to ensure that a person’s wishes regarding medical treatment are respected.
Harrell argued that the hospital should not have intervened in her private decision to refuse a blood transfusion. She claimed that the state never had been a party in this action and had not asserted any interest and that the hospital had no authority to assume the state’s responsibilities.1
WHAT IS YOUR VERDICT?
Learning Objectives
The reader, upon completion of this chapter, will be able to:
• Discuss the importance of understanding patient rights.
• Discuss the importance of understanding patient responsibilities.
• Understand how rights and responsibilities go hand in hand.
This chapter provides a brief overview of both the rights and responsibilities of patients. Every person possesses certain rights guaranteed by the Constitution of the United States and its amendments, including the freedoms of speech, religion, and association, and the right not to be discriminated against on the grounds of race, creed, color, or national origin. The Supreme Court has interpreted the Constitution as also guaranteeing certain other rights, such as the right to privacy and self-determination, and the right to accept or reject medical treatment.
With rights come responsibilities. The patient, for example, has a right to receive emergency care, while at the same time also has a responsibility to let the caregiver know the limits of that care as noted in the opening case above where the patient objects to the administration of blood.
19.1 PATIENT RIGHTS
Patient rights may be classified as either legal—those emanating from law—or human statements of desirable ethical principles such as the right to be treated with dignity and respect. The rights of patients discussed here do not exist in a vacuum without limitations—they are tethered to moral obligations and responsibilities that have their roots in the law, ethics, moral principles, and religious values. To kill another human being, for example, is wrong and punishment will follow if the life of another is taken.
Patients have a right to receive a clear explanation of tests, diagnoses, prescribed medications, prognosis, and treatment options.2 Most federal, state, and local programs (e.g., Medicare, Medicaid) specifically require, as a condition for receiving funds under such programs, an affirmative statement on the part of the organization that it will not discriminate.
Admission
It is well established by both federal and state law, as well common law, that patients have a right to receive emergency care and inpatient admission if such is required for the health and safety of the patient. Healthcare providers receiving funds from programs such as Medicare and Medicaid are expected to have an affirmative statement that provides it will not discriminate against patients on the basis of age, race, creed, color, or national origin. Patients also have a right to have their care needs responded to within a reasonable time frame; delays in responding to a patient’s needs can put a patient’s life at risk, and put the organization at legal risk for injuries the patient suffers as a result of the delay.
Whether a person is entitled to admission to a particular governmental facility depends on the statute establishing that organization. Governmental hospitals, for example, are, by definition, creatures of some unit of government; their primary concern is service to the population within the jurisdiction of that unit. Military hospitals, for example, have been established to care for those persons who are active members of the military.
Although persons who are not within the statutory classes have no right of admission, hospitals and their employees owe a duty to extend reasonable care to those who present themselves for assistance and are in need of immediate attention. With respect to such persons, governmental hospitals are subject to the same rules that apply to private hospitals. For example, the patient in Stoick v. Caro Community Hospital 3 brought a medical malpractice action against a government physician in which she alleged that the physician determined that she was having a stroke and required hospitalization but that he refused to hospitalize her. The plaintiff’s daughter-in-law called the defendant, Caro Family Physicians, P.C., where the patient had a 1:30 PM appointment. She was told to take the patient to the hospital. On arriving at the hospital, there was no physician available to see the patient, and a nurse directed her to Dr. Loo’s clinic in the hospital. On examination, Loo found right-sided facial paralysis, weakness, dizziness, and an inability to talk. He told the patient that she was having a stroke and that immediate hospitalization was necessary. Loo refused to admit her because of a hospital policy that only the patient’s family physician or treating physician could admit her. The plaintiff went to see her physician, Dr. Quines, who instructed her to go to the hospital immediately. He did not accompany her to the hospital. At the hospital, she waited approximately 1 hour before another physician from the Caro Family Physicians arrived and admitted her. Loo claimed that he did not diagnose the patient as having a stroke and that there was no bad faith on his part.
The circuit court granted the physician’s motion for summary judgment on the grounds of governmental immunity. The court of appeals reversed, holding that the plaintiff did plead sufficient facts constituting bad faith on the part of Loo. His failure to admit or otherwise treat the patient is a ministerial act for which governmental immunity does not apply and may be found by a jury to be negligence.
Examination and Treatment
Patients have a right to expect their physician will conduct an appropriate history and physical examination based on the patient’s presenting complaints. The assessment is the process by which a physician investigates the patient’s state of health, looking for signs of trauma and disease. It sets the stage for accurately diagnosing the patient’s medical problems, which leads to an agreed-upon treatment plan. A cursory assessment can lead to a misdiagnosis and inappropriate treatment plan. As reported by Karen Asp in Shape Magazine, “Is Your Dr. Missing the Mark?: “It took almost my whole life to get the right diagnosis because no one person had asked me enough questions.”4
Participate in Care Decisions
Patients have the right to choose the medical care they wish to receive. They have a right to know their treatment options and to accept or refuse care. As medical technology becomes more advanced, care decisions become more complicated to make. Although patients have a right to make their own care and treatment decisions, they often face conflicting religious and moral values in their decision-making process. Often, it is difficult to make a choice when two roads may seem equally right.
Informed Consent
Patients have a right to receive all the information necessary to make an informed decision prior to consenting to a proposed procedure or treatment. This information should include the possible risks and benefits of the procedure or treatment. The right to receive information from the physician includes information about the illness, the suggested course of treatment, the prospects of recovery in terms that can be understood, the risks of treatment, the benefits of treatment, alternative care options, and proof of consent.
Refuse Treatment
Patients have a right to refuse treatment and be told what effect such a decision might have on their health. The responsibility of caregivers requires balancing risks and benefits. This balancing can lead to situations in which healthcare professionals view their obligations to a patient differently from the patient’s own assessment. Forcing a patient to undergo an unwanted procedure would result in a failure to respect the patient’s right of self-determination. For example, the patient in Matter of Dubreuil 5 at the time of her admission signed a standard consent form that included her agreement to have a blood transfusion if necessary. The following day, she was scheduled for a cesarean section, but she would not consent to a blood transfusion because of her religious beliefs. During the course of the delivery, after she had lost a significant amount of blood, it was determined that she needed a transfusion to save her life, but she would not give her consent. Her estranged husband was contacted, and upon his arrival at the hospital, he gave his consent for the transfusion. After the first transfusion, physicians determined that she would need more blood, so they petitioned the circuit court for an emergency hearing to determine whether they could give the transfusion despite the patient’s lack of consent. The trial court decided to allow the hospital to administer blood as they deemed necessary. The patient moved for a rehearing, and the circuit court denied a rehearing. The patient then sought review by the Florida Supreme Court, arguing that her federal and state constitutional rights of privacy, self-determination, and religious freedom had been denied. The Florida Supreme Court ruled that a competent person has a right to refuse medical treatment, including all decisions relevant to his or her health. A healthcare provider must comply with the patient’s wishes unless supported by a court order to do otherwise. Here, the state interest was the protection of the children as innocent third parties. However, in this case, there would have been no abandonment because under Florida law, when there are two living parents, they share equally in the responsibilities of parenting. Had the patient died, her husband would have assumed the care of the children.
Pain Management
Pain is an unpleasant sensation ranging from mild, localized discomfort to acute systemic pain with both physical and emotional components. Some describe the physical part of pain as throbbing, hurting, tenderness, a burning sensation, dull, stabbing, numbing, sharp, and shooting. By others, it has been indescribable, making day-to-day living unbearable. The feeling of pain results from specific nerve fibers carrying pain impulses to the brain. The sensation of acute physical hurt or discomfort caused by injury or illness often includes varying degrees of emotional suffering.
Pain is the body’s way of alerting the patient that something is not quite right. A pain rating scale is a visual tool often used to help a patient describe his or her pain level. It helps the caregiver know how effective treatment is and whether a change in a patient’s treatment plan is necessary. The pain assessment scale is a tool often used because of its ease of use in performing a task. Just as important as the severity of pain are its locations and type. A diagram of the body should be used so that the patient can more easily identify the various locations of his or her pain. The severity of pain can be described to the physician to assist in diagnosing and treating the patient.
Pain management is the process whereby caregivers work with the patient to develop a pain control plan. The process involves educating the patient as to the importance of pain management in the course of healing. With current treatments, pain can often be prevented, or at least controlled. A pain control treatment program should be developed in collaboration between the caregiver and the patient; include alternative and/or complementary strategies for pain management; include family and caregivers as appropriate in the decision-making process; and include an explanation of the medications, anesthesia, other treatments, risks, benefits, and alternatives (e.g., acupuncture). The plan should also ensure that the patient can request changes in treatment if pain persists, is able to refuse the recommended pain treatment(s), and receives pain medication in a timely manner.
Quality Care
Healthcare professionals are expected to monitor the quality of each patient’s care, beginning with the history and physical, through the development of the treatment plan, and, ultimately, to the delivery of care to the patient. The patient has a right to expect that the quality of care rendered will be based on best practices recognized in the healthcare industry.
Know One’s Rights
The continuing trend of consumer awareness, coupled with increased governmental regulations, makes it advisable for caregivers to understand the scope of patient rights. Patients have a right to make their own healthcare decisions. Healthcare organizations may no longer passively permit patients to exercise their rights, but must educate patients as to their rights. Each individual has a right to make decisions concerning his or her medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives.
Patients have a right at the time of admission to be provided in writing a copy of their rights and responsibilities. The patient’s rights and responsibilities are documented in a statement most often referred to as The Patient’s Bill of Rights. Access to a copy of a patient’s rights and responsibilities should be available to the general public when so requested. A limited random sample of three hospitals conducted by the author in two states revealed that staff members were often reluctant to provide and suspicious as to why a copy of the patient’s bill of rights was being requested. All three hospitals would not provide a copy onsite; one hospital, after a second visit, reluctantly provided a copy via email.
Patient’s Bill of Rights
A patient’s bill of rights often includes the following:
1. Receive an explanation of their rights.
2. Receive assistance in understanding their rights, including an interpreter.
3. Receive treatment without discrimination as to race, color, religion, sex, national origin, disability, sexual orientation, or source of payment.
4. Receive considerate and respectful care in a clean and safe environment, free of unnecessary restraints.
5. Receive emergency care, if needed.
6. Know the names, positions, and functions of any hospital staff involved in their care and refuse treatment, examination, or observation by them.
7. Receive complete information about their diagnosis, treatment, and prognosis.
8. Receive all the information they need to give informed consent for any proposed procedure or treatment, including the risks, benefits, and alternatives to care or treatment.
9. Designate an individual to give informed consent if they are too ill to do so.
10. Discontinue care or refuse treatment.
11. Receive an explanation as to what can be expected if care is refused.
12. Refuse to consent or decline to participate in research.
13. Expect privacy while in the hospital and confidentiality of all information and records regarding their care.
14. Participate in all decisions about their treatment and discharge from the hospital.
15. Review and obtain a copy of their medical records.
16. Receive an itemized bill and explanation of all charges.
17. Complain, without fear of reprisal, about the care and services they are receiving.
18. Know the hospital’s relationships with outside parties that may influence a patient’s treatment and care. These relationships may be with educational institutions, insurers, and other healthcare providers.
19. Know about hospital resources, such as patient representatives or ethics committees, that can assist in resolving problems and questions about their hospital stay and care.
20. Be informed of any unanticipated outcomes or mistakes that may affect the patient’s health status (e.g., administration of the wrong medication).
Know Caregivers
Patients have a right to appoint a surrogate decision maker should they become incapacitated or unable to make decisions. Because patients are often helpless and
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