Transcript Legal

Nutrition 560 K – Module IV
Instructor - Oscar Coetzee
“House” of Virtual Clinic
Practice Legally
Check with your State
http://nutritionadvocacy.org/
For example, New York defines practice of
medicine as: “diagnosing, treating, operating, or
prescribing for any human disease, pain, injury,
deformity or physical condition”.
Student Project - Advocacy
Student needs to go on:
www.nutritionadvocacy.org find their state and
provide an update on their states legal
requirements, the student also needs to find an
adjacent state and compare.
Grading Rubric:
Student needs to provide a one page summary
of their findings
Legal
Unless you are a licensed health care professional, do not use the following 7
words in conjunction with your practice:
• 1. Diagnosis
• 2. Patient
• 3. Prescribe
• 4. Treat
• 5. Prevention
• 6. Advise
• 7. Cure
These words can imply the practice of medicine
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Never diagnose
• If they present with a diagnosis from a licensed physician, its
acceptable to use it and you can then explain what it involves
• If you suspect anything, refer back to their physician
• It may even be a problem to identify an organ on their body.
• Instead use your body as an example and point to your
abdomen say, this where your liver is.
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They are not your patients
• A patient is a person who is under medical
care or treatment
• Unless you are licensed, don’t call them
patients
• They are clients, customers, people, persons,
individuals, but not patients
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Don’t prescribe
• That’s like giving someone a prescription and that implies a
pharmaceutical drug
• Technically, we should not even be telling someone to take supplements
• The safest way is to simply say, “This is what I would do if I had your
condition.” – I even had pads printed with those words on it
• That implies that they are then deciding for themselves
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Treat
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That implies “medical treatment”
We don’t treat anyone, unless it’s to dinner or a movie
We can help people promote health within themselves
We can promote restoring balance
We can possibly promote enhanced immune function etc.
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Prevention
• We can’t legally prevent anything
• We may be able to reduce the risk for some
general health issues
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Advise
• We don’t advise anyone
• The only advice we can give our clients is to
check with their physician
• Everything else is just our opinion
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Cure
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We are technically not allow to cure anything
Only the doctors are allowed to cure
Never use the word cure, it could be your ticket to jail
Maybe we make suggestions in the healing process
Stay within your scope of practice.
Remember: your duty is to refer
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Always use a release form
• Stating that practitioner is not a medical doctor, and does not
diagnosis and treat disease.
• In event of a serious illness contact a licensed physician.
• If licensed, state what you are actually licensed to perform
• Never make claims or promises
• Minimize the risk that a client’s inflated expectations may lead
to misunderstandings
• Maintain confidentiality
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Careful to word your
• Ads
• Business cards
• Articles
• Lectures
• Website
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Malpractice is defined as unskillful practice that fails to
conform to a standard of care in the profession and results in
injury to the patient.
Generally: a practitioner of complementary and alternative
medicine is held to a standard of care appropriate to the
profession. Example: an acupuncturist is held to the same
standard as other acupuncturists.
Consider some sort of mal practice insurance
(Professional Liability Insurance) - HPSO
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What about dosages – supplements:
• Dosages are not one size fits all and what is indicated on the
label is usually a maintenance dose designed for healthy
persons, and it may not necessary be a therapeutic dose.
• You can start with the manufacturer’s recommendation
(usually considered a maintenance dose) and then titrate up
to therapeutic levels for individual clients.
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What about Meds?
• Often nutritional therapy can improve many conditions, and this can make
pharmaceutical drugs too potent.
• However, clients should be told to never stop taking or reduce any
medications on their own, without first checking with their physician
• Stopping meds drugs abruptly may produce a re-bound effect and worsen
the condition
• Know your drug/nutrient interactions and contraindications
• Often nutritional therapy can improve many conditions, and this can make
pharmaceutical drugs too potent. Especially anti-hypertensive & diabetic
meds However, clients should be told never to stop taking or reduce any
medications on their own, without first checking with their physicians.
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Send a note to Client’s Physician
• Introduce yourself & give your credentials
• Explain you are providing nutritional support
• Brief outline of nutritional protocol
• Offer to provide additional information
• Mention you will be pleased to work with other patients
INCLUDE YOUR BUSINESS CARDS
• Write a ROF (Report of findings)
• Develop strategic partnerships with other nutritionists & health care
professionals. Referrals should go in both directions
• Find physicians you can refer clients to for certain lab tests that other MDs
won’t do
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Business Cards
• State your services
• State your credentials (M.S.) & certifications Eg: CNS
• If not certified see if in your state you can call yourself:
Nutritionist, Clinical Nutritionist, Nutritional Consultant,
Nutritional Counselor, etc.
• Good to indicate: “Non-Medical”
The Medical Record and Documentation of Nutrition
Care - Legal
Legal - Nutritional Care Record
• Written documentation of the nutritional
care process, including the interventions
and activities used to meet the nutritional
objectives
• “If it’s not documented, it didn’t happen.”
• Medical record is a legal document.
Parts of the Medical Record
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Demographics/legal information
Medical history
Medical encounters
Orders
Progress notes
Test results
Other information
Progress Notes
• Daily updates entered into the medical record
documenting clinical changes, new information,
results of tests
• May be in SOAP, narrative, or other formats
• Generally entered by all members of the health care
team (doctors, nurses, physical therapists, dietitians,
pharmacists)
• Kept in chronological order
What if I get Sued
• Malpractice falls under the Laws of Tort –
which means “injuries”
• Professional negligence implies that the injury
was unintentional – but the professional’s
conduct or judgment falls below the standard
of care
Lawsuit
Law of Torts must prove 4 things:
1. There is a relationship of duty by defendant toward
injured person
2. There is a breach of duty to injured person
3. The injury was caused by the breach of duty (thus
cause and effect)
4. There is an actual injury
Lawsuit
Duty:
Simply put a duty exists once you have agreed to
care for, or begun to care for, or possibly even
established a rapport with patient
Lawsuit
Breach of Duty:
Proving that nutritionist did something other
than “recognized standard of care”
“How similarly qualified professionals would
have managed patient’s care under the same or
similar circumstnaces”
Lawsuit
Damages
1. Personal:
• Loss of life, physical injury or disability, deterioration of quality of life
2. Emotional:
• Physical and emotional pain, suffering, emotional distress, mental anguish,
disfigurement, loss of enjoyment, loss of companionship
3. Economic:
• Loss of wages, future earning potential, present and future medical
expenses, special equipment, other consequences of injury
Lawsuit
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Causation
The plaintiff will be responsible for showing that the injury suffered was
caused by the actions of the defendant.
No other act contributed to the injury
Failure to follow std. of care
Failure to communicate
Failure to document
Failure to assess and monitor
Failure to act as patient advocate
Failure to use supplements or protocols in a responsible manner
Lawsuit
Informed Consent
• Negligence issues can normally be evaluated by
informed consent or lack thereof.
• One of the central communication issues in
malpractice is that of informed consent
• The elements of the informed consent include
disclosure of information, competence,
understanding, voluntariness and decision making
Student Project - IC
Student needs to review readings provided on
this topic, also three Informed Consent Docs will
be provided and students need to critically
assess them
Grading Rubric:
A multiple choice question exam will follow this
part of the course
Anatomy of a Lawsuit
• Most top medical experts agree that just about everybody
gets sued at least once – especially if they are extremely know
for their craft.
• Might start with a disgruntled patient
• Contact your insurance company immediately
• You will have to provide them with a written description of
event
• Your patient is now plaintiff, cut all communications OFF
PERIOD!
• See them as an adversarial quality
• There are statutes of limitations
Lawsuit
Reviewing the Case
• Insurance company will want to see all records
• Treatments, times , dates, email, protocols, phone consult
dates, follow ups, cancellations (both ways), summaries of all
records, and recollections of unrecorded conversations
• Do NOT discuss this case with anyone not connected to
insurance carrier
• Avoid conversations with colleagues, acquaintances,
associates not involved in law suit
Lawsuit
Nutritionist as Defendant
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Keep a positive attitude
Meet your lawyer and prepare a narrative summary for the case before
Know the weaknesses of your case and be prepared to deal and admit them
Have your CV for your lawyer
Review material produced by plaintiff
Record and review all records of your patient
Never alter medical record, website or anything once you get wind of a
lawsuit
Consider diagrams, graphs and EBN research in your testimony
Know your scope, ethics of practice
Become aware of plaintiffs witnesses by attending depositions
Lawsuit
Decision
• The insurance company may not decide to defend your case
• You may have a voice in decision
• If the other party is going ahead with proceedings the
defendant will receive a “writ of summons (or complaint)
• Meaning a legal document has been filed – it is now official –
you are being sued
• There might be a pleading stage – remember a law suit can be
settled at any time
Lawsuit
Discovery
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This is a fact finding mission – process used by lawyers
Oral deposition (this is more preferred because of credibility as witness)
Written deposition – interrogatories (generally in admit or deny format)
Potential witnesses include: plaintiff, defendant, office personnel, other
healthcare professionals, expert witnesses, family members of plaintiff
and plaintiff’s employer
Lawsuit
Oral Deposition
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Last a couple of days
Dress professionally – show up early
Do not chit chat at water fountain
Listen attentively to all questions and respond honestly
Answer only what is asked
If you do not understand a question do not guess at the meaning. Rephrase
Don’t rush or allow yourself to be interrupted
Be polite without being overly friendly – addressing people as Sir etc.
Keep your head if they try to intimidate, silence or belittle your competence or
credentials, non-verbal tactics, facial expressions, mocking etc.
Lawsuit
Nutritionist in Deposition
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Know your field and your case intimately
Listen carefully to questions
Be direct and to the point
Use your patient records
Disregard theatrics
Be consistent
Don’t babble – state facts and wait for next question
Be cautious of guided questions like “let me summarize…is it a fair assessment to
say…”
Firm, credible, professional and courteous
Lawsuit
Subpoenas
• They are written orders requiring that a person or
documents be brought to a specific place and a
certain time
• Items like medical records, office diaries, or
prescribed eating plans
Lawsuit
Privileged Information
• Not all information is admissible
• Legal privilege in client-lawyer privilege is protected from
discovery
• Conversations with your spouse, personal physician,
psychotherapist, clergyman, risk manager, and liability
insurance representative are also protected from discovery
Lawsuit
The Trial
Can be tried before a jury or judge
Trail:
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Jury selection if chosen
Opening statements
Presentation of evidence
Closing statements
Verdict
Judgment
Settlement
Lawsuit
Settlement
Malpractice lawsuits are not published in
law journals unless the case reaches the
court of appeals
Arbitration/Mediation
Alternatives to law suits
• Arbitrator: usually retired judge or
experienced lawyer
• Mediation: settlement conference conducted
by a disinterested party
Lawsuit
Expert Witnesses
Clarifying performance is an “expert witness”
Experts cannot:
1. Assign guilt or innocence
2. Attempt to determine if a law was broken
3. Testify beyond their scope of practice
4. Discuss the case with anyone without the permission of lawyers or court
5. Get compensated for their time