Are there possible criminal aspects of HIV/AIDS? Consider the case law presented in your textbook and elsewhere, and explain. Please provide specific examples.
The intentional spread of HIV is considered a criminal act. Pozgar (2012, p. 362) describes the case of an inmate who knew that he was infected with both HIV and the hepatitis virus. He was also informed of the ways that he can transmit the infection to others. He bit two correctional officers knowing that he can possibly infect them in this way. He was consequently charged with assault and battery. In State of Louisiana v. Schmidt, the defendant, a dentist, intentionally injected his ex-girlfriend with blood drawn from an HIV-positive patient and a hepatitis C-positive patient (State of Louisiana, 2000). He misled her into thinking it was a vitamin B12 shot. The act was considered second-degree murder which the jury found the dentist guilty of. In 1994 when the crime was committed, HIV/AIDS was considered a fatal illness and therefore the motive of the injection was to kill.
The defendant was meted a 50-year prison sentence.
Many states also have laws criminalizing a person’s non-disclosure of HIV infection to a sexual partner given that the disease is sexually transmitted. When the Ryan White Care Act, a federal law, passed in 1990, it included a provision for states to create laws mandating that the intentional transmission of HIV be penalized (Young, 2012). Thirty-two states complied. In Iowa, intentional transmission is a class B felony similar to heinous crimes such as kidnapping and manslaughter. The maximum prison time is 25 years. Non-disclosure to a sexual partner is considered intentional transmission. In Rhoades v. Iowa, the maximum sentence was meted to an HIV-infected person on antiretroviral treatment for failing to tell his partner this fact before engaging in a one-time protected sex even though the HIV-negative partner did not acquire the infection (Young, 2012). The law further required Rhoades to register as a sex offender and to comply with the applicable restrictions in activities. He is currently appealing his case at the superior court.
What is a sentinel event in healthcare delivery? What actions must any accredited healthcare facility take when a sentinel event occurs? Provide some specific examples of sentinel events.
A sentinel event is “an unexpected occurrence involving death or serious physical or psychological injury or the risk thereof” (Joint Commission, 2014). The risk involves variations in processes of providing care that when repeated will likely result in an adverse and serious outcome. In the perioperative environment, examples of sentinel events are wrong site surgeries, retention of foreign bodies, intra- or postoperative complications, surgical fires, and complications related to the administration of anesthetics (Watson, 2009). Falls resulting in injury, medication errors with serious consequences, maternal deaths during delivery, and perinatal deaths also fit the definition. Moreover, sentinel events do not pertain only to patients but to health care workers as well. The Joint Commission has classified the assault, rape, and homicide of providers and members of the staff while in the course of performing their duties as sentinel events (Hospital Employee Health, 2013).
The term “sentinel” signifies the necessity for an urgent investigation of the event and immediate response to mitigate the situation, thus preventing similar incidents in the future (Joint Commission, 2014). When it occurs, accredited health care facilities are expected to stabilize the patient through assessment, diagnosis, treatment, and management. Mitigation averts further damage or injury to the patient. An investigation must follow using root-cause analysis as method to generate a comprehensive description of the event and an in-depth understanding of why it happened. It traces the chronological occurrence of events that led to the incident and details the what, where, when, why, and how to determine the root cause which enables the identification of appropriate and effective responses (Pozgar, 2012).
For instance, when an unexpected death occurs in the operating theater, evidences such as medications, medical equipment, irrigation solutions, specimens, and the patient’s medical record must be secured for analysis (Watson, 2009). Once individual evidences are pieced together to form a picture of the incident and the cause is known, information must be communicated to the family and to leaders who are in the position to act on the matter such as risk managers and directors. A plan of action is then drawn to prevent future events and typically entails clinical practice changes as well as changes in processes and systems of communication (Dufault et al., 2010). Conversely, conducting a hazard analysis for the proactive reduction of the risks for sentinel events is recommended rather than merely responding to incidents as they happen (Hospital Employee Health, 2013).
What are the legal requirements for healthcare professionals to report child abuse and elder abuse in the process of delivering healthcare? Are there any unique aspects of these laws for your own state? If so, please explain them. Also, using illustrative case examples, discuss the penalties that a person who failed to report child abuse and elder abuse would face.
The Child Abuse Prevention and Treatment Act mandated states to develop legal definitions of child abuse and systems of reporting cases (Levi & Portwood, 2011). Physicians and nurses are among those specifically required to report what they reasonably suspect as cases of child and elder abuse. Reasonable suspicion means that based on signs and symptoms and professional judgment, the provider or staff has sufficient grounds to believe that the patient may be abused (Levi & Portwood, 2011). The State of New York requires that suspicions of child abuse be reported immediately to the state’s central register, and a written report must follow within 48 hours (Administration for Children and Families, 2014). The content of the report includes the child’s personal information, identities of the parents/caregivers, description of the injury and history of prior injuries, identity of the alleged perpetrator, identity of the mandated reporter, actions taken and other key information (Administration for Children and Families, 2014).
It is not the duty of providers and the staff to validate the truth of the suspicion. They are only required to recognize signs and symptoms of possible abuse and to report the facts to child or adult protection services for action, thus averting further harm if indeed the patient is being abused. For example, physical abuse of elders entails the violent use of force such as hitting, force feeding, slapping, and pinching (Ziminski & Phillips, 2011). When a home health nurse visits an elderly patient and notices that she is force fed by her caregiver, the nurse must report and document what she observed alongside other assessments such as bruising. However, it is up to the investigator to ascertain the motive, intent, and sequence of events leading to the force feeding (Ziminski & Phillips, 2011).
It is a crime when mandated reporters such as health care professionals fail to report suspected abuse in children or elders because in the event that abuse is truly occurring, the lack of intervention may lead to continued harm and possible death. Poznar (2012) describes the case of a foster child who presented with head trauma and unusual bruises along the spine that was explained to the nurse by the mother as the result of an accident. While the purported cause did not fit the nature of the injuries, the nurse did not find reason to believe that the child was abused. Four days following discharge, the child was readmitted to the emergency department and died of head trauma resulting from physical abuse. The State of Missouri charged the nurse with failure to report abuse.
Depending on state statutes, persons who fail to report child abuse may face charges of misdemeanor to felony, imprisonment of one month to five years, and/or fines amounting from $300 to $10,000 (Children’s Bureau, 2013). In Landeros v. Flood, the defendant was an 11-month-old infant who presented to the hospital with unexplained fractures and bruises on her back and behavioral signs typical of battered child syndrome. The physician failed to perform diagnostic tests for the syndrome and to report the case for possible child abuse leading to a charge of negligence (Black, 2007). In the case of Makayla Norman, a teenager with cerebral palsy, three health care professionals were implicated in failure to report child abuse by parental neglect that led to the victim’s death (Grieco & Page, 2012). She had decubitus ulcers, fecal impaction, and head lice when she died and weighed just 28 lbs. yet the physician caring for her until her death did not report possible abuse. She was charged with first-degree misdemeanor with a maximum jail sentence of six months. The nurse supervising the daily care rendered to the patient by a licensed practical nurse also faced the same charge as did the social worker who reviewed and recommended the patient’s qualifications for Medicaid (Grieco & Page, 2012).
Review the case of Application of Milton S. Hersey Medical Center (Disclosure of Physician’s HIV Status) presented on pages 357-358 of your textbook. Pay close attention to the facts, issue, holding, and rationale in this case. Briefly summarize the case, and explain the court’s rationale. Is this a valid legal result? Why? Why not?
A physician training in two hospitals cut himself accidentally in the course of assisting a fellow physician in a surgical procedure. The resident physician underwent HIV testing to determine the level of risk to the patient as there was probable contact between the former’s blood and the latter’s incision (Pozgar, 2012). He tested positive and refrained from taking part in any other surgery. The hospital recognized the need to inform the patient and other patients who have been under his care. Although there is a law mandating the confidentiality of the personal information of HIV-positive persons, the hospitals wanted to specify to patients the status of the physician as a resident in OB/GYN and the duration of his service (Pozgar, 2012). Citing the clause on exception by compelling need, they also wanted to disclose his name and HIV status to colleagues whom he had worked with in surgery or obstetrics. The other physicians and residents are bound by the law to maintain the confidentiality of his identity. The resident physician contested the need for disclosure in court which decided in favor of the hospitals (Pozgar, 2012). His appeal to the Pennsylvania Supreme
Court affirmed the decision.
The courts decided for partial disclosure to the patients based on the legal principle of “Salus populi, suprema lex” (Pozgar, 2012) meaning the health of the people should be the primary consideration (p. 358). Expert witness concurred that the physician’s rendering of services in surgery and obstetrics posed some risk to the patients. Health care institutions and professionals have a duty to warn patients of their risk so that they can undergo testing given that a lack of awareness can lead to the inadvertent spread of infection to others that constitutes a public health issue (Henderson et al., 2010). Moreover, patients are entitled to an accurate disclosure of the risk. Thus, it is appropriate to include information on when, where, how, and from whom they may have possibly contracted HIV in the hospital. Such information is also essential for physicians who will care for these patients in cases of infection. Details about the risk further communicate that possible exposure is limited to contact with the HIV-positive resident physician only, assuring them of their safety while in the care of other physicians. The knowledge prevents the erosion of the public’s trust of hospitals and possible public hysteria generated by the media (Blythe, 2011).
Withholding the physicians name from the patients is in compliance with the law. Confidentiality aims to protect the infected resident from discrimination and stigma given the intense fear associated with the disease (The Lancet, 2013). Disclosure of the resident’s identity and HIV status to colleagues he had worked with is a compelling need again in relation to the risk of viral transmission that is a threat to public health. Other physicians have the legal duty to maintain confidentiality of the resident’s HIV status. Without the protective effect of confidentiality, physicians with HIV will also fear the disclosure of their illness to others despite the necessity in the interest of public health and welfare. Given the above rationale, the decision is a valid legal result. It reflects a balance between public welfare and the need to protect the rights of the infected provider.
Choose and discuss an ethical dilemma from the assigned reading. Find a related case that deals with said dilemma. How was the issue handled? What, if anything would you, as a healthcare administration professional, have done differently? Why? Why not?
Organ donation poses an ethical dilemma. The number of persons in need of organ transplant as a lifesaving treatment is nearly 133,000, but organ donors, both living and deceased, number around 14,600 each year (HRSA-OPTN, 2014). The wide gap between supply and demand means that not all who need organs will receive one and thousands die waiting. A system of allocating available organs is necessary to determine who gets what organs are available. The dilemma lies in the fact that the allocation criteria will favor others and make transplant as well as a longer life possible for them while discriminating against others that results in continued suffering or even death.
Many of those on the waiting list for liver transplant are alcoholics diagnosed with hepatic failure secondary to alcohol toxicity. One criterion for acceptance into the waiting list is sobriety for at least six months (Bramstedt & Jabbour, 2006). This criterion helps ensure a successful transplant in case an organ becomes available and prevents further damage to the patient’s liver during the waiting period. It is also predictive of the patient’s commitment not to subject his or her newly transplanted liver to the negative effects of alcohol. In one case, a patient in the waiting list admitted to a slip wherein he drank one glass of wine because it was Father’s day (Bramstedt & Jabbour, 2006). Apart from this, the patient had been confirmed to be sober. The transplant team decides to remove him from the waiting list because of violating the six-month sobriety rule. The family appealed and upon further deliberation, the team readmitted him into the list.
Removing someone from the waiting list for a lifesaving liver transplant may mean a death sentence to the patient that must not be taken lightly. As a health care professional, I favor the inclusion of the impact of the decision on the patient and consideration of the patient as a whole during team deliberation in accordance with the ethical principle of justice. Therefore, the discussion must not be limited to his violation because the slip alone does not define who the patient is or his commitment. First, there was no evidence of a relapse that would have required rehabilitation and a clear reason for removal given the risks posed by the resumption of alcohol intake (Bramstedt & Jabbour, 2006). Second, the patient admitted the slip which is a commendable action and facilitates the provision of further education and counseling to prevent possible relapse. I agree with the team’s final decision to retain the patient in the waiting list based on these considerations. The hospital should consider creating separate policies pertaining to slips and relapse to facilitate future decision making in similar situations.
What factors are considered by the courts in defining death? Discuss a specific case that defines death. Is this a universal definition, or should such matters be determined on a case by case basis? Why? Why not?
The Uniform Determination of Death Act (UDDA) was legislated to lay down a common definition of death. It mandates that death is legally pronounced in either of two situations – cardiac death or the cessation of respiratory and circulatory functions in a manner that is irreversible, and brain death or the cessation of brain function also determined to be permanent and irreversible (Nair-Collins, 2010). In instances wherein pulse and respiration continue despite the loss of brain functioning owing to life support technology, the courts accept medically-determined brain death as an indication of death. Medical standards require the performance of certain procedures to support the declaration of brain death and include apnea tests and cerebral angiography (Verheijde, Rady & McGregor, 2009). Once brain death is ascertained, organ harvesting can commence if the patient is an organ donor. Family members are also asked to decide for the cessation or continuation of life support.
Ethics and morality are related concepts in healthcare, but they are not the same thing. Explain the difference between ethics and morality in medicine. Provide at least one example for each concept.
Ethics in medicine pertain to a set of moral principles institutionalized as rules of conduct that enable “sound judgments, good decisions, and right choices or if not right choices then better choices” (Pozgar, 2012, p. 368). Professions are guided by codes of ethics specifically pertaining to the nature of services provided as well as the conduct and judgment of members of the profession. Medical ethics for physicians include principles of competence, professionalism, legal adherence, respect for patient rights, responsibility for care, advancing scientific knowledge, and advocacy (AMA, 2001). All physicians are expected to conform to these principles in their professional practice.
Competence requires the knowledge and skills associated with standards of care. In the case of Landeros v. Flood, the physician defendant failed to diagnose signs of battered child syndrome that would have been made by a competent physician (Black, 2007). Further, the rights of patients are enshrined in ethical principles governing the provision of care. These principles include autonomy, beneficence, non-maleficence, and justice (Morrison, 2011). Autonomy encompasses the patient’s right to make decisions. Beneficence and non-maleficence refer to the right to receive good care and be spared from unnecessary harm while justice refers to fairness in the allocation of health care and resources. Consideration of these principles assists physicians in making the right or the best judgments in their delivery of patient care.
On the other hand, morality pertains to socially-defined ideas of what is right and wrong (Pozgar, 2012). It is culturally determined and thus varies depending on the society and the individual. For example, abortion and the use of contraceptives for birth control are morally acceptable in some countries and persons whereas in others these are not. Because cultures and individual beliefs undergo change, morals also change. In situations where there are disagreements about the wrongness and rightness of an act, morality is often institutionalized into law. For instance, the Emergency Medical Treatment and Labor Act of 1986 mandates that it is wrong to refuse a patient who presents in the emergency department on the basis of the latter’s legal status, citizenship, insurance status, or financial state (Reinisch, 2013). Consequently, ED staff members are obligated to screen the patient for the presence of an emergency condition and to provide treatment to achieve stability.
Go to the following website http://www.ascensionhealth.org and search for “Cases”. Click on the “Cases” link and select any one of the ethics cases presented there. Summarize the case and present the result and rationale of the highest court involved with the case. Was the court’s result and rationale sound? Why or why not?
One of the cases described on the website is that of Samuel Linares, an eight-month old infant who, by accident, swallowed pieces of a balloon leading to asphyxia and cardiac arrest (Associated Press, 1989). He was revived in the emergency department 20 minutes later but the anoxia damaged his brain leading to a comatose state. He lost his ability to breathe and was intubated, but he never recovered from his coma and was subsequently pronounced to be in persistent vegetative state (Miller, 2010). The team caring for him agreed that he will never recover from this state and allowed his transfer to a nursing home. The infant’s parents, informed of the child’s status and prognosis, requested repeatedly that the respirator be disconnected (Ross, 2009). As there was no court order, the request was not granted because under Illinois law, the facility knew they will be charged with murder. Persistent vegetative state was not synonymous with brain death and the law allowed the withdrawal of life support only for brain dead patients (Miller, 2010). At one time, the father, drunk, attempted to disconnect the respirator but was restrained by the staff. Nine months following the accident, the father, drunk and armed with a gun, successfully unplugged the ventilator, after which the baby died (Ross, 2009). The State of Illinois brought charges of assault and first-degree murder against the patient’s father, but the jury declined to indict him and the State did not appeal the case (Associated Press, 1989). The result of this landmark case was the passage of the Health Care Surrogate Act permitting the withdrawal of life support from pediatric patients in persistent vegetative states by their surrogates.
The court’s result and rationale are sound. Based on unquestionable medical evaluation, there was no doubt that the child’s condition was unlikely to improve, and it was only the ventilator that was keeping him alive. The parents clearly wished to withdraw his life support but the absence of a law or even a legal precedent that would support this action meant they could not do so without criminal consequences. Knowing this fact, the defendant proceeded with the act and faced arrest. The defendant explained his actions not as murder but as a way to free his son from a futile medical intervention that he was not obliged to endure (Goldsmith & Karotkin, 2011). He further asserted that the physician did not have the legal duty to impose life support. The medical examiner who testified ruled the cause of death as asphyxiation from accidental ingestion of a balloon and not murder (Miller, 2010). The decision upholds the ethical principle of autonomy that rested on the child’s parents given his age and permanent vegetative state.
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