Journal articles on the topic 'Medical Malpractice Lawyer'

Critics of the current medical malpractice tort system claim that adjudication of malpractice claims before generalist judges and lay juries contributes to rising costs of medical malpractice insurance premiums and medical care. They claim that properly deciding issues in this realm requires specialized knowledge of medicine and medical technology that juries, and even judges of general jurisdiction, do not possess. One lobbying group alleges there is a continuing medical malpractice litigation crisis in the United States, evidenced by increasing medical costs, deaths from needless medical errors, departure of physicians from the practice of medicine due to increasing medical malpractice insurance premiums, and random medical justice in medical malpractice cases. Whether there is a direct, causal correlation between the increasing cost of medical malpractice insurance premiums and medical malpractice litigation is debatable.

Physicians should make every effort to avoid malpractice suits. However, if they become involved in a case where malpractice is alleged, there are rules and protocols visited on both physicians and lawyers that will assist in successfully defending the physician or medical group. In exploring these rules and protocols, many of the methods of avoiding malpractice in the first instance become apparent. The authors' conclusions in the instant papers all lead to one conclusion: having a good lawyer to whom the physician can relate, as well as establishment of a careful, caring, thorough and rational relationship with the patient and ultimately the judge and jury, if necessary, are the keys to success in any malpractice or potential malpractice setting.

... A Fairburn family has been awarded $45 million after their son had to have his hands and legs amputated following an HMO's decision to have him treated at a hospital 42 miles from his home. On March 26, 1993, Lamona Kaye Adams called the company's emergency line about 3:50 a.m. to report that her 6-month-old son, James, was moaning, panting, limp, and running a 104-degree temperature. After telling her to place the child in a tepid bath, the emergency line nurse checked with a doctor and directed that the child be taken to Scottish Rite Hospital, north of Atlanta. Kaiser Permanente receives a 15% discount for patients at Scottish Rite. On the way to Scottish Rite, James' heart stopped. He was revived with CPR at another hospital, but circulation ceased to his extremities and he developed gangrene. A blood infection was later diagnosed. During a nine-day trial in Fulton State Court, Kaiser's lawyers contended that it would have made no difference if James had been sent to the nearest emergency room. "Our issue is quality," said the Kaiser Permanente medical director for Georgia. "Quality pediatric care was most available at Scottish Rite." But the Adamses' lawyer called the case an example of what happens when cost-conscious managed-care providers try to cut corners.

Introduction: Medical documentation issues play a role in 10-20% of medical malpractice lawsuits. Inaccurate, incomplete, or generic records undermine a physician’s defense and make a plaintiff’s lawyer more likely to take on a case. Despite the frequency of documentation errors in malpractice suits, physicians receive very little education or feedback on their documentation. Our objective in this case series was to evaluate malpractice cases related to documentation to help improve physicians’ documentation and minimize their liability risks. Methods: We used Thomson Reuters Westlaw legal database to identify malpractice cases related to documentation. Common issues related to documentation and themes in the cases were identified and highlighted. Results: We classified cases into the following categories: incomplete documentation; inaccurate text; transcription errors; judgmental language; and alteration of documentation. By evaluating real cases, physicians can better understand common errors of other practitioners and avoid these in their own practice. Conclusion: Emergency physicians can reduce their liability risks by relying less on forms and templates and making a habit of documenting discussions with the patients, recording others’ involvement in patient care (chaperones, consultants, trainees, etc.), addressing others’ notes (triage staff, nurses, residents, etc.), paying attention to accuracy of transcribed or dictated information, avoiding judgmental language, and refraining from altering patient charts.

A right only has any value if there is a remedy providing for the acknowledgement and enforcement thereof. An increase in medical malpractice claims can be expected in South Africa in view of the fact that the public is becoming more and more aware of its rights in respect of health services and health care. The public opinion calls for development of dispute resolution proceedings. The fact that the law is not accessible to everyone in South Africa is a matter of concern. High litigation costs, coupled with the time consuming protracted, formal and complicated process, call for a transformation towards an alternative, non-judicial process that is suitable for a particular dispute and apposite to the parties involved. Selection panels, the medical ombudsperson and arbitration clauses incorporated in doctor/patient agreements, are ADR mechanisms that have been proved by American law as suitable for resolution of medical malpractice claims. In this particular article attention is paid to screening panels as pre-trial mechanism with the exclusive purpose to select malpractice disputes, discourage unfounded disputes and to encourage an early settlement in case of a prima facie case.Several objections have been raised by critics in this regard, for instance, a screening panel infringes on: the right of equal protection/the right of access to the courts/the right to a jury trial/the right to a due process as well as on the trias politica doctrine. These so-called infringements are attended to and eventually a positive conclusion regarding screening panels is made: medical screening panels (consisting generally of a medical doctor, a lawyer and a member of public), based on the American experience, is indeed an appropriate dispute resolution method.

In the unfortunate event that you are sued for malpractice, the following suggestions could maximize the benefits of your professional liability insurance policy: Do not contact the claimant, because any statements you make can be used against you in a suit. Provide the insurer with as much information as possible. Monitor the case regularly by contacting the insurance adjuster assigned to the case and request copies of all documents generated. Communicate your feelings with the company about defending or settling the case. If you completely violated a standard of care such as giving an IV push medication to the wrong patient because of failure to check the patient's name bracelet, try to settle this case out of court. A jury would not likely be sympathetic to a nurse who injured a patient in this manner. Review the entire medical record and discuss your analysis with your attorney. Remember, as a policyholder, you have the right to demand that your claim be handled by a competent, professional lawyer. Unlike other professionals, attorneys are not required to have national certification. Defendants have the right to ask assigned attorneys about their malpractice experience. Does the attorney have a working knowledge of the procedures and technical jargon concerning the case? How many similar cases has the attorney handled? You have a right to these answers.

It's amazing. The lawyers make the malpractice laws, witch hunt until a case is found, and then take a large portion of any award given. They are not satisfied with that. Robert V. Wills, JD, writing in Surgical Rounds gives we physicians three maxims on how to react when slapped with a malpractice suit. The lawyers don't want the physicians to get upset or overreact when accused of negligence, carelessness, or reckless behavior. Wills reminds us there is better than a 50/50 chance of resolution of the claim in the doctor's favor. These cases should be treated as an economic nuisance and you may not be the primary defendant. He further suggests physicians regard a malpractice claim as a "cost of doing business." Are we going to accept this advice so kindly offered by the legal councilors? After all, they don't give free advice often. The medical profession is special in many ways. Therefore, any allegation of wrongdoing or mistreatment of a patient must be addressed by that profession the best way available. The medical profession should never approach the malpractice crisis in this country with an attitude of "economic nuisance" or percent chances of resolution in the doctor's favor. The physician's attitude and feelings toward a malpractice action are more accurately described by a fellow physician, Dave Ellison, MD, in the piece "Not Guilty." These cases are a direct attack on the competence and integrity of the victim—physician. Let's take the advice of Dr. Ellison and show our colleagues who are sued, respect, compassion, and concern. Unknowingly, he put in prospective the lawyer's maxims when he wrote "[it's] no more useful than advising a depressed patient to "cheer up!" We need not look outside of our profession to advise us on our behavior in this difficult situation.

Recent experiences as a medical expert in malpractice cases have made me increasingly disheartened by the damage done to innocent colleagues by members of our own profession. We tend to inveigh against malpractice lawyers as our adversaries, but they could accomplish very little without the full cooperation and enthusiastic support of medical consultants. The following case illustrates several abuses that I believe are important to bring to the attention of the medical community. A full-term female neonate was born by normal spontaneous delivery after an uncomplicated pregnancy.

The history of medical malpractice in Canada has received little attention from legal or medical historians. Through a contextualized study of a Nova Scotia case from the 1930s, Davis v. Colchester County Hospital, this article demonstrates how changes in technology and surgical procedures both created situations that spurred malpractice claims, and made it difficult for injured patients to prove medical negligence. In addition, developments in tort law concerning the liability of hospitals, and the doctors and nurses working within them, provided medical defendants ample opportunity to avoid legal liability, even in cases in which the existence of negligent treatment was obvious. The testimony at trial, the legal strategies utilized by the lawyers, and the judicial rulings also shed light on attitudes of the medical profession toward personal responsibility and ethics, and demonstrates how the interests of patients were weighed against those of medical institutions and professionals by lawyers and judges.

The general consensus is that reform of medical malpractice law should be part of the health care system's overhaul. Medical malpractice litigation results in the expenditure of tens of billions annually, largely paid out of health care insurance funds and mostly (roughly two-thirds) paid to defendants' and plaintiffs' lawyers. By all accounts, this tort law regime ill serves the basic deterrence and compensation goals of civil liability. The causes and magnitude of these failings are disputed, and many typical reform proposals sidestep the basic problems and may do more harm than good. In contrast, we advance a straightforward way to improve both deterrence and compensation. Essentially, the proposal is to remove current legal limitations on the scope of insurance subrogation that bar private and public health care insurers from “buying” the whole of their insureds' potential medical malpractice claims in exchange for lower premiums and taxes and expanded insurance coverage. Our proposal’s benefits accrue regardless of the cause and magnitude of the failings of malpractice law or the further reforms that might be adopted.

The aim of this study is to determine the criminal responsibilities of health workers in the relevant laws on medical malpractice in the health sector and to reveal the factors in the formation of medical malpractice. This study is a descriptive study. With the information obtained as a result of the Turkish Penal Code No. 5237, the Law No. 1219 on the Practice of the Style of Medicine and Medical Arts, the Law No. 1593 on Public Health, the Law on the Turkish Medical Association No. 6023, the Turkish Code of Obligations, the Patient Rights Regulation and literature reviews, the medical malpractice of health workers criminal liability has been compiled. In recent years, serious educational studies have been carried out on the subject of medical malpractice and information activities have been carried out on this subject both to health workers and patients. Especially when the awareness about medical malpractice started to increase in patients and their relatives, serious lawsuits were filed against health personnel due to simple mistakes made. Health workers have to defend themselves in the face of these lawsuits. Because serious steps have not been taken yet on Medical Malpractice in the Turkish Penal Code. For this reason, both the court committee, the patient, the health institution and its employees face some difficulties in this process. In particular, healthcare professionals are faced with a serious lack of knowledge about the criminal liability of medical malpractice. Since the laws regarding the health law in our country are not fully regulated, these cases can only be heard in a lawsuit to be opened due to the fault of the health personnel, according to the provisions of the Turkish Penal Code and the Code of Obligations. These lawsuits are carried out in the form of criminal cases, material and moral compensation cases. Therefore, the litigation process may take longer. For this reason, special arrangements to be made regarding medical malpractice in the field of health law will be important in concluding such cases as soon as possible by ensuring that such cases are handled more objectively in terms of the defendant and the plaintiff. It is necessary to determine the rights and duties of both patients and healthcare professionals by carrying out a study with broad participation by health sector representatives, especially lawyers, in order to overcome this deficiency.

I have just read Gloria Schrager's letter in the February issue on medical expertise and John Kattwinkel's reply. My own experience as an expert for both plaintiffs and defendants is littered with examples of "hired guns" testimony by our colleagues. Those of us who have been appalled by this behavior and would be willing to sign contributions about offensive experiences might be able to make a difference. Certainly the lawyers' services will find these articles and would be able to eventually discover who the author was talking about.

The legal aspects of healthcare in the Lviv oblast during the time it was under the reign of Second Rzeczpospolita Polska (1919–1939) remain underinvestigated. Alongside with the rise of lawyers’ and scholars’ attention to the aspects of history of medical law and the protection of patients’ rights, the question of disputes in the sphere of healthcare in various time periods (i.e. medical practitioners’ malpractice, lawsuits against hospital sickness funds, as legal entities because of negligence of the hospital sickness fund physicians, occurring within the provision of medical treatment, or conducting medical treatment without the patient’s consent etc.) has undoubtedly risen. The history of medical law of Ukraine remains underinvestigated. The practice of the courts operating in the Lviv oblast in 1919–1939 in cases on medical practitioners’ malpractice has yet not become the object of the research of Ukrainian scholars to date, analogically to the period, when the Lviv oblast was under the reign of the Austrian-Hungarian Empire in 1867–1918, or even in earlier times. The practice of the courts of the Lviv oblast in cases on medical practitioners’ malpractice in the period of 1919–1939 illustratively displays that civil lawsuits relating to medical malpractice were not rare ones. What is more, the court practice of those days featured criminal trials against medical practitioners for committing severe negligence, or illegitimate abortions. For a more complex understanding of medical practitioners in Austrian-Hungarian law by the reader, we will provide a brief explanation relating to it as well, in particular, on basis of those-days case law.

Background Studies that have investigated the impact of apologies and admission of responsibility for medical errors have been mostly observational, which makes it hard to attach a causal effect to admission of responsibility and apologies. Secondly, the vast majority of research on the settlement of medical malpractice cases has been conducted in the US, that has its own, particular litigation laws and culture. In this multi-jurisdictional study, we investigate the impact of apology and admission of responsibility on preferred resolution and compensation of medical malpractice claims. Methods Employing a vignette design, we examine, among a sample of 327 respondents from different countries, whether admission and apology by the doctor impacts respondents' preference for resolution through a civil court case, mediation or a disciplinary board, as well as preferred damages for pain and suffering. Results Admission and apology by the physician in the vignette did not impact respondents' preference for settlement through a civil court case or mediation, nor did it impact the amount that respondents found suitable as compensation for pains and damages. Thematic analysis of open answers reveals that the impact of admission and apology is different for the three resolution modes, and often contextual and conditional. Conclusion Future (vignette) studies should investigate whether different cases of medical malpractice yield similar results, and whether more knowledgeable or experienced respondents (such as lawyers) would have different preferences and arguments.

Doctors are finding that they can get burned by cookbook medicine. Recent court cases, as well as a Harvard University study, suggest that written guidelines on how to treat particular medical conditions have become powerful weapons for plaintiffs in malpractice cases. Where plaintiffs once had to rely on hired experts to argue that a procedure was botched, they can now point to official treatment recipes issued by physician groups themselves. "Lawyers like me are using them in court all the time to say, "Gee, your own organization says this is a minimum standard of care, and you didn't follow it." Ironically, doctors have embraced and developed guidelines in recent years, believing they could be used to fight malpractice suits. "The hope was that guidelines would say specifically what the standard of care was," says Troyen Brennan, a health law expert and an author of the Harvard study. Medical groups have issued dozens of guidelines, from instructions on performing Caesarian deliveries to recommendations on treating intoxicated trauma patients ... the Harvard study warns that the rising use of guidelines in malpractice litigation could "chill physicians' interest" in writing new ones. According to the Harvard study, which was released earlier this year by the School of Public Health, such guidelines are about three times more likely to be used against doctors than in their defense. The Harvard researchers examined 13 years of court decisions and 259 claims filed with malpractice insurers. Where it's clear that a doctor met the required standards, the guidelines can aid physicians.

Abstract Context.—Pathologists work in an environment in which, to the extent possible, diagnostic decisions are based on scientific principles. It can therefore be a rather shocking experience when a pathologist finds one of his or her diagnostic decisions being evaluated by a legal system developed and controlled by lawyers and judges rather than by scientists or pathologists. This experience can be even more troubling when a key participant in the proceedings is a fellow pathologist guiding a jury toward an unfamiliar interpretation of the pathology standard of care. Objective.—To provide the interested pathologist with the background information necessary to (1) understand the role of expert testimony in malpractice litigation and (2) understand why there can be a gap between expert opinions expressed in court and expert opinions expressed in a medical care context. Data Sources.—Medical literature review supplemented by review of subspecialty position papers, selected articles from newspapers and magazines, and legal decisions. The medical literature review was limited to articles published in English and was based largely on articles retrieved using the MeSH terms expert testimony/legislation & jurisprudence, and pathology/legislation & jurisprudence. Conclusions.—Medical error has become an increasingly important topic for pathologists, and although errors or allegations of error are evaluated in many ways, the evaluation with the most impact on the individual pathologist is a malpractice case. During the last decade physicians have increasingly become aware of the critical role played by expert testimony in malpractice litigation. Some physicians have asserted that providing expert testimony is the practice of medicine, and that it is unacceptable for juries to be presented with expert testimony that incorrectly describes medical practice standards. However, this opinion has been vigorously opposed by attorneys who feel that juries are best able to come to a correct conclusion if they base their deliberations on a broad spectrum of opinion. Gaining an increased role in the oversight of expert testimony would allow physicians to establish a closer alignment between opinions expressed in court testimony and opinions expressed in clinical practice. However, despite some physician success in inserting themselves into the oversight process, both physicians and physician organizations attempting to take action against misleading expert testimony continue to be vulnerable to legal attack.

AbstractThe current medical malpractice system is broken. Many patients injured by malpractice are not compensated, whereas some patients who recover in tort have not suffered medical negligence; furthermore, the system's failures demoralize patients and physicians. But most importantly, the system perpetuates medical error because the adversarial nature of litigation induces a so-called “Culture of Silence” in physicians eager to shield themselves from liability. This silence leads to the pointless repetition of error, as the open discussion and analysis of the root causes of medical mistakes does not take place as fully as it should. In 1993, President Clinton's Task Force on National Health Care Reform considered a solution characterized by Enterprise Medical Liability (EML), Alternative Dispute Resolution (ADR), some limits on recovery for non-pecuniary damages (Caps), and offsets for collateral source recovery. Yet this list of ingredients did not include a strategy to surmount the difficulties associated with each element. Specifically, EML might be efficient, but none of the enterprises contemplated to assume responsibility, i.e., hospitals and payers, control physician behavior enough so that it would be fair to foist liability on them. Likewise, although ADR might be efficient, it will be resisted by individual litigants who perceive themselves as harmed by it. Finally, while limitations on collateral source recovery and damages might effectively reduce costs, patients and trial lawyers likely would not accept them without recompense. The task force also did not place error reduction at the center of malpractice tort reform—a logical and strategic error, in our view.In response, we propose a new system that employs the ingredients suggested by the task force but also addresses the problems with each. We also explicitly consider steps to rebuff the Culture of Silence and promote error reduction. We assert that patients would be better off with a system where physicians cede their implicit “right to remain silent,” even if some injured patients will receive less than they do today. Likewise, physicians will be happier with a system that avoids blame—even if this system placed strict requirements for high quality care and disclosure of error. We therefore conceive of de facto trade between patients and physicians, a Pareto improvement, taking form via the establishment of “Societies of Quality Medicine.” Physicians working within these societies would consent to onerous processes for disclosing, rectifying and preventing medical error. Patients would in turn contractually agree to assert their claims in arbitration and with limits on recovery. The role of plaintiffs' lawyers would be unchanged, but due to increased disclosure, discovery costs would diminish and the likelihood of prevailing will more than triple.This article examines the legal and policy issues surrounding the establishment of Societies of Quality Medicine, particularly the issues of contracting over liability, and outlines a means of overcoming the theoretical and practical difficulties with enterprise liability, alternative dispute resolution and the imposition of limits on recovery for non-pecuniary damages. We aim to build a welfare enhancing system that rebuffs the culture of silence and promotes error reduction, a system that is at the same time legally sound, fiscally prudent and politically possible.

Health-care provider liability has again taken center stage in American political debate, but with an ironic twist. In the seventies, physicians wanted tort reform, but they measured such reform solely by a reduction in both the risk of being sued and the size of any judgment a plaintiff could win. Malpractice reforms in many states in the seventies therefore capped damages, reduced contingency awards to lawyers, and restricted other tort rules to limit plaintiff success. Today physicians are conflicted. They want an increase in liability exposure — not for themselves, but for managed care plans. We have therefore ended up with a series of overlapping debates, with the same debaters taking contradictory positions. Should managed care organizations—until now protected by ERISA preemption from liability—be liable? Physicians say yes. But should physicians be protected from the threat of suit, which they argue acts as an in terrorem device that drives disclosure of medical errors into hiding?

There is a remarkable resonance between recent findings about medical malpractice litigation and theories about the evolution of co-operation and reciprocity among humans. This should not be altogether surprising: theories of reciprocity seek to explain the behaviours we exhibit when we interact to punish or confer benefits on each other; while civil liability litigation may be just one of modern society’s ways of compelling otherwise unrequited reciprocity. The link between the two fields of study is worth exploring nonetheless. Just as behavioural economics and evolutionary theory offer useful insights for those of us who study legal phenomena, data about the behaviour of people accessing legal institutions may be useful to those who build behavioral theories. This essay is therefore, in a way, a lawyer’s effort to return the favour.

The urgency of the medical malpractice problem is due to the fact that the presence of sexually transmitted infections (STIs) in women of fertile age is a common cause of reproductive loss. The authors discuss what an obstetrician-gynecologist should pay attention to at the stage of preconception period and during pregnancy in patients with an identified STI. The article also raises the following important interdisciplinary discussion issues: which specialist should treat the pregnant woman with identified STI and her sexual partner? Should only an obstetrician- gynecologist be involved in the treatment process? At what point does subjectively conscientious medical treatment become inappropriate? It remains relevant and necessary to have correct and unambiguous formulations in clinical recommendations on the pregnancy management with identified STIs (namely, chlamydia, gonorrhea and trichomoniasis) and on the professional interaction of obstetrician-gynecologists with dermatovenerologists in such cases. Besides, it is necessary to develop a legal and structural algorithm for the prevention of medical malpractices to prevent the legal liability of both a medical organization and a specific attending obstetrician-gynecologist in the pregnancy management with STIs. KEYWORDS: sexually transmitted diseases, pregnant women, obstetrician-gynecologist, dermatovenerologist, clinical recommendations, gonorrhea, chlamydia, trichomoniasis. FOR CITATION: Khryanin A.A., Radchenko M.V. Prevention of medical malpractices in the pregnancy management with STIs: expert opinion of a medical lawyer and a dermatovenerologist (interdisciplinary discussion). Russian Journal of Woman and Child Health. 2024;7(3) (in Russ.). DOI: 10.32364/2618-8430-2024-7-3-7.

Increased public awareness of health rights and legal access has sparked intensive discussions on malpractice in healthcare. However, differing views between lawyers and doctors regarding the definition of malpractice as well as the limits of doctors' authority create complexity. Types of medical malpractice, such as criminal, administrative, ethical and meritorious, are the focus for understanding the legal liability framework. Although civil law can protect consumers, the lack of an independent medical law formulation in Indonesia is an obstacle. Normative research methods are used to explore the legal views and responsibilities of doctors in medical practice. Discussions on malpractice proof, legal protection for doctors, and ethical and legal obligations in medical practice contribute to the understanding of this complex issue. Therefore, this article aims to detail the legal and ethical framework related to medical malpractice in Indonesia and explore protection and enforcement efforts to optimize the relationship between patients and the medical profession.

Doctors are taking their frustrations about the costs of medical malpractice insurance premiums to the street; striking and even leaving certain states where premiums are higher have been staples of the news in the last year. Politicians are responding by shifting the blame to the “tort” system, which they characterize as dominated by “greedy” trial lawyers (with the implicit accusation that the lawyers are bringing unfounded claims against “good” doctors) and “runaway” juries (with the implicit assertion that juries render plaintiffs’ verdicts in unfounded cases and give away the insurer’s money with abandon through unjustifiably generous damages awards). The “bad actor” in the shared visions of many doctors and politicians is the civil legal system itself—and the “reforms” that are being touted (such as damages caps) are blunt instruments designed, it seems, to disable the ability of the legal system to adjudicate medical malpractice claims. To the extent that the civil legal system is a contributing factor to medical malpractice insurance premiums (an important topic beyond our ken here), the problem cannot be addressed in so sweeping a fashion. There are other key interests involved—principles of law, in the sense described by Ronald Dworkin, upon which the rules of medical malpractice litigation are based. Those principles of law, including the principle of corrective justice, will be sacrificed if such heavy handed measures are adopted. The real problem, however, can be viewed as a much more subtle one, requiring finer tools of analysis to diagnose and repair. The level of subtlety is deep—as deep as the elements of the traditional prima facie case of medical malpractice, and the standard of care in particular—and requires more sophisticated analytic constructs to understand, analyze, and ultimately reform. I hope to develop some of those analytic tools in this article.

A staple in assessing and valuing injury and related monetary damages claims, life care plans have traditionally encapsulated damages computations associated with present and anticipated future rehabilitation interventions related to contested events, the most common involving personal injury, medical malpractice, and product liability. The needs and sophistication of the injury claims assessment process have continued to evolve since the inception of life care plans, and accordingly affect the services life care planners contribute to resolve disputes over the need for and value of litigated future rehabilitation interventions. After a brief history and overview of life care planning, this article describes how the discipline evolved to its current state. The authors then discuss how lawyers’ discernments in prosecuting cases have led to the need for three variations/derivatives of the traditional life care plan: the life care plan cost comparison, the interpolated life care plan, and the international life care plan. Standards of practice considerations follow. According to the Commission on Rehabilitation Counselor Certification, life care planning is a career pathway for certified rehabilitation counselors (CRCs). Rehabilitation counselors encounter a myriad of physical and psychosocial factors that affect the rehabilitation process. CRC certification and training prepares counselors to holistically address complex areas of rehabilitation following a catastrophic illness or injury. According to the Commission on Rehabilitation Counselor Certification (CRCC) Code of Ethics, CRCs have a responsibility to the public to engage in practices that are based on accepted research methodologies and evidence-based practices. They need to remain current with developments in evidence-based practice. Notably, the three variations/derivatives of the traditional life care plan presented in this article address pertinent standards of practice considerations.

Photo by Owen Beard on Unsplash Introduction Through its professional associations and healthcare organizations, the medical community has made numerous anti-racism statements in the past year, including the American Medical Association’s (“AMA’s) Organizational Strategic Plan to Embed Racial Justice and Advance Health Equity.[1] Converting these statements into practical change will take time and money. In addition to implementing anti-bias training and education on racism in clinical practice, the medical community should also advocate to enhance and enforce Title VI anti-discrimination laws. The current limitations on enforcement conflict with the medical community’s ethical duty to improve health equity and treat all patients with a high standard of care. Advocating for legislation that meets the standards of other civil rights laws to hold the healthcare industry legally responsible for discrimination should be part of medical professionals’ anti-racism work. Development of Civil Rights in Health Care Despite the lack of a federal constitutional right to health care, the United States does acknowledge the importance of health and health care through its laws and spending decisions. In 2010, the Affordable Care Act (“ACA”) created health insurance options for 20 million additional Americans and reduced the gap in healthcare access among populations.[2] Although it did not ensure a right to health care and it does not guarantee a right to health, healthcare access is an important element of a healthy life and broadening the reach of health insurance is a worthy goal. Outside of the ACA’s offer of affordable health insurance, only a few stakeholders have gained “weak” statutory rights to publicly funded health care such as incarcerated people, the elderly, disabled, and the very poor.[3] Yet, the adoption of the public insurance programs Medicaid and Medicare in 1965, along with Title VI of the 1964 Civil Rights Act (“Title VI”), did create some rights to sue for discrimination in health care, even for people who are not recipients of Medicaid and Medicare benefits. Under Title VI, private institutions that receive federal financial assistance are prohibited from discriminating on the basis of race, color, and national origin.[4] Initially, this civil rights legislation had a major effect on health care because more than 1000 segregated hospitals immediately integrated their facilities in order to comply with the legislation and participate in Medicaid and Medicare.[5] Medical professionals interested in anti-racist work would do well to learn the history of Title VI; grassroots support of civil rights laws in the 1960s encouraged huge steps forward in eliminating de jure segregation in health care.[6] Title VI Lacks Mechanisms to Combat Structural Racism Title VI has been less effective when addressing more subtle forms of discrimination. Despite being one of the broadest anti-discrimination statutes, Title VI has been referred to as a “sleeping giant” because its full power has not been used to great effect.[7] The ACA included some attempts to improve Title VI’s effectiveness (see below), but much more could be done. Like most civil rights laws, Title VI discrimination may be alleged as disparate treatment (intentional) or disparate impact. Disparate impact claims are challenging to prove and may involve arguments such as how moving a hospital from an inner-city area to a wealthier suburban location will have a disparate impact on the local Black population. Besides the evidentiary challenges involved in demonstrating disparate impact, such a claim fails unless the plaintiffs can prove that a reasonable explanation for the action, such as cost savings, is a pretext for discrimination.[8] Title VI claims are also challenging because of the limitation on plaintiffs, the limitation on the scope of defendants, and enforcement issues. In 2001, the US Supreme Court held that individual plaintiffs cannot sue under Title VI for disparate impact claims, requiring a federal agency to do so.[9] While hospitals and other entities are potential defendants under Title VI, individual medical professionals are not, even though approximately 40 percent of Medicaid and Medicare reimbursements now go to physician and outpatient care.[10] The primary enforcement mechanism for Title VI healthcare claims is forcing compliance with the law through the threat of withdrawal of federal reimbursement.[11] The threat of financial punishments may harm communities, however, when low-resourced hospitals lose funding or are forced to fund rehabilitation programs.[12] Inequities between hospitals in different locations currently cannot be addressed under Title VI. Recent attempts to improve Title VI have failed. In the ACA, legislators included several updates to Title VI that appeared to improve its potential as a tool for reducing healthcare inequities. Section 1557 of the ACA changed the definition of “federal financial assistance” programs to include Medicaid and Medicare Advantage, thus expanding the pool of possible defendants to include individual providers.[13] However, the Department of Health and Human Services issued an implementing rule that specifically did not include Medicare Part B, so as of now patients cannot bring suit against sue their doctors for Title VI discrimination.[14] Some authors argue that the ACA also repealed the Supreme Court decision that prevented individuals from bringing disparate impact claims under Title VI.[15] So far, however, courts still interpret Title VI as supporting private claims only for intentional discrimination.[16] Individuals can still bring disparate impact claims to the Office of Civil Rights (“OCR”) and the Federal government may take action on their behalf. Because of the lack of available private action, however, there is no robust group of Title VI attorneys developing these civil rights cases.[17] If the legislature wants to encourage private enforcement of Title VI discrimination cases, it could also add punitive and compensatory damages to the available remedies, as it did with Title VII employment discrimination cases,[18] thus empowering plaintiffs and their lawyers to seek private remedies for discrimination in health care. Private litigation could be used as an additional lever in strategic approaches to eliminating discriminatory practices and improving health equity.[19] In 2003, the Institute of Medicine’s Committee on Understanding and Eliminating Racial and Ethnic Disparities in Health Care recommended that the federal government increase funding for the OCR to encourage investigations into violations of Title VI based on systemic discrimination in health care.[20] The committee saw such enforcement as a “last line” of defense against systemic racism in health care, and a way to find such suspected racism through proactive investigations. Unfortunately, the OCR continues to be “notoriously” underfunded, but future administrations may be encouraged to rectify that problem.[21] Permitting more individual lawsuits may improve Title VI by providing better enforcement mechanisms and broadening the scope of possible defendants. These litigation tools will never bring about a right to health but can reduce inequities in access to and treatment in the healthcare system. Health professionals can support such proposals as individuals and through their professional associations. Of course, not all stakeholders agree that the federal government should enforce greater access to health care; after several states brought suit, the US Supreme Court struck down the ACA provision that would have effectively required states to expand Medicaid eligibility.[22] In addition, many health professionals will object to individual Title VI lawsuits. Distinguishing between malpractice litigation and discrimination litigation will be important so that healthcare practitioners do not feel their livelihoods are threatened by Title VI. If improving health equity and combating racism is seen part of one’s ethical duty, then medical professionals should embrace a willingness to be held accountable personally, and even more importantly, as part of a healthcare organization. The AMA has a well-documented history of racism, and the organization has apologized and sought atonement. Part of that history includes a failure to support civil rights legislation in the 1960s and active opposition to Medicare, Medicaid, and the desegregation of hospital staff.[23] Notably, the National Medical Association, an African American medical association, worked hard to support civil rights laws and integration in the 1960s, but could not convince the “White” AMA to follow suit. As part of its anti-racism efforts, the AMA could work with legislators to craft appropriate changes to Title VI and take on the task of educating its membership. Health professionals should understand that the shortcomings of Title VI in eradicating racism in health care were due to decisions about and interpretations of the law which were influenced by the medical profession itself. Educating all the stakeholders about the connections between health, healthcare access, and strong enforcement of our civil rights statutes and regulations is one way that health professionals can actively engage in anti-racism work in the healthcare profession. [1] “The AMA’s Strategic Plan to Embed Racial Justice and Advance Health Equity,” American Medical Association, accessed June 25, 2021, https://www.ama-assn.org/about/leadership/ama-s-strategic-plan-embed-racial-justice-and-advance-health-equity. [2] “How ACA Narrowed Racial Ethnic Disparities Access to Health Care | Commonwealth Fund,” accessed March 10, 2021, https://www.commonwealthfund.org/publications/2020/jan/how-ACA-narrowed-racial-ethnic-disparities-access. [3] Aeyal Gross and Colleen Flood, The Right to Health at the Public/Private Divide : A Global Comparative Study, New York (Cambridge University Press, 2014), , 348, https://web-a-ebscohost-com.ezproxy.cul.columbia.edu/ehost/ebookviewer/ebook/ZTAyNXhuYV9fNzcwMjExX19BTg2?sid=5201c555-548f-4599-ae3d-857f6911322f@sessionmgr4007&vid=0&format=EB&lpid=lp_261&rid=0. [4] Title VI of the 1964 Civil Rights Act, § 2000d (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”) [5] Amitabh Chandra, Michael Frakes, and Anup Malani, “Challenges to Reducing Discrimination and Health Inequity Through Existing Civil Rights Laws,” Health Affairs (Project Hope) 36, no. 6 (June 1, 2017): 1041–47, 1042, https://doi.org/10.1377/hlthaff.2016.1091. [6] David Barton Smith, “The ‘Golden Rules’ for Eliminating Disparities: Title VI, Medicare, and the Implementation of the Affordable Care Act,” Health Matrix, 2015, Gale OneFile: LegalTrac. [7] Olatunde C. A. Johnson, “Lawyering That Has No Name: Title VI and the Meaning of Private Enforcement,” Stanford Law Review 66, 6 (June 2014): 1293-1331, at 1294. [8] Chandra, Frakes, and Malani, at 1043. [9] Alexander v. Sandoval, 532 U.S. 275 (2001). [10] Chandra, Frakes, and Malani, at 1043. [11] See 42 U.S.C. §2000d-1. [12] Chandra, Frakes, and Malani, at 1045. [13] 42 U.S.C. §18116. [14] Chandra, Frakes, and Malani, at 1045. [15] Sarah G. Steege, “Finding a Cure in the Courts: A Private Right of Action for Disparate Impact in Health Care,” Michigan Journal of Race & Law 16, 439 (April 2011): 439- 468. [16] See, e.g., Lemon v. Aurora Health Care North Inc., 19-CV-1384 (E.D. WI Feb. 22, 2021). [17] Johnson, “Lawyering That Has No Name,” at 1295. [18] Pub. L. No. 102-166, § 102, 105 Stat. 1071, 1072-72 (codified as amended at 42 U.S.C. § 1981a). [19] Sara Rosenbaum and Sara Schmucker, “Viewing Health Equity through a Legal Lens: Title VI of the 1964 Civil Rights Act,” Journal of Health Politics, Policy and Law 42, no. 5 (October 1, 2017): 771–88, 777, https://doi.org/10.1215/03616878-3940423. [20] Institute of Medicine (US) Committee On Understanding and Eliminating Racial and Ethnic Disparities in Health Care, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care, ed. Brian D. Smedley, Adrienne Y. Stith, and Alan R. Nelson (Washington (DC): National Academies Press (US), 2003), http://www.ncbi.nlm.nih.gov/books/NBK220358/. [21] Chandra, Frakes, and Malani, at 1045. [22] National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). [23] Harriet A. Washington et al., “Segregation, Civil Rights, and Health Disparities: The Legacy of African American Physicians and Organized Medicine, 1910-1968,” Journal of the National Medical Association 101, no. 6 (June 2009): 513–27, https://doi.org/10.1016/S0027-9684(15)30936-6.