Legal And Ethical Aspects Of Health Information Management, 4th Edition Solution Manual

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Legal and Ethical Aspects ofHealth Information ManagementFOURTH EDITIONSOLUTION MANUAL

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Chapter 1Workings of the American Legal SystemiiiiiiContentsCHAPTER 1Workings of the American Legal System1CHAPTER 2Court Systems and Legal Procedures4CHAPTER 3Judicial Process of Health Information6CHAPTER 4Principles of Liability8CHAPTER 5Ethical Standards10CHAPTER 6Ethical Decisions and Challenges12CHAPTER 7Bioethical Issues14CHAPTER 8Patient Record Requirements16CHAPTER 9Confidentiality and Informed Consent19CHAPTER 10Access to Health Information21CHAPTER 11Specialized Patient Records24CHAPTER 12Risk Management, Quality Management, and Utilization Management27CHAPTER 13Information Systems30CHAPTER 14Health Care Fraud and Abuse33CHAPTER 15Law and Ethics in the Workplace36APPENDIX ALegal Scenarios38APPENDIX BEthical Scenarios40

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ivLegal and Ethical Aspects of Health Information ManagementivPrefaceThis instructor’s manual complements the fourth edition textbook,Legal and Ethical Aspects of Health Information Management. Thetextbook closely follows the curriculum models established by the American Health Information Management Association (AHIMA) forthe baccalaureate degree (HIA) and associate degree (HIT) programs. The domains, sub-domains, competencies, and curricularconsiderations for both programs have been incorporated into the textbook chapters and instructors may determine the emphasis level ofeach chapter when teaching during the semester.This manual is organized by chapter. The domains, sub-domains, competencies, and curricular considerations for each chapterare identified at the beginning. The suggested activities in this manual are designed to deepen the students’ understanding of the materialin the text and its application to their lives, both within and beyond the classroom walls. Each enrichment activity is identified at thebeginning with a corresponding skill level, using as reference points the competency levels established by Bloom’s Taxonomy ofCognitive Skills. The manual also contains answers to the review questions located at the end of each chapter, along with thoughts toconsider for each case study. Wherever appropriate, teaching exercises are included.

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1CHAPTER 1Workings of the American Legal SystemCurriculum CrosswalkHIA programDomain:Information Protection: Access Disclosure Archival Privacy and SecuritySub-domain:Health LawCompetency:Identify laws and regulations applicable to health careCurricular consideration:•Health care legal terminologyCompetency:Analyze legal concepts and principles to the practice of HIMCurricular consideration:•Legal principlesSub-domain:Data Privacy Confidentiality and SecurityCompetency:Analyze privacy, security, and confidentiality policies and procedures forinternal and external use and exchange of health information.Curricular consideration:•Privacy, confidentiality, security principles, policies and procedures,federal and state lawsDomain:Data Content Structure and StandardsSub-domain:Data GovernanceCompetency:Demonstrate compliance with internal and external data dictionary requirementsCurricular considerations:•Accreditation standardsoThe Joint CommissionHIT programDomain:Information Protection: Access Disclosure Archival Privacy and SecuritySub-domain:Health LawCompetency:Apply health care legal terminologyCurricular consideration:•Health care legal terminologyDomain:Data Content Structure and StandardsSub-domain:Health Record Content and DocumentationCompetency:Identify a complete health record according to organizational policies, externalregulations, and standardsCurricular considerations:•Medical staff by-laws•The Joint Commission, State statutesoLegal health record and complete health recordSub-domain:Data GovernanceCompetency:Apply policies and procedures to ensure the accuracy and integrity of healthdataCurricular consideration:•By-lawsoProvider contracts with facilities, Medical staff by-laws, Hospitalby-laws

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2Legal and Ethical Aspects of Health Information ManagementTeaching Exercises1.Teach the students to access various sources of law using the Internet. Demonstrate in the classroom or through online discussionhow to access the two best Web sites for free legal research of federal laws: http://thomas.loc.gov and http://www.gpoaccess.gov.The first Web site is maintained by the Library of Congress and contains bill summaries and tracking as well as public laws. Thesecond Web site is maintained by the Government Printing Office and allows access to official information from all three branches ofgovernment, including enacted statues, rules, the Code of Federal Regulations, and the Federal Register. You can select any of thecitations to federal statutes or regulations found in the text, the online companion to the text, or you may use any of the following:HIPAA42 U.S.C. § 1320d45 C.F.R Part 162 (Admin. Requirements)45 C.F.R Part 164 (Privacy & Security)GINA42 U.S.C. § 2000ffAfter demonstrating how to find these examples, task the students with exploring the Web sites themselves to locate federal statutesand/or regulations that are of interest to them.2.Discuss the elements of a contract, identified in Table 1.2 in the textbook. Note that the listing makes the assumption that the partiesto the contract are competent to act. Introduce to the class the idea that some parties may not be considered competent under the law,using minors as the example. Explain that the law generally considers minors not to possess the full maturity of mind and judgmentthat is assumed for adults. Excluding the instance of emancipated minors, ask the students to identify what advantages anddisadvantages exist for minors and those with whom they contract. Examples of advantages for the minor include:•the ability of a minor to cancel (void) a contract that he or she entered into and now regrets;•the ability to refuse to sign contracts/not be forced into contracts that the minor doesn’t wish to enter; and•the ability to share responsibility for the obligations of contracts with an adult who serves as a co-signer.Examples of an advantage for those who contract with minors include:•the ability to require an adult to act as a co-signer to a contract, potentially increasing the ability for the responsibilities of thecontract to be fulfilled.Examples of disadvantages for the minor include:•the inability to contract without the assistance of an adult; and•the inability to hold the opposing side responsible to fulfill the terms of the contract entered into by the minor.Examples of disadvantages for those who contract with minors include:•the inability to hold the minor responsible to fulfill the terms of the contract entered into by the minor; and•the risk that the minor may cancel the contract at any time, citing the status as a minor as the reason.Suggested Enrichment ActivityBloom’s Taxonomy level: Application and analysisUsing Table 1.4, Words of Authority, as a guide, review the statutory provisions found in the online companion to the text, looking forinstances where these words of authority are employed. Determine the level of change that would occur to the meaning of the statutoryprovision if one or more of the words of authority found in Table 1.4 were substituted for the word of authority currently located in thestatutory provision.Answer Key for Review Questions1.Why should a health information professional possess a fundamental understanding of the law?A: Because the law is a major external force affecting the HIM professional’s ability and responsibility to manage patient-specifichealth information. As the interplay between law and health care increases (e.g., new government regulations and increased lawsuits),the knowledge level of the HIM professional necessary to maintain confidentiality and security of patient-specific health informationincreases.2.Does a single document or source of law exist where an individual can find all of the rules governing health information? Why orwhy not?A: No. In the United States, laws are passed and regulations are promulgated at the federal, state, and local levels and are interpretedby courts at all levels, making it impossible for all law relating to health information to arise from a single source.3.How does the content of state constitutions compare with the content of the U.S. Constitution?A: Typically, they contain similar language to the Federal Constitution. In addition, they may contain additional language that isunique to a given state, even granting broader rights to state citizens than the U.S. Constitution.4.Statutes governing health information are found at what three levels?A: Federal (U.S. Congress), state (individual legislatures), and local levels (city councils and boards of alderman).

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Chapter 1Workings of the American Legal System35.Explain the concepts ofstare decisisandres judicata.A:Stare decisisrefers to reliance on the decisions rendered in prior cases (precedent) in future cases, regardless of the partiesinvolved, in a lawsuit containing similar issues.Res judicatarefers to only the application of precedent to the same parties and issuesthat may be found in different cases.6.When does an executive order have the effect of law?A: After being published in the Federal Register, in the case of the federal system, or in a comparable publication on the state level.7.What is the function of the judicial branch of government?A: To interpret the law through adjudication and resolution of disputes.Case Study AYou are the director of health information services for a medium-sized health care facility. Like many of your peers, you have contractedwith an outside copying service to handle all requests for release of patient health information at your facility. You have learned that alobbying organization for trial attorneys in your state is promoting legislation to place a cap on photocopying costs, which is significantlybelow the actual cost incurred as part of the contract. Discuss the roles each branch of government will play in considering this legislationand how you and your professional organization may act to influence this process.Things to considerPart One: Branches of GovernmentAll three branches will be involved:1.The lobbying organization will need to find a member of the legislature willing to sponsor its legislative proposal and shepherd itthrough the committee process.2.Before the bill can become law, the state governor must sign it or veto it. Furthermore, the bill may direct the state department ofhealth to issue regulations to implement the legislation.3.Should a dispute arise and a lawsuit be filed, the judiciary may also be called upon to interpret the statute once it has been passed bythe legislature and signed into law by the governor.Part Two: Influencing the ProcessWorking within your professional association, and possibly in conjunction with other professional associations similarly affected, youmay take the following steps:1.Contact the lobbying organization and/or trial attorneys group directly to educate them about why and how photocopying fees arecharged. Depending on the result, the lobbying organization or trial attorneys group may abandon its efforts or work with yourassociation to modify its proposal.2.Contact the sponsoring member of the legislature to educate him or her in the same manner. Additionally, appear before theappropriate legislative committee to testify about the consequences of the bill.3.If it appears that momentum has already been built on the topic and a bill on the topic is ripe to pass, submit a counterproposal thatyour association can accept to a different legislative member for sponsorship.4.Contact the governor with your associations’ views on the topic as part of the signature/veto process.5.Write letters to the editor or op-ed pieces for publication in your local paper in an effort to educate the voting public. Send copies ofthe published pieces to those persons or groups listed in numbers 1−4.Case Study BMichelle Sargol offers to pay $9,000.00 for a particular car located on John Weber’s car lot. Weber accepts Sargol’s offer and promises totransfer title next week, at which time Sargol will pay for the car. The next day, Laura Kavanaugh visits the car lot and offers to payWeber $10,000.00 for the same car. Can Weber accept Kavanaugh’s offer? What area of law is involved?Things to considerNo, Weber cannot accept Kavanaugh’s offer because Weber already has a contract with Sargol. The scenario illustrates contract law, acomponent of civil law. The first transaction between Sargol and Weber constitutes a contract—Sargol and Weber had a meeting of theminds regarding the purchase of the car, Sargol made an offer to buy the car, consideration was present ($9,000.00 in return for the car),and Weber accepted. Because both parties entered into an oral contract, Weber is obligated to honor his acceptance of Sargol’s offer. Thecontract is not less binding because of the fact that the car’s title had not been transferred nor had money exchanged hands. If Weberaccepted Kavanaugh’s offer, he would have breached his contract with Sargol.

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4CHAPTER 2Court Systems and Legal ProceduresCurriculum CrosswalkHIA programDomain:Information Protection: Access Disclosure Archival Privacy and SecuritySub-domain:Health LawCompetency:Identify laws and regulations applicable to health careCurricular consideration:•Health care legal terminologyCompetency:Analyze legal concepts and principles to the practice of HIMCurricular considerations:•Legal principles•Legal health recordsSub-domain:Data Privacy Confidentiality and SecurityCompetency:Analyze privacy, security, and confidentiality policies and procedures forinternal and external use and exchange of health informationCurricular consideration:•E-discoveryDomain:LeadershipSub-domain:Leadership rolesCompetency:Take part in effective negotiation and use influencing skillsCurricular consideration:•Negotiation techniquesCompetency:Apply personnel management skillsCurricular consideration:•NegotiationHIT programDomain:Information Protection: Access Disclosure Archival Privacy and SecuritySub-domain:Health LawCompetency:Apply health care legal terminologyCurricular consideration:•Health care legal terminologyCompetency:Apply legal concepts and principles to the practice of HIMCurricular considerations:•Maintain a legally defensible health record•Subpoenas, depositions, court orders, warrantsSuggested Enrichment ActivityBloom’s Taxonomy level: ComprehensionSuggest to students that they watch the movieThe Verdict. This movie focuses on a medical malpractice lawsuit. The movie depicts in afairly accurate manner the roles of each player in a trial, various legal procedures, the problems of the legal profession, and the anguishfaced by a plaintiff and a witness. Ask the students to discuss, in class or through an online discussion board, their impressions of themovie in general and how the movie compares to the information presented in this chapter.

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Chapter 2Court Systems and Legal Procedures5Answer Key for Review Questions1.Why should a health information professional need to understand the court system and legal procedures?A: Demands are placed on health information professionals to comply with the legal process, particularly the use of healthinformation in a lawsuit. Accordingly, the health information professional must understand the variations of court systems and legalprocedures in order to comply.2.Give examples of federal question jurisdiction and diversity jurisdiction.A: Federal question jurisdiction deals with cases involving a U.S. constitutional principle, treaty, federal statute, or federal rule orregulation. Diversity jurisdiction involves parties who are citizens of different states whose controversy involves over $75,000.00.3.Does each state have trial courts, intermediate courts of appeal, and supreme courts?A: No. All states have trial and supreme courts. Some, but not all, states have intermediate courts of appeal.4.What is meant by the termlegal process?A: The stages through which a lawsuit passes.5.What are the elements of a complaint?A: Three elements are necessary in every complaint: (1) the jurisdiction of the court, (2) the plaintiff’s claim in a short and plainstatement, and (3) the demand for relief to which the plaintiff feels he or she is entitled.6.What do the termsmetadata,spoliation, andlitigation holdmean?A: Metadata refers to unseen information in common text files, which can indicate when a document was created, viewed, or revisedand can contain edits, notes, or other private data. Spoliation refers to the wrongful destruction or material alteration of evidence orthe failure to preserve property or data for another’s use as evidence in pending or reasonably foreseeable litigation. Litigation holdrefers to the actions of a party who possesses data to make efforts to prevent routine destruction and preserve electronically storedinformation (ESI) that may be discoverable, even before the time when a lawsuit is filed.7.What are the similarities and differences between opening and closing statements at trial?A: Both opening and closing statements summarize the evidence presented in the case and highlight the weaknesses of the otherside’s case. They differ in that the opening statement does not ordinarily refer to a witness’s credibility, something closing statementsoften include.8.How did alternative dispute resolution become a popular alternative to litigation?A: Because of the dissatisfaction felt by litigants with the existing legal system and its costs to litigants in terms of time, stress, andfees.Case StudyYou are the in-house counsel at General Hospital. You have been contacted by an attorney for a former patient of the hospital whoseinpatient hospitalization resulted in some harm to the patient. That harm was memorialized in an incident report prepared by hospital staff.Your review of the incident report indicates that the harm described by the attorney is consistent with the harm described in the incidentreport. Based on your conversations with the attorney, you believe a lawsuit is imminent. Because you believe it is in the best interests ofall concerned to avoid the cost of litigation, you wish to consider methods of alternative dispute resolution. Discuss the relativeadvantages and disadvantages of each method.Things to consider1.Mediation offers the assistance of a third party who has nothing to gain or lose by the outcome of the mediation. Therefore, theneutrality of the mediator is a positive aspect for both sides. Also, the mediator brings the parties together to resolve the dispute,increasing the possibility that both sides will be satisfied with the result and comply with any of the result’s requirements.Additionally, privacy of both sides is respected because no documents are filed on the public record. Finally, the mediator does notneed to be an expert in the health care field, which could have added delay and additional expense to the process.A disadvantage is that if the parties cannot agree when choosing the mediator, the mediation fails before any substance isdiscussed.2.Arbitration also involves a neutral third party, but this third party is generally an expert on the substantive matter in question andtherefore will understand the issues involved at a higher level. The parties do not have to compromise to reach an agreement but canrely on the neutral third party to come to an equitable decision. An aggrieved party still possesses the right to pursue a lawsuitoverturning the arbitrator’s award.A disadvantage is that the use of an expert may add additional expense and delay to the process. Also, the arbitrator’s award isbinding on the parties, meaning the parties are obligated to comply with the terms of the award until such time as a court of generaljurisdiction overturns the award.3.Negotiation and settlement have the advantage of not involving a third party, allowing a maximum of confidentiality to all parties andless expense and delay. A disadvantage is that a settlement agreement often contains a release of claims, barring any future litigationconcerning the subject of the dispute. And if the parties display animosity for each other, the need for a neutral third party may be sogreat as to destroy any chance for negotiation and settlement.

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6CHAPTER 3Judicial Process of Health InformationCurriculum CrosswalkHIA programDomain:Information Protection: Access Disclosure Archival Privacy and SecuritySub-domain:Health LawCompetency:Identify laws and regulations applicable to health careCurricular consideration:•Health care legal terminologyCompetency:Analyze legal concepts and principles to the practice of HIMCurricular consideration:•Legal principles•Legal health recordSub-domain:Data Privacy Confidentiality and SecurityCompetency:Analyze privacy, security and confidentiality policies and procedures forinternal and external use and exchange of health informationCurricular Consideration:•E-discoveryHIT programDomain:Information Protection: Access Disclosure Archival Privacy and SecuritySub-domain:Health LawCompetency:Apply health care legal terminologyCurricular consideration:•Health care legal terminologyCompetency:Apply legal concepts and principles to the practice of HIMCurricular considerations:•Maintain a legally defensible health recordSub-domain:Data Privacy Confidentiality and SecurityCompetency:Apply retention and destruction policies for health informationCurricular consideration:•E-discoveryTeaching ExerciseThis exercise is designed to bring the concept of rules and rule making into the students’ everyday lives. It can be conducted in theclassroom or an online discussion board. Ask students to identify what organizations they belong to and what rules or laws govern theactivities of these organizations. Have the students discuss the reason(s) for the different rules. Then move the discussion to the concept ofthe rules of evidence and civil procedure discussed in the textbook. In comparing the rules of the organizations with the evidentiary andprocedural rules, focus on the concept that some activities/actions are permitted or allowed while other activities/actions are not permittedor allowed.Answer Key for Review Questions1.What are the legal uses of the health record?A: They form the backbone of every professional liability action and are used to establish whether the standard of care was met. Theyare also used in civil actions, such as credentialing and disciplinary proceedings. They may be used in criminal actions to establishthe cause of the victim’s death, an insanity defense, or a party’s physical condition.

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Chapter 3Judicial Process of Health Information72.Are the entries made in the health record ordinarily subject to cross-examination? Why or why not?A: No, ordinarily the entries are not subject to cross-examination because they are considered hearsay evidence. As hearsay evidence,the person who made the entries, a witness, is not present in the courtroom for purposes of cross-examination.3.What questions are typically presented to the custodian of records in order to introduce a health record into evidence?A: Eight questions are generally presented:i.State your full name and business address.ii.Are you the custodian of the records for [name of health care provider]?iii.In answering these questions, have you made a full and complete search of [name of health care provider]’s records forpatient [name of patient]?iv.Have you presented today a true, complete, and accurate copy of all [name of health care provider]’s records for patient[name of patient]?v.If not, please state as accurately as possible all such documents that are not presented today and the reason(s) therefore.vi.Are all entries contained in the record presented today made by [name of health care provider] or his or her employees inthe ordinary course of business?vii.If not, please identify which document or entry presented today is not made in the ordinary course of [name of health careprovider]’s business.viii.What procedures are taken to ensure the accuracy of the records you have presented today?4.What legal processes may be used to remove the health record from the health care provider’s safekeeping?A: Subpoenas and court orders.5.Compare and contrast a subpoena, a subpoena ad testificandum, and a subpoena duces tecum.A: All three terms refer to commands from a court or other official. A subpoena refers to a command to appear and/or present certaindocuments and other things. A subpoena ad testificandum refers to a command for the appearance of a witness to give testimony. Asubpoena duces tecum refers to a command for the production of books, documents, and other things.6.Should the health information professional assume that each subpoena presented requires the release of the information requested?Why or why not?A: No, such an assumption is not appropriate. If this assumption is made and the subpoena is actually invalid, the health informationprofessional may have complied in such a way as to make an improper release of records. This improper release can be the subject oflitigation on its own.7.How should the health information professional handle an invalid subpoena duces tecum?A: Three options are available:i.Refer the subpoena to the health care provider’s counsel for assistance;ii.Contact the requesting attorney and make a noncommittal response acknowledging the confidentiality restrictions underwhich the health care provider operates; andiii.Excise portions of the health record that the health information professional determines are protected and release theremainder.Case StudyYou supervise the correspondence unit of the health information services department of a medical center. Today, you received a subpoenaduces tecum from an attorney, demanding either the originals or copies of all health records concerning Mary Smith, who allegedly is orwas a patient of the medical center. The subpoena lacks sufficient information for you to determine whether Mary Smith is or was apatient in your facility. The subpoena is not accompanied by a valid authorization to release information for Mary Smith, as required inyour state. How should you respond to the subpoena?Things to considerAmong the available choices are: (1) seeking the advice of legal counsel and, where appropriate, delegating to legal counsel the obligationto respond to the subpoena; and (2) contacting the requesting counsel with a noncommittal answer acknowledging the confidentialityrestrictions under which the health care provider operates and forwarding a predrafted release of information form for the patient MarySmith to sign.

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8CHAPTER 4Principles of LiabilityCurriculum CrosswalkHIA programDomain:Information Protection: Access Disclosure Archival Privacy and SecuritySub-domain:Health LawCompetency:Apply health care legal terminologyCurricular consideration:•Health care legal terminologyCompetency:Apply legal concepts and principles to the practice of HIMCurricular consideration:•Maintain a legally defensible health recordHIT programDomain:Information Protection: Access Disclosure Archival Privacy and SecuritySub-domain:Health LawCompetency:Apply health care legal terminologyCurricular consideration:•Health care legal terminologyCompetency:Apply legal concepts and principles to the practice of HIMCurricular consideration:•Maintain a legally defensible health recordSuggested Enrichment ActivityBloom’s Taxonomy level: Analysis, synthesis, and evaluationAsk the students to review each of the scenarios presented in Appendix A of this instructor manual and identify (a) the parties (plaintiffand defendant), (b) the area of law addressed (e.g., contract, nonintentional tort, etc.), and (c) the legal theory relied upon (e.g., falseimprisonment, negligence, etc.).Answer Key for Review Questions1.How do the principles of liability influence the health information professional’s role in protecting health information?A: By understanding these principles, the health information professional is better able to prevent improper disclosure of healthinformation.2.What are the requirements of the Emergency Medical Treatment and Active Labor Act that hospitals must meet?A: Hospitals must treat a patient who is in active labor or in an emergency medical condition until the condition is stabilized. Oncestabilized, the hospital may continue to treat the patient, may transfer the patient, or may discharge the patient.3.What are medical staff privileges, and how are they determined?A: They are the scope and limit of a physician’s practice in a hospital. They are determined by the governing board of the hospital.4.Compare and contrast negligence and medical malpractice.A: Medical malpractice is a broad term covering the professional misconduct of one who fails to follow a standard of care, resultingin harm to the patient. Many theories of liability can support a medical malpractice claim, including negligence. Negligence refers tosomeone failing to do something that a reasonably prudent person would do in a similar situation or, alternatively, doing somethingthat a reasonably prudent person would not do in a similar situation. Negligence does not have to involve a professional, though in ahealth care context, it would.5.What are the different methods one can use to establish the standard of care?A: Five methods are generally used:i.General standards contained in state laws and regulations governing the pertinent profession;

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Chapter 4Principles of Liability9ii.General standards found in written materials, such as textbooks, accreditation manuals, and professional association codesof conduct;iii.A health care facility’s internal policies and procedures, including medical staff by-laws and manuals;iv.Testimony of an expert witness; andv.Ordinary common sense and experience.6.What is the role of an expert witness in a negligence claim?A: To explain in court the appropriate standard of care applicable to the facts of the case and compare that standard to the careprovided to the plaintiff.7.What is the failure-to-warn theory, and how may it be exercised in the context of a dangerous patient?A: It is a theory of negligence that applies to a psychotherapist’s failure to take steps to protect an innocent third party from adangerous patient. It is used when the psychotherapist determines that his or her patient presents a serious danger of violence to athird person. The psychotherapist must then warn the third person (intended victim) in a manner that is reasonable under thecircumstances.8.Compare and contrast the defenses commonly raised in lawsuits involving health care providers.A: All defenses are used to either shield the defendant from liability or reduce his or her level of liability. Some defenses may resultin the case being dismissed (e.g., statute of limitations, charitable immunity, and governmental immunity), while other defenses mayresult in reduction in liability (e.g., Good Samaritan statutes, contributory and comparative negligence, and assumption of risk).Case StudyA surgeon performs elective surgery on John Smith. Smith later complains to his surgeon about pain resulting from the surgery. Hissurgeon dismisses his complaints as not credible and eventually withdraws from the case. Smith is then treated by another surgeon, whodetermines that Smith developed complications from surgery and that the delay in treatment has made the complications worse. Smithsees an attorney about a possible lawsuit against the first surgeon.Describe the theories that could support a lawsuit under these circumstances.Things to consider:1.Negligence:Given these facts, one can assume that the first surgeon owed a duty of care to John Smith. Whether a negligence theory will applydepends on the answers to the following questions: Did the first surgeon apply the standard of care that a reasonably prudentprofessional in the same or similar circumstances would have applied? Does the appropriate standard of care encompass both thesurgery and the credibility determination? Were the first surgeon’s actions the cause of John Smith’s medical complication?2.Medical abandonment:Given the facts listed, it appears necessary that John Smith continue to receive care. Whether the theory of medical abandonment willapply depends on the answers to the following questions: Was John Smith given a list of qualified substitute physicians? Was hisneed for treatment immediate? Did the first surgeon withdraw from treatment for economic rather than medical reasons? What typeof follow-up treatment did the first surgeon arrange?3.Res ipsa loquitur:For this theory to apply, additional facts concerning the nature of the complications would be necessary. For example, if a surgicalsponge was discovered inside John Smith’s body at the surgical site, it may be the cause of the complications. Under such a scenario,John Smith would have little difficulty establishing the three elements ofres ipsa loquitur.4.Technical battery:For this theory to apply, it would be necessary to review the consent to surgery form signed by John Smith. If the first surgeon actedbeyond the scope of the consent John Smith gave and that action resulted in the complications, a technical battery has occurred.

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