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

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    Legal and Ethical Aspects of Health Information Management FOURTH EDITION SOLUTION MANUAL

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    Chapter 1 Workings of the American Legal System iii iii Contents CHAPTER 1 Workings of the American Legal System 1 CHAPTER 2 Court Systems and Legal Procedures 4 CHAPTER 3 Judicial Process of Health Information 6 CHAPTER 4 Principles of Liability 8 CHAPTER 5 Ethical Standards 10 CHAPTER 6 Ethical Decisions and Challenges 12 CHAPTER 7 Bioethical Issues 14 CHAPTER 8 Patient Record Requirements 16 CHAPTER 9 Confidentiality and Informed Consent 19 CHAPTER 10 Access to Health Information 21 CHAPTER 11 Specialized Patient Records 24 CHAPTER 12 Risk Management, Quality Management, and Utilization Management 27 CHAPTER 13 Information Systems 30 CHAPTER 14 Health Care Fraud and Abuse 33 CHAPTER 15 Law and Ethics in the Workplace 36 APPENDIX A Legal Scenarios 38 APPENDIX B Ethical Scenarios 40

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

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    1 CHAPTER 1 Workings of the American Legal System Curriculum Crosswalk HIA program Domain: Information Protection: Access Disclosure Archival Privacy and Security Sub-domain: Health Law Competency: Identify laws and regulations applicable to health care Curricular consideration: • Health care legal terminology Competency: Analyze legal concepts and principles to the practice of HIM Curricular consideration: • Legal principles Sub-domain: Data Privacy Confidentiality and Security Competency: Analyze privacy, security, and confidentiality policies and procedures for internal and external use and exchange of health information. Curricular consideration: • Privacy, confidentiality, security principles, policies and procedures, federal and state laws Domain: Data Content Structure and Standards Sub-domain: Data Governance Competency: Demonstrate compliance with internal and external data dictionary requirements Curricular considerations: • Accreditation standards o The Joint Commission HIT program Domain: Information Protection: Access Disclosure Archival Privacy and Security Sub-domain: Health Law Competency: Apply health care legal terminology Curricular consideration: • Health care legal terminology Domain: Data Content Structure and Standards Sub-domain: Health Record Content and Documentation Competency: Identify a complete health record according to organizational policies, external regulations, and standards Curricular considerations: • Medical staff by-laws • The Joint Commission, State statutes o Legal health record and complete health record Sub-domain: Data Governance Competency: Apply policies and procedures to ensure the accuracy and integrity of health data Curricular consideration: • By-laws o Provider contracts with facilities, Medical staff by-laws, Hospital by-laws

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    2 Legal and Ethical Aspects of Health Information Management Teaching Exercises 1. Teach the students to access various sources of law using the Internet. Demonstrate in the classroom or through online discussion how 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. The second Web site is maintained by the Government Printing Office and allows access to official information from all three branches of government, including enacted statues, rules, the Code of Federal Regulations, and the Federal Register. You can select any of the citations to federal statutes or regulations found in the text, the online companion to the text, or you may use any of the following: HIPAA 42 U.S.C. § 1320d 45 C.F.R Part 162 (Admin. Requirements) 45 C.F.R Part 164 (Privacy & Security) GINA 42 U.S.C. § 2000ff After demonstrating how to find these examples, task the students with exploring the Web sites themselves to locate federal statutes and/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 parties to 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 judgment that is assumed for adults. Excluding the instance of emancipated minors, ask the students to identify what advantages and disadvantages 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 the contract 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 Activity Bloom’s Taxonomy level: Application and analysis Using Table 1.4, Words of Authority, as a guide, review the statutory provisions found in the online companion to the text, looking for instances where these words of authority are employed. Determine the level of change that would occur to the meaning of the statutory provision if one or more of the words of authority found in Table 1.4 were substituted for the word of authority currently located in the statutory provision. Answer Key for Review Questions 1. 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-specific health 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 information increases. 2. Does a single document or source of law exist where an individual can find all of the rules governing health information? Why or why not? A: No. In the United States, laws are passed and regulations are promulgated at the federal, state, and local levels and are interpreted by 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 is unique 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 1 Workings of the American Legal System 3 5. Explain the concepts of stare decisis and res judicata . A: Stare decisis refers to reliance on the decisions rendered in prior cases (precedent) in future cases, regardless of the parties involved, in a lawsuit containing similar issues. Res judicata refers to only the application of precedent to the same parties and issues that 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 A You are the director of health information services for a medium-sized health care facility. Like many of your peers, you have contracted with an outside copying service to handle all requests for release of patient health information at your facility. You have learned that a lobbying organization for trial attorneys in your state is promoting legislation to place a cap on photocopying costs, which is significantly below the actual cost incurred as part of the contract. Discuss the roles each branch of government will play in considering this legislation and how you and your professional organization may act to influence this process. Things to consider Part One: Branches of Government All 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 it through 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 of health 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 by the legislature and signed into law by the governor. Part Two: Influencing the Process Working within your professional association, and possibly in conjunction with other professional associations similarly affected, you may take the following steps: 1. Contact the lobbying organization and/or trial attorneys group directly to educate them about why and how photocopying fees are charged. Depending on the result, the lobbying organization or trial attorneys group may abandon its efforts or work with your association to modify its proposal. 2. Contact the sponsoring member of the legislature to educate him or her in the same manner. Additionally, appear before the appropriate 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 that your 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 of the published pieces to those persons or groups listed in numbers 1 − 4. Case Study B Michelle 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 to transfer title next week, at which time Sargol will pay for the car. The next day, Laura Kavanaugh visits the car lot and offers to pay Weber $10,000.00 for the same car. Can Weber accept Kavanaugh’s offer? What area of law is involved? Things to consider No, Weber cannot accept Kavanaugh’s offer because Weber already has a contract with Sargol. The scenario illustrates contract law, a component of civil law. The first transaction between Sargol and Weber constitutes a contract—Sargol and Weber had a meeting of the minds 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. The contract is not less binding because of the fact that the car’s title had not been transferred nor had money exchanged hands. If Weber accepted Kavanaugh’s offer, he would have breached his contract with Sargol.

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    4 CHAPTER 2 Court Systems and Legal Procedures Curriculum Crosswalk HIA program Domain: Information Protection: Access Disclosure Archival Privacy and Security Sub-domain: Health Law Competency: Identify laws and regulations applicable to health care Curricular consideration: • Health care legal terminology Competency: Analyze legal concepts and principles to the practice of HIM Curricular considerations: • Legal principles • Legal health records Sub-domain: Data Privacy Confidentiality and Security Competency: Analyze privacy, security, and confidentiality policies and procedures for internal and external use and exchange of health information Curricular consideration: • E-discovery Domain: Leadership Sub-domain: Leadership roles Competency: Take part in effective negotiation and use influencing skills Curricular consideration: • Negotiation techniques Competency: Apply personnel management skills Curricular consideration: • Negotiation HIT program Domain: Information Protection: Access Disclosure Archival Privacy and Security Sub-domain: Health Law Competency: Apply health care legal terminology Curricular consideration: • Health care legal terminology Competency: Apply legal concepts and principles to the practice of HIM Curricular considerations: • Maintain a legally defensible health record • Subpoenas, depositions, court orders, warrants Suggested Enrichment Activity Bloom’s Taxonomy level: Comprehension Suggest to students that they watch the movie The Verdict . This movie focuses on a medical malpractice lawsuit. The movie depicts in a fairly accurate manner the roles of each player in a trial, various legal procedures, the problems of the legal profession, and the anguish faced by a plaintiff and a witness. Ask the students to discuss, in class or through an online discussion board, their impressions of the movie in general and how the movie compares to the information presented in this chapter.

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    Chapter 2 Court Systems and Legal Procedures 5 Answer Key for Review Questions 1. 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 health information in a lawsuit. Accordingly, the health information professional must understand the variations of court systems and legal procedures 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 or regulation. 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 term legal 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 plain statement, and (3) the demand for relief to which the plaintiff feels he or she is entitled. 6. What do the terms metadata , spoliation , and litigation hold mean? A: Metadata refers to unseen information in common text files, which can indicate when a document was created, viewed, or revised and can contain edits, notes, or other private data. Spoliation refers to the wrongful destruction or material alteration of evidence or the failure to preserve property or data for another’s use as evidence in pending or reasonably foreseeable litigation. Litigation hold refers to the actions of a party who possesses data to make efforts to prevent routine destruction and preserve electronically stored information (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 other side’s case. They differ in that the opening statement does not ordinarily refer to a witness’s credibility, something closing statements often 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, and fees. Case Study You are the in-house counsel at General Hospital. You have been contacted by an attorney for a former patient of the hospital whose inpatient 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 incident report. Based on your conversations with the attorney, you believe a lawsuit is imminent. Because you believe it is in the best interests of all concerned to avoid the cost of litigation, you wish to consider methods of alternative dispute resolution. Discuss the relative advantages and disadvantages of each method. Things to consider 1. Mediation offers the assistance of a third party who has nothing to gain or lose by the outcome of the mediation. Therefore, the neutrality 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 not need 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 is discussed. 2. Arbitration also involves a neutral third party, but this third party is generally an expert on the substantive matter in question and therefore will understand the issues involved at a higher level. The parties do not have to compromise to reach an agreement but can rely on the neutral third party to come to an equitable decision. An aggrieved party still possesses the right to pursue a lawsuit overturning 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 is binding on the parties, meaning the parties are obligated to comply with the terms of the award until such time as a court of general jurisdiction overturns the award. 3. Negotiation and settlement have the advantage of not involving a third party, allowing a maximum of confidentiality to all parties and less expense and delay. A disadvantage is that a settlement agreement often contains a release of claims, barring any future litigation concerning the subject of the dispute. And if the parties display animosity for each other, the need for a neutral third party may be so great as to destroy any chance for negotiation and settlement.

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    6 CHAPTER 3 Judicial Process of Health Information Curriculum Crosswalk HIA program Domain: Information Protection: Access Disclosure Archival Privacy and Security Sub-domain: Health Law Competency: Identify laws and regulations applicable to health care Curricular consideration: • Health care legal terminology Competency: Analyze legal concepts and principles to the practice of HIM Curricular consideration: • Legal principles • Legal health record Sub-domain: Data Privacy Confidentiality and Security Competency: Analyze privacy, security and confidentiality policies and procedures for internal and external use and exchange of health information Curricular Consideration: • E-discovery HIT program Domain: Information Protection: Access Disclosure Archival Privacy and Security Sub-domain: Health Law Competency: Apply health care legal terminology Curricular consideration: • Health care legal terminology Competency: Apply legal concepts and principles to the practice of HIM Curricular considerations: • Maintain a legally defensible health record Sub-domain: Data Privacy Confidentiality and Security Competency: Apply retention and destruction policies for health information Curricular consideration: • E-discovery Teaching Exercise This exercise is designed to bring the concept of rules and rule making into the students’ everyday lives. It can be conducted in the classroom or an online discussion board. Ask students to identify what organizations they belong to and what rules or laws govern the activities of these organizations. Have the students discuss the reason(s) for the different rules. Then move the discussion to the concept of the rules of evidence and civil procedure discussed in the textbook. In comparing the rules of the organizations with the evidentiary and procedural rules, focus on the concept that some activities/actions are permitted or allowed while other activities/actions are not permitted or allowed. Answer Key for Review Questions 1. 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. They are also used in civil actions, such as credentialing and disciplinary proceedings. They may be used in criminal actions to establish the cause of the victim’s death, an insanity defense, or a party’s physical condition.

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    Chapter 3 Judicial Process of Health Information 7 2. 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 for patient [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 in the 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 care provider]’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 certain documents and other things. A subpoena ad testificandum refers to a command for the appearance of a witness to give testimony. A subpoena 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 information professional may have complied in such a way as to make an improper release of records. This improper release can be the subject of litigation 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 under which the health care provider operates; and iii. Excise portions of the health record that the health information professional determines are protected and release the remainder. Case Study You supervise the correspondence unit of the health information services department of a medical center. Today, you received a subpoena duces tecum from an attorney, demanding either the originals or copies of all health records concerning Mary Smith, who allegedly is or was a patient of the medical center. The subpoena lacks sufficient information for you to determine whether Mary Smith is or was a patient in your facility. The subpoena is not accompanied by a valid authorization to release information for Mary Smith, as required in your state. How should you respond to the subpoena? Things to consider Among the available choices are: (1) seeking the advice of legal counsel and, where appropriate, delegating to legal counsel the obligation to respond to the subpoena; and (2) contacting the requesting counsel with a noncommittal answer acknowledging the confidentiality restrictions under which the health care provider operates and forwarding a predrafted release of information form for the patient Mary Smith to sign.

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    8 CHAPTER 4 Principles of Liability Curriculum Crosswalk HIA program Domain: Information Protection: Access Disclosure Archival Privacy and Security Sub-domain: Health Law Competency: Apply health care legal terminology Curricular consideration: • Health care legal terminology Competency: Apply legal concepts and principles to the practice of HIM Curricular consideration: • Maintain a legally defensible health record HIT program Domain: Information Protection: Access Disclosure Archival Privacy and Security Sub-domain: Health Law Competency: Apply health care legal terminology Curricular consideration: • Health care legal terminology Competency: Apply legal concepts and principles to the practice of HIM Curricular consideration: • Maintain a legally defensible health record Suggested Enrichment Activity Bloom’s Taxonomy level: Analysis, synthesis, and evaluation Ask the students to review each of the scenarios presented in Appendix A of this instructor manual and identify (a) the parties (plaintiff and defendant), (b) the area of law addressed (e.g., contract, nonintentional tort, etc.), and (c) the legal theory relied upon (e.g., false imprisonment, negligence, etc.). Answer Key for Review Questions 1. 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 health information. 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. Once stabilized, 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, resulting in harm to the patient. Many theories of liability can support a medical malpractice claim, including negligence. Negligence refers to someone failing to do something that a reasonably prudent person would do in a similar situation or, alternatively, doing something that a reasonably prudent person would not do in a similar situation. Negligence does not have to involve a professional, though in a health 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 4 Principles of Liability 9 ii. General standards found in written materials, such as textbooks, accreditation manuals, and professional association codes of conduct; iii. A health care facility’s internal policies and procedures, including medical staff by-laws and manuals; iv. Testimony of an expert witness; and v. 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 care provided 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 a dangerous patient. It is used when the psychotherapist determines that his or her patient presents a serious danger of violence to a third person. The psychotherapist must then warn the third person (intended victim) in a manner that is reasonable under the circumstances. 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 result in the case being dismissed (e.g., statute of limitations, charitable immunity, and governmental immunity), while other defenses may result in reduction in liability (e.g., Good Samaritan statutes, contributory and comparative negligence, and assumption of risk). Case Study A surgeon performs elective surgery on John Smith. Smith later complains to his surgeon about pain resulting from the surgery. His surgeon dismisses his complaints as not credible and eventually withdraws from the case. Smith is then treated by another surgeon, who determines that Smith developed complications from surgery and that the delay in treatment has made the complications worse. Smith sees 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 apply depends on the answers to the following questions: Did the first surgeon apply the standard of care that a reasonably prudent professional in the same or similar circumstances would have applied? Does the appropriate standard of care encompass both the surgery 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 will apply depends on the answers to the following questions: Was John Smith given a list of qualified substitute physicians? Was his need for treatment immediate? Did the first surgeon withdraw from treatment for economic rather than medical reasons? What type of 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 surgical sponge 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 of res 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 acted beyond the scope of the consent John Smith gave and that action resulted in the complications, a technical battery has occurred.

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