Patient Rights and Responsibilities
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It’s Your Gavel…
A MOTHER’S RIGHT: A CHILD’S DEATH
Harrell, a Jehovah’s Witness, was 6 months pregnant when physicians discovered a life-threatening blood condition that could deteriorate and place both her life and the life of the fetus in jeopardy. Because of religious beliefs, Harrell objected to a blood transfusion. After an emergency hearing, the court ruled that a blood transfusion could be given to Harrell if it was necessary to save the life of the fetus and that after the child was born, a blood transfusion could be given to the child if necessary to save the child’s life. The Harrells appealed. The child was delivered by cesarean section and died 2 days later. No blood transfusion was given to Harrell or to the child. As a result, the hospital and the state claimed that the appeal of the trial court’s order is moot. Because of the hospital’s misunderstanding about its standing to bring such proceedings, the Florida District Court of Appeals addressed the issue as capable of repetition yet evading review.
The Florida Constitution guarantees that a competent person has the constitutional right to choose or refuse medical treatment. In cases where these rights are litigated, a party generally seeks to invoke the power of the state, through the exercise of the court’s judicial power, either to enforce the patient’s rights or to prevent the patient from exercising those rights. The state has a duty to ensure that a person’s wishes regarding medical treatment are respected.
Harrell argued that the hospital should not have intervened in her private decision to refuse a blood transfusion. She claimed that the state never had been a party in this action and had not asserted any interest and that the hospital had no authority to assume the state’s responsibilities.
WHAT IS YOUR VERDICT?
The reader, upon completion of this chapter, will be able to:
• Discuss the importance of understanding patient rights.
• Discuss the importance of understanding patient responsibilities.
• Understand how rights and responsibilities go hand in hand.
This chapter provides a brief overview of both the rights and responsibilities of patients. Every person possesses certain rights guaranteed by the Constitution of the United States and its amendments, including the freedoms of speech, religion, and association, and the right not to be discriminated against on the grounds of race, creed, color, or national origin. The Supreme Court has interpreted the Constitution as also guaranteeing certain other rights, such as the right to privacy and self-determination, and the right to accept or reject medical treatment.
With rights come responsibilities. The patient, for example, has a right to receive emergency care, while at the same time also has a responsibility to let the caregiver know the limits of that care as noted in the opening case above where the patient objects to the administration of blood.
19.1 PATIENT RIGHTS
Patient rights may be classified as either legal—those emanating from law—or human statements of desirable ethical principles such as the right to be treated with dignity and respect. The rights of patients discussed here do not exist in a vacuum without limitations—they are tethered to moral obligations and responsibilities that have their roots in the law, ethics, moral principles, and religious values. To kill another human being, for example, is wrong and punishment will follow if the life of another is taken.
Patients have a right to receive a clear explanation of tests, diagnoses, prescribed medications, prognosis, and treatment options. Most federal, state, and local programs (e.g., Medicare, Medicaid) specifically require, as a condition for receiving funds under such programs, an affirmative statement on the part of the organization that it will not discriminate.
It is well established by both federal and state law, as well common law, that patients have a right to receive emergency care and inpatient admission if such is required for the health and safety of the patient. Healthcare providers receiving funds from programs such as Medicare and Medicaid are expected to have an affirmative statement that provides it will not discriminate against patients on the basis of age, race, creed, color, or national origin. Patients also have a right to have their care needs responded to within a reasonable time frame; delays in responding to a patient’s needs can put a patient’s life at risk, and put the organization at legal risk for injuries the patient suffers as a result of the delay.
Whether a person is entitled to admission to a particular governmental facility depends on the statute establishing that organization. Governmental hospitals, for example, are, by definition, creatures of some unit of government; their primary concern is service to the population within the jurisdiction of that unit. Military hospitals, for example, have been established to care for those persons who are active members of the military.
Although persons who are not within the statutory classes have no right of admission, hospitals and their employees owe a duty to extend reasonable care to those who present themselves for assistance and are in need of immediate attention. With respect to such persons, governmental hospitals are subject to the same rules that apply to private hospitals. For example, the patient in Stoick v. Caro Community Hospital brought a medical malpractice action against a government physician in which she alleged that the physician determined that she was having a stroke and required hospitalization but that he refused to hospitalize her. The plaintiff’s daughter-in-law called the defendant, Caro Family Physicians, P.C., where the patient had a 1:30 PM appointment. She was told to take the patient to the hospital. On arriving at the hospital, there was no physician available to see the patient, and a nurse directed her to Dr. Loo’s clinic in the hospital. On examination, Loo found right-sided facial paralysis, weakness, dizziness, and an inability to talk. He told the patient that she was having a stroke and that immediate hospitalization was necessary. Loo refused to admit her because of a hospital policy that only the patient’s family physician or treating physician could admit her. The plaintiff went to see her physician, Dr. Quines, who instructed her to go to the hospital immediately. He did not accompany her to the hospital. At the hospital, she waited approximately 1 hour before another physician from the Caro Family Physicians arrived and admitted her. Loo claimed that he did not diagnose the patient as having a stroke and that there was no bad faith on his part.
The circuit court granted the physician’s motion for summary judgment on the grounds of governmental immunity. The court of appeals reversed, holding that the plaintiff did plead sufficient facts constituting bad faith on the part of Loo. His failure to admit or otherwise treat the patient is a ministerial act for which governmental immunity does not apply and may be found by a jury to be negligence.
Examination and Treatment
Patients have a right to expect their physician will conduct an appropriate history and physical examination based on the patient’s presenting complaints. The assessment is the process by which a physician investigates the patient’s state of health, looking for signs of trauma and disease. It sets the stage for accurately diagnosing the patient’s medical problems, which leads to an agreed-upon treatment plan. A cursory assessment can lead to a misdiagnosis and inappropriate treatment plan. As reported by Karen Asp in Shape Magazine, “Is Your Dr. Missing the Mark?: “It took almost my whole life to get the right diagnosis because no one person had asked me enough questions.”
Participate in Care Decisions
Patients have the right to choose the medical care they wish to receive. They have a right to know their treatment options and to accept or refuse care. As medical technology becomes more advanced, care decisions become more complicated to make. Although patients have a right to make their own care and treatment decisions, they often face conflicting religious and moral values in their decision-making process. Often, it is difficult to make a choice when two roads may seem equally right.
Patients have a right to receive all the information necessary to make an informed decision prior to consenting to a proposed procedure or treatment. This information should include the possible risks and benefits of the procedure or treatment. The right to receive information from the physician includes information about the illness, the suggested course of treatment, the prospects of recovery in terms that can be understood, the risks of treatment, the benefits of treatment, alternative care options, and proof of consent.
Patients have a right to refuse treatment and be told what effect such a decision might have on their health. The responsibility of caregivers requires balancing risks and benefits. This balancing can lead to situations in which healthcare professionals view their obligations to a patient differently from the patient’s own assessment. Forcing a patient to undergo an unwanted procedure would result in a failure to respect the patient’s right of self-determination. For example, the patient in Matter of Dubreuil at the time of her admission signed a standard consent form that included her agreement to have a blood transfusion if necessary. The following day, she was scheduled for a cesarean section, but she would not consent to a blood transfusion because of her religious beliefs. During the course of the delivery, after she had lost a significant amount of blood, it was determined that she needed a transfusion to save her life, but she would not give her consent. Her estranged husband was contacted, and upon his arrival at the hospital, he gave his consent for the transfusion. After the first transfusion, physicians determined that she would need more blood, so they petitioned the circuit court for an emergency hearing to determine whether they could give the transfusion despite the patient’s lack of consent. The trial court decided to allow the hospital to administer blood as they deemed necessary. The patient moved for a rehearing, and the circuit court denied a rehearing. The patient then sought review by the Florida Supreme Court, arguing that her federal and state constitutional rights of privacy, self-determination, and religious freedom had been denied. The Florida Supreme Court ruled that a competent person has a right to refuse medical treatment, including all decisions relevant to his or her health. A healthcare provider must comply with the patient’s wishes unless supported by a court order to do otherwise. Here, the state interest was the protection of the children as innocent third parties. However, in this case, there would have been no abandonment because under Florida law, when there are two living parents, they share equally in the responsibilities of parenting. Had the patient died, her husband would have assumed the care of the children.
Pain is an unpleasant sensation ranging from mild, localized discomfort to acute systemic pain with both physical and emotional components. Some describe the physical part of pain as throbbing, hurting, tenderness, a burning sensation, dull, stabbing, numbing, sharp, and shooting. By others, it has been indescribable, making day-to-day living unbearable. The feeling of pain results from specific nerve fibers carrying pain impulses to the brain. The sensation of acute physical hurt or discomfort caused by injury or illness often includes varying degrees of emotional suffering.
Pain is the body’s way of alerting the patient that something is not quite right. A pain rating scale is a visual tool often used to help a patient describe his or her pain level. It helps the caregiver know how effective treatment is and whether a change in a patient’s treatment plan is necessary. The pain assessment scale is a tool often used because of its ease of use in performing a task. Just as important as the severity of pain are its locations and type. A diagram of the body should be used so that the patient can more easily identify the various locations of his or her pain. The severity of pain can be described to the physician to assist in diagnosing and treating the patient.
Pain management is the process whereby caregivers work with the patient to develop a pain control plan. The process involves educating the patient as to the importance of pain management in the course of healing. With current treatments, pain can often be prevented, or at least controlled. A pain control treatment program should be developed in collaboration between the caregiver and the patient; include alternative and/or complementary strategies for pain management; include family and caregivers as appropriate in the decision-making process; and include an explanation of the medications, anesthesia, other treatments, risks, benefits, and alternatives (e.g., acupuncture). The plan should also ensure that the patient can request changes in treatment if pain persists, is able to refuse the recommended pain treatment(s), and receives pain medication in a timely manner.
Healthcare professionals are expected to monitor the quality of each patient’s care, beginning with the history and physical, through the development of the treatment plan, and, ultimately, to the delivery of care to the patient. The patient has a right to expect that the quality of care rendered will be based on best practices recognized in the healthcare industry.
Know One’s Rights
The continuing trend of consumer awareness, coupled with increased governmental regulations, makes it advisable for caregivers to understand the scope of patient rights. Patients have a right to make their own healthcare decisions. Healthcare organizations may no longer passively permit patients to exercise their rights, but must educate patients as to their rights. Each individual has a right to make decisions concerning his or her medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives.
Patients have a right at the time of admission to be provided in writing a copy of their rights and responsibilities. The patient’s rights and responsibilities are documented in a statement most often referred to as The Patient’s Bill of Rights. Access to a copy of a patient’s rights and responsibilities should be available to the general public when so requested. A limited random sample of three hospitals conducted by the author in two states revealed that staff members were often reluctant to provide and suspicious as to why a copy of the patient’s bill of rights was being requested. All three hospitals would not provide a copy onsite; one hospital, after a second visit, reluctantly provided a copy via email.
Patient’s Bill of Rights
A patient’s bill of rights often includes the following:
1. Receive an explanation of their rights.
2. Receive assistance in understanding their rights, including an interpreter.
3. Receive treatment without discrimination as to race, color, religion, sex, national origin, disability, sexual orientation, or source of payment.
4. Receive considerate and respectful care in a clean and safe environment, free of unnecessary restraints.
5. Receive emergency care, if needed.
6. Know the names, positions, and functions of any hospital staff involved in their care and refuse treatment, examination, or observation by them.
7. Receive complete information about their diagnosis, treatment, and prognosis.
8. Receive all the information they need to give informed consent for any proposed procedure or treatment, including the risks, benefits, and alternatives to care or treatment.
9. Designate an individual to give informed consent if they are too ill to do so.
10. Discontinue care or refuse treatment.
11. Receive an explanation as to what can be expected if care is refused.
12. Refuse to consent or decline to participate in research.
13. Expect privacy while in the hospital and confidentiality of all information and records regarding their care.
14. Participate in all decisions about their treatment and discharge from the hospital.
15. Review and obtain a copy of their medical records.
16. Receive an itemized bill and explanation of all charges.
17. Complain, without fear of reprisal, about the care and services they are receiving.
18. Know the hospital’s relationships with outside parties that may influence a patient’s treatment and care. These relationships may be with educational institutions, insurers, and other healthcare providers.
19. Know about hospital resources, such as patient representatives or ethics committees, that can assist in resolving problems and questions about their hospital stay and care.
20. Be informed of any unanticipated outcomes or mistakes that may affect the patient’s health status (e.g., administration of the wrong medication).
Patients have a right to appoint a surrogate decision maker should they become incapacitated or unable to make decisions. Because patients are often helpless and unable to speak for themselves, all caregivers, whether they are volunteers or paid staff, should consider themselves patient advocates.
Explanation of Rights
Patients have a right to receive an explanation of their rights and responsibilities. An organization’s description of patient rights and responsibilities should be viewed as a document with legal significance whether or not the state in question has adopted a similar code. The rights of patients must be respected at all times. Each patient is an individual with unique healthcare needs. Any restrictions on a patient’s visitors, mail, telephone, or other communications must be evaluated for their therapeutic effectiveness and fully explained to and agreed upon by the patient or patient representative.
Patients have the right to ask questions regarding their care from entry to the hospital through the time of departure. Questions regarding care could include, for example, “I saw blood in my IV tubing. Is this okay? Is it infiltrating?” or “My wound dressing seems wet. Is this okay? Should the dressing be changed?” Patients should not hesitate to ask for verification that advance directives are available in the medical record, confirmation that contact information for the designated surrogate decision maker is available in the medical record in the event the patient becomes incapacitated and cannot make healthcare decisions, clarification of caregiver’s instructions, interpretation of caregiver’s illegible handwriting, instructions for medication usage (e.g., frequency, dosing, drug–drug or drug–food interactions, contraindications, side effects), clarification of physician’s orders (e.g., diet), explanation of treatment plans, a copy of the organization’s hand-washing policy, a description of the hospital’s procedures to prevent wrong-site surgery, consultations and second opinions, and accurate and complete discharge instructions. This listing is but a sampling of the many questions that patients have a right to ask during the course of their care in any healthcare setting.
A Patient’s Right to Ask Questions
Hillary was the lead consultant assigned to speak at a state-sponsored conference. The purpose of the conference was to review new and revised standards designed to encourage patients to ask questions about their care. They were scheduled to be effective on January 1. Hillary scheduled four junior consultants to speak with her on a variety of topics. Rebecca, one of the more junior of the consultants, addressed the right of patients to ask questions. She spoke about the newly designed program that would require healthcare providers to encourage patients to speak up and ask questions about any concerns they may have regarding their care. Following her presentation, Rebecca asked for questions from the audience. One participant commented, “I really don’t understand the need for this regulation. Patients don’t seem to have a problem complaining.” Rebecca attempted to continue answering the questions of what appeared to be a generally disgruntled person. Hillary listened intently but appeared to be at a loss for words.
Jerome attempted to rescue Rebecca from the constant interruptions of that day’s apparently self-appointed antagonist in the audience. Jerome raised his hand, and after being recognized by Rebecca, he responded, “Many patients are not afraid to ask questions and complain when they believe things are not going right. These often are ambulatory patients who can leave a particular provider if they become dissatisfied. Other, more seriously ill in-patients may fear some sort of retaliation if they complain. This is often the case in long-term care facilities.” A caregiver in the audience strongly disagreed. Jerome said, “I realize this is not the case with all patients. This fear can often arise, however, with an elderly person or extremely ill individual who is weak and feels vulnerable to upsetting someone, believing that his or her care could be compromised if he or she asks too many questions or complains. Seniors have sometimes been abused at home or other care settings and are often not willing to risk further confrontation.”
Figuring a picture is worth a thousand words, Jerome had asked for an overhead projector and proceeded to show some newspaper clippings illustrating why some patients have developed a fear to ask questions. After the session was over, the audience member who had raised the issue approached Jerome and said, “All caregivers are not like the ones you displayed.” Jerome said, “I agree. I tried to illustrate for you why some patients are fearful.” Jerome looked for Rebecca but learned that she had left the conference following her presentation.
1. Do you agree with Jerome’s attempt to help Rebecca by responding to the concern of the conference attendee?
2. Describe what approach you would have taken in responding to the disgruntled conference attendee.
Have Special Needs Addressed
Hospital policy should address how patients with special needs can be addressed. Patients with physical and psychological disabilities should be addressed at the time of their admission to the hospital. Whenever possible, arrangements should be available for a language interpreter, sign language interpreter for the hearing impaired, and pertinent documents written in brail for the blind. These are helpful tools in addressing patients with special needs. Information should be provided at the time of the patient’s admission (e.g., employee handbook written in commonly used languages of the community the hospital serves, bulletin boards). A listing of employees and community members who would be willing to help patients with special needs for improving the communication process should be maintained by the hospital and other health care settings as appropriate. Joint Commission standards also address the patients’ rights to effective communications in their accreditation manual (2014 Hospital Accreditation Standards RI.01.01.01–.5).
Without alternative ways to address patients with special needs, it would be difficult to understand what the patient’s wishes are and what he or she is consenting to in the hospital or other care setting.
Execute Advance Directives
Patients must be informed of their right to execute advance directives. The advance directives must be honored within the limits of the law and the organization’s mission, philosophy, and capabilities.
Patients have a right to receive considerate and compassionate care from caregivers. There appears to be less time for compassion in the practice of medicine then at the turn of the 20th century. Providers of care seem to have taken the assembly line approach to patient care with little thought as to the need to help alleviate their patients’ fears. Dr. Robert E. Rakel, Department of Family Medicine at Baylor College of Medicine in Houston, wrote in the Journal of the American Board of Family Practice, “It has been said that more mistakes in medicine are made by those who do not care than by those who do not know.”
The caring function of family medicine emphasizes our personalized approach to health care and our commitment to understanding the patient as a person, respecting the person as an individual, and showing compassion for his or her discomfort. Compassion, from the word patior, literally means “to suffer with,” to share in another’s distress and to be moved to give relief. Compassion reflects the physician’s willingness to share the patient’s anguish and to attempt to understand what the sickness means to that person.
It seems with the progress of medicine there has, at the same time, been a decline in compassion for the patient. Patients fill out numerous forms prior to their visit to the physician’s office and yet the caregiver often fails to read the information the patient has provided.
Patients have a right to expect that information regarding their care and treatment will be kept confidential. Information received by a caregiver in a confidential capacity relating to a patient’s health should not be disclosed without the patient’s consent. Confidentiality requires that the caregiver safeguard a patient’s confidences within the constraints of law. An exception to the rule of confidentiality of patient communications is the implied right to make available to others involved in the patient’s care the information necessary to that care. Caregivers must be cautious not to discuss any aspect of a patient’s care with others not involved in the case. Written permission must be obtained before a patient’s medical record can be made available to anyone not associated with the patient’s care.
Hospital to Punish Snooping on Spears
UCLA Medical Center is taking steps to fire at least 13 employees and has suspended at least six others for snooping in the confidential medical records of pop star Britney Spears during her recent hospitalization in its psychiatric unit, a person familiar with the matter said Friday.
In addition, six physicians face discipline for peeking at her computerized records, the person said.
—Charles Ornstein, Los Angeles Times, March 15, 2008
The phlebotomist in Bagent v. Blessing Care Corp. revealed the results of a patient’s pregnancy test to the patient’s sister at a public tavern. Although there was an attempt by the hospital to have the case dismissed for the phlebotomist’s breach of confidentiality, invasion of privacy, and the negligent infliction of emotional distress, the appeals court determined that there were triable issues of fact precluding dismissal of the case. It was asserted that the phlebotomist had been trained to maintain the confidentiality of patient information and that she knew that she had violated the patient’s rights.
Privacy and HIPAA
Patients have a right to receive a “Notice of Privacy Standards,” a requirement under the Health Insurance Portability and Accountability Act (HIPAA) (45 CFR 164.520).
The HIPAA Privacy Rule gives individuals a fundamental new right to be informed of the privacy practices of their health plans and of most of their health care providers, as well as to be informed of their privacy rights with respect to their personal health information. Health plans and covered health care providers are required to develop and distribute a notice that provides a clear explanation of these rights and practices. The notice is intended to focus individuals on privacy issues and concerns, and to prompt them to have discussions with their health plans and health care providers and exercise their rights.
The issues of confidentiality and privacy have both ethical and legal implications. Caregivers must safeguard each patient’s right to privacy and the right to have information pertaining to his or her care kept confidential.
HIPAA permits disclosures of certain patient information. However, such disclosures are only permitted when reasonable steps have been taken to minimize the release of confidential information. For example, sign-in sheets may not display medical information that is not necessary for sign-in purposes.
Disclosure may be made under compelling circumstances (e.g., suspected child abuse) to a person with a legitimate interest in the patient’s health. The issues of confidentiality and privacy are both ethical and legal. Caregivers must safeguard each patient’s right to privacy and the right to have information pertaining to his or her care to be kept confidential.
Disclosures Permitted Without Patient Authorization
A healthcare provider may disclose patient information (e.g., diagnoses, anesthesia history, surgical and other invasive procedures, drug allergies, medication usage, laboratory test results, imaging studies) in the following situations:
• Disclosure of patient information to other providers who may be caring for the patient in order to provide safe healthcare treatment
• Disclosure of patient information to third-party payers so that providers can obtain payment for services rendered
• Disclosure of patient information for healthcare operations
• Disclosure of patient information as may be required by a law enforcement agency
• Disclosure of patient information as may be required to avert a serious threat to public health or safety
• Disclosure of patient information as required by military command authorities for their medical records
• Disclosure of patient information to workers’ compensation or similar programs for processing of claims
• Disclosure of patient information in response to a subpoena for a legal proceeding
• Disclosure of patient information to a coroner or medical examiner for purposes of identification
Limitations on Disclosures
Some of the individual rights a patient has regarding disclosure of access to his or her medical information are as follows:
• Right to request restrictions or limitations regarding information used or disclosed about treatment or care
• Right to an accounting of nonstandard disclosures: The patient has a right to request a list of the disclosures made of information released regarding his or her care
• Right to amend: If a patient believes that medical information regarding his or her care is incorrect or incomplete, he or she has a right to request that the information be corrected
• Right to inspect and copy medical information that may be used to make care decisions
• Right to file a complaint with the provider, or the Secretary of the Department of Health and Human Services (DHHS) in Washington, DC, if the patient believes his or her privacy rights have been violated
• Right to a paper copy of a notice pertaining to the patient
• Right to know of restrictions on rights
The limitations of space and financial restraints make it difficult to continuously preserve a patient’s right to privacy in many hospital settings (e.g., emergency departments). Nevertheless, healthcare organizations have a responsibility to provide for a reasonable amount of privacy for patients.
Many states have established, by legislation, ombudsperson programs. Ombudspersons are responsible for the investigation of reports of resident abuse in nursing facilities. The primary impetus for the program came from the Nixon Administration, and gradually the program spread throughout the country. It was not until 1978 that the Older Americans Act Amendments (PUB. L. No. 95-478) mandated that every state have an ombudsperson program and that a certain amount of the Older Americans Act funds from Title III-B (the Social Services section) had to be allocated to the ombudsperson program.
In addition, caregivers providing care in their particular areas of responsibility and expertise can accomplish patient advocacy by working on behalf of the patients they serve.
Patient’s rights in many hospitals allow for patients and/or their families to access an ethics committee for consultation when faced with challenging treatment decisions that involve ethical dilemmas. Dilemmas often arise when two or more choices often have some degree of a negative outcome. Conflict can arise when there is a difference of opinion between families and care providers, or when the family is unsure about what course of treatment is best for the patient. Ethics committee consultation can provide an objective perspective, and their recommendations should not be considered as binding. Ethics consultations are helpful when, for example, making end-of-life decisions.
Today I will take the time to be happy and will leave my footprints and my presence in the hearts of others.
Patients have a right to chaplaincy services and have their spiritual needs addressed. The purpose of a pastoral care program is to affirm the valuable role of spiritual care as an integral part of a patient’s healing process. Accordingly, a chaplaincy program will make available to patients and their families spiritual support while they are in the hospital, in accordance with their wishes. The clergy and pastoral care volunteers are important members of the healing team.
A multi-faith chapel is available in many hospitals, as are televised services. Some hospitals provide spiritual devotions and reflections that are broadcast daily. Music and meditation are often provided as an adjunct for pain management and stress reduction at the bedside.
Chaplains are often available as a first call option for ethics consultations. The hospital chaplain acts as a liaison between the patient and area clergy. Consults with the patient care team contribute to the holistic care of patients, family and staff through assessment, pastoral conversation, and other interventions. Caregivers often refer patients to a chaplain if they are experiencing life-changing events; lack effective social, psychological, or spiritual support; have complicated personal relationships; express spiritual or religious concerns; are in a remorseful state of mind; express hopelessness, worthlessness, anger, or depression; or receive news of life-threatening conditions. Chaplains are also available to meet with families at times of death of the patient.
Organizational policies and procedures should address the psychosocial, spiritual, and cultural variables that influence one’s understanding and perception of illness. Hospital pastoral care departments should provide a patient information brochure at the time of admission that describes the services offered and how to access them. For example, an introductory statement to such a brochure could be worded to include:
• When a loved one is hospitalized—or when you require hospitalization yourself—it is perfectly normal to feel anxious, worried, and sometimes overwhelmed.
• We know how you feel. At times like this, it’s good to have a helping hand. The hospital’s pastoral care department is here to help you cope with the emotional struggle associated with hospitalization.
• No matter what your religious affiliation, a representative of the pastoral care department is always available, ready to offer spiritual and emotional support.
• Someone will lend an ear and offer comforting words. He or she will help you draw on your spiritual strength in these times of need.
Services offered by a chaplaincy program should offer pastoral support to patients and their families at time of crisis, which may include prayer, scripture reading, and counseling; provide for enhanced communications among patients, their families, and hospital personnel; be available to clinical staff for counseling and support during or after emotional emergency situations; and provide appropriate referrals to the social service department, the local clergy, and community agencies as needed. Documentation should be included in the patient’s medical record to indicate that the patient’s spiritual needs have been addressed.
Patients have a right to be discharged and not detained in a healthcare setting. An unauthorized detention of this nature could subject the offending organization to charges of false imprisonment. Although patients have a right not to be held against their will, there are circumstances where reasonable detainment can be justified (e.g., a minor’s release only to a parent or authorized guardian). When discharging a patient, a physician should issue and sign all discharge orders. If there is no need for immediate care, the patient should be advised to seek follow-up care with his or her family physician.
Release from Hospital Contraindicated
The plaintiff in Somoza v. St. Vincent’s Hospital was admitted to the hospital during the 29th week of her pregnancy. She was admitted under the care of her private attending physician, defendant Dr. Svesko. She presented herself to the hospital with complaints of severe abdominal pain. Upon the plaintiff’s admission to the hospital, Dr. Gutwein (a resident physician at the hospital) examined her. According to the notations she made on the plaintiff’s chart, Gutwein independently formed the impression that the plaintiff might be suffering from either left pyelonephritis, premature labor, or polyhydramnios. Gutwein recorded a written plan and orders requiring that the plaintiff be hooked up to a fetal monitor. The plaintiff also was to undergo a number of diagnostic tests, including a renal pelvic sonogram. The results of the sonogram were abnormal, and the radiologist recommended a follow-up sonogram. However, the attending physician did not order a follow-up. Despite the abnormal sonogram and various findings on the physical examinations, Svesko decided to release the plaintiff from the hospital because her pain had subsided. He orally conveyed this order to Gutwein. According to Gutwein, she did not formulate an opinion as to the correctness of the decision to discharge because she was of the opinion that it was not her place to make such a decision. Instead, pursuant to Svesko’s instruction, on her early morning rounds, Gutwein simply signed an order discharging the plaintiff from the hospital. Four days later, the plaintiff returned to the hospital suffering severe pain and soon thereafter delivered twin girls. The twins were diagnosed as suffering from cerebral palsy resulting from their premature birth. The plaintiff brought a medical malpractice action against the hospital and Svesko arising out of the premature birth of the twins. The defendants filed a motion for summary judgment, and it was denied. The defendants appealed.
The New York State Supreme Court, Appellate Division, held that there were material issues of fact as to whether the mother’s symptoms exhibited during her physical assessment contraindicated her release from the hospital and that ordinary prudence required further inquiry by the resident physician, Gutwein.
The plaintiffs presented an affidavit by expert witness Dr. Sherman, which stated “the failure of the hospital staff to discharge without another physical examination, in my opinion, with a reasonable degree of medical certainty, is a departure from good and accepted medical practice. The resident clearly had an obligation to examine even a private patient in the face of a changing cervix and not just to discharge her pursuant to some attending physician’s order.” A hospital whose staff carry out a physician’s order may be held responsible where the hospital staff knows, or should know, that the orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders. In this case, the plaintiff’s release from the hospital was so clearly contraindicated by normal practice that ordinary prudence required further inquiry by Gutwein into the correctness of the discharge order.
Failure to Override Physician’s Discharge Order
Greer, in Greer v. Bryant, while at the Philadelphia College of Osteopathic Medicine (PCOM) and under the care of her physician, Dr. Bryant, was diagnosed with preeclampsia, a condition characterized by high blood pressure in the mother that poses a risk to the unborn child. On September 20, the patient suffered symptoms of fetal distress and was examined by the hospital’s interns and residents. Tests ordered at the time of her visit revealed that the fetus was suffering from “decelerations,” a periodic lowering of the heartbeat. Following her examination, Greer was instructed to return to the hospital on September 23. During that visit, it was noted that the fetus was experiencing “poor beat-to-beat variability.” Greer was once again sent home with instructions to return to the hospital on September 27. However, on September 26, Greer, experiencing severe pains, called the hospital emergency department. She was told to wait until her scheduled appointment the following day. Her appointment was subsequently canceled because of weather. Upon the insistence of her sister, Greer went to the hospital on September 27, where she delivered her child. The infant, suffering from “severe meconium aspiration” (inhalation by the fetus of its own fecal matter while in utero), died several days later.
The plaintiff alleged that the hospital, through its negligence, contributed to her child’s death. Greer sued Bryant and PCOM separately. She alleged that based on the prenatal test results during her September 23 visit to PCOM, she should have been delivered on that date by Bryant. The plaintiff argued that even if the test results had been communicated to Bryant and he decided to send her home, the residents should have recognized the serious condition of the fetus and, if necessary, sought approval from their superiors to keep her at the hospital.
Bryant made an offer to settle, and the plaintiff accepted. The Court of Common Pleas, upon jury verdict, entered judgment for the mother, finding PCOM 41% liable to the plaintiff. PCOM appealed. The plaintiff’s expert witness, Dr. Gabrielson, opined in her medical report that Greer should have been admitted and the child delivered despite the private physician’s instructions to send her home.
The Pennsylvania Superior Court determined that the jury could find that the hospital’s staff was negligent by not reporting the fetal distress of the unborn child to Bryant and that the plaintiff’s expert witness did not exceed her scope of opinion in her medical report. Although a resident and intern claimed that they had called Bryant, neither could testify as to the content of their conversation with him. Bryant testified that he did not recall receiving any telephone calls. He stated that if he had been aware of the decelerated heart rate, he would have ordered delivery of the child. “Since many of the critical events occurred on September 23, the jury could have determined that PCOM’s employees’ crucial nonfeasance occurred on that date … we must assume that the jury drew this inference” (Id. at 1002).
Patients have a right to be transferred to an appropriate facility when the admitting facility is unable to meet a patient’s particular needs. This will at times necessitate the transfer of the patient to another healthcare organization that has the special services the patient requires. For this reason, it is important for each organization to execute transfer agreements with other healthcare organizations.
Healthcare organizations should have a written transfer agreement in effect with other organizations to help ensure the smooth transfer of patients from one facility to another when such is determined appropriate by the attending physician(s). Generally speaking, a transfer agreement is a written document that sets forth the terms and conditions under which a patient may be transferred to a facility that more appropriately provides the kind of care required by the patient. It also establishes procedures to admit patients of one facility to another when their condition warrants a transfer. Transfer agreements should be written in compliance with and reflect the provisions of the many federal and state laws, regulations, and standards affecting healthcare organizations. The parties to a transfer agreement should be particularly aware of applicable federal and state regulations.
Patients also have a right to choose a receiving facility, whenever possible. The Medicaid patient in Macleod v. Miller was entitled to an injunction preventing his involuntary transfer from the nursing home. The patient had not been accorded a pretransfer hearing as was required by applicable regulations. In addition, it was determined that the trauma of transfer might result in irreparable harm to the patient. The appeals court remanded the case to the trial court with directions to enter an order prohibiting the defendants from transferring the plaintiff pending exhaustion of his administrative remedies.
In another case, a 97-year-old resident petitioned for review of a decision by the Department of Consumer and Regulatory Affairs to involuntarily discharge her from a community residence facility. The resident had lived in the facility for 8 years. The basis for the agency’s decision was that the resident’s discharge was essential to be in accordance with her prescribed level of care, pursuant to D.C. Code Annotated Section 32-1421(a). The facility presented, as evidence, three medical certification forms completed by Dr. Choisser, the treating physician. Two forms indicated in an ambiguous check-off system that the resident required an intermediate level of care. This was contradicted by a letter written by Choisser that stated, “I see no reason why she should not continue to reside in Chevy Chase House with complete safety…. It is my opinion that a change in her residence, at this stage in her life, would prove harmful to her emotionally, and I strongly suggest that she be left as she is.” The court held that the need for the discharge was not proven by clear and convincing evidence.
Access Medical Records
The courts have taken the view that patients have a legally enforceable interest in the information contained in their medical records and, therefore, have a right to access their records. Some states have enacted legislation permitting patients access to their records. Patients may generally have access to review and/or obtain copies of their records, X-rays, and laboratory and diagnostic tests. Access to information includes that maintained or possessed by a healthcare organization and/or a healthcare practitioner who has treated or is treating a patient. Organizations and physicians can withhold records if it is determined that the information could reasonably be expected to cause substantial and identifiable harm to the patient (e.g., patients in psychiatric hospitals, institutions for the mentally disabled, or alcohol and drug treatment programs).
Know Hospital’s Adverse Events
The Florida Supreme Court, in the cases Florida Hospital Waterman, Inc., etc. v. Teresa M. Buster, et al. and Notami Hospital of Florida, Inc., etc. v. Evelyn Bowen, et al., ruled that hospitals under Amendment 7 (approved by the voters on November 2, 2004, and codified as article X, section 25 of the Florida Constitution) must reveal their records about past acts of malpractice that have been performed at the hospital. In Florida, patients now have a right to know, ask about, and/or receive records about adverse medical incidents that have happened at the hospital. Amendment 7 to the Florida Constitution reads in part:
Section 25. Patients’ rights to know about adverse medical incidents.
(a) … patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.
(b) In providing such access the identity of patients involved shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.
Know Third-Party Relationships
Patients have a right to know the hospital’s relationships with outside parties that may influence their care and treatment. These relationships may be with educational institutions, insurers, and other healthcare caregivers.
Patients have a right to be provided education as it relates to their care and treatment. Patient education should begin with a caregiver’s first contact with the patient and should include a family member as necessary or if requested by the patient. Education should be conducted in all settings (e.g., inpatient, ambulatory, emergency department, home care) with those caregivers involved in the patient’s care on a collaborative basis. Patient education involves the establishment of trust, which emanates from patient recognition that the caregivers are knowledgeable and competent. Greetings, gestures, manner of taking information, and attitude are important ingredients in establishing a good relationship with the patient. Evidence of patient education should be placed in the patient’s medical record and should include an assessment of the patient’s readiness/willingness, ability, and need to learn about his or her care and treatment. Patient education should include the provision of information on medication safety, nutrition, medical equipment use, access to community resources, how to obtain further care if necessary, and responsibilities of the patient and family. The caregiver must ascertain if the patient understands the care instructions provided.
Transparency and Hospital Charges
Patients have a right to transparency when requesting information about hospital emergency room, outpatient, and inpatient treatment charges. The North Carolina legislature in August 2013 signed into law the Health Care Cost Reduction and Transparency Act (House Bill 834) requiring hospitals to submit pricing information on services to allow patients to compare treatment costs. Hospitals and ambulatory surgical facilities would be required to annually provide financial information for their 50 most common episodes of care to the North Carolina Health Information Exchange (Exchange), which allows free public access to its most current information. The Act is intended to allow patients to compare treatment costs among different providers.
Transparency Not So Transparent
I traveled to Florida for a continuing education program on patient care in my specialty. I unfortunately forgot my asthma inhaler. When I got off the plane after landing and not knowing where to go, as I was new to the area and it was late evening, I decided to go to a local hospital emergency department for a prescription. I was in no distress but was concerned that I had forgotten my inhaler. I unfortunately made the mistake of believing that an emergency room was an appropriate place to go for help and advice when traveling. I sat in a hallway, had my temperature and blood pressure taken, and inhaled some albuterol. My visit from beginning to end was about 20 minutes.
Upon returning home, I received an emergency room bill in excess of $3,000, so now I was distressed. Although I have an insurance policy, there is a $2,000 deductible that I was responsible to pay. I decided to request more detail on my bill. After a less then pleasant experience with the billing department I decided also to request a copy of my medical record. For a hospital that claimed transparency on its website, it took me six weeks and several annoying phone conversations with hospital staff to obtain the billing information and a copy of what turned out to be an 18-page barely readable computerized medical record that listed yes and no answers to questions I was never specifically asked. I couldn’t believe it and said to my husband, “Wow, the bill says $27.00 for the medication and I have to pay $2,973 to inhale it.”
In summary, I discovered there was no transparency the hospital publicized on its website. Transparency is an overused platitude that has little meaning. For me, I totally understand the U.S. citizen’s frustration with the healthcare system.
19.2 PATIENT RESPONSIBILITIES
Patients have responsibilities as well as rights. The following description of patient responsibilities provides the reader with a sense of the ever-changing emphasis on patients’ responsibilities from both an historical and contemporary perspective.
The following is an excerpt from Cornwall General Hospital’s “Rules for Patients,” which were posted in that hospital in 1897:
1. Patients on admission to the Hospital must have a bath, unless orders to the contrary are given by the Attending Medical Attendant.
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6. Patients must be quiet and exemplary in their behaviour and conform strictly to the rules and regulations of the Hospital, and carry out all orders and prescriptions of the various officers of the establishment.
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8. No male patient shall, under any pretense whatever, enter the apartments or wards for the females, nor shall a female patient enter the apartments or wards for males, without express orders from the Medical Attendant or Lady Superintendent.
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10. Every patient shall retire to bed at 9 P.M. from First May to First November, and at 8 P.M. from November to May; and those who are able shall rise at 6 A.M. in the Summer and 7 A.M. in the Winter.
11. Such patients as are able, in the opinion of the physicians and surgeons, shall assist in nursing others, or in such services as the Lady Superintendent may require.
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13. Patients must not take away bottles, labels or appliances when leaving the Hospital.
14. No patients shall enter into the basement story, operating theater, or any of the officers’ or attendants’ rooms, except by permission of an officer of the Hospital.
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17. Any patient bringing spirituous liquors into the Hospital or the grounds, or found intoxicated, will be discharged.
18. Whenever patients misbehave or violate any of the standing rules of the Hospital, the Attending Physician may remove or discharge them, as provided by clauses 91 and 93 of Rules for Medical Staff.
Today, patient responsibilities are stated somewhat differently than those described previously. A 1997 report to the President by the Advisory Commission on Consumer Protection and Quality in the Health Care Industry states, “In a health care system that protects consumers’ rights, it is reasonable to expect and encourage consumers to assume reasonable responsibilities. Greater individual involvement by consumers in their care increases the likelihood of achieving the best outcomes and helps support a quality improvement, cost-conscious environment.” The following paragraphs describe a variety of patient responsibilities.
Practice a Healthy Lifestyle
Living a healthy lifestyle involves both a right and a responsibility. Each person must take responsibility for living well through exercise, diet, stress control, and maintaining positive social relationships, which will help prepare people for whatever health obstacles the future may hold. Recognizing what is right and what is wrong for one’s health is not enough—it must be practiced.
Maintain Current Medical Records
Patients should maintain a record of physical ailments (e.g., cardiovascular disease) and treatments (e.g., surgical procedures) and a current listing of medications, including dosages and frequency. Drug allergies should be included on the list. Medication records should be reviewed periodically to be sure the listing is current. A copy should be provided to treating physicians and treating facility.
Patients should be sure to keep their appointments. When necessary to cancel an appointment, be sure to notify the caregiver of the cancellation. Failure to notify the caregiver results in longer delays for other patients who may already be finding it difficult to schedule appointments.
Provide Full Disclosure of Medical History
Patients must provide all information relevant to one’s medical condition, medical complaints, symptoms, location and severity of pain, previous pain control concerns, past illnesses, treatments, surgical or other invasive procedures, hospitalizations, medications, and allergies. Information provided must be accurate, timely, and complete. (The court of appeal in Fall v. White affirmed the superior court’s ruling that the patient had a duty to provide the physician with accurate and complete information and to follow the physician’s instructions for further care or tests.)
Accurately Describe Symptoms
Patients must accurately describe the location and severity of their symptoms, as well as any previous treatments, allergies, and surgery. Failure to do so can lead to the wrong diagnosis and treatment plan.
RESPONSIBILITY TO DISCLOSE INFORMATION
Citation: Oxford v. Upson County Hosp., Inc., 438 S.E.2d 171 (Ga. Ct. App. 1993)
Oxford brought a lawsuit against the Upson County Hospital and nurses, claiming that their medical malpractice caused her injury from a fall in the hospital’s bathroom. Oxford had been admitted to the hospital after having been diagnosed with gastroenteritis and dehydration. Nothing on her chart indicated that she had experienced dizziness. Testimony at the trial indicated that Oxford told her nurse that she had to go to the bathroom. Oxford did not inform the nurse that she felt dizzy. After the nurse escorted her to the bathroom, Oxford fainted while sitting on the toilet. As she fainted, she hit her head on the bathroom wall.
Two nurse experts testified that it is a patient’s responsibility to communicate to the staff any symptoms the patient is experiencing. Oxford had told her physician prior to her hospitalization about feeling dizzy, but he had not related this information to the hospital’s staff.
After a jury verdict for the hospital, Oxford appealed, arguing that the trial court’s jury charges on causation, failure to exercise ordinary care, and comparative negligence were wrong.
Was there sufficient evidence to warrant the judge’s charges to the jury?
The Georgia Court of Appeals affirmed the jury verdict and found that the judge’s charges on the issues had been sufficient. The court followed its determination in Carreker v. Harper, 196 Ga. App. 658, 659, 396 S.E.2d 587 (1990), that when a patient fails to disclose all information related to her condition and fails to exercise ordinary care for her safety by seeking medical attention for her worsening condition, a charge of comparative negligence is applicable. In this case, the court did not require that Oxford diagnose herself, but she should have told the staff about her symptoms so that they could have treated her using their professional judgment.
1. Do you agree with the appellate court’s decision?
2. What precautions should the admitting physician and nurses take to help prevent similar injuries from occurring in the future? Explain.
Communicate Care Preferences
Patients are responsible for communicating to staff their care preferences, including who has been selected as a decision maker in the event the patient becomes incapacitated and unable to make decisions for himself/herself.
A patient has the responsibility to understand caregiver instructions and ask questions when information is unclear. Consider the following case where a patient had been sedated during the performance of a colonoscopy at an endoscopy center. He decided to drive himself home against medical advice. Claims against the clinic and a nurse were dismissed with respect to fatal injuries that the patient received during a one-car collision. The trial court correctly ruled that the nurse had no duty to prevent the patient from leaving its premises once she repeatedly warned the patient not to drive. The nurse was justified in relying upon the patient’s false representations that he had a friend available to drive him home. She was not required to keep the patient in a gown in the recovery room once she learned the truth, and she was not required to use other options to prevent him from driving, such as putting him in a taxi cab, putting him in a hotel, calling the police, admitting him to the hospital, personally driving him home, taking his keys away from him, or physically restraining him. The center and the nurse owed no legal duty to the patient to do more than warn him that he should not drive. The center is not an insurer of the patients’ safety. The patient acted recklessly in ignoring the advice he was given and suffered the consequences. The circuit court correctly found no duty to ensure that no patient drives after the procedure.
Report Unexpected Changes in Health Status
If a patient experiences changes in health status, it is his or her responsibility to report these changes to healthcare providers.
Adhere to the Agreed-Upon Treatment Plan
Patients must state whether they clearly understand their plan of care. If they decide to refuse treatment, patients must accept responsibility for the potential consequences. Patients should work collaboratively with their healthcare providers in developing and carrying out agreed-upon treatment plans. Following the recommended treatment plan is the patient’s responsibility, as are the consequences of failing to adhere to the caregiver’s instructions.
Avoid Self-Administration of Medications
Patients are not to self-administer medications not prescribed by the physician, including those they may have brought to the hospital.
Actively Participate in Care
When in doubt, patients should ask questions and/or seek a second opinion. Patients should, for example, participate in marking the site of a surgical or other invasive procedure to help prevent treatment errors.
Comply with Hospital Policy
Patients are required to adhere to the rules and regulations in patient handbooks and posted instructive materials. The number of visitors, for example, should be limited as requested by hospital policy and to protect the privacy of other patients.
Patients should show the same respect for other patients and health workers that they expect for themselves. This includes being considerate of the rights of others (e.g., noise control, no-smoking rules, respect for the rights and property of others).
Understand That Medical Science Has Limits
While there have been great strides in medicine, patients must recognize that medicine has its boundaries. In addition, medicine is performed by humans, who are fallible, which means that there are limits to their capabilities.
The necessity and responsibility to ask questions cannot be overstated. A knowledgeable patient is a good patient. If a caregiver’s instructions are unclear or confusing, patients should seek clarification and a written copy of the proposed treatment plan. Patients have a responsibility to ask questions and understand explanations. Such questions include: “What is this medication for?”, “What diet am I on?”, or “Since you are going to change my dressing, did you wash your hands?”
20 TIPS TO HELP PREVENT MEDICAL ERRORS
What You Can Do to Stay Safe
The best way you can help to prevent errors is to be an active member of your healthcare team. That means taking part in every decision about your health care. Research shows that patients who are more involved with their care tend to get better results.
1. Make sure that all of your doctors know about every medicine you are taking.
2. Bring all of your medicines and supplements to your doctor visits.
3. Make sure your doctor knows about any allergies and adverse reactions you have had to medicines.
4. When your doctor writes a prescription for you, make sure you can read it.
5. Ask for information about your medicines in terms you can understand—both when your medicines are prescribed and when you get them.
6. When you pick up your medicine from the pharmacy, ask: Is this the medicine that my doctor prescribed?
7. If you have any questions about the directions on your medicine labels, ask.
8. Ask your pharmacist for the best device to measure your liquid medicine.
9. Ask for written information about the side effects your medicine could cause.
10. If you are in a hospital, consider asking all healthcare workers who will touch you whether they have washed their hands.
11. When you are being discharged from the hospital, ask your doctor to explain the treatment plan you will follow at home.
12. If you are having surgery, make sure that you, your doctor, and your surgeon all agree on exactly what will be done.
13. If you have a choice, choose a hospital where many patients have had the procedure or surgery you need.
14. Speak up if you have questions or concerns.
15. Make sure that someone, such as your primary care doctor, coordinates your care.
16. Make sure that all your doctors have your important health information.
17. Ask a family member or friend to go to appointments with you.
18. Know that “more” is not always better.
19. If you have a test, do not assume that no news is good news.
20. Learn about your condition and treatments by asking your doctor and nurse and by using other reliable sources. medical treatment in accordance with the patient’s wishes and best interests, not supervening the wishes of a competent adult. A healthcare provider cannot act on behalf of the state to assert state interests. The Florida court found that when a healthcare provider, acting in good faith, follows the wishes of a competent and informed patient to refuse medical treatment, the healthcare provider is acting appropriately and cannot be subjected to civil or criminal liability.
The Court’s Decision
The Florida District Court of Appeals concluded that a healthcare provider must not be forced into the position of having to argue against the wishes of its own patient. Patients do not lose their right to make decisions affecting their lives when they enter a healthcare facility. A healthcare provider’s function is to provide
1. Each patient should be informed of his or her rights and responsibilities at the time of admission. If a patient does not understand his or her rights and responsibilities, they should be explained to the patient.
2. Patient rights include the right to admission examination and treatment, participate in care decisions, informed consent, refuse treatment, pain management, quality care, know one’s rights, know caregivers, an explanation of rights, ask questions, have special needs addressed, execute advance directives, compassionate care, confidentiality, privacy, a patient advocate, an ethics consultation, chaplaincy services, discharge, transfer, access medical records, know hospital’s adverse events, know third-party relationships, and patient education.
3. Patient responsibilities include maximizing healthy habits, such as exercising, not smoking, and eating healthy; being involved in healthcare decisions; working collaboratively with healthcare providers in developing treatment plans; disclosing relevant information and clearly communicating wants and needs; recognizing the risks and limits of medicine and the human fallibility of healthcare professionals; showing respect for other patients, caregivers, and visitors; making a good faith effort to meet financial obligations; providing caregivers with relevant medical complaints, symptoms, past illnesses, treatments, and hospitalizations; making it known whether one clearly understands the plan of care and course of treatment; following the agreed-upon treatment plan; and speaking up and asking questions.
4. Caregivers should consider themselves patient advocates because of their position to help patients who are often helpless and unable to speak for themselves.