Crimes and Intentional Torts

Seite 1

Law has two divisions: criminal and civil. In criminal law, the action is prosecuted by the state. The focus in criminal law is on the wrongdoer, and the purpose is punishment.

In civil law, a private individual, who is the victim of wrongdoing, prosecutes the claim. The focus is on the victim, and the purpose is to compensate the victim for the damage suffered.

A felony is any crime that’s punishable by imprisonment of one year or more.

A misdemeanor is any crime that’s punishable by imprisonment for less than one year.

Criminal laws often punish not only the act, but also the state of mind associated with the act.

Actus reus is Latin for “guilty act,” or the criminal act.

Mens rea is Latin for “guilty mind,” referring to the state of mind associated with the criminal act. Crimes may be differentiated between or categorized into degrees based, in part, on the state of mind associated with the act.

Common crimes can be grouped into categories, such as crimes against a person (murder and assault, for example); crimes against property, such as theft; crimes against habitation, including burglary; sexual crimes like rape; crimes against morality and decency (prostitution is one); and crimes against government operations (for example, perjury).

The difference is that, in suing for tort, the victim is seeking money to compensate for damages caused.

Current Procedural Technology (CPT) codes were developed by the American Medical Association and the Health Care Financing Administration and are the standardized nomenclature for use in insurance claims.

The False Claims Act punishes those who knowingly engage in false billing, but defines knowingly to include not only actual knowledge that the billing is false, but also deliberate ignorance of or reckless disregard for the truth or falsity of the information in the billing.

The Medicare-Medicaid Antifraud and Abuse Amendments contain provisions making it illegal to receive payments in exchange for referrals of Medicare or Medicaid patients.

Those who knowingly and willfully solicit or receive kickbacks or other compensation for referring patients to doctors or others are subject to criminal penalties.

In this fraud alert, the OIG (Office of Inspector General) advised medical professionals that “[r]outine waiver of deductibles and copayments by charge-based providers, practitioners or suppliers is unlawful because it results in (1) false claims, (2) violations of the anti-kickback statute, and (3) excessive utilization of items and services paid for by Medicare.”

Seite 2

There are several defenses available against malpractice.

If a patient contributes to causing harm, it is known as contributory negligence.

In states that recognize contributory negligence as a defense, it is a complete barrier to someone recovering money from a case.

Many states use comparative negligence, in which the jury assigns percentages of fault to the plaintiff and defendant.

In a comparative negligence case, the plaintiff can recover the percentage of damages attributed to the health care personnel.

Informed consent is the basis of the defense of assumption of risk.

Depending on the state, assumption of risk may completely bar a claim, or may factor in as fault on the part of the plaintiff in comparative fault analysis.

Good Samaritan statutes hold health care personnel to lesser standards of care in emergencies.

Good Samaritan statutes encourage assistance by providing that only reckless or grossly negligent behavior will create liability.

The time periods during which a lawsuit must be brought are called statues of limitations; after the time period has passed, the claim is barred.

The statute of limitations for medical malpractice is typically short, but begins only when the patient becomes aware that malpractice may have occurred.

To protect against liability, doctors have medical malpractice insurance.

There are certain crimes and intentional torts that relate to health care.

A felony is any crime that is punishable by imprisonment of one year or more, including those eligible for the death penalty.

A misdemeanor is any crime that is punishable by imprisonment for less than one year.

Many crimes, such as upcoding to increase medical reimbursement, are also punishable by fines.

Criminal laws often punish not only the act, but also the state of mind associated with the act.

Actus reus is Latin for “guilty act,” or the criminal act.

Mens rea is Latin for “guilty mind,” referring to the state of mind associated with the criminal act.

Crimes may be differentiated between degrees based in part on the state of mind associated with the act.

Common crimes can be grouped into categories, such as crimes against a person, against property, against habitation, sexual crimes, crimes against morality and decency, and against government operations.

Crimes that involve mens rea can also be intentional torts; the difference being that in suing for tort, the victim is seeking money for damages caused.

When a health care professional breaks the law, his or her state of mind may determine whether the behavior is civil or criminal.

Murder, the intentional killing of another human being, may become an issue in the health care setting because they can be in a position to control the life or death of another.

Battery, the harmful touching of another without consent, can occur when a doctor performs procedures that require touching a patient in a manner that the patient has not consented to.

If a person performs a procedure that he or she isn’t licensed to perform, this can result in charges of assault.

Doctors may commit rape or sexual abuse during physically intimate examinations, usually by exercising undue influence or taking advantage of the patient’s drugged state.

False claims and billing fraud can occur intentionally or inadvertently, and may be subject to criminal penalties as well as civil penalties.

Medical coders should assign codes based strictly on the information in the patient’s record.

The False Claims Act punishes those who knowingly engage in false billing.

This act defines “knowingly” to include not only actual knowledge that the billing is false, but also deliberate ignorance of or reckless disregard for the truth of the information in the billing.

The Medicare-Medicaid Antifraud and Abuse Amendments contain provisions making it illegal to receive payments in exchange for referrals of Medicare or Medicaid payments.

The legality of waiving copayments and deductibles is a long-standing issue between insurers and doctors.

The Health Insurance Portability and Accountability Act (HIPAA) created important rules regarding safeguarding health information.

Violation of HIPAA rules can result in fines and imprisonment.

The tort of invasion of privacy may also occur when confidential information is improperly shared.

Exceptions to confidentiality obligations exist; health care professionals have duties to report child abuse, elder abuse, and domestic violence.

It is a criminal offense for medical personnel to provide drugs to patients without a need for medication.

It is also a criminal offense for a patient to obtain controlled substances under false pretenses.