In our litigious society, case managers are concerned with an ethical-legal conflict in which they want to provide quality case management services, obey the law, meet licensing requirements and regulations, please their employers or contractors, and still act as an advocate for their patients. The good news is that it is possible. Legal issues affecting case management are interwoven in the complex matrix that is case management practice. Just as each patient is an individual who presents with uniquely different life experiences, expectations, and outcome potential, so the interplay of the law is unique and will affect decision making. Case managers have recognized the need for greater understanding in this area, but must always be mindful of the parameters of practice. It is knowing those parameters of practice or “knowing your sandbox” that reduces liability (Garner, 1996) exposure for the case manager.

A. Advocate—A person who assists, defends or pleads … for another.

B. Agent—One who is authorized to act for or in place of another.

C. Battery—In tort law (civil law), an intentional and offensive touching of another.

D. Breach of contract—Violation (failure to perform) a contract obligation.

E. Breach—Violation or infraction of a law or obligation. A failure on one’s part to conform to the standard required.

F. Case law—The collection of reported cases that form the body of jurisprudence within a given jurisdiction.

G. Causal connection—The relationship between cause and effect.

H. Civil law—The law of civil or private rights.

I. Codify/codification—The process of compiling, arranging, and systematizing the laws of a given jurisdiction into an ordered code.

J. Common law—The body of law derived from judicial decisions and opinions, rather than from statutes or constitutions. Also known as case law.

K. Conflict of interest—A real or seeming incompatibility between one’s private interests and one’s fiduciary duties.

L. Contract—A set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.

M. Contribution—The right to demand that another, who is jointly responsible for a third party’s injury, supply part of what one is required to compensate a third party.

N. Damages—Monetary compensation for loss or injury to person or property.

O. Decision—A court’s (judge’s) ruling in a case.

P. Defendant—The party being sued in a civil lawsuit.

Q. Deposition—A witness’ out-of-court testimony that is reduced to a writing, usually by a court reporter, for later use in court or for discovery purposes.

R. Discovery—The act or process of finding and learning something that was previously unknown. (Each state’s court rules govern the discovery process.)

S. Duty—An obligation recognized by the law, requiring a person to conform to a certain standard of conduct, for the protection of others against reasonable risks.

T. Expert witness—A witness qualified by knowledge, skill, experience, training, or education to provide scientific, technical, or other specialized opinions about the evidence or a fact issue.

U. Fundamental right—(1) A right derived from natural or fundamental law. (2) Fundamental rights as enumerated by the Supreme Court, including the right to vote, interstate travel, along with various rights of privacy.

V. Harm—Actual loss or damage resulting from the actions or inactions of another.

W. Informed consent—(1) A person’s agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives. (2) A patient’s intelligent choice about treatment, made after a physician discloses whatever information a reasonably prudent physician in the medical community would provide to a patient regarding the risks involved in the proposed treatment.

X. Intentional tort—A tort committed by someone acting with general or specific intent; examples are battery, false imprisonment, and trespass. May also be termed a willful tort and is distinguished from negligence.

Y. Interrogatories—A numbered list of written questions submitted in a legal context, usually to an opposing party in a lawsuit as part of discovery.

Z. Joint liability—Liability shared by two or more parties.

AA. Law—(1) A set of rules that order human activities and relations. (2) The collection of legislation and accepted legal principles; the body of authoritative grounds of judicial action.

BB. Lawyer—One who is designated to transact business for another; a legal agent.

CC. Liability—The quality or state of being legally obligated or responsible.

DD. Liable—(1) Legally obligated or responsible. (2) To have a duty or burden.

EE. Malpractice—Negligence or incompetence on the part of a professional. Professional negligence.

FF. Medical malpractice—A tort that arises when a doctor (or other health professional, including registered nurses, dentists, or social workers) violates the standard of care owed to a patient and the patient is injured as a result (often shortened to “med mal”).

GG. Negligence—(1) The failure to exercise that standard of care that a reasonably prudent person would have exercised in the same situation. (2) A tort (civil wrong) grounded in this failure.

HH. Opinion—The court’s (a judge’s) written statement explaining its decision in a given case, including statements of fact, points of law, rationale, and dicta.

II. Plaintiff—The party who brings a lawsuit in a civil action.

JJ. Proximate cause—A cause that directly produces an event and without which the event would not have occurred.

KK. Remedy—The enforcement of a right or the redress of an injury, usually in the form of monetary damages that a party asks of a court.

LL. Res judicata (Latin term meaning “a thing [already] adjudicated”)—An issue that had been definitively settled by judicial decision.

MM. Several liability—Liability that is separate and distinct from another’s liability, so that the plaintiff may bring a separate action against one defendant without joining the other liable parties.

NN. Standard of care—In the law of negligence, the degree of care that a reasonable person would exercise.

OO. Statutory law—The body of law derived from statutes rather than from constitutions or judicial decisions.

PP. Subpoena—A court order commanding the appearance of a witness, subject to penalty for noncompliance.

QQ. Tort—(1) A civil wrong for which a remedy may be obtained, usually in the form of damages. (2) Breach of a duty that the law imposes.

RR. Verdict—A jury’s findings or decision on the factual issues of a case.

SS. Waiver—(1) To voluntarily relinquish or abandon. Waiver may be expressed or implied (by one’s actions). A person who is alleged to have waived a right must have had both knowledge of the existing right and intention to relinquish it. (2) Waiver may also refer to the document by which a person relinquishes a right.

TT. Witness—(1) One who sees, knows, or vouches for something. (2) One who testifies under oath or affirmation, either orally or by affidavit or deposition.

A. Legal basics—Understanding the law is much like learning a new language. It is especially important to learn legal terms, because some legal terms are words that have other meanings in common or medical usage.

The legal system is divided into two major categories, criminal and civil law. Civil law is the law that applies to private rights, as opposed to the law that applies to criminal matters. Civil law is the body of law that permits an individual who believes that he or she has been wronged to sue another and recover damages (dollars). The purpose of tort law is to adjust losses, to compensate one person because of the actions of another. Criminal Law is public law that deals with crimes and their prosecution. Substantive criminal law defines crimes, and procedural criminal law sets down criminal procedure. A tort is a civil or personal wrong, as compared with a crime, which is a public wrong.

B. Intentional torts—Intentional torts include assault, battery, false imprisonment, and trespass. These terms are often confused because they also exist in criminal law. When they are used in criminal law, they are defined by statute (laws passed by the legislature) and can vary from state to state. Each intentional tort represents a direct interference with a person’s physical integrity or right to property. Personal freedom is a fundamental right. One does not waive a fundamental right, such as personal integrity, automatically, but a person must be aware that he or she possesses the right and can intentionally relinquish it.

Informed consent is a good example of a knowing and voluntary waiver of rights in the medical setting. In the absence of such a waiver of rights, a person touching or keeping another in a clinic, hospital, or any place he or she chooses not to be may be liable for assault, battery, or false imprisonment. Informed consent is a statutorily created right, given to potential recipients of medical treatment. Many states have enacted a “Patient’s Bill of Rights” (Box 26-1). When a law exists, such as a Patient’s Bill of Rights in one setting (e.g., the hospital setting), the health practitioner can reasonably assume that the policy established in that law may apply to a setting not articulated specifically. In other words, if a case manager finds himself or herself in the field setting or on the telephone and in a decision-making dilemma and, to complicate the matter, the patient is very argumentative and difficult, the case manager must be cognizant of the statutory language that states, “ [A patient (client) has a right] to considerate and respectful care consistent with sound … practices, which shall include being informed of the name and licensure status of a … staff member who … observes or treats the patient” (see Box 26-1). There is no doubt that a case manager is making observations about a patient, whether on the telephone or at arm’s length. Even if there is no statute directly on point regarding case management practice, you can assume that a court will use existing law as a basis for an alternative practice setting for as much as is practical. This is how new laws are developed.

C. Negligence—For a lawsuit to be successful in negligence, there are four required elements. These elements are commonly referred to as duty, breach, cause, and harm. All four of the elements must be proven and the burden of proof is on the plaintiff. Lots of duty and an obvious breach of such duty are not sufficient without also establishing the causal connection to the harm claimed (Keeton & Prosser, 1984). Proof of damages (harm) is an essential element to a negligence case. Negligence is sometimes referred to as simple negligence as compared with malpractice or professional negligence. The standard of proof for a simple negligence case is that of a reasonably prudent person.

The concept of negligence is based on the idea that there can be a generally uniform standard of human behavior. The simplest example of this is that when one drives a car, there is a generally accepted expectation that each person will operate the vehicle in a reasonably prudent and careful manner. Each time that there is a motor vehicle accident, it is likely that one or more persons deviated from the reasonably prudent person’s standard and liability may attach. However, state statutes may limit or expand one’s ability to bring a cause of action, a lawsuit. So-called “no fault” insurance is an example of such a limitation, particularly when there is an express limitation on one’s ability to sue for certain personal injuries (N.J.S.A. 39:6B, et seq).

D. How cases are decided—What we refer to as “the law” is a combination of legislated rules—statutory law and case law. Case law is the compilation of common law. Common law, with its historical roots dating back to 12th-century England, provides the foundation for the collection of decisions, the result of various lawsuits. Such decisions are outcomes of particular cases and are either jury verdicts or judges’ decisions. Judges’ decisions may be verbal, on the record, or in the form of a written opinion. Res judicata is the legal term explaining that today’s law is based on decisions that came before. Once an issue on a particular set of facts has been decided, there is no reason to relitigate the same issue. For example, it has already been decided that if a surgeon excises the left limb when the informed consent clearly states the right limb, the surgeon is liable and has committed the tort of battery. Whether a new case relates to ears, legs, arms, or breasts, the court will rely on the existing law relating to battery and professional negligence, also known as malpractice. Therefore, today most cases that are heard in court are not reported. A reported case is one that can be found in an official reporter. There are state as well as federal reporters. When entered into a reporter, the case is printed and becomes part of the ever-growing body of case law. It is important to remember that what we hear on the news, no matter the source, is simply news (and oft-times entertainment), not admissible evidence at trial.

E. Professional negligence and malpractice—Each of us comes to case management with education and experience from a profession. We are often licensed in that underlying profession. In fact, such licensure is one of the qualifications for a person seeking to become a case manager. It is critical that the case manager maintains current licensing requirements and updates his or her knowledge each year in both the field of case management and the underlying profession. The standard by which any case manager will be judged remains one derived from an external authority, such as a governmental standard. If you are a nurse, this standard is derived from the Nurse Practice Act. (Each state has a nurse practice act of one variety or another [N.J.S.A. 45:11-23, et seq]).^* Nurse practice acts provide broad statements defining nursing practice, delineating the educational and other requirements for licensure and renewal, and giving notice to the public of the sort of behaviors that can be expected from a nurse and what unacceptable practices might subject a nurse to disciplinary review or sanctions. When these laws were drafted, the concept of managed care had not been thought of by the legislatures. For a copy of any state’s nurse practice act, contact the board of nursing in that state.

Each profession develops a standard for itself through a complicated process of interaction with other professions, professional journals, meetings, and networking with colleagues and the development and refining of educational programs for the profession. In the developing world of new names and new roles, the law has not caught up with these rapid changes. Over time, hundreds of separate standards and comments become the “standard practice” (Eddy, 1982). Each profession has an obligation to monitor itself.

Today, although the legal community knows of case management and case managers, that does not mean they have a complete understanding of the role of the case manager and the standard of practice. The trend appears to be for inclusion of case managers as potential defendants in malpractice lawsuits. The most prevalent areas are workers’ compensation cases where case managers have an active role in service and product selection and in hospital case management. That is not to say that there are many successful suits where case managers have been held liable. Such cases are rare. Most malpractice lawsuits settle, prior to trial, in whole or in part.