3 

Working in the Healthcare

Profession
sui generis
{Of its own kind. To be unique and different from all others.

The healthcare profession is unique.

When patients seek treatment for their illnesses or injuries, they are often asked to expose some
of the most personal and intimate parts of their bodies. They might be uncomfortable doing this
in front of strangers. To complicate matters they may have their bodies touched, poked, and
prodded, which can be humiliating and embarrassing, not to mention sometimes painful. In
addition, patients might be asked to talk about things that are normally not discussed with
strangers, such as moods, feelings, bodily functions, or sexual practices. Because of this personal
involvement, healthcare professionals face situations not often seen in other professions. This
chapter will explore what it takes to work in the healthcare environment and some of the laws
that govern employment.

Measure Your Progress: Learning

Objectives
After studying this chapter, you will be able to:

 List the qualities needed to work in healthcare.

 Explain what defensive medicine is and how it relates to the practice of medicine.
 Define the importance that professional organizations have on the healthcare profession.
 Distinguish the difference between Medical Practice Acts and Medical Boards.
 Describe what the EEOC is and what areas of employment it governs.
 Define what the ADA is and how it protects employees.
 List the two areas covered by OSHA that have a direct impact on working in healthcare.
 Give an example of why a person might file a Workers’ Compensation claim.
 List some of the reasons an employee may utilize FMLA.

Key Terms
 1. certification
2. codes of ethics
3. credentialing
4. defensive medicine
5. licensure
6. medical practice acts
7. professional
8. reciprocity
9. standards of care
Professional Highlight
Joan is the director for Community Health programs and services at the local
community college. As part of her job, she counsels students on the different health
programs that the school offers. To provide the information that students need to make
a decision about which program to enter, Joan needs to have an understanding of the
different types of credentials that are used in healthcare and the qualities that are
required of healthcare professionals. This information will help students decide what
type of healthcare professional they might want to become.

The
words practice and professional are
used in healthcare, but how can a
person practice at something and be a
professional at the same time?
Anyone who desires to work in the healthcare field has a variety of different professions to
choose from. But even with all of the variety, there are basic characteristics that all healthcare
professionals share. Regardless of which healthcare profession you choose to go into, they all
require some form of academics and skill training. The different skills that each profession
requires depends on the profession you have chosen to pursue. Besides academics, some
healthcare professions need to fulfill additional requirements, such as obtaining a license or
passing a certification exam. But before we get into the differences for each of the healthcare
professions, we can start our discussion about the qualities that each of the healthcare professions
share.

Qualities of a Successful Healthcare Practitioner

To be successful, all healthcare professionals need to be proficient in two vitally important skills:
the technical skills associated with healthcare and the people skills that are needed when taking
care of patients.

Technical Skills
Every profession requires the performance of particular technical skills. The healthcare
profession that you choose to enter into will determine not only what technical skills you will be
taught, but which technical skills you will be allowed to perform. Depending on the career you
have chosen, these technical skills may include:

 administering medications,
 assessing patients and their conditions,
 identifying instruments,
 operating equipment,
 performing medical or surgical procedures, or
 taking and/or reading diagnostic images.
Technical skills are taught in a classroom setting, utilizing a combination of foundational
knowledge and instructions. For example, in order to learn the technical skills that you need to
take care of a patient with appendicitis, you first need an understanding of anatomy and
physiology. Once that foundation has been learned, you then use that knowledge to learn the
technical skills your profession requires. To continue our example: a radiology student will learn
how to take images of the appendix; a surgical technologist student will learn what instruments a
surgeon will need to operate on an appendix; and a nurse will learn the medications a patient
with appendicitis might need to have administered.

People Skills
Most people who enter the healthcare profession already have the foundational people
skills needed to work in healthcare (see Fig. 3-1). This usually comes from the caring
nature of those who enter the healthcare field,
because most genuinely want to help people and assist those in need. People skills, sometimes
referred to as emotional intelligence, include:

1. building the self-esteem of others

2. showing empathy for others
3. communicating effectively:
a. by asking productive questions,
b. demonstrating effective listening skills, and
c. responding appropriately to emotional statements.
These three qualities are an essential component for the successful and compassionate practice of
medicine.

The Practice of Medicine

Normally the public thinks that practicing medicine is limited to doctors, but it is really true of
all healthcare professionals (see Fig. 3-2). The idea behind the practice of medicine is that
medicine is not an exact science but instead something that is continually learned and fine-tuned.
For example, the same treatments do not always work on all patients and not all diseases have
the same outcome in all patients. Healthcare professionals will use the information that they
learn from each patient to build a knowledge base that can only come with experience. The idea
of practicing medicine, therefore, means that even though you have learned the foundations and
technical skills that you need, you are still practicing to fine-tune those skills with every patient
that you take care of.
The main focus driving the practice of medicine in the past has been on the patient. We learn
what one patient needs in order to determine what might help the next patient. But in today’s
litigious society, healthcare practitioners also need to focus on themselves when practicing
medicine by including defensive medicine as part of their patient care.

 Concept Connection
Practice and Malpractice/Negligence
The practice of medicine is one of the key differences between negligence and malpractice.
Malpractice is often referred to as professional negligence.
defensive medicine:
the type of medical practice used by healthcare workers to protect themselves against
potential lawsuits
The practice of defensive medicine is a direct result of the legal environment in which healthcare
operates. It is no longer enough to perform the medical tests and treatments that a patient’s
condition requires. Instead, healthcare practitioners must also perform the medical tests and
treatments that will protect the healthcare worker from lawsuits.

For example, if a patient were to slip and fall on the ice and complain of wrist pain and swelling,
he or she will probably seek medical treatment. In the past, that medical treatment would consist
of getting an X-ray and, depending on the result, possibly a cast, splint, or sling. But today, with
the guise of defensive medicine, the patient will likely not only have an X-ray, but an
electrocardiogram (EKG) or a head computed tomography (CT) scan, and possibly a complete
blood count (CBC) as well. Why are these tests necessary in today’s healthcare arena? What
would an EKG, head CT, or blood work have to do with a wrist injury? The answers to these
questions address a potential lawsuit, and not necessarily the patient’s injury. Could the patient
have hit their head when they fell? Could the cause of the fall have been from a stroke or a heart
attack? While they have little to do with the actual injury to the wrist, these diagnostic
procedures may be performed as a part of defensive medicine, to treat potential lawsuits instead
of actual injuries.

Professions and Professional

Up to this point, we have talked about the technical skills and people skills that you need to
practice medicine. The combination of these skills and how you use them distinguishes you as
a professional.
professional:
a person who earns a living through the expertise of his or her work
The expertise, or how well crafted your technical and people skills are, will help you become a
more experienced and seasoned professional. Even though you may just be starting your career,
you still have special knowledge and expertise that makes you unique, because of the training,
education, and experience that you have gained through your educational endeavors. Although
you might not have a lot of experience at this point, you are still considered a professional.

 Sidebar
Many healthcare practitioners are including lawsuits as a type of symptom that every patient has.
Because the potential for lawsuits exist, including lawsuits as a symptom for every patient,
reminds healthcare practitioners to consider when a lawsuit might occur so they can incorporate
that symptom into their treatment plan.

 Concept Connection
Defensive Medicine and Lawsuits
The defensive approach to the evaluation and treatment of patients is now commonplace in
medicine. It directly addresses one of the first issues in the development of a lawsuit: a wrong or
injury occurs. By preventing wrongs or injuries from occurring, utilizing defensive medicine, we
can potentially stop a lawsuit from occurring in the first place.

Professional Organizations
When a student graduates from a school or program, his or her education is only beginning. Once
a person graduates and starts working, he or she will continually learn additional and more
advanced skills. To assist in that knowledge and growth, professional organizations exist to help
further the profession. Professional organizations are associations of professional people who
work to assist and advance the profession.

Professional organizations offer a variety of different resources, tools, services, and support for
the professions they govern. But how do professional organizations get authority to govern a
particular profession? The answer depends on the service the professional organization offers to
the profession.

Many professional organizations focus on the educational aspect of their particular profession.
They accomplish this goal by setting standards that an educational institution must follow if they
want to offer a specific program. For example, the National League of Nursing (NLN), a
professional organization for nurses, accredits colleges that offer nursing programs. The NLN
receives authority to certify nursing programs by the U.S. Department of Education. But why is
this relevant? One of the requirements that a person has to have when applying for licensure is to
provide evidence that they have graduated from an accredited program. If the program is not
accredited by the appropriate professional organization, the person will be unable to apply for
licensure.
Another aspect of professional organizations, that specifically address some important health law
considerations, is that professional organizations often write rules and standards for all members
of the profession to follow. Those rules and standards are written in the form of Standards of
Care and a Code of Ethics.
standards of care:
written requirements that detail the responsibilities a professional will be held
accountable for in the performance of his or her duties
code of ethics:
written statements that detail the type of behavior a professional should strive toward
when performing his or her professional duties

Standards of Care
All healthcare professions have at least one professional organization that publishes a standard of
care. The organizations, in writing these standards of care, are detailing what minimal
requirements they are going to hold a person practicing in that profession accountable to.
Because these standards provide minimal requirements, they are most often written using generic
and simple statements. For example, “The healthcare professional collects patient health data” is
a standard of care typically found in most healthcare professionals’ standard of care. By keeping
things generic, a variety of different activities can be included in one standard (kind of similar to
definitional law writing).

Codes of Ethics
Codes of ethics are similar to standards of care, but differ in that they describe the type of
conduct a person practicing in that profession should have. As with standards of care, each
profession has at least one professional organization that publishes a Code of Ethics.

 Understanding Your Profession

To find some of the professional organizations that govern your chosen profession, check out the
companion website at www.myhealthprofessionskit.com for links to your professional
organization.

 Concept Connection
Standards of Care/Code of Ethics and Malpractice
Standards of Care and Codes of Ethics play an essential role in how malpractice is analyzed. Part
of performing a legal analysis of malpractice, includes looking at the profession’s Standard of
Care and/or Code of Ethics.

Court Case Corley v. State

749 So.2d 926 (La.App. Cir 2) (1999) Louisiana Court of Appeals
Facts: In 1978, Walter Corley was diagnosed with neurofibromatosis, a genetic disorder where
nerve tissue grows tumors. In 1988, he started to develop low back pain, which he sought
medical treatment for at E.A. Conway, a teaching hospital that is part of Louisiana State
University. Throughout his many visits at E.A. Conway, Corley saw a total of four different
doctors for his low back pain. Treatments concentrated on his back pain, with rare mention of his
neurofibromatosis. Late in 1988 Corley developed shortness of breath and was diagnosed with
bronchitis. A month later, with continued shortness of breath and marked weight loss, a very
large mass was discovered in Corley’s right chest. Mr. Corley passed away a few months later.
Mr. Corley’s wife and son filed a medical malpractice and wrongful death lawsuit against the
hospital, the doctors, Louisiana State University, and the State of Louisiana.

Issue: At issue in this case was whether the doctors at E.A. Conway adhered to the standard of
care for their profession. The plaintiff’s expert, Dr. Schoendinger, noted “a physician who had a
patient with neurofibromatosis should provide that patient with a general description of the
disease process and possible symptoms, including the potential for malignant degeneration of
neurofibromas.” Failure to do so would, in Dr. Schoendinger’s opinion, constitute a breach of the
standard of care. The defendant’s expert witnesses, most of whom were doctors and specialists
employed by E.A. Conway, testified that the doctors followed the Standard of Care.

Rule:“Considering the above conflicting testimony, we cannot say that the trial court committed
manifest error in finding that the physicians at E.A. Conway deviated from the applicable
standard of care in their diagnosis and treatment of Walter Corley.”

Emphasis: The importance of this case, for our present discussion, is to demonstrate how
Standards of Care play an important role in medical malpractice cases. A professional’s Standard
of Care provides a baseline threshold that healthcare professionals will be held accountable for.
The court stated in their opinion that “The physician will not be held to a standard of perfection
nor evaluated with benefit of hindsight.” And, “Physicians are obligated to rule out these
imminent, serious and life-threatening causes first. Failure to eliminate these causes can subject a
patient to a foreseeable risk of harm and would further constitute a breach of the applicable
standard(s) of care.”

Most professional organizations are national organizations. They publish national standards and
codes that anyone in the country working in that particular profession must follow. In addition to
these national standards and codes, there may be state level organizations, or even local
organizations that might have additional standards and codes for a professional to follow.

State Medical Practice Acts and State Medical

Boards
Under Article 4 of the U.S. Constitution, each state is free to operate independently, as a
sovereign entity, as long as their actions and laws are not contrary to federal laws or interfere
with another state’s autonomy. One example is our current discussion concerning healthcare
professions. If no federal law exists regarding healthcare, then each state is free to write their
own laws describing how they want healthcare to function within their state.

At some point in your state’s history, the state legislature wrote a Medical Practice Act.
medical practice acts:
laws that a state has passed to determine the requirements for healthcare and healthcare
professionals
While the requirements outlined in each state’s Medical Practice Act will differ from state to
state, all Medical Practice Acts have three things in common, they:

 create a medical board (or agency) that oversees healthcare delivery in the state, (see Fig.
3-3).
 write policies and procedures that dictate how healthcare is delivered in the state, and
 determine the scope of healthcare delivery and practice.

Create a Medical Board

The first part of your state’s medical practice act will include language that creates a medical
board. The medical practice act also defines the purpose and scope of the medical board and
provides them with authority to write rules and regulations regarding the delivery of healthcare
in the state. Part of those rules will determine:

 what the requirements are for entering the healthcare profession,

 what the requirements are for working as a healthcare professional, and
 how healthcare is delivered within the state.

 Understanding Your State

To find your state’s medical board, check out the map of the United States on the companion
website.
 The Ethics of Law
Medical Boards
The rules and regulations written by the medical board of each state have the full force and effect
of law, which the courts will uphold as law.
 But how can the medical board write laws, a power that is provided exclusively to the
legislature?
 Should a nonlegislative body be able to write laws?
 Why would the courts uphold laws written by a nonlegislative body?

Write Policies and Procedures

The medical board in each state is granted authority by the state’s Medical Practice Act to write
rules and regulations that govern healthcare within the state. The policies and procedures written
by a state’s medical board cover every aspect of healthcare. Of main importance for our current
discussion about working in healthcare are the laws a state’s medical board will write regarding
the credentialing and scope of practice for healthcare professions within the state.

Determine the Scope of Practice Healthcare Delivery and

Practice
One area of law that is not regulated at the federal level is the credentialing process and scope of
practice for each of the different healthcare professions. Each state sets its own credentialing
requirements because the credentialing of healthcare professionals is not regulated by the
federal government.
credentialing:
validation of an individual’s background and qualifications, or fulfillment of the
requirements established by the organization granting the verification

Credentialing: Certification and Licensure

While there are several different types of credentials, the two most commonly used in healthcare
are certification and licensure (see Table 3-1).

Licensure 
The most commonly known type of credentialing process used in healthcare is licensure.
licensure:
a credentialing process where a person is granted the authority to perform particular tasks
or skills, after demonstrating expertise
Obtaining a driver’s license is an every day example of licensure. Each state has its own laws
regarding the requirements a person must meet in order to obtain a driver’s license. In most
states, the applicant must pass a written exam and demonstrate proficiency by taking a hands-on
driving test. Once a person has met the requirements, he or she is issued a driver’s license. By
issuing that license, the state is granting that person the authority to drive a motor vehicle on
public roads.

The process for obtaining a license in healthcare is relatively the same. Anyone who wants to
obtain a healthcare license––such as a radiology technologist license, for example––has to meet
the requirements established by the state for a radiology technologist license. The radiology
technologist license, just like a driver’s license, allows the professional to work as a radiology
technologist within the state. But how do we know which healthcare professions require a
license? That determination is made by the state.

All states in the United States require doctors and nurses to obtain a license. For other healthcare
professions, the need for a license differs from state to state. For example, some states require
massage therapists to be licensed, while some states do not. To determine what healthcare
professions require licenses, consult your state’s medical board. If a state requires licensure of a
healthcare profession, then obtaining a license is mandatory in order to practice in that
profession.
In addition to the requirements for obtaining a license, each state’s medical practice act will
include the procedures used for revoking or suspending a professional license. Just like a
person’s driver’s license can be suspended, so too can a person’s professional license. While
statistics vary from state to state, the most common reasons for revocation of a professional
license are:

 illegal activity (committing a misdemeanor or a felon, the most common having to do

with the use of illegal drugs)
 not maintaining professional standards (staying up to date on continuing education)
 violating a profession’s standards of care and codes of ethics

Certification 
Another type of credentialing used in healthcare is certification.
certification:
a credentialing process that confirms or guarantees that specific knowledge has been
obtained or that a person has proven proficiency in a task or skill or demonstrated
expertise in a particular area
While the requirements for licensure are spelled out in a state’s medical practice act and policies
from the state medical board, the requirements for certification are determined by the person or
institution issuing the certificate. Sometimes, the person or institution issuing the certificate has
complete discretion over what the qualifying criteria is going to be. But for most certifications,
like those used in healthcare, the criteria for obtaining a certificate can come from a variety of
different sources. For example, most schools offer programs for certified medical assistants
(CMA) or certified nursing assistants (CNA). The school, in offering those programs, will
determine what the requirements are for issuing the certification. But, in doing so, it must adhere
to requirements from other organizations, such as the Accrediting Bureau of Health Education
Schools (ABHES) and the Commission on Accreditation of Allied Health Education Programs
(CAAHEP) that accredit health educational programs.

Registration 
Some healthcare professionals are referred to as being registered, but registration is not a
separate credentialing process. Instead, registration is a special designation that is used to
differentiate members of the same profession. For example, both licensed practical nurses
(LPNs) and Registered Nurses (RNs) are nurses, and each require a license. But there are some
technical skills that a state will authorize RNs to perform but LPNs cannot. To differentiate
which group of nurses has been authorized to perform those specific technical skills, the names
of the nurses who are

Table 3-1
Common Types of Healthcare Credentialing Requirements
Michelle Marsan/Shutterstock
Profession Certifica

Central Service Technician X

Dental Assistant X

EMT/Paramedic X

Laboratory Technician

Licensed Practical Nurse

Massage Therapist

Medical Assistant X

Medical Insurance Billing X

Nurse Practitioner

Nursing Assistant X

Occupational Therapist X

Pharmacist
 Profession Certifica

Pharmacy Assistant X

Phlebotomist

Physical Therapist

Physician

Physician’s Assistant

Radiology Technologist

Registered Nurse

Respiratory Therapist

Social Worker

Surgical Technologist X

Ultrasound Technician

authorized are placed on separate list (a registry), which classifies them as Registered Nurses.

Court Case Poignon v. Ohio Board of Pharmacy

2004-Ohio-2709 Court of Appeals of Ohio Tenth Appellate District
Facts: Daniel Poignon was a licensed pharmacist in the state of Ohio. During his employment
for Rite Aid pharmacy, Poignon stole 1,888 units of drugs. Following his conviction of two
felony counts of theft, the Ohio Board of Pharmacy suspended his license. While Poignon was
given an opportunity to file an appeal, he missed the deadline. In accordance with Rule 4729-9-
01(E) of the Ohio Administrative Code, the suspension/revocation of a license is permanent
against both the license and licensee (the person who holds the license). Three years later,
Poignon applied to the Ohio Board of Pharmacy for a pharmacist’s license. The Board, in
response to Poignon’s application replied: “In short, your license was revoked, and that
revocation is permanent as to you as well. Accordingly, we cannot process your application.”
Mr. Poignon filed suit asking the court to force the board to process his application; or, in the
alternative, providing him with an administrative hearing.

Issue: The issue before the court was whether Ohio’s Board of Pharmacy had the right to
permanently revoke a pharmacy license.

Rule: “[T]he board is not required to process relator’s (plaintiff’s) application or to hold a

hearing on his application to be relicensed as a pharmacist in the state of Ohio inasmuch as the
board has previously permanently revoked relator’s (plaintiff’s) pharmacy license.”

Emphasis: The importance of this case is multifaceted. First and foremost, that illegal activity
can result in revocation of a professional license. Second, and more related to our current
discussion, that State Medical Boards have the authority to determine the criteria for licensure
within the state. That determination includes not only the requirements for issuing a license, but
when and how a license can be revoked or suspended.

Reciprocity 
Before we leave the topic of credentialing, we need to discuss a related topic, reciprocity.
Each individual state has the authority to set its own requirements for credentialing. But what if
you obtain your credentials in one state, and then sometime later want to move to another state?
Do you have to go through the entire educational and credentialing process all over again?
Unfortunately the answer is, “It depends.” Because each state sets its own requirements for
entering the healthcare field, you will have to meet those requirements in order to practice
medicine in that state. While the requirements for the different healthcare professions are pretty
much standardized, there are some differences from state to state. Sometimes the state that you
are moving to, after verifying your credentials, will simply issue you a license to practice. But,
some states may require you to take additional classes or may require that you retake the
licensure or certification exam. You need to contact that state’s medical board and find out what
its reciprocity policy is to find out the requirements.

Scope of Practice
Is anyone who enters the healthcare profession allowed to perform any medical procedure simply
because he or she is a healthcare professional? The obvious answer is of course not. But with all
of the different healthcare professions, how is a person suppose to know what each healthcare
professional is allowed to do or not allowed to do? The answer to this question is determined by
looking at that professional’s scope of practice.

reciprocity:

the requirements established for the exchange of credentials from one state to another
A profession’s scope of practice sets the legal boundaries that each profession is authorized by
law to perform. What those boundaries are is determined by the state Medical Board and Practice
Acts. Instead of reinventing the wheel, most state medical boards determine

Court Case Guanzon v. State Medical Board of Ohio

123 Ohio App.3d 489 (1997) Court of Appeals of Ohio, County of Ohio, Tenth District, Franklin

Facts: Dr. Noel A. Guanzon was a licensed physician in the state of West Virginia. On June 21,
1994, Guanzon applied for licensure in the state of Ohio. Prior to submitting his Ohio
application, Guanzon was notified by the state of West Virginia that a patient had filed a
complaint against him. He was ordered to appear before the West Virginia Board of Medicine’s
complaint committee. Instead of facing disciplinary action, Guanzon surrendered his West
Virginia medical license. During the proceedings by West Virginia, his application for an Ohio
licensure was approved. However, one year later, the Ohio Medical Board revoked Guanzon’s
license as well (presumably after being notified by the state of West Virginia). Dr. Guanzon
appealed the Ohio Medical Board’s decision.

Issue: Did the Ohio medical board have a right to suspend a license based on actions by another
state’s medical board?

Rule: The court concluded that “Dr. Guanzon’s conduct constitutes “fraud, misrepresentation,
[and] deception in applying for or securing any license or certificate issued by the board…”

Emphasis: While the majority of this case focused on procedural rules, the emphasis for our
current discussion relates to reciprocity. Each state sets their own requirements for licensure in
their state. Part of applying for reciprocity will include listing any licenses that you have held in
any state, and whether you have ever had your license suspended or revoked.

a profession’s scope of practice by starting with the professional organization’s Standards of

Care. Since the baseline has already been established, states can use that as a foundation to write
more stringent requirements if they so choose.

Working Outside Your Scope of Practice

When a state writes a professional scope of practice, it includes the technical skills that a
professional is allowed to perform independently. But what about technical skills that are not
included in your scope of practice? Can a healthcare professional perform technical skills as long
as someone who is authorized to perform that skill supervises them? The short answer is no;
absolutely not, never under any circumstances. Now for the long answer.

State medical boards write healthcare credentialing and scope of practice laws to protect the
public. A person who seeks medical care, does not always have the time to verify whether a
person is licensed or what their scope of practice is. Because patients blindly put their trust in
healthcare provider’s hands, the law wants to make sure that trust is not violated by allowing
non-authorized healthcare professional to provide medical care that they are not licensed to
provide. At some time in your career, a person you are working with may ask you to do
something that is outside of your scope of practice. Just because someone asks you to do
something, (even if they are higher up than you) does not mean that you can. The person asking
may not know what you are authorized and are not authorized to do.

The law requires that as a professional you know what your scope of practice is. The law puts the
emphasis on you knowing your boundaries, instead of others. Think of it this way, we cannot
expect every healthcare professional to know all of the rules, regulations, scope of practice, and
limitations of each and every healthcare profession. Instead, the law requires that each person
know what their scope of practice is and not step outside of it. Because; under the law, you are
legally required to know what your scope of practice is, if you step outside of your scope of
practice, you run the risk not only of losing your credentials but exposing yourself to a potential
lawsuit.

 Concept Connection
Scope of Practice and Malpractice
A person who works outside of their scope of practice alters how malpractice is analyzed. If a
person steps outside of his or her scope of practice, we do not use the standards of care of the
person’s profession, but instead use the standards of care of the profession that person stepped
into to determine if malpractice has occurred.

Court Case O’Sullivan v. Mallon

390 A.2d 149, 160 N.J.Super. 416 New Jersey Superior Court, Law Division (1978)

Facts: The plaintiff was employed by the defendants as an x-ray technician. During her
employment, the plaintiff states that she was ordered to perform catheterizations, which she
refused to do. The plaintiff claims that she informed her employer that she did not have the
proper training or education to perform such a procedure, and that catheterizations could only be
performed by licensed nurses and doctors. The x-ray technician was discharged from her
employment and filed a lawsuit against her employer.

Issue: At issue in the case was whether an employee has the right to discharge an employee who
refuses to perform an illegal act.
Rule: “[E]mployment at will may not be terminated by an employer in retaliation for an
employee’s refusal to perform an illegal act. This rule is especially cogent where the subject
matter is the administration of medical treatment, an area in which the public has a foremost
interest and which is extensively regulated by various state agencies.”

Emphasis: While this is an employment case, it demonstrates the importance of working within

your scope of practice and knowing what your limitations are. After the x-ray technician’s
discharge, “the New Jersey Board of Medical Examiners concluded that such an act performed
by her would be in violation of the Medical Practice Act. . . .the State Board of Nursing issued a
cease and desist order to these defendants forbidding the performance of catheterizations by
persons not licensed as nurses.” The main issue of this case, for our present discussion, is that
you cannot just follow orders. Only a state medical board has the authority to determine what
your scope of practice is.

I know that I’m probably going to

have to work over-time at some point.
Are there specific laws that relate to
employment that I need to know
about?
Employment Law
One of the specialty areas of law is employment law, which covers issues related to employment
and the employer/employee relationship. While there are no specific employment laws that cover
only healthcare issues, there are many different employment laws that apply to anyone working
in the United States. Employment laws can be broken down into three areas:

 applying for a job

 working on the job, and
 losing a job.

Employment Laws: Applying for a Job

Anyone who applies for a job has the legal right to be considered for that position based on the
merits or their ability to perform the job’s requirements. There are several laws, governmental
agencies, and federal programs that ensure that legal right is maintained.
Equal Employment Opportunity Commission (EEOC)
Hiring decisions should be based on a person’s ability to perform the job that they are
applying for. Unfortunately though, discrimination in hiring practices occurs. In 1964,
with the passage of the Civil Rights Act, the federal government created the EEOC to
fight discrimination in the workplace. The EEOC is charged with enforcing the federal
laws that prohibit discrimination in the workplace, which included both the public and the
private sector.

While the initial concept for creating the EEOC was to fight discrimination based on race
and gender, the list has since been expanded to include:

 age
 disability
 national origin
 pregnancy
 race
 religion
 sex
While the EEOC investigates complaints concerning workplace discrimination, it readily
admits that most forms of discrimination in hiring practices are not easily identifiable.
For example, suppose a position opens that an applicant named Mohammed has
applied for. Because of the name, a person

The Ethics of Law

Sexual Orientation and Employment
Did you notice that sexual orientation is not included on the list of protection provided for by the
EEOC? While some states have included sexual orientation as a protected class, there are other
states where a company can legally refuse to hire or fire an employee based on their sexual
orientation.
 Should sexual orientation be included under the EEOC?
 What reasons can you think of that might explain why sexual orientation is not included
as a protected class?
who is prejudiced against such individuals would most likely not consider him for the position.
Because the applicant was not contacted for an interview, he is likely unaware that it was due to
discrimination.

Affirmative Action
In the late 1950s and early 1960s, the civil rights movement was at the forefront of our national
concerns. Even after passage of the Thirteenth, Fourteenth, and Fifteenth Amendments to the
U.S. Constitution and the 1866 Civil Rights Act, minorities were still facing severe
discrimination in the workplace.
The words affirmative action were first used in President John F. Kennedy’s Executive Order
10925, which required federal contractors to take “affirmative action” to ensure that applicants
for a job were not discriminated against based on race, creed, color, or national origin. (President
Lyndon Johnson later expanded those rights to include gender.) Part of the reason for
implementing affirmative action was to redress the overt wrongs that had been committed
against minorities in hiring practices throughout the United States, by creating diversity in the
workplace.

Americans With Disabilities Act (ADA)

There are many facets to the Americans with Disabilities Act (ADA). For our current discussion,
the ADA prohibits discrimination in employment for people with disabilities. Any qualified
candidate must be considered for a job, without consideration of his or her disability. As with
affirmative action, if a person is unable to perform his or her job duties, an employer is not
required to hire that person just because he or she has a disability. For example, suppose a
healthcare provider has had his or her dominant arm amputated and wears a prosthesis. If the
person applies for a job but is unable to perform the duties required of that position, the ADA
would not require the hospital to hire him or her.

Employment Laws: Working on the Job

All of the laws that we have discussed so far cover discrimination. And, while the focus has been
applying for a job, affirmative action, the EEOC, and the ADA are still in place after a person
has obtained a job. A person cannot be discriminated against in promotion practices or decisions
related to layoffs or termination.

The Ethics of Law Affirmative Action

Affirmative action is not without its critics; even from those who affirmative action was designed
to protect. Some argue that if everyone is truly equal, then there is no need for affirmative action
laws. By having affirmative action laws, some critics believe, the government is indicating that
minorities are in fact different, because they are in need of special protection to make them
equal. What do you think?
Most of the laws that apply to working on the job focus on maintaining a safe work
environment.

Occupational Safety and Health Administration (OSHA)

In 1971, the Occupational Safety and Health Act established the Occupational and Health
Administration (OSHA), an agency of the federal government overseen by the U.S. Department
of Labor. OSHA was designed to protect workers from job-related deaths, injuries, and illness.

United States Occupational Safety and Health Administration.

OSHA ensures that employers are providing a safe work environment for their employees and
that the laws related to workplace safety are enforced. Compliance comes in the form of
investigations or through OSHA’s complaint bureau. While the number and type of OSHA’s
regulatory areas are numerous, there are two areas overseen by OSHA that specifically relate to
employees working in the healthcare environment; bloodborne pathogens and Material Safety
Data Sheets (MSDS).

Bloodborne Pathogens 
A bloodborne pathogen is any disease that can be contracted if you come in contact with another
person’s blood or body fluids. OSHA publishes the Bloodborne Pathogen Standard (29 CFR
1910.1030, 29 USC 655(b)), which details the policies healthcare institutions must follow
relating to bloodborne pathogens. Among other things, the policy outlines:

 what bloodborne pathogens are,

 universal precautions,
 how exposures are handled, and
 disposing of medical waste.

Material Safety Data Sheets (MSDS) 

Another area that is covered by OSHA, in conjunction with the U.S. Food and Drug
Administration, relates to the hazardous materials you may encounter as an employee. Many
employees, even those that work outside of healthcare, encounter potentially dangerous
substances, chemicals, or materials that could cause harm. In the healthcare arena, you may
encounter caustic items, such as cleaning solutions or radioactive materials. If, through your
employment, you could be exposed to any of the caustic materials identified by OSHA, an
MSDS is placed in a file at your workstation that you can readily access. These data sheets
include information on:

 what the substance is

 what the chemical makeup of the substance is
 how it can be harmful
 how to properly handle and store the substance
 what the risks are for exposure
 what to do if you are exposed

Workers’ Compensation
If you are injured or become sick while working on the job, you may be entitled to Workers’
Compensation. The idea behind Workers’ Compensation is that if you are hurt because of your
job, your job should pay for you being hurt. Workers’ Compensation is provided for all
employees, regardless of who they work for or where they work. Every state, and the federal
government, requires employers to provide Workers’ Compensation for all of their employee’s.
One of the most common misconceptions related to Workers’ Compensation is when an injury or
illness is covered under Workers’ Compensation. When evaluating a Workers’ Compensation
claim, two questions are used to determine whether Workers’ Compensation benefits will be
provided. “Did the employee’s injury/illness arise out of the work that they were asked to
perform?” Or, “Did the employee receive the injury/illness in the course of their employment?”

For approved injuries and illnesses under Workers’ Compensation, there are two types of
benefits, medical expenses and wages.

Because employers are required by law to carry Workers’ Compensation, concessions are made
regarding the type and amount of benefits that are paid under Workers’ Compensation. If an
employee misses work because of a compensable injury or illness, the employee may be entitled
to receive wages. Because of the amount of fraud that has occurred with Workers’
Compensation, all states limit the amount Workers’ Compensation of wages that are paid under
Workers’ Compensation. While the actual amounts vary for state to state, the normal is 75
percent of the employee’s regular income––up to a maximum of $1,500 a month. The rationale
used to support this limitation is that Workers’ Compensation should not be an avenue for people
to make money and every effort should be made to return a person to his or her job as quickly as
possible.

 Sidebar
Some ambulance and fire companies are using iPhones, PDAs, and Blackberrys to assist them
with hazardous material emergencies. MSDS forms can be downloaded onto these electronic
devices and used by first responders, should they be called to treat an employee who has been
exposed to a hazardous substance at work.
 Sidebar
Most of the time people think of Workers’ Compensation as covering injuries or accidents on the
job. But illness may also be covered if it is related to one’s job duties, keeping in mind the “arise
out of” and “in the course of” questions. For example, mesothelioma is a type of cancer that
results from exposure to asbestos, and might be work-related for employees who were exposed
to asbestos as part of their employment.
In addition, the amount of money a healthcare provider is paid for providing medical services to
injured workers is also reduced; typically by 25 percent. For example, if a doctor’s office would
normally bill an insurance company $50 for a routine office visit, that same visit under Workers’
Compensation would only be reimbursed $37.50. Because Workers’ Compensation laws set the
amount of money a healthcare provider is allowed to charge, that is the only amount they can
receive. Meaning, the doctor’s office cannot bill the patient to make up the difference. Part of the
rationale provided for reduced fees is to provide only reasonable and necessary treatments and to
cut down on malingering.

One common question regarding Workers’ Compensation is whether an employer can require an
employee to show up for work and perform duties other than what they normally perform? Yes,
an employer can require a person to return to work as long as the employer accommodates the
medical restrictions that the doctor provides for the patient. While an employee has the right to
refuse that work assignment, if they do, they are giving up their right to receive Workers’
Compensation wages. The main rationale for this argument is to encourage employees to get
well and back to work instead of lingering in the Workers’ Compensation system.

 Sidebar
One employer went as far as they could to make accommodations for an employee’s return to
work. The employee’s doctor had restricted the employee to sitting at a desk for no more than an
hour at a time, to be followed by at least two hours of bed rest. To accommodate the employee,
the employer closed off some offices at the end of the hallway and had a hospital bed delivered
for the employee to sleep in. Because the employee made these accommodations, the employee
either had to accept that work assignment or forfeit Workers’ Compensation wages.

 Concept Connection
Workers’ Compensation and Vicarious Liability
One of the legal theories for requiring employers to provide Workers’ Compensation is the
theory of vicarious liability, a concept that is found in many different aspects of the law.

Family Medical Leave Act (FMLA)

Prior to passing the Family Medical Leave Act (FMLA), some employees lost their jobs when
they had extended absences due to medical problems. Initially, the problem arose when women
were taking time off from work after childbirth, only to find that their job was no longer
available upon their return. In 1993 Congress passed the FMLA to protect those jobs.

While the initial intent of FMLA was to protect women, men soon cried foul and sued under
reverse discrimination, because they too should be allowed to take time off from work to care for
their newborn child. Congress agreed, and expanded the FMLA rules. Currently, an employee
can utilize FMLA:

1. for the birth and care of the newborn child of the employee;
2. for placement of a child in their home by adoption or through foster care;
3. to care for an immediate family member (spouse, child, or parent) with a serious health
condition; or
4. to take medical leave when an employee themselves has a serious health condition.
Under FMLA an employee can take up to 12 weeks of unpaid leave within one year without risk
of losing his or her position.

Fair Labor Standards Act (FLSA)

The Department of Labor, which oversees the FMLA, governs another area of employment law.
The Fair Labor Standards Act (FLSA) set up requirements related to the minimum wage and
how overtime is compensated. While the FLSA is specific about how overtime is paid, it does
not regulate the number of hours a person can work.
Unfortunately mandatory overtime has become commonplace in healthcare today. This is due, in
part, to healthcare staffing shortages and the increased number of patients needing care. In order
to compensate, some healthcare institutions have to resort to mandatory overtime in order to
cover staffing shortages and patient care needs.

 The Ethics of Law

Fair Labor Standards Act
While mandatory overtime is an unpopular subject amongst healthcare workers, most healthcare
institutions use mandatory overtime to provide adequate staffing ratios and to maintain a level of
care that the patient population requires.
 How affective do you think a person is when they are working overtime?
 If a mistake is made while a person is working mandatory overtime, who do you think
should be at fault, the healthcare worker or the employer?

Employment Laws: Losing a Job

While no one wants to lose his or her job, it is an unfortunate occurrence in the business world.
Whether a person is laid off or terminated, there are specific laws that cover an employee if this
unfortunate event happens.

Every company’s policy and procedures manual must outline the process that is used for
terminating an employee. Usually that process involves receiving a verbal warning first, a
written warning second, and then termination. Because businesses are required to have such a
policy, they are also legally required to follow that policy. But, as we have noted with the law,
there are exceptions.

There are certain situations where an employer can automatically terminate an employee without
having to go through the termination process outlined in their policy and procedure manual.
Some examples include showing up to work intoxicated, being verbally or physically abusive to
fellow employees, or failing to follow safety protocols that endanger the workplace or
employees.

Just Cause
An employee cannot fire an employee for any reason. Instead, an employee can only be
terminated for just cause. Or, put another way, the cause for termination must be justified. The
just cause requirement ensures that employers are terminating employees for reasons that are
related to their job performance. Meaning, the termination cannot be arbitrary or discriminatory
but based on a valid reason. Typically, to satisfy the just cause requirement, employers will
utilize language in employee’s job descriptions to justify the termination, should it become
necessary.

Unions
Many companies and organizations, healthcare included, are unionized. Unionized employers
and employees are bound by the labor agreements that they have entered into. If a labor
agreement exists, employees and employers are required to follow that agreement. Labor
agreements usually provide more stringent requirements than what employment laws require.

 Concept Connection Employment and Substance Abuse

Substance abuse, whether from legal or illegal substances, is a problem that can affect any
business. Reporting impaired employees is a concept directly connected to employment laws and
part of an employee’s professional responsibilities.

 Beyond the Scope

Unions bring to employment law some very complicated exceptions and special rules. The
intricate complexities involving unions and employment law are beyond the scope of this text.
The reader is encouraged to consult outside resources if they desire more information related to
unions and the workplace.

Cross-Examination
Make False statements True.
Rewrite the false statements below by replacing the bolded, italicized, and underlined word(s)to
make it a true statement.

1. State medical boards issue standards of care that healthcare professionals must follow.
_______________________________________
2. Part of the reason for implementing Workers’ Compensation was to redress the overt
wrongs that had been committed against minorities in hiring practices throughout the
United States, by creating diversity in the workplace.
_______________________________________
3. The EEOC creates policies on bloodborne pathogens and material safety data sheets.
_______________________________________
4. “Arising out of” or “in the course of” are questions used to address
whether FMLA applies or not.
_______________________________________
5. Under the Fair Labor Standards Act, a person can take up to 12 weeks of unpaid leave
without risk of losing his or her job.
_______________________________________

Circle Exercise
Circle the correct word from the choices given.
 1. (People Skills, Practice of Medicine, Technical Skills) is sometimes referred to as
emotional intelligence.
2. A person who holds a license and wants to move to another state must check the other
state’s (autonomy, professional organization, reciprocity) agreement.
3. The (affirmative action, EEOC, FLSA) is charged with enforcing the federal laws that
prohibit discrimination.
4. One of the requirements of (EEOC, FLSA, OSHA) is that employers provided
documentation that their employees have been trained in bloodborne pathogens.
5. Employees having “ready access” relates to (affirmative action, material safety data
sheets, Workers’ Compensation).

Matching
Match the numbered law to its lettered area of coveage.

1.
1. _________ ADA
2. _________ affirmative action
3. _________ Bloodborne Pathogens
4. _________ EEOC
5. _________ employment at will
6. _________ FLSA
7. _________ FMLA
8. _________ MSDS
9. _________ Workers’ Compensation
1. discrimination against race, creed, color, or national origin
2. discrimination in the workplace
3. employee termination
4. employees with disabilities
5. exposure to infectious diseases
6. job-related injuries
7. unpaid leave job security
8. wages and overtime compensation
9. working with hazardous material

Matching
Match the numbered term to its lettered definition.

1.
1. _________ certification
2. _________ code of ethics
3. _________ credentialing
4. _________ defensive medicine
5. _________ licensure
 6. _________ medical practice acts
7. _________ professional
8. _________ reciprocity
9. _________ standards of care
1. a credentialing process that confirms or guarantees that specific knowledge has
been obtained or that a person has proven proficiency in a task or skill, or
demonstrated expertise in a particular area.
2. a credentialing process where a person is granted the authority to perform
particular tasks or skills after demonstrating expertise.
3. a person who earns a living through the expertise of his or her work.
4. laws that a state has passed to determine the requirements for healthcare and
healthcare professionals.
5. the requirements established for the exchange of credentials from one state to
another.
6. the type of medical practice used by healthcare workers to protect themselves
against potential lawsuits.
7. validation of an individual’s background and qualifications, or fulfillment of the
requirements established by the organization granting the verification.
8. written requirements that detail the responsibilities a professional will be held
accountable for in the performance of his or her duties.
9. written statements that detail the type of behavior a professional should strive
toward when performing his or her professional duties.

Deliberations: Critical Thinking
Questions
1. Question 1: As we have seen, not all healthcare professions require a license. Some
states are considering requiring licensure for all healthcare professions. What are your
thoughts? Do you think that all healthcare professionals should be required to obtain a
license of some kind? Explain your answer.
2. Question 2: Can a person perform the tasks that are governed by a license without
obtaining one? A person can get behind the wheel of a vehicle and drive on the public
roads without obtaining a driver’s license. Does the same holds true for a healthcare
license? Can a person practice medicine or perform medical tasks and procedures without
actually holding a license? What mechanism do you think might be in place to stop or
identify this type of practice? How is the public protected from unlawful practice by an
unlicensed person?
3. Question 3: The practice of defensive medicine is commonplace in healthcare today.
But, because some of the tests and procedures that we order for patients, in the name of
defensive medicine, do not directly address the medical issues for which patients are
seeking care, some insurance companies are discussing the possibility of denying
payments for defensive medicine procedures. Do you think that it is fair? Should
insurance companies pay for defensive medicine, or is that something that the healthcare
institution should absorb?
 4. Question 4: Mary is a massage therapist working in a state that does not license massage
therapist. Even though licensure for massage therapist is not mandatory, to add credibility
to her business Mary would like to undergo voluntary licensure. However, when she
contacts the state, she finds out that there is no such thing as voluntary licensure. Why
would a state not offer voluntary licensure?
5. Question 5: A doctor has decided to buy lunch for his office staff. The receptionist has
been asked by the doctor to run across the street and pick up their lunch, because the
restaurant does not provide delivery. On her way to pick up the lunch, in the office
parking lot, the receptionist trips on a pot hole and twists her ankle. Would this injury be
covered under Workers’ Compensation? Explain why or why not. Regardless of which
answer you chose, identify some arguments that a person might have regarding the
decision opposite of what yours was.

 Closing Arguments: Case

Analysis
Abby is working on the surgical floor of the local hospital as a certified nursing assistant. Part of
her job duties requires that she give bed baths to patients who are bedridden. One of the patients
that she has to bathe is Mr. Arthur, who is recovering from a traffic accident. Because Abby has
been working there for a long time, the nurses trust her. Nancy, a nurse on the floor, knows that
Abby is getting ready to give Mr. Arthur a bath. Because Mr. Arthur needs a suppository, Nancy
asks Abby to administer it to the patient while she is giving him his bath. Pretend that you are
Abby, knowing that as a certified nursing assistant you are not allowed to administer
medications. But, you understand that this is a simple thing, and having given suppositories to
your children before know that it is not a big deal.

1. Question 1: What should you do?

As Abby is giving Mr. Arthur his bath, he suffers from a seizure, causing his intravenous
lines to disconnect, which scratches Abby on the arm. Unfortunately, Mr. Arthur is HIV
positive, which greatly concerns Abby. Abby contacts employee health and is seen by the
doctor and preventive measures are taken. The next day, Abby reports to work, but her
supervisor is worried about the possibility of infection and wonders if Abby should take
time off from work until the results come back.
2. Question 2: Should healthcare workers who become infected with HIV be allowed to
continue working with patients? Does it matter whether a person was infected on the job
or not?
3. Question 3: What are the potential ramifications of allowing an HIV-infected healthcare
worker to continue to work with patients? What are the potential ramifications of not
allowing an HIV-infected healthcare worker to continue to work with patients?
  The Briefcase
This section repeats the objectives from the beginning of the chapter and provides a summary of
the most important concepts for each objective. Use this section as a quick review and to check
your understanding of the chapter key points.

Objective 1:
List the qualities needed to work in healthcare.

 technical skills
 people skills
 professionalism

Objective 2:
Explain what defensive medicine is and how it relates to the practice of medicine.

 It helps protect healthcare workers against a lawsuit.

 It helps prevent a wrong or injury from occurring.

Objective 3:
Define the importance that professional organizations have on the healthcare professions.

 Govern the healthcare profession

 Support and control the healthcare profession
 Publish requirements for the profession, including:
 Standards of care
 Codes of ethics

Objective 4:
Distinguish the difference between medical practice acts and medical boards.

 Medical Practice Acts

 create a medical board that oversees healthcare delivery in the state
 Medical Boards
 oversee licensure
  formulate policies and procedures that dictate how healthcare is delivered in the
state
 determine the scope of practice for healthcare professionals.

Objective 5:
Describe what the EEOC is and what areas of employment it governs.

 discrimination in the workplace

 affirmative action

Objective 6:
Define what the ADA is and how it protects employees.

 It protects employees with disabilities

 It helps employers by defining what accommodations need to be made for a disabled
employee

Objective 7:
List the two areas covered by OSHA that have a direct impact on working in healthcare.

 bloodborne pathogens
 material safety data sheets

Objective 8:
Give an example of why a person might file a Workers’ Compensation claim.

 For injuries or illnesses that are employment related

 To pay for medical expenses
 To pay for lost wages
 Two rules are used to determine if an injury/illness is compensable
 arising out of
 in the course of

Objective 9:
List some of the reasons an employee may utilize FMLA.

 to take care of ill family members

 to care for newly arrived family members, by birth or adoption
 to take time off for a serious illness