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On the afternoon of May 20, the patient, Mr. Ard, began feeling nauseated. He was in pain and had shortness of breath. Although his wife rang the call bell several times, it was not until sometime later that evening that someone responded and gave Ard medication for the nausea. The nausea continued to worsen. Mrs. Ard then noticed that her husband was having difficulty breathing. He was reeling from side to side in bed. Believing that her husband was dying, she continued to call for help. She estimated that she rang the call bell for 1.25 hours before anyone responded. A code was eventually called. Unfortunately, Mr. Ard did not survive the code. There was no documentation in the medical records for May 20, between 5:30 PM and 6:45 PM, that would indicate that any nurse or physician checked on Ard’s condition. This finding collaborated Mrs. Ard’s testimony regarding this time period.

A wrongful death action was brought against the hospital, and the district court granted judgment for Mrs. Ard. The hospital appealed.

Ms. Krebs, an expert in general nursing, stated that it should have been obvious to the nurses from the physicians’ progress notes that the patient was a high risk for aspiration. This problem was never addressed in the nurses’ care plan or in the nurses’ notes.

On May 20, Ard’s assigned nurse was Ms. Florscheim. Krebs stated that Florscheim did not perform a full assessment of the patient’s respiratory and lung status. There was nothing in the record indicating that she completed such an evaluation after he vomited. Krebs also testified that a nurse did not conduct a swallowing assessment at any time. Although Florscheim testified that she checked on the patient around 6:00 PM on May 20, there was no documentation in the medical record. Ms. Farris, an expert witness for the defense, testified on cross-examination that if a patient was in the type of distress described by Mrs. Ard and no nurse checked on him for 1.25 hours, that would fall below the expected standard of care.1


  1. What happened?
  2. Why did things go wrong?
  3. What were the relevant legal issues?
  4. How could the event have been prevented?
  5. What is your verdict?


he similarities and differences between the American legal system and the legal structure of health care organizations.

Regarding the American legal system and health care organizational legal structures, there are a multitude of similarities and differences. Both systems implement a degree of liability in the sense of governing bodies designed to facilitate the “agreed upon actions,” laws given a specified situation. As Miller cites (2006), “government is divided into three branches, legislative, executive, and judicial. On the federal level, statutes are enacted by Congress and only become law when approved by the president” (p.4). However, a particular bill can be over-ruled and disallowed by the Supreme Court of the United States. Miller adds (2006), “a method of overriding a Supreme Court decision, while complex and often time consuming, is to amend the Constitution” (p.4). Similarly, health care organizations implement governing boards, a group of individuals designed to regulate, instill, and facilitate specified laws and by-laws regarding the organization in question. Miller explains (2006), “almost all health care is delivered within an organized system. Clinical and regulatory complexity requires an infrastructure that can be provided only by a well-ordered structure. The organization of most health care entities, regardless of their type, includes a governing body and a chief executive officer” (p.29). Another interesting similarity exists between the American legal system and the legal structure of health care organizations. Both systems must comply with the specified laws imposed by the U.S. President, Congress, and the Supreme Court. A prime example would be the enactment of the laws governing workman’s compensation allocation and the unemployment benefits act for all workers.

A subsequent and primary difference between the American legal system and the health care organizational legal structures centers on bylaws. For-profit organizations incorporate bylaws into policies and procedures and any changes are generally related to the workforce via addendums within the organizational personnel employee handbook. Interestingly, regarding the Long-Term care industry, specific laws governing the care of residents become enacted through federal and state mandates, such laws are enforced by federal and state agencies and must be followed by the individual Long-Term care facilities; however, the Long-Term care organizations cannot change such laws, policies, and procedures. Yet, the federal and state agencies can and do change these laws according to statistical incidence such as falls rates, medication errors, and reluctance to comply pertaining to yearly facility inspections. Another poignant and specific difference relates to appointment vs. election. Miller cites (2006), “health care entities ultimate responsibility centers on establishing goals and polices, select the chief executive, and appoint medical staff members” (p.30). Within the American legal system, the chief executive leaders are elected and maintain their position through the process of re-election.

Lastly, the monetary acquisition of funds regarding the for-profit organizations centers on investors, multiple corporations, and stakeholders/ stocks. However, federal organizations are funded through taxation of its citizenry. Interestingly, there are in place a great deal of federal and state regulations regarding the offering, sale, and re-sale of company stock and partnership interests. Wolper (2004) suggests that, “historically, the legal structure of the health care delivery system in the United States consists almost exclusively of personal interactions between patients and physicians. Today, the health care delivery system is almost completely composed of corporate entities, many of which are investor owned” (p.93). Through similarities and differences of the American legal system and the health care organizational legal structures, it is interesting to view the justification of the intermingling and adaptation of principles that appear to be borrowed from the American legal system and incorporated into the health care organizational legal system. Yet, with this said, the federal government provides more than just structure for health care organizations, they implement a great deal of the mandated policies and procedures that must be followed with strict adherence, regardless of the health care organizations self-enacted laws, by-laws, polices, and procedures.


Miller, R. D. (2006). Problems in health care law. Sudbury, MA: Jones and Bartlett Publishers.

Wolper, L.F. (2004). Health Care Administration: planning, implementing, and managing organized delivery systems. Sudbury, MA: Jones and Bartlett Publishers.

Dr. Robert C. Smiles, Ph.D. Assistant Professor, University of Arizona Global Campus

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