Chapter 1: A BRIEF HISTORY OF LAW AND MEDICINE Flashcards
Law is best defined as:
A system of standards to govern the conduct of people in an organization, community, society, or nation.
The oldest known written laws were proclaimed nearly four millennia ago by:
A) Julius Caesar
B) Hammurabi
C) Aristotle
D) Solon
B) Hammurabi
The concept of lex talionis refers to:
A) The law of retaliation (“eye for an eye”)
B) The supremacy of natural law
C) The social contract theory
D) The divine right of kings
A) The law of retaliation (“eye for an eye”)
Aristotle’s concept of “natural law” refers to:
A) Laws governing nature and physics
B) Moral principles common to all persons recognizable by reason
C) Laws that evolve naturally in society
D) Environmental protection principles
B) Moral principles common to all persons recognizable by reason
Which philosopher described law as a “social contract” between the individual and the state?
A) John Locke
B) Thomas Hobbes
C) Jean-Jacques Rousseau
D) Immanuel Kant
B) Thomas Hobbes
In Leviathan, Hobbes famously wrote that without law and its implicit agreement, life would be:
“solitary, poor, nasty, brutish, and short.”
The term “common law” refers to:
A) Laws common to all nations
B) Statutory law passed by legislatures
C) The body of law based on custom and judicial precedents
D) Administrative regulations
C) The body of law based on custom and judicial precedents
Which of these is NOT part of the common law tradition?
A) Magna Carta
B) Habeas Corpus Act
C) Code of Hammurabi
D) English Bill of Rights
C) Code of Hammurabi
The United States is described as a:
A) Unitary government
B) Federation
C) Confederation
D) Monarchy
B) Federation
The system of “checks and balances” in the U.S. government was designed to:
A) Balance the federal budget
B) Maintain parity among the three branches of government
C) Limit the power of the states
D) Ensure economic stability
B) Maintain parity among the three branches of government
Which branch of government has the power to interpret laws?
A) Legislative
B) Executive
C) Judicial
D) Administrative
C) Judicial
Which branch of government has the power to enforce laws?
A) Legislative
B) Executive
C) Judicial
D) Administrative
B) Executive
What does the term “due process of law” mean?
Fair treatment through the normal judicial system.
The principle of stare decisis refers to:
A) The right to a jury trial
B) Respecting legal precedent in decision-making
C) The separation of powers
D) The doctrine of federalism
B) Respecting legal precedent in decision-making
Which of the following is NOT a source of law in the United States?
A) Constitutions
B) Statutes
C) Administrative law
D) Media commentary
D) Media commentary
Res judicata means:
A) The case is still pending
B) The case involves international law
C) A thing or issue settled by judgment
D) The case requires further review
C) A thing or issue settled by judgment
Which court has exclusive jurisdiction over bankruptcy cases?
A) State supreme courts
B) U.S. district courts
C) U.S. bankruptcy courts
D) Small claims courts
C) U.S. bankruptcy courts
What are the three tiers in most state court systems?
Trial courts, intermediate courts of appeal, and a supreme court.
The principle that grants federal courts jurisdiction in cases between citizens of different states is called:
A) Diversity of citizenship
B) Federal question jurisdiction
C) Admiralty jurisdiction
D) Supplemental jurisdiction
A) Diversity of citizenship
What was the significance of Erie R.R. Co. v. Tompkins?
It established that federal courts must apply state common law in diversity cases, overturning the doctrine that federal courts could develop their own “general federal common law.”
How many U.S. Courts of Appeals are there?
A) 9
B) 10
C) 12
D) 13
D) 13
A writ of certiorari is:
A) A court order directing a person to perform a specific act
B) An order from a higher court to a lower court to send up a case for review
C) A directive to appear in court
D) A declaration of unconstitutionality
B) An order from a higher court to a lower court to send up a case for review
In the U.S. Supreme Court, how many justices must agree to review a case via writ of certiorari?
A) 3
B) 4
C) 5
D) 6
B) 4
Which method of dispute resolution involves submission to a third person outside the judicial process?
A) Mediation
B) Arbitration
C) Litigation
D) Negotiation
B) Arbitration
The document that begins a lawsuit is called:
A) Summons
B) Complaint
C) Brief
D) Petition
B) Complaint
What is “discovery” in legal procedure?
The pre-trial phase where each party can obtain evidence from the other party through various methods like depositions, interrogatories, and document requests.
Which of the following is NOT a method of discovery?
A) Deposition
B) Written interrogatories
C) Subpoena duces tecum
D) Directed verdict
D) Directed verdict
A subpoena duces tecum requires:
A) A witness to appear in court
B) A witness to bring documents to court
C) A defendant to respond to allegations
D) An expert to provide testimony
B) A witness to bring documents to court
A directed verdict occurs when:
A) The jury reaches a decision without deliberation
B) The judge instructs the jury to return a specific verdict
C) Both parties agree on the outcome
D) An appeals court overturns a lower court
B) The judge instructs the jury to return a specific verdict
The term “judgment NOV” stands for:
A) Non obstante veredicto
B) No other verdict
C) Notice of violation
D) New order verification
A) Non obstante veredicto
According to Planned Parenthood v. Casey, what concept is essential to the Court’s legitimacy?
Respecting precedent (stare decisis) and not overturning prior decisions without compelling reasons
What was the earliest theory of disease that dominated Western medicine for over 2,000 years?
A) Germ theory
B) Humoralism
C) Cell theory
D) Genetic theory
B) Humoralism
The four humors in ancient medical theory included all EXCEPT:
A) Blood
B) Yellow bile
C) White bile
D) Phlegm
C) White bile (The four were blood, yellow bile, black bile, and phlegm)
Who performed the first significant public demonstration of anesthesia in the Western world?
A) William Morton and John Warren
B) Louis Pasteur and Joseph Lister
C) Florence Nightingale and Joseph Lister
D) Ignaz Semmelweis and Louis Pasteur
A) William Morton and John Warren
Who is credited with developing the germ theory of disease?
A) Joseph Lister
B) Louis Pasteur
C) Florence Nightingale
D) Hippocrates
B) Louis Pasteur
What medical advancement did Joseph Lister pioneer?
A) Anesthesia
B) Vaccination
C) Antiseptic surgery
D) Blood transfusion
C) Antiseptic surgery
Who is considered the founder of modern nursing?
Florence Nightingale
What influential 1910 report helped establish standards for medical education in the United States?
A) The Warren Report
B) The Flexner Report
C) The Nightingale Study
D) The Lister Analysis
B) The Flexner Report
Prior to the 20th century, hospitals were primarily:
A) Research centers
B) Educational institutions
C) Places to sequester the poor, insane, and unfortunate
D) Centers for preventive care
C) Places to sequester the poor, insane, and unfortunate
When was penicillin discovered?
A) 1895
B) 1910
C) 1928
D) 1945
C) 1928
The “three-legged stool” of hospital governance refers to:
Physicians, administrators, and governing board members
What was the first significant organization to develop standards for hospital accreditation?
A) American Medical Association
B) American Hospital Association
C) American College of Surgeons
D) Catholic Hospital Association
C) American College of Surgeons
What percentage of hospitals met the American College of Surgeons’ standards when they first began inspections?
A) Less than 15%
B) About 50%
C) More than 75%
D) Nearly 100%
A) Less than 15%
Why is “modern medicine” considered a relatively recent phenomenon compared to law?
Most significant medical advances (anesthesia, antibiotics, vaccines, organ transplants, etc.) have occurred only in the past 150-200 years, while legal systems have existed for millennia.
What does the legal term “admiralty” refer to?
A) Military law
B) International treaties
C) Maritime law and accidents at sea
D) Appellate jurisdiction
C) Maritime law and accidents at sea
In Justice O’Connor’s opinion in Planned Parenthood v. Casey, what concept was summed up in the phrase “Liberty finds no refuge in a jurisprudence of doubt”?
The importance of stare decisis (respecting precedent) in maintaining legal stability and the Court’s legitimacy.
What did the court establish in the landmark case Erie R.R. Co. v. Tompkins?
“Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.” There is no federal general common law.
What are the primary ways a defendant can respond to a complaint?
By filing an answer (admitting, denying, or pleading ignorance to allegations), filing a countersuit/counterclaim, or asking the court to dismiss the complaint.
Common law
The body of law based on custom and judicial precedents, as distinct from statutory law; its historical roots are the traditional laws of England that developed over many centuries and were carried over to the American colonies and thus the United States.
Law
A system of standards to govern the conduct of people in an organization, community, society, or nation.
Affordable Care Act (ACA)
The health reform law enacted by Congress in 2010; full name: Patient Protection and Affordable Care Act, Pub. L. No. 111-148.
Due process of law
Fair treatment through the normal judicial system.
Stare decisis
Latin for “to stand by a decision.” It is the principle that a court must respect precedents (decisions of higher courts) in legal decision-making on cases with similar facts.
Admiralty
The system of law that applies to accidents and injuries at sea, maritime commerce, alleged violations of rules of the sea over shipping lanes and rights of way, and crimes aboard a ship.
Writ of certiorari
An order from a higher court to a lower court, requesting that the record of a case be sent up for review.
Arbitration
An extrajudicial hearing sometimes used in medical liability cases to avoid a court trial and conducted by a person or a panel of people who are not necessarily judges.
Subpoena duces tecum
A court order, issued at the request of one of the parties to a suit, that asks a witness to bring to court or to a deposition any relevant documents under the witness’s control.
Directed verdict
An order from the judge for the jury to issue a particular verdict if no reasonable person could reach a decision to the contrary based on the evidence presented.
Judgment NOV (non obstante veredicto)
A verdict “notwithstanding the verdict” entered by the court when a jury’s verdict is clearly unsupported by the evidence.
Summary judgment
An order by a court finding in favor of one party against the other without a trial; it is issued if the judge finds that there is no “genuine issue of material fact” left to be determined and the moving party is “entitled to judgment as a matter of law.”
A hospital administrator notices a significant gap between the state’s established standard of care for emergency treatment and the hospital’s current practices. Analyze the potential legal implications and what steps the administrator should take to address this situation.
IMPLICATIONS: Increased negligence liability risk (Darling case)
STEPS:
1) Assess deficiencies
2) Develop compliance plan with timeline
3) Consult legal counsel
4) Consider disclosure requirements
5) Document remediation
6) Implement new training/policies
Compare and contrast how the historical development of medicine versus law has influenced their respective approaches to professional autonomy, and analyze how this affects modern healthcare administration.
BACK:
LAW: Millennia of development; strong tradition of autonomy through precedent and self-regulation
MEDICINE: Rapid recent evolution (150 years); less time for self-regulatory traditions
IMPACT: Creates tension in “three-legged stool” governance where legal frameworks increasingly govern medical practice while physicians value clinical autonomy
Legal considerations for cross-state telemedicine program?
1) State-specific licensure requirements (federalism)
2) Medicare/Medicaid regulations (administrative law)
3) Varying state privacy laws beyond HIPAA
4) Different standards of care by jurisdiction
5) FDA regulations for devices
6) Cross-state insurance limitations
7) Multi-jurisdiction credential verification
NEEDED: Compliance tracking systems and regulatory monitoring processes
How does stare decisis interact with evolving medical technology? How should risk management address this?
TENSION: Legal stability through precedent vs. rapidly evolving medical standards
APPROACH:
1) Monitor both legal precedents and medical standards
2) Implement “above minimum” standards
3) Document awareness of emerging standards
4) Engage legal counsel on evolving interpretations
5) Build flexible policies adaptable to both legal and medical changes
Strategy for multi-state healthcare system facing conflicting state end-of-life laws?
1) Create matrix of state-specific requirements
2) Identify strictest standards for baseline policies
3) Develop jurisdiction-specific addenda for major differences
4) Implement tracking for evolving regulations
5) Establish ethics committee for value-law conflicts
6) Create administrative appeal process
7) Engage with state regulators for clarification
Compare stare decisis vs. evidence-based medicine. Impact on malpractice liability?
STARE DECISIS: Incremental knowledge building through precedent; creates stability but slower adaptation
EVIDENCE-BASED MEDICINE: Evolves through research; may rapidly change standards
LIABILITY IMPACT: Hospital may face liability by following older legal standards while ignoring newer evidence-based practices, or face uncertainty when adopting practices not yet recognized in precedent
KEY INSIGHT: Requires both legal and clinical expertise in risk management
Process for analyzing conflict between new federal regulation and state healthcare practices?
1) Determine if federal preemption applies (Supremacy Clause)
2) Assess if regulation exceeds statutory authority
3) Research challenges by other organizations/states
4) Evaluate if state law provides greater patient protections
5) Consider “highest standard” approach if dual compliance possible
6) Document analysis process thoroughly
How has hospital evolution from almshouses to “citadels of science” affected liability? Impact on governance?
EVOLUTION: Courts shifted from charitable immunity to corporate liability theories (Darling case)
GOVERNANCE IMPLICATIONS:
1) Include historical-legal context in board education
2) Structure quality oversight reflecting corporate liability
3) Acknowledge institutional responsibility for care quality
4) Develop active credentialing oversight
5) Create documentation showing governance engagement with quality
Framework for determining court jurisdiction in case involving state regulations and federal healthcare law?
ASSESS:
1) Federal question jurisdiction (federal healthcare laws)
2) Diversity jurisdiction (different states, >$75,000)
3) Whether regulations fall under concurrent or exclusive jurisdiction
4) Erie doctrine application (state substantive law in federal diversity cases)
5) Administrative exhaustion requirements
6) Potential Chevron deference to agency interpretations
Patient harmed after hospital follows legal precedent over newer clinical guidelines. Analyze tension and potential court resolution.
TENSION: Law’s backward-looking stare decisis vs. medicine’s forward-looking evidence-based evolution
COURT CONSIDERATIONS:
1) Whether precedent reflected minimum standard or fixed practice
2) Expert testimony on evolving standards
3) Whether reasonable practitioners would adopt newer guidelines
4) Hospital processes for staying current
5) Public policy implications of holding to standards not yet in precedent
What are the four main sources of law in the Anglo-American legal system?
1) Common law (based on judicial precedent/case law)
2) Statutes (enacted by legislative bodies)
3) Constitutional law (foundation of the legal system)
4) Regulatory/administrative law (rules issued by executive agencies)
Define “common law” and explain its importance in the US legal system.
Common law is customary law developed through judicial decisions over time, reflecting how people are expected to behave toward each other. It’s based on precedent (stare decisis - “to stand by what has been decided”). The US inherited this system from England. Common law continues to evolve as judges apply principles from previous cases to new situations.
How is the federal court system structured?
1) Supreme Court (highest court, discretionary review)
2) Circuit Courts of Appeal (13 circuits handling appeals from district courts)
3) District Courts (federal trial courts; at least one in each state)
Also includes specialized courts like Bankruptcy Courts and Magistrate Judges.
What are the two main categories of federal court jurisdiction?
1) Federal Question jurisdiction - cases involving federal laws, the Constitution, or treaties
2) Diversity of Citizenship jurisdiction - cases between citizens of different states where the amount in controversy exceeds $75,000
What is discovery in litigation and what are its main methods?
Discovery is the pre-trial phase where parties exchange evidence. Methods include:
1) Depositions (sworn testimony recorded by court reporter)
2) Interrogatories (written questions requiring written answers under oath)
3) Document requests/subpoena duces tecum (requires production of documents)
4) Requests for admission (asking opposing party to admit certain facts)
5) Physical/mental examinations (when condition is in dispute)
What occurs during a deposition and what should healthcare professionals know about them?
A deposition is sworn testimony before trial, recorded by a court reporter. Key points:
1) It’s essentially cross-examination by opposing counsel
2) Statements can be used to impeach you at trial if you later change your testimony
3) Prepare thoroughly by reviewing all relevant records
4) You can charge for your time but courts may limit fees
5) You’re under oath; lying can lead to perjury charges
What is the standard of care in medical malpractice and how is it determined?
The standard of care is what a reasonably prudent practitioner would have done under similar circumstances. It’s determined through expert testimony at trial. The jury decides, as a question of fact, whether the defendant adhered to this standard based primarily on competing expert witnesses’ testimony.
What is informed consent and how does it relate to medical liability?
Informed consent requires explaining the nature, benefits, risks, and alternatives of proposed procedures clearly to patients. While it doesn’t protect against liability for failing to meet the standard of care, it prevents claims of medical battery (performing procedures without proper authorization). Procedures performed without informed consent can create liability even with good outcomes.
How does the legal concept of a corporation apply to medical practices?
Medical practices can be organized as Professional Associations (PA) or Professional Corporations (PC), which:
1) DO NOT protect a professional from liability for their own negligence
2) DO protect members from liability for other members’ negligence (unless personally involved)
3) Limit liability for business debts to corporate assets only
This differs from partnerships where partners are liable for each other’s professional acts.
What is the relationship between judges and juries in the trial process?
Division of responsibility:
- Judge: “Referees” the trial, rules on objections, decides what law applies, and instructs the jury on legal principles
- Jury: Decides questions of fact (including who to believe), applies the law as explained by the judge to the facts they find, and determines damages if awarded
Appeals generally can only address errors of law, not the jury’s factual findings.
What types of medical billing practices might constitute Medicare/Medicaid fraud?
Potential fraudulent billing practices:
1) Billing for services not provided
2) Misrepresenting diagnoses to justify billing
3) Giving/receiving kickbacks or payment for referrals
4) Double-charging for services
5) Falsifying medical records
6) Up-coding (billing for more complex services than performed)
7) Self-referral violations (Stark Law)
What is bankruptcy and how might it affect healthcare providers as creditors?
Bankruptcy gives debtors a fresh start by discharging most pre-filing debts after creditors receive what they’re entitled to. For healthcare providers:
1) Secured creditors have priority over unsecured creditors
2) Unsecured debts (like unpaid medical bills) often receive nothing
3) Certain debts remain non-dischargeable (taxes, child support, student loans)
4) Patient bankruptcy can eliminate their medical debt obligations
What is the difference between secured and unsecured debt?
Unsecured debt:
- No collateral backing it
- Creditor must sue, get judgment, and have sheriff levy on property
- Often not worth pursuing for small amounts
- Most medical bills are unsecured
Secured debt:
- Backed by collateral (property interest granted to creditor)
- Creditor can repossess collateral without court action if debtor defaults
- Collateral is sold at auction to satisfy debt
- Any remaining balance becomes unsecured debt
What key legal considerations apply to ghost surgery and teaching hospitals?
Ghost surgery (procedure performed by someone other than the physician the patient expected) may create liability for:
1) Professional negligence
2) Lack of informed consent
3) Breach of contract
In teaching hospitals, informed consent forms should clearly specify:
- The extent to which the primary physician will personally perform the procedure
- The role and participation of others (residents, etc.)
What are common types of employee check fraud that affect medical practices?
Two common schemes:
1) Padded payroll - Employee with check-writing authority issues checks to fictitious entities or persons not owed money
2) Forged endorsements - Employee intercepts incoming checks, forges doctor’s signature, and deposits them
Protection requires:
- Personal review of bank statements
- Questioning unfamiliar payees
- Strong financial controls
How does an appeal differ from a trial?
Appeals:
- Review errors of law made by the judge, not jury findings of fact
- Involve only a panel of judges, no jury
- No witnesses testify; only attorney arguments
- Rarely result in new trials in civil cases
- Cannot generally reassess the jury’s factual determinations
- Are based on the written record from the trial court
