Chapter 4 Test 2 Flashcards
Defines rights and obligations that arise between two or more parties. Ex: Substance
Substantive law
Provides court rules to guide a lawsuit from beginning through completion. Ex: trial, settlement, or dismissal.
Procedural law
Party that initiates a lawsuit to enforce his or her rights or another’s obligations. There may be more than one
Plaintiff
Individual or organization that is the object of the lawsuit (against whom a lawsuit is brought). There may be more than one
Defendant
Lawsuit by a group of consumers against a large and generally powerful entity for alleged wrongdoing
Class action
Legal proceedings that accompany a lawsuit
Litigation
Documents generated by parties involved in a lawsuit, including complaints and answers
- Clerk of courts maintains documents
Pleadings
A complaint is filed and served on a defendant accompanied by a summons
- Service of a summons and complaint may
be in person, by mail, or by publication;
proof of service may be required
Defendant responds via an answer
- Failure to answer results in default
judgment
Commencing a lawsuit
Defendant files claim against plaintiff
Counterclaim
One party files a claim against another party on same side of the litigation
Cross claim
Defendant brings in outsider as a codefendant
Joinder
Used to discover or obtain information held by other parties to assess strengths and weaknesses in each party’s case
Discovery
Refers to limits on parties to discover pretrial information held by another
Discoverability
Refers to evidence that is allowed to be admitted in court and considered by the judge or jury in making a final determination about a case
Admissibility
Federal Rules of Civil Procedure were amended to address preservation, collection and production of increasing volumes of electronically stored information (ESI)
e-Discovery
Collection of information from source systems outside of those usually printed or viewed electronically
- Examples include e-mails and erased files
e-Discovery considerations
assists providers and vendors with steps to efficiently locate and prepare relevant ESI
Electronic Discovery Reference Model (EDRM)
What are the 2 types of discoveries?
Deposition and Interrogatories
Formal proceeding under oath by which oral testimonies of individuals are obtained
- Authentication establishes the genuineness
of records and, therefore, their reliability
and truthfulness as evidence
Deposition
Establishes authentication of health records
HIM testimony or written certification
Written questions presented to parties to a lawsuit; answers provided in writing
Interrogatories
Includes health records and other tangible items
Request for production of documents or things
Provided by an independent practitioner
Physical or mental examination of party
Asks the opposing party to admit to certain basic facts to diminish time and money spent providing them
Request for admissions
What are the tools to compel discovery?
Court order and Subpoena
Mandate by a judge to compel testimony or production of documents
Court order
Used to compel testimony or production of documents, but is initiated by an attorney (not by a judge) through a court
- Often served via law enforcement or US
mail
- Less legal force than a court order
- In general, must be accompanied by
patient authorization to compel disclosure
of health records
Subpoena
What are the two forms of subpoenas?
Subpoena ad testificandum and Subpoena duces tecum
Seeks an individual’s testimony
Subpoena ad testificandum
Instructs recipient to personally appear with documents in hand
Subpoena duces tecum
- Vary from state to state
- Name of the court from which the
subpoena was issued - Name of plaintiff(s) and defendant(s)
- Assigned case docket number date, time,
and place of requested appearance - Information commanded (testimony or
documents) - Form in which information (including
electronic information) is to be produced - Name of issuing attorney
- Name of recipient being directed to
respond - Signature or stamp of authorized
court/official or judge
Elements of a valid subpoena
Objection to a subpoena may be made in a motion to quash based on
- Inadequate time for compliance
- Requires travel beyond geographical limits
of rule of procedure - Requests privileged information that is not
subject to exception or waiver - Imposes an undue burden on the subject
Judge’s written order authorizing a law enforcement officer to search a specified place and seize evidence
- In healthcare context, most likely in fraud
and abuse cases
Judicial search warrant
protects against unreasonable searches and seizures
Fourth Amendment
Held periodically from filing of lawsuit throughout discovery period to discuss case status, the upcoming trial, and potential settlement negotiations
Pre-trial conferences
Who participates in the Pre-trial conferences?
Parties and their attorneys and The court (judge)
Judge Jury - Bench trial vs. - Jury trial Parties - Plaintiff(s) - Defendant(s) Witnesses - Lay witnesses - Expert Bailiff Court reporter Clerk of court retains records
Players in Trial
If jury is waived, judge hears case
Number of jurors depends on civil vs. criminal case
Jury selection
Trial Procedures
Another name for jury selection
voir dire
______ can excuse potential juror “for cause”
Ex: can be excused in a death penalty case if you won’t vote for death penalty because of morals or religious grounds
Attorneys
Allows jurors to be excused for unstated (but lawful) reasons
May not excuse jurors based on race, religion, gender, and ethnicity
Peremptory challenges
Sufficiently proving or establishing requisite degree of belief for each element of a case
- Usually belongs to the plaintiff
Burden of proof
Beyond a reasonable doubt (criminal cases)
Clear and convincing evidence
Preponderance of evidence (used for malpractice cases)
Burdens of proof
Case may or may not be appealed to next court in tiered system for a review of alleged legal errors at lower court
Appeal
Party appealing the case
Petitioner/appellant
Party against whom case is appealed
Respondent/appellee
Defendant is required to do or to refrain from doing something
equity
What are the three money awards that require collection?
Garnishment of wages
Writ of execution
Judgment lien
Percentage of wages set aside to pay the judgment
Garnishment of wages
Directs law enforcement to seize defendant’s real or personal property to satisfy debt owed
Writ of execution
Encumbers defendant’s property to prevent debtor-defendant from taking money from its sale until judgment owed to the plaintiff has first been paid
Judgment lien
designed to cover payment of money awards by a court
Medical malpractice insurance policy coverage
