Exam 1 Flashcards
The science and study of the law
Jurisprudence
Dictate what you must do
Laws
Dictate what you should do
Ethics
Burden of prrof for criminal law is ____________
Beyond a reasonable doubt
Burden of proof for civil law is ________
Preponderance of evidence
“more likely you did do it then didn’t do it”
T/F The burden of proof for a criminal case has a higher standard then a civil case
True
- Criminal = beyond reasonable doubt (hard to define)
- Civil = preponderance of evidence (easy to define)
A contract is any agreement between two or more paties that a court will enforce:
Because the agreement creates legally binding obligations between/among parties
T/F Contract do not need to be in writing in order to be legally binding
True
Consideration may also be a sacrifice, giving something up or refraining from doing something
Legal detriment
3 kinds of disaffirmation (legal right of incompetent party to set aside agreement)
- Minors
- Under the influence
- Mental illness
May disaffirm anytime until they reach the age of majority and reasonable time their after. “It is a shield, not a sword”
Minors
One party fails to perform the required obligations
Breech of contract
Power relathionship innately present in a doctor-patient relationship
Undue influence
A civil wrong. Need preponderance of evidence to convict
Tort
3 Types of Torts
1) Intentional = assault and battery, invasion of privacy
2) Unintentional = negligence, malpractice (professional negligence)
3) Strict liability (liability without fault)
Which type of tort is NOT covered by malpractice insurance?
Intentional tort = assault and battery, invasion of privacy, etc.
For torts the burden of proof is on the accuser unless it is a case of:
Res ipsa loquitor
- “the thing speaks for itself”
- Shifts the burden of proof to the defendent (guilty until proven innocent)
T/F Lost records are viewed as irrebuttable presumption of malpractice
True
What are the 4 components for a successful malpractice claim (4 D’s)?
- Duty
- Dereliction of Duty
- Direct causation
- Damages
(If patient proves all 4 = patient proves Dr. was negligent)
The first essential element to a successful malpractice claim is showing that the physician owed some _____ to the claimant. This is only shown if a _________ relationship has been established
Duty
Doctor-Patient Relationship
T/F The doctors duty is only present when in the office and when the patient is charged a fee for service.
FALSE
- Doctor’s duty remains the same with or without a fee
- Informal setting/social setting = Reliance
Your front desk person tells a patient on the phone that their headache is probably just a subluxation and tells them to come back tomorrow to get adjusted. Patient dies that night and the family is suing the Dr. for malpractice. Is the D.C. liable?
YES!!
-Front desk person is an employer of the D.C. and thus the doctor is liable because of Vicarious Liability***
T/F The existence of a doctor patient relationship may depend not on the doctor’s intent, but the impression created in the mind of a reasonable patient
True
What is the locality rule?
The doctor is only liable if he failed to meet standards practiced by doctors in their community
-This has been expanded over time and is replaced by the Same or similar locality test
Charging a pre-determined amount for a specified course of treatment, often with a discount for advanced payment that can cause many problems
Case fees
In all, but the most unusual circumstances, the appropriate standard of care must be established by the testimonry of an ________ because jurors do not know if the Dr.’s acts were proper or not
Expert witness
Who are the “Triers of Fact” in litigations?
Judge
Jurors (Jury)
T/F The platniff is still required to produce expert witness testimony even in cases or res ipsa loquitor
FALSE
-With res ipsa loquitor (it speaks for itself) expert witnesses are not needed
Res ipsa loquitor allows for an _____________ by the jury understanding that the plantiff’s injuries, sustained in parts of the body not being treated by the defendent were the result of the defendants negligence in administering the treatment
Inference of negligence
What can alter the legal standard of care?
- Judicial edict
- Statutory presumption
- Technology
- College training
- Specialization
- Advertising
-
Failing to conform to the required level of care
Negligence
If the doctor is guilty of dereliction of duty to perform up to the appropriate standard as demonstrated by expert testimony, then he is _____
Negligent
T/F It is ok to examine and adjust an impaired patient as long as they are conscience to consent to treatment
FALSE
-Impaired patients may experience reduced pain findings during examination and lead to a misdiagnosis or patient injury during testing.
Severing the _____________ should be done in a specificed manner as not to invite an abandonment claim
Professional relationship
T/F Patients can limit or restruc the consent they give for treatment
True
-“You can adjust my back, but don’t touch my neck”
Unauthorzed touching of another is actionable in it self as ________
Battery
What 3 things will an insurance contract provide in return for a premium?
1) Defend any claims against the insured
2) Provide the services of an attorney
3) Pay (up to the amounts of the policy limits) any money the doctor becomes obligated to pay because of errors or omissions covered by the policy
What 3 things are the doctor obligated to do under the terms of his policy with the insurance provider?
1) Refrain from certain acts or activities prohibited by the policy that may put the company at a disadvantage and jeopardize coverage
2) Promptly report any claims or suspected claims
3) Cooperate with the company in the case of an investigation
When it comes to insurance malpractice, have it or have ____
No assets
What 3 standard conditions will limit the liability of the insurance policy?
1) Limits of liability under the policy
2) Occur during the policy period
3) Services of the named insured, and staff named in the declaration
Malpractice carrier obligates itself to _______________ against the doctor
Defend claims and suits
T/F Nuisance suits are typically not settled until after trial
FALSE
-They are typically settled before Trial
What are the 3 coverages by NCMIC?
1) Indemnity = “make whole” up to the policy limits
2) Defense = insurance company is responsible to provide a defense and pay for it
3) Supplemental = civil sexual misconduct allegations, HIPPAA and privacy related issues, state disciplinary proceedings, wrongful billing and related proceedings ==== separate limits apply
What does a $1,000,000/$3,000,000 policy mean?
$1,000,000 coverage per occurrence
$3,000,000 coverage per year (with multiple occurences)
T/F The limit for each occurence pertains to each occurrence of negligence
True
T/F A D.C.’s insurance will also cover associated chiropractors in his office via vicarious liability
FALSE
-Vicarious liability is only extended to the non-D.C. staff; the associate is a D.C. and needs his own insurance
Two basic types of insurance
- Occurence coverage
- Claims made coverage
Comes into play when picking jurors for the trial. Process for interviewing jurors for biases. Also used in interviewing expert witnesses. Goal is to determine qualifications.
Voir dire
-“speak the truth”
Coverage pays for loss or damage sustained because of errors or omissions occuring during the effective policy period of coverage.
Occurence coverage
T/F With a occurence coverage policy, you will be covered for a malpractice claim in 2008 during active practice/policy coverage even though the claim was filed in 2016, 3 years after retirement/end of policy.
True
-Occurence = covered for the period the claim is said to have occured if you had active coverage regardless of when the claim was actually filed.
T/F A malpractice claim is filed against you in 2016, 3 years after retirement for you. The claim allegedly states the event occured in 1990, 2 years before you obtained occurence coverage through NCMIC. Are you still covered by malpractice insurance?
NO!
-Incident occured before your occurence coverage policy has started, so it is good for incidents from 1992 through forever, but NOT before 1992 (unless you get tail coverage)
Coverage provides coverage for loss or damages sustained due to errors or omissions when the claim is made and reported during the period covered
Claims made coverage
You are a new D.C. who just bought claims made coverage through NCMIC. You find out that someone has filed a malpractice claim against you 3 months before you paid the premium. Are you covered?
NO!
-Claims made coverage is only in effect for the amount of time the premiums are paid are do not extend before the policy began or after the termination of the policy (unless you also continue to pay the premiums or pay gap coverage insurance from the provider)
T/F Claims made coverage is usually cheaper tahn occurence coverage (until year 5)
True
T/F Occurence coverage does not need tail coverage.
True
-Claims made coverage would need gap coverage following retirement or in between insurances
Conversion of the policy (at a substantial premium) to extend coverage by making the company liable for claims reported in future years
Tail coverage
If there is an offer to settle the claim and the doctor withholds consent, then the doctor becomes personally liable for any judgement
Hammer clause
Some companies require this. Company may utilize this process if they feel you are being unreasonable in not settling and the company could settle.
Arbitration
