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Exam Review Flashcards

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1
Q

Unwritten law that is based on custom and general principles

A

common law

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2
Q

federalism?

A

tension between the state and federal government

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3
Q

The difference between liability in

Contracts and Torts ?

A

_____________Tort Liability_______Contract Liability
Pt’s covered ______All___________only in contract
Timing _________All future______fut pt not guaranteed
Physicians ________All___________only in contract

Both are categories under Civil Law

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4
Q

The difference between

Government and Non-Government Contracts
?

A

Enabling statutes – gives Government a lot of flexibility
Administrative law - Federal Acquisition Regulation System (FAR)
Prescriptive statutes: Favoring
- Small business
-Veterans
-Depressed areas

Much of contract law is a matter of common law; this is not as true in the area of government contracts.

Commerical Contracts (non-government)

  • Governed by State Law
  • Applies local version of Uniform Commercial Code (UCC)
  • FAR does not apply
  • Contract changes must be unanimously approved
  • No termination for convenience
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5
Q

Set forth general propositions of law that courts apply to specific situations

A

Statute

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6
Q

Used to forbid a certain act, direct a certain act, make a declaration, or set forth governmental mechanisms to aid society

A

Statute

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7
Q

Used to forbid a certain act, direct a certain act, make a declaration, or set forth governmental mechanisms to aid society

A

Statute

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8
Q 
Ethics in Government Act
Federal Tort Claims Act
Military Claims  Act
Foreign Claims  Act
Gonzalez  Act
Uniform  Code of Military Justice
Patient Self-Determination Act
Statutes of Limitation
A

Examples of Statutory Law

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9
Q

Unwritten law that is based on custom and general principles

A

Common Law

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10
Q

Embodied in case law

A

Common Law

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11
Q

Serves as precedent for similar situations

A

Common Law

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12
Q

Is applied to situations not covered by statute

A

Common Law

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13
Q

Developed by judges and courts

A

Common Law

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14
Q

Developed by judges and courts

A

Common Law

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15
Q 
Feres  v.  United  States
Roe  v.  Wade
Maher  v.  Roe
United States  v.  Karl  Brandt
Moore  v.  Regents  Univ.  of  California
Parker  v.  Brown
A

Examples of Common Law

Case Law

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16
Q 
Feres  v.  United  States
Roe  v.  Wade
Maher  v.  Roe
United States  v.  Karl  Brandt
Moore  v.  Regents  Univ.  of  California
Parker  v.  Brown
A

Examples of Common Law

Case Law

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17
Q

The body of law concerning with the establishment and operation of government agencies

A

Administrative Law

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18
Q

Defines the duties, rules, and powers of government administrative agencies

A

Administrative Law

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19
Q

Establishes the legal relationships between agencies, other government bodies, and the public at large

A

Administrative Law

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20
Q

Establishes the legal relationships between agencies, other government bodies, and the public at large

A

Administrative Law

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21
Q

Occupational Safety and Health

Administration (OSHA) regulations

Food and Drug Administration (FDA) regulations

Department of Defense (DoD) regulations

Air Force/Army/Coast Guard/Marine/ Navy regulations

A

Examples of Administrative Law

Executive Agencies

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22
Q

Contracts

Torts

Family, Property, Bankruptcy, IP, etc.

A

Civil Law

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23
Q 
Society  harmed
No  self-help
Restriction  on  liberty
Beyond  a  reasonable doubt 
Trial  by  jury guaranteed
A

Criminal

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24
Q

Beyond a reasonable doubt

A

Criminal

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25
Q

Trial by jury guaranteed

A

Criminal

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26
Q 
Individual harmed
Self-help permitted
Damages
By a preponderance  of  the  evidence
Limited  right  to  trial  by jury
A

Civil

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27
Q

By a preponderance of the evidence

A

Civil

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28
Q

Limited right to trial by jury

A

Civil

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29
Q

A legally binding agreement

A

Contract

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30
Q 
Competent  parties
Legal  subject  matter
Offer
Acceptance
Consideration
Mutual  agreement
A

Elements of a Contract

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31
Q

Three most potentially important elements of a contract?

A

Offer
Acceptance
Consideration

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32
Q

Written or Oral

Express or Implied

A

Types of Contracts

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33
Q

Remedies Sought in Contract

A

Specific performance

Damages: $$$$

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34
Q

What are the three sources of law?

A

Statutes

Common Law

Administrative Law

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35
Q

What is the purpose of the Judicial Branch?

A

settle disputes

Supreme Court and all of the courts undernearth

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36
Q

What is Federalism?

A

tension between state and federal powers

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37
Q

What is the difference between Criminal Law and Civil Law

A 
CRIMINAL:
Society  harmed
No  self-help
Restriction  on  liberty
Beyond  a  reasonable doubt 
Trial  by  jury guaranteed
CIVIL:
Individual harmed
Self-help permitted
Damages
By a preponderance  of  the  evidence
Limited  right  to  trial  by jury
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38
Q

What are the elements of a contract?

A

Competent Parties

Legal Subject Matter

OFFER

ACCEPTANCE

CONSIDERATION

Mutual Agreement

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39
Q

What is specific performance?

A

Not necessarily monetary, but asking court to require the other party to do what they agreed to in the contract

  • an equitable remedy calling for the performance of the act promised in the contract
  • the strongest legal or equitable remedy
  • courts prefer legal remedies
  • equitable remedies are needed in the interest of fairness, protection of a person’s reliance and to avoid injustice and due to the difficulty in measuring legal damages monetarily
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40
Q

What is the primary purpose of damages in a breach of contract action?

A

Failing to meet the standard.
At this step, the focus on actions, not the outcome.

PURPOSES OF DAMAGE ACTIONS IN TORT

To give compensation, indemnity or restitution for harm
To determine rights
To punish wrongdoers and deter wrongful conduct
To vindicate parties and deter retaliation or violent and unlawful self-help

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41
Q

meeting of the minds means the parties must agree to all the specifics of the contract

A

mutual agreement

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42
Q

meeting of the minds means the parties must agree to all the specifics of the contract

A

mutual agreement

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43
Q

one party makes a promise to do or refrain from doing some specified action

A

offer

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44
Q

the offer was accepted unambiguously

A

acceptance

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45
Q

something of value is promised in exchange for the specified action

A

consideration

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46
Q

Understand the three types of Tort Liability

A

Types of Tort:

Torts of strict liability

Intentional torts

Negligent torts

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47
Q

Distinguish between

Intentional Torts and Negligent Torts

A

Intentional Torts

Civil Law: Deliberate acts resulting in injury to another
Crimes (Criminal Law): Violations of federal or state criminal law
One act may be both a crime against society and a tort against an individual!!
Example: Surgery Without Informed Consent = Medical Malpractice AND Criminal Act!!

Intentional Tort Elements:
Assault
Assault Consummated By Battery (Battery)
False  imprisonment
Violation  of  the  right  of  privacy
Abandonment 
Defamation
Intentional infliction of emotional distress
Outrage

Negligent Torts:

A breach of duty, other than a contractual duty, which gives rise to a cuase of action for damages

Elements of Negligent Torts:

  • Duty
  • Negligent Breach
  • Causation
  • Injury
  • Damages
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48
Q

Distinguish between

Damages in Tort and Damages in Contracts

A

DAMAGES IN TORT v. CONTRACT

TORT:

Calculated to place plaintiff in the same position, had the tort not been committed

The court determines what losses the plaintiff would have avoided had the incident not happened.

CONTRACT:

Calculated to place the plaintiff in the position they would be in had the contract been performed
The court considers the benefits the plaintiff would have gained had the contract been completed

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49
Q

Describe the elements of legally actionable negligence

A

Negligence - failure to exercise a degree of care that would be taken by another reasonable person in the same circumstances

Individual Negligence Elements

  • Duty
  • Negligent breach of duty
  • Injury
  • Causation

Corporate Negligence Elements

  • Durty
  • Negligent breach of duty
  • Injury
  • Causation
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50
Q

Apply the defenses in Tort Liability

A 
Elemental 
Good  Samaritan 
Res  judicata 
Truth
Charitable Immunity 
Sovereign  Immunity 
Assumption of the risk 
Statute  of  limitations
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51
Q

Understand the Doctrine of Vicarious Liability

A

A hospital or doctor can be held vicariously liable for a claim based on the acts of one of its employees

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52
Q

Distinguish between:

Corporate Liability and Corporate Negligence

A

Liability can fall on the individual or corporation. Corporate liability is either corporate negligence or vicarious liablity

Corporate Negligence:

Failure of a corporation to meet its legal obligations to its clients.

Vicarious Liability:

Sometimes referred to as “imputed liability”

Assigns liability to an individual who did not actually cause the harm, but who has a specific superior legal relationship to the person who did cause the harm

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53
Q

Distinguish between:

Individual Negligence and Corporate Negligence

A

Individual Negligence:

Failure to exercise the degree of care expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation.

A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances

Failure of a corporation to meet its legal obligations to its clients.
Doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient
-Ensure the patient’s safety and well-being while at the hospital
-Responsibilities include the monitoring and supervision of the competence of medical and nursing personnel within the facility; investigating physicians’ credentials, negligent hiring of health care professionals

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54
Q

Distinguish between:

Comparative and Contributory Negligence

(Both Tort Defenses)

A

Contributory negligence – if negligent conduct on the part of the plaintiff/injured party contributes to the negligence of the defendant in causing the injury or damage, the plaintiff is barred from recovery

Comparative negligence - a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff’s own negligence contributed to cause the injury.

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55
Q

TYPES OF DAMAGES IN TORT:

A

Compensatory Damages - Intended to restore what a plaintiff has lost as a result of a defendant’s wrongful conduct

Punitive Damages are intended to punish the defendant for their misconduct

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56
Q
  • Intended to restore what a plaintiff has lost as a result of a defendant’s wrongful conduct
A

TYPES OF DAMAGES IN TORT:

Compensatory Damages

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57
Q

In a pure comparative negligence state, what would the dollar amount of the verdict be if a plaintiff were shown to be 15% negligent and his damages were $450,000? ? What if using a modified comparative negligence rule? A contributory negligence rule?

TEST QUESTION FOR SURE!!!

KNOW HOW TO CALCULATE!!!

A

Pure Comparative Negligence: $382,500

Modified Comparative Negligence: $382,500

Contributory Negligence? $00.00

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58
Q

Tort Defense Review

In a modified comparative negligence state, where the bar to recovery is 50% negligence, what would the dollar amount of the verdict be if a plaintiff were shown to be 51% negligent and damages were $130,000? What if using a pure comparative negligence rule? A contributory negligence rule?

TEST QUESTION FOR SURE!!!

KNOW HOW TO CALCULATE!!!

A

Pure Comparative Negligence: $63,700

Modified Comparative Negligence: $00.00

Contributory Negligence? $00.00

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59
Q

are intended to punish the defendant for their misconduct

A

TYPES OF DAMAGES IN TORT:

Punitive Damages

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60
Q

the result of harm incurred due to the actions of another, with no finding of fault by the defendent

A

Strict Liability Torts

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61
Q

the causing of harm by intentional act, such as intentionally conning someone out of money

A

Intentional Tort

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62
Q

the causing of harm through some negligent act, such as causing a car accident by running a red light

A

Negligent Tort

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63
Q

1) _____ the result of harm incurred due to the actions of another, with no finding of fault by the defendent
2) _____ the causing of harm by intentional act, such as intentionally conning someone out of money
3) ______ the causing of harm through some negligent act, such as causing a car accident by running a red light

A

1) Strict Liability Torts
2) Intentional Tort
3) Negligent Tort

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64
Q

the causing of harm through some negligent act, such as causing a car accident by running a red light

A

Negligent Tort

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65
Q

1) _____ the result of harm incurred due to the actions of another, with no finding of fault by the defendent
2) _____ the causing of harm by intentional act, such as intentionally conning someone out of money
3) ______ the causing of harm through some negligent act, such as causing a car accident by running a red light

A

Type of Tort:

1) Strict Liability Torts
2) Intentional Tort
3) Negligent Tort

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66
Q

Tort Defenses:

_______ missing an element such as no duty or no negligent breach

A

Elemental

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67
Q

Tort Defenses:

which type of tort defense is the following?

Legal protection to people who give reasonable assistance to those who are, or who they believe to be, injured, ill, in peril, or otherwise incapacitated
Law that prevents lawsuits against medical personnel attending to emergency

A

Good Samaritan

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68
Q

Tort Defenses:

_______ a matter that has been adjudicated by a competent court and may not be pursued further by the same parties

A

Res judicata

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69
Q

Tort Defenses:

______ If the statement made is true, there can be no claim for libel or slander. In many courts, a “reasonable belief” that the statement is true will also be a successful defense, though other courts will require higher degrees of care

A

Truth

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70
Q

Tort Defenses:

  • is a legal doctrine which holds that a charitable organization is not liable under tort law.
A

Charitable Immunity

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71
Q

Tort Defenses:

  • legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution.
A

Sovereign Immunity

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72
Q

Tort Defenses:

________ if negligent conduct on the part of the plaintiff/injured party contributes to the negligence of the defendant in causing the injury or damage, the plaintiff is barred from recovery

A

Contributory negligence

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73
Q

Tort Defenses:

__________ - a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff’s own negligence contributed to cause the injury.

A

Comparative negligence

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74
Q

Tort Defenses:

_______ - once a person has knowingly and voluntarily engaged in the risky activity, he cannot sue the host for injuries or damages incurred

A

Assumption of the risk

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75
Q

Tort Defenses:

________– - law which sets the maximum time that parties have to initiate legal proceedings from the date of an alleged offense or injury

A

Statute of limitations

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76
Q

Individual vs Corporate Negligence differences

A

Individual:

A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances

Corporate:

Failure of a corporation to meet its legal obligations to its clients.

Doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient

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77
Q

Understand how the Medical Standard of Care applies in Federal Healthcare Settings

A

Medical Malpractice in the Military Health System; Malpractice System Goals:
Improve Patient care through deterrence
Compensate meritorious claims by injured patients

A potentially compensable event (PCE) is an adverse event that occurs in the delivery of healthcare or services with resulting injury to the patient. It includes any adverse event or outcome, with or without legal fault, in which the patient experiences any unintended or unexpected negative result.

A significantly involved provider (SIP) is an individual who (based on medical record entries) actively delivered care in primary or consultative roles during the episode(s) of care that gave risk to the allegation(s) of malpractice, regardless of the SOC determination.

…. do know that under sovereignty the federal gov’t cannot be sued

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78
Q

Understand the definition of Medical Malpractice

A

Medical Malpractice refers to negligence by an act, or failure to act, by a doctor or other healthcare provider.

When a medical professional’s treatment fails to meet the accepted standard within the medical community, and it causes injury to, or death of, the patient, it is considered to be malpractice.

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79
Q

– “let the master answer”

A

Respondeat Superior

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80
Q

Understand the requirement for expert medical testimony in Tort cases.

A

Res ipsa loquitur - expert NOT required

Rule 702 - Testimony by Expert Witnesses

the patient might have a physician offer Expert Testimony regarding the medication that reasonably prudent physician would have prescribed

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81
Q

– a person who is called upon to testify during a trial due to his knowledge or skills in a field that is relevant to the case

A

Expert Witness

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82
Q

– “let the master answer”

Legal doctrine in which an employer may be held responsible for the actions of his employees, when the actions are performed “in the course of employment.”

A

Respondeat Superior

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83
Q

Legally Actionable Negligence

Negligent Torts

A

Duty

Negligent breach of duty

Injury

Causation

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84
Q

The legal term: “the reasonably prudent person under the circumstances (RPPUTC)”

Not the highest degree of known professional skill, but that which is reasonable or ordinary…

A

Standard of Care

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85
Q

The legal term: “the reasonably prudent person under the circumstances (RPPUTC)”

Not the highest degree of known professional skill, but that which is reasonable or ordinary…

A

Standard of Care

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86
Q

The legal term: “the reasonably prudent person under the circumstances (RPPUTC)”

Not the highest degree of known professional skill, but that which is reasonable or ordinary…

A

Standard of Care

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87
Q

Examples of Negligent Medical Torts

Failure to meet the standard of care:

A 
Failure  to  consult
Failure  to  refer
Failure  to  obtain  informed  consent
Abandonment 
Breach  of  confidentiality
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88
Q

Application of the Standard of Care

_______ - the standard of care to be applied to the professional’s conduct is the reasonable care exercised by similar professionals in the same vicinity and professional community.

________ - requires a doctor to use the degree of skill and care of a reasonably competent practitioner in his field under same or similar circumstances

A

Locality Rule

National or Professional Rule

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89
Q

The plaintiff’s injury must be of a type that does not ordinarily occur unless someone has been negligent.

Means - - “ The Thing Speaks for Itself “

Laymen would understand

Expert testimony is not required

A

Res ipsa loquitur

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90
Q

Res ipsa loquitur Examples?

A

Wrong limb or body part

Wrong patient

Explosion or fire

Foreign body left in patient

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91
Q

Why are employers responsible for their employee conduct?

A

Respondeat Superior

The Latin term respondeat superior, which means “let the master answer”

Legal doctrine in which an employer may be held responsible for the actions of his employees, when the actions are performed “in the course of employment.”

Vicarious Liability – A hospital or doctor can be held vicariously liable for a claim based on the acts of one of its employees.

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92
Q

How is the standard of care measured in negligence cases?

A

The legal term: “the reasonably prudent person under the circumstances (RPPUTC)”

Not the highest degree of known professional skill, but that which is reasonable or ordinary…

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93
Q

What is National Standard of Care?

A

National or Professional Rule - requires a doctor to use the degree of skill and care of a reasonably competent practitioner in his field under same or similar circumstances

Locality Rule - the standard of care to be applied to the professional’s conduct is the reasonable care exercised by similar professionals in the same vicinity and professional community.

National or Professional Rule - requires a doctor to use the degree of skill and care of a reasonably competent practitioner in his field under same or similar circumstances

Failure to meet the standard of care:

Failure  to  consult
Failure  to  refer
Failure  to  obtain  informed  consent
Abandonment 
Breach  of  confidentiality
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94
Q

Name and define the types of damages awardable in Tort cases (two)

A

Compensatory Damages - Intended to restore what a plaintiff has lost as a result of a defendant’s wrongful conduct (can be compensatory or general)

Punitive Damages are intended to punish the defendant for their misconduct

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95
Q

To give compensation, indemnity or restitution for harm

To determine rights

To punish wrongdoers and deter wrongful conduct

To vindicate parties and deter retaliation or violent and unlawful self-help

A

PURPOSES OF DAMAGE ACTIONS IN TORT

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96
Q

Describe the two types of compensatory damages:

A

Special Damages - financial losses directly caused by the defendant’s actions

General Damages – money awarded for things for which the value is more difficult to determine.

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97
Q

Describe the two types of compensatory damages:

A

Special Damages - financial losses directly caused by the defendant’s actions

General Damages – money awarded for things for which the value is more difficult to determine.

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98
Q

Name the type of damage that cannot be awarded against the United States

A

punitive damage

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99
Q

SPECIAL DAMAGES (objective factors) ?

financial losses directly caused by the defendant’s actions

A

Cost of repairs

Loss of earnings

Impairment of earning capacity

Medical expenses

Services in the home

Cost to repair or replace property

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100
Q

Cost of repairs

Loss of earnings

Impairment of earning capacity

Medical expenses

Services in the home

Cost to repair or replace property

A

SPECIAL DAMAGES (objective factors)

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101
Q

SPECIAL DAMAGES (objective factors) ?

financial losses directly caused by the defendant’s actions

A

Cost of repairs

Loss of earnings

Impairment of earning capacity

Medical expenses

Services in the home

Cost to repair or replace property

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102
Q

GENERAL DAMAGES (subjective factors)

money awarded for things for which the value is more difficult to determine.

A 
Pain and Suffering
Physical impairment
Loss of use
Visible scarring
Loss of enjoyment of life  (Hedonic)
Mental Anguish
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103
Q 
Pain and Suffering
Physical impairment
Loss of use
Visible scarring
Loss of enjoyment of life  (Hedonic)
Mental Anguish
A

GENERAL DAMAGES (subjective factors)

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104
Q 
Pain and Suffering
Physical impairment
Loss of use
Visible scarring
Loss of enjoyment of life  (Hedonic)
Mental Anguish
A

GENERAL DAMAGES (subjective factors)

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105
Q

can punitive damages be awarded against the US?

A

NOT A CHANCE!!

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106
Q

______ are damages awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.

A

PUNITIVE DAMAGES

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107
Q

________ = the defendant’s evil motive or his reckless indifference to the rights of others.

A

Outrageous conduct

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108
Q

Character of defendant’s conduct

Extent and nature of the harm (actual and intended)

the wealth of the defendant.

Considerations for what?

A

PUNITIVE DAMAGES

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109
Q

Waiver of Sovereign Immunity to permit individuals to sue the U.S. for negligent acts of U.S. government personnel acting within the scope of employment.

Sole Remedy for negligent acts of military health care providers acting within SOLE – suit must be against the U.S., not the individual

A

Federal Tort Claims Act

APPLIES IN THE FOLLOWING: In-scope negligent torts of agents and employees

In the United States

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110
Q

When the FTCA Applies?

Federal Tort Claims Act

A

In-scope negligent torts of agents and employees

In the United States

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111
Q

When the FTCA Applies?

Federal Tort Claims Act

A

In-scope negligent torts of agents and employees

In the United States

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112
Q

Federal Malpractice Claims Process:

A

Begins with an Administrative Claim

Must state a sum certain

Proper Claimant - public, family members

U.S. Government has 6 months to process claim

If no response or not satisfied with final decision claimant can file suit in Federal

District Court

May only be filed pursuant to the FTCA

If filed against the health care provider – U.S. Government will be substituted (not automatic)

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113
Q

Federal Malpractice Claims Process:

A

Begins with an Administrative Claim

Must state a sum certain

Proper Claimant - public, family members

U.S. Government has 6 months to process claim

If no response or not satisfied with final decision claimant can file suit in Federal

District Court

May only be filed pursuant to the FTCA

If filed against the health care provider – U.S. Government will be substituted (not automatic)

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114
Q

FTCA RULE S

A 
Two year Statute of Limitations 
Trial by judge alone
Trial in U.S. District Court
No limit on damages
No punitive damages
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115
Q 
Two year Statute of Limitations 
Trial by judge alone
Trial in U.S. District Court
No limit on damages
No punitive damages
A

FTCA RULE S

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116
Q

FTCA KEY TERMS

what is a proper claimant?

A

Civilians
Dependents
Retirees

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117
Q

FTCA RULES

A 
Two year Statute of Limitations 
Trial by judge alone
Trial in U.S. District Court
No limit on damages
No punitive damages
118
Q 
Two year Statute of Limitations 
Trial by judge alone
Trial in U.S. District Court
No limit on damages
No punitive damages
A

FTCA RULES

119
Q

FTCA KEY TERMS

what is a proper claimant?

A

Civilians
Dependents
Retirees

120
Q

Operates overseas as the FTCA operates in the United States; except it is administrative only

Protects governmental agents and employees from personal liability for harm resulting from their negligent in-scope torts

A

MILITARY CLAIMS ACT

121
Q

Operates overseas as the FTCA operates in the United States; except it is administrative only

Protects governmental agents and employees from personal liability for harm resulting from their negligent in-scope torts

A

MILITARY CLAIMS ACT

122
Q

Two year Statute of Limitations

SoL extended during war or armed conflict

Administrative Claim Only

No right to a Trial

Damages in excess of $100,000 must be forwarded to the Comptroller General

No punitive damages

A

MILITARY CLAIMS ACT RULES

123
Q

FOREIGN CLAIMS ACT RULES

A

Two year Statute of Limitations
Administrative Claim Only
No right to a Trial
Damages in excess of $100,000 must be forwarded to the Comptroller General
No punitive damages
Claimant must accept as full satisfaction

124
Q

Two year Statute of Limitations
Administrative Claim Only
No right to a Trial
Damages in excess of $100,000 must be forwarded to the Comptroller General
No punitive damages
Claimant must accept as full satisfaction

A

FOREIGN CLAIMS ACT RULES

125
Q

The government is not liable under the FTCA for injuries to service-members when those injuries arose out of, or were in the course of, activities incident to service

Also applies to Military Claims Act

A

Feres Doctrine

126
Q

Feres Doctrine

A

The government is not liable under the FTCA for injuries to service-members when those injuries arose out of, or were in the course of, activities incident to service

Also applies to Military Claims Act

127
Q

Will allow suit against the U.S. for injuries and deaths of a Soldier caused by improper medical care/other purposes.
A claim relating to the personal injury or death of a Soldier arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions provided at a covered military medical treatment facility
Treatment must be provided by a person acting within the scope of the office or employment of that person by or at the direction of the Government of the U.S.
Statute of limitations is 3 years

A

Military Medical Accountability Act of 2019

128
Q

Military Medical Accountability Act of 2019

A

Will allow suit against the U.S. for injuries and deaths of a Soldier caused by improper medical care/other purposes.

A claim relating to the personal injury or death of a Soldier arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions provided at a covered military medical treatment facility

Treatment must be provided by a person acting within the scope of the office or employment of that person by or at the direction of the Government of the U.S.

Statute of limitations is 3 years

129
Q

Define the Feres Doctrine.

A

Soldiers injured “incident to service” may not sue U.S. Government. “Incident to Service” is interpreted very broadly. Family members may not submit claims on behalf of Soldier.

The government is not liable under the FTCA for injuries to service-members when those injuries arose out of, or were in the course of, activities incident to service

Also applies to Military Claims Act

130
Q

Who is protected under the FTCA?

A

In-scope negligent torts of agents and employees

In the United States

131
Q

What is the significance of filing an administrative claim?

A

Under the FTCA, a plaintiff must first submit an administrative claim to the responsible federal agency prior to the initiation of a lawsuit.

132
Q

What is the statue of limitations of the FTCA?

A 
2 year statue of limiations
trial by judge alone
trial in US district court
No limit on damages
No punitive damages
133
Q

What is the statute of limitations for the Military Claims Act?

A 
Two year Statute of Limitations
Administrative Claim Only
No right to a trial
Damages in excess of $100K must be forwarded to comptroller general
No punitive damages

Claim Filed (Statue of Limitations extended for war and armed conflict)

134
Q
  • Must be Competent and Legal Age (State/Federal Law)
  • Determined by physician
  • Able to take in information
  • Able to process information/reason and communicate
  • Must be Voluntary Act
A

Capacity to Consent

135
Q
  • Oral (liability considerations, witnesses)
  • Written (consent forms, POAs, living wills)
  • Implied (emergency)
A

Forms of Informed consent

136
Q
  • Oral (liability considerations, witnesses)
  • Written (consent forms, POAs, living wills)
  • Implied (emergency)
A

Forms of Informed consent

137
Q

Informed Consent
General Rule—
The patient must posses certain information prior to giving consent. A physician has a duty to disclose:

A

Diagnosis of the patient’s condition

Nature and purpose of recommended treatment or procedure

Risks and complications associated with the recommended treatment or procedure

Prognosis if the treatment is performed

Prognosis if the treatment is not performed
Alternative treatments

138
Q

Informed Consent

Think “PARQ”:

A

Procedure
Alternatives
Risks and Benefits
Questions

139
Q

Elements of Informed

Decision - Making

A

Decision Making Capacity

Information

Voluntariness

Agreement / Request

Declination / Refusal

140
Q

Legal age (determined by state law)

Ability to take in information

Ability to process information

Ability to communicate information

A

Decision – Making Capacity

141
Q

Remember:

  • A patient has the right to refuse medical treatment.
  • Not an absolute right
  • Scope of Refusal
A

Advance Directives

142
Q

Three types of Advance Directives—

A

Do Not Resuscitate (DNR) Orders

Durable Medical Power of Attorney

Living Will

143
Q

A written document in which one person appoints another person to act as an agent on their behalf

Can be general or special

Grant requires legal capacity

Attorney-in-fact must have legal capacity

Effective on the date stated

Terminates when the grantor dies or becomes incompetent

A

Power of Attorney

144
Q

A written document in which one person appoints another person to act as an agent on their behalf

Can be general or special

Grant requires legal capacity

Attorney-in-fact must have legal capacity

Effective on the date (immediate or “springing”)

Continues beyond incapacity and death of the grantor

Most often used for health care issues

A

Durable Power of Attorney

145
Q

Generally used for terminal illnesses

Takes effect when a stated medical problem occurs

Provides instructions to health care providers

Used to outline a full range of treatment preferences including rejecting certain treatment

Allows you to make decisions concerning future treatment

A

Living Will

146
Q

Living Will Vs. Durable POA for Medical Care

A

Living Will:
Requires a terminal condition

Takes effect when a stated medical problem occurs

Relies on health- care providers

Durable POA for Medical Care

  • Takes effect upon execution or loss of decision - making capacity
  • Employs a named agent
  • Grants decision - making power for any medical situation
147
Q

Passive Death vs. Proactive Death

The Right to Refuse Treatment has been recognized U.S. for many years

Requesting that someone else assist or speed up the dying process is a different matter, both ethically and legally.

If the patient requires the assistance of another person, they must reside in a state with supportive laws.

A

Right to Die

148
Q

What are the elements of Informed Decision-Making?

What information is required?

A

Decision making capacity (legal age, ability to take in information/process information/communicate information)

Information

Voluntariness

Agreement/request or declination/refusal

149
Q

State the purpose of the Privacy Act and the Freedom of Information Act

A

Privacy Act:Balance the government’s need to maintain information about individuals with individuals’ privacy rights. Ensure no “secret files” are kept
Restricts the disclosure of personal information maintained by agencies.

FOIA: keeps citizens in the know about their government. provides that when processing requests, agencies should withhold information only if they reasonably foresee that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law

150
Q

What is the purpose of the Privacy Act?

A

Balance the government’s need to maintain information about individuals with individuals’ privacy rights

Ensure no “secret files” are kept

Restricts the disclosure of personal information maintained by agencies

151
Q

What does the Patient Self-Determination Act require?

A

Hospitals must allow the patient to fill out an advanced directive

152
Q

What type of Advance Directive can you use in case you become incompetent?

A

Durable Medical Power of Attorney

Living Will

153
Q

How do we measure whether the informed consent was was sufficient?

A

Reasonable Physician Standard
-What a reasonable physician would disclose under the same or similar circumstances.

Reasonable Patient Standard
-What information the reasonable patient would consider “material” before making a decision.

Objective Materiality
-Objective balancing of probability that the risk will occur with the severity of the outcome if that risk does occur.

154
Q

What is the difference between Durable POA and Living Will?

A

Living will = Normally used for a terminal condition

Takes effect when a stated medical problem occurs

Relies on health- care providers

Durable PoA = Takes effect upon execution or loss of decision - making capacity

Employs a named agent

Grants decision - making power for any medical situation

155
Q

What are the two Decision-Making Modalities for surrogates?

A

Patient’s best interest: to attempt to act in the incompetent patient’s best interest.

Surrogate’s substituted judgment: to base the decision on what it is believed the incompetent patient would want

156
Q

What are the three types of Advance Directives?

A

Do Not Resuscitate (DNR) Orders

Durable Medical Power of Attorney

Living Will

157
Q

What is the difference between capacity and competence?

A

Capacity – Medical Determination
Individual abilities of the patient
The requirements of the task at hand
The consequences of the decision

Competence – Legal Determination
Adjudged by the court
Recognized as incompeten

158
Q

Compare and Contrast the purposes of HIPAA and the Privacy Act

A

Privacy Act of 1974
Decades of protecting patient information
Applies to Federal Government only

HIPAA of 1996
Applies to entire US Healthcare Community INCLUDING the Military Health System (MHS)

Furthermore: HIPAA does not supersede the PA
Covered entities must also comply with DoD Privacy Act Program

The two rules protect PHI, but generally, the stricter rule is followed

PA systems notices reviewed and modified to incorporate HIPAA

Note: No private right of action under HIPAA

159
Q

Describe the legislative objectives of HIPAA

A

To improve portability and continuity of health insurance coverage in the group and individual markets.

To combat waste, fraud, and abuse in health insurance and health care delivery.

To reduce costs and the administrative burdens of health care by improving efficiency of the health care system by standardizing the interchange of electronic data for specified administrative and financial transactions.

To ensure the privacy of Americans’ personal health records by protecting the security and confidentiality of health care information.

160
Q

Apply the authorized exceptions that allow disclosure - focus on the Military Exception

A

Armed forces personnel: CE may use/disclose PHI of soldiers for activities deemed necessary by the appropriate military command authorities to assure execution of mission.

The Privacy Rule is permissive so a civilian covered entity (hospital or clinic) or Military Treatment Facility (MTF) is not required to disclose a Soldier’s PHI.

DoD policy is to support a Commander’s need for health information to support his mission.

Commanders are not authorized unfettered access to a Soldier’s PHI. They are only authorized medical information that limits the Soldier’s ability to perform his or her duty.

161
Q

What is the purpose of the Freedom of Information Act?

A

has provided the public the right to request access to records from any federal agency.

The law that keeps citizens in the know about their government.

162
Q

When does the Privacy Act apply? (three requirements)

A

Record – personal information about an individual

Individuals – Citizen or lawfully admitted alien

System of Records – group of records in which information is retrieved by the subject’s name or some personal identifier (e.g., social security number)

163
Q

What should you do before submitting a FOIA request?

A

First check to see if the information you are interested in is already publicly available.
Search the agency’s website.
Search for information posted on the FOIA.gov website
If the information is not publicly available, FOIA request must be submitted to the Agency that has control of the records
The request must be in writing and reasonably describe the records.
Most federal agencies accept FOIA requests electronically

164
Q

Name two FOIA exemptions?

A

Properly classified as secret in the interest of national defense or foreign policy.

Related solely to internal personnel rules and practices.
Specifically exempted by other statutes.

Concerning trade secrets and commercial or financial information obtained from a person that is privileged or confidential.

Privileged interagency or intra-agency memoranda or letters, except under certain circumstances.

165
Q

Name two Privacy Act Obligations?

A

Access & Amendment Rights

Account for Disclosures

Accurate

Safeguard Information

Public Notice Before Records are Kept

No Records on 1st Amendment Exercise

Informed Collection: (Privacy Act Statement)

Keep Only Necessary and Relevant Information

Collect From 1st Party if Possible

No Disclosure to 3rd Party Without Consent

166
Q

What is the purpose of HIPAA?

A

A major goal of HIPAA is to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and to promote high quality health care.

HIPAA strikes a balance that permits important uses of information, while protecting the privacy of people who seek health care.

167
Q

What is covered under HIPAA?

A

Protected Health Information (PHI):

  • Individually identifiable health information including demographics, in electronic, paper or oral medium
  • Held by covered entities or their business associates
  • Relates to the past, present, or future
  • MTF’s responsibility is to protect & safeguard a patient’s PHI
168
Q

Name two Covered Entities under HIPAA?

A

HIPAA applies only to Covered Entities (CEs):

  • Military Treatment Facilities (MTFs)
  • Health Plans, e.g., TRICARE
  • Health care clearinghouses, e.g., companies that perform electronic billing on behalf of MTFs
  • Health care providers who transmit health information in (standard) electronic transactions, e.g., Military Health System (MHS)
169
Q

What are the legislative objectives of HIPAA?

A

To improve portability and continuity of health insurance coverage in the group and individual markets.
To combat waste, fraud, and abuse in health insurance and health care delivery.
To reduce costs and the administrative burdens of health care by improving efficiency of the health care system by standardizing the interchange of electronic data for specified administrative and financial transactions.
To ensure the privacy of Americans’ personal health records by protecting the security and confidentiality of health care information.

170
Q

Name two authorized exceptions that allow disclosure HIPAA?

A
  • As required by law
  • Avert serious threats to health or safety
  • Specialized government functions
  • Judicial and administrative proceedings
  • Law enforcement purposes
  • Victims of abuse, neglect or domestic violence-
  • Health oversight activities
  • Workers’ compensation
  • Research (minimal risk)
  • Public health activities
  • About decedents
  • Cadaver organ, eye or tissue donation purposes
171
Q

What is the goal of the Military Exception?

What information is releasable under the Military Exception?

A

“Fitness for mission”

Commander must exercise authority over Soldier or another person designated by a Commander to receive PHI to carry out an activity under the authority of the Commander.
Purposely very broad in nature.
Does not apply to civilians, retirees, or family members

172
Q

– A hospital or doctor can be held vicariously liable for a claim based on the acts of one of its employees.

A

Vicarious Liability

173
Q

when is consent required?

A

consent is always required, but who can give consent: an adult must provide consent that is mentally capable

174
Q

elements of a contract

A

1) Competent Parties
2) Legal Subject Matter
3) Mutual Agreement

Competent parties – both parties must have the legal capacity to understand the terms of the agreement

Legal subject matter – in order for the contract to be legally binding the subject matter must be legal

Mutual agreement – meeting of the minds means the parties must agree to all the specifics of the contract

175
Q

– both parties must have the legal capacity to understand the terms of the agreement

A

Competent parties

176
Q

– in order for the contract to be legally binding the subject matter must be legal

A

Legal subject matter

177
Q

– meeting of the minds means the parties must agree to all the specifics of the contract

A

Mutual agreement

178
Q

The body of law concerning the establishment and operation of government agencies

Defines the duties, rules, and powers of government administrative agencies

Establishes the legal relationships between agencies, other government bodies, and the public at large

A

Administrative Law

179
Q

TYPES OF DAMAGES IN TORT

A

Compensatory Damages - Intended to restore what a plaintiff has lost as a result of a defendant’s wrongful conduct

Punitive Damages are intended to punish the defendant for their misconduct

180
Q

Doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient

  • —-Ensure the patient’s safety and well-being while at the hospital
  • —-Responsibilities include the monitoring and supervision of the competence of medical and nursing personnel within the facility; investigating physicians’ credentials, negligent hiring of health care professionals
A

Corporate negligence

181
Q

imputed liability

A

vicarious liability

182
Q

liability is imposed because of a special relationship

A

vicarious liability

183
Q

the corporation is criminally liable for the actions of an agent or employee during the scope of employment

A

corporate liability

184
Q

the employer is criminally liable for the actions of an employee during the scope of employment

A

employer-employee liability

185
Q

– A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.

A

Civil Lawsuit

186
Q

– Responsibility for payment of damages, or for other court-imposed penalties in a civil lawsuit.

A

Civil Liability

187
Q

– Failure to exercise a degree of care that would be taken by another reasonable person in the same circumstances.

A

Negligence

188
Q

– A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.

A

Plaintiff

189
Q

– A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.

A

Defendant

190
Q

Tort defenses?

A 
Elemental 
Good  Samaritan 
Res  judicata 
Truth
Charitable Immunity 
Sovereign  Immunity 
Assumption of the risk 
Statute  of  limitations
191
Q 
Elemental
Performance / Satisfaction
Impossibility
Sovereign  Immunity
Frustration of performance
Statute  of  limitations
Res  judicata
Violates law/public policy
A

Contract Defenses

192
Q

An element is missing required for contract formation (lack of consideration/meeting of the minds/capacity)

A

Elemental (Contract Defense)

193
Q

The parties have accepted the contract performance, or a substitution for the performance, as adequate

A

Performance / Satisfaction (Contract Defense)

194
Q

Something happens after contract formation that makes performance impossible or impracticable.

A

Impossibility (Contract Defense)

195
Q

the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution

A

Sovereign Immunity (Contract Defense)

196
Q

events occur or circumstances arise which substantially frustrate a party’s purpose in entering the contract.

A

Frustration of performance (Contract Defense)

197
Q

set the maximum time after an event when legal proceedings may be initiated

A

Statute of limitations (Contract Defense)

198
Q

a case in which there has been a final judgment and is no longer subject to appeal; meant to bar continued litigation of a case on same issues between the same parties

A

Res judicata (Contract Defense)

199
Q

What is the United States Constitution?

A

Supreme law of the land:
provides framework of the US Gov
Establishes branches of Gov
Provides checks and balances

200
Q

What is a law?

A

A system of rules that define socially acceptable behavior and sets punishments for violations

201
Q

What is the difference between Criminal and Civil Law?

A

Criminal - restriction on liberty and beyond a reasonable doubt

Civil - damages and preponderance of the evidence

202
Q

What are the elements of a contract?

A 
Competent parties
Legal subject matter 
Offer 
Acceptance 
Consideration 
Mutual agreement
203
Q

What is a specific performance?

A

Requiring the individual to do what they said they would do

Applied in breach of contract actions where monetary damages are inadequate

204
Q

What is the primary purpose of damages in a breach of contract?

A

Place the injured party in the position they would have been in if the contact would’ve been performed

205
Q

What is the difference between Civil Law and Criminal Law?

A

Civil law - by a preponderance of the evidence (money)

Criminal - beyond a reasonable doubt (jail time)

206
Q

What are the two types of contracts?

A

Written or oral
Express or implied

Express contract can be oral or written or both… exchange of promises

All elements specifically stated … Ex: Lease

  • –Implied contract is based on the actions of the people involved
  • –Contractual obligation is assumed…. Pattern of behavior or status quo
207
Q

What is a tort?

A

A non-contractual, civil wrong against a person (real or corporate) or against a person’s property for which a court may award a remedy in damages

208
Q

What are the types of torts?

A

Torts of strict liability
Intentional torts
Negligence torts

209
Q

What is a strict liability tort?

A

Activities so dangerous that an individual engaged in those activities is liable regardless of intent or negligence resulting in harm

Elements

  • Tort Occurred
  • Defendant is Responsible
210
Q

What are the elements of legally actionable negligence?

What is the example of negligent tort?

A 
Duty
Negligent Breach
Causation
Injury 
Damages

Auto accidents
Slip and Falls
Product Defects

211
Q

What are the elements of negligent tort?

A

Duty
Breach
Injury
Causation

212
Q
  • a system of rules that defines socially acceptable behavior and sets punishments for violations
A

Law

213
Q

– a written law passed by a legislature of the state or federal government

A

Statute

214
Q

– unwritten law that is developed by judges and courts

A

Common Law

215
Q

– the body of law concerned with the establishment and operation of government agencies.

A

Administrative Law

216
Q

– a legally binding agreement

A

contract

217
Q

– a non-contractual, civil wrong against a person or person’s property for which a court can award a remedy in damages 2.

A

Tort

218
Q
  • activities so dangerous that an individual engaging in those activities is liable regardless of intent or negligence resulting in harm
    3.
A

Strict Liability Tort

219
Q
  • deliberate acts resulting in injury to another

4.

A

Intentional Tort

220
Q
  • a breach of a duty, other than a contractual duty, which gives rise to a cause of action for damages 5.
A

Negligent Tort

221
Q
  • a matter that has been adjudicated by a competent court and may not be pursued further by the same parties 6.
A

Res judicata

222
Q
  • assigns liability to an individual who did not actually cause the harm, but who has a specific superior legal relationship to the person who did cause the harm
A

Vicarious Liability

223
Q
  • negligence by an act, or failure to act, by a doctor or other healthcare provider 2.
A

Medical Malpractice

224
Q
  • the standard of care to be applied to the professional’s conduct is the reasonable care exercised by similar professionals in the same vicinity and professional community
    3.
A

Locality Rule

225
Q
  • requires a doctor to use the degree of skill and care of a reasonably competent practitioner in his field under same or similar circumstances
    4.
A

National or Professional Rule

226
Q
  • the plaintiff’s injury must be of a type that does not ordinarily occur unless someone has been negligent. Means - - “ The Thing Speaks for Itself “ 5.
A

Res ipsa loquitur

227
Q
  • means “let the master answer” Legal doctrine in which an employer may be held responsible for the actions of his employees, when the actions are performed “in the course of employment.” 6.
A

Respoondeat Superior

228
Q
  • Experts provide testimony about their particular knowledge or skills in a field that relates to the issues disputed in the case
A

Expert Witness

229
Q

– The Gov’t is immune from tort liability unless it consents to being sued. 2.

A

Sovereign Immunity

230
Q
  • means “let the master answer” Legal doctrine in which an employer may be held responsible for the actions of his employees, when the actions are performed “in the course of employment.”
    3.
A

Respondeat Superior

231
Q

– “the thing speaks for itself”; negligence is self-evident; don’t have to prove duty and breach elements of negligence 4.

A

Res Ipsa Loquitur

232
Q
  • waiver of Sovereign Immunity to permit individuals to sue the U.S. for negligent acts of U.S. government personnel acting within the scope of employment 5.
A

Federal Tort Claims Act

233
Q
  • applies to claims for personal injury that are caused by the negligence of a federal government employee who is acting within the scope of his or her employment, under circumstances where a private person would be liable under state law 6.
A

Scope of Employment

234
Q
  • judgment in an action under the FTCA shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim 7.
A

Judgment as a Bar

235
Q
  • Soldiers injured “incident to service” may not sue U.S. Government. “Incident to Service” is interpreted very broadly. Family members may not submit claims on behalf of Soldier 8.
A

The Feres Doctrine

236
Q
  • will allow suit against the U.S. for injuries and deaths of a Soldier caused by improper medical care/other purposes.
A

Military Medical Accountability Act of 2019

237
Q

– what information a reasonable physician would disclose under the same or similar circumstances 2.

A

Reasonable Physician Standard

238
Q
  • what information the reasonable patient would consider “material” before making a decision 3.
A

Reasonable Patient Standard

239
Q

– (Medical Determination) individual abilities of the patient; the requirements of the task at hand. The consequences of the decision 4.

A

Capacity

240
Q

– (Legal Determination) adjudged by the court Recognized as incompetent 5.

A

Competence

241
Q

– a written document in which one person appoints another person to act as an agent on their behalf

A

Power of Attorney

242
Q
  • written document in which one person appoints another person to act as an agent on their behalf. Continues beyond incapacity and death of the grantor
A

Durable Power of Attorney

243
Q
  • generally used for terminal illnesses; takes effect when a stated medical problem occurs; provides instructions to health care providers
A

Living Will

244
Q
  • provides the public the right to request access to records from any federal agency
A

Freedom of Information Act (FOIA)

245
Q
  • balance the government’s need to maintain information about individuals with individuals’ privacy rights. Restricts the disclosure of personal information maintained by agencies
A

Privacy Act

246
Q
  • provided the first nationally-recognized regulations for the use/disclosure of an individual’s health information.
A

The Health Insurance Portability and Accountability Act (HIPAA)

247
Q

– internal use or sharing of individually identifiable health information within the covered entity that maintains the information 5.

A

Use

248
Q

– external release, transfer, provision of access to, or divulging in any manner, PHI outside the entity that maintains the information
6.

A

Disclosure

249
Q

TPO – Treatment, Payment and Healthcare Operations

Treatment?

Payment?

Healthcare Ops?

A

a. Treatment - provision, coordination, consultation and referral
b. Payment - billing, reimbursement, eligibility, utilization review
c. Healthcare Operations – Quality Assurance, credentialing, legal, medical review, auditing, and regular business and management

250
Q

Name and define tort defenses?

A

Think

CCT CAS REGS

Look at your notes or the google doc #23

251
Q

What is the difference between individual negligence and corporate negligence?

A

Individual

  • Failure to exercise the degree of care expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation
  • Person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances

Corporate

  • Failure of a corporation to meet its legal obligations to its clients
  • Doctrine under which the hospital is liable if it fails to uphold the proper standard of care
  • —-Responsible for supervision and behavior of its employees
252
Q

What is the doctrine of vicarious liability?

A

A hospital or doctor can be held vicariously liable for a claim based on acts of its employees

253
Q

Why are employers responsible for their employees conduct?

A

Respondeat Superior
—Legal doctrine that allows employers to be held responsible for the actions of their employees in the “course of employment”.

254
Q

What is the national standard of care?

A

Requires a doctor to use the degree of skill and care of a reasonably competent practitioner in his field under the same or similar circumstances

255
Q

What are the elements of medical malpractice?

A 
Failure to consult
Failure to refer 
Failure to obtain informed consent 
Abandonment 
Breach of confidentiality
256
Q

What does res ipsa loquitur mean?

A

Injury must be a type that does not ordinarily occur unless someone has been negligent
“Let things speak for itself”
Laymen understands
Expert testimony not required

Examples: wrong limb, wrong patient, fire, foreign body left in patient

257
Q

Normally used for a terminal condition

Takes effect when a stated medical problem occurs

Relies on health- care providers

A

living will

258
Q

Takes effect upon execution or loss of decision - making capacity

Employs a named agent

Grants decision - making power for any medical situation

A

durable PoA (for medical care)

259
Q

Token damages awarded to redress a violation of a legal right that the law deems necessary to protect, even if there has been no actual harm or monetary loss.

By granting nominal damages, the court affirms that a legal right has been violated.

EX?

A

NOMINAL DAMAGES

T-swift $1 for butt touches

260
Q

Awarded to compensate a plaintiff for suffering intangible injuries or damages.

The damage award is for aggravation of the injury by the defendant’s misconduct.

Intangible Injuries include: mental distress, pain, anguish, grief, anxiety, humiliation, indignation, or damaged self-confidence.

A

AGGRAVATED DAMAGES

261
Q

are damages awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.

Outrageous conduct = the defendant’s evil motive or his reckless indifference to the rights of others.

Considerations:
Character of defendant’s conduct
Extent and nature of the harm (actual and intended)
the wealth of the defendant.

A

Punitive damages

262
Q

DAMAGES IN TORT v. CONTRACT?

A

TORT
Calculated to place plaintiff in the same position, had the tort not been committed

The court determines what losses the plaintiff would have avoided had the incident not happened.

CONTRACT

Calculated to place the plaintiff in the position they would be in had the contract been performed
The court considers the benefits the plaintiff would have gained had the contract been completed

263
Q

physicians held liable by parents for the cost of raising an impaired child and related damages for failing to advise parents of birth defects

A

Wrongful birth:

264
Q

action brought by or on behalf of a child by normal but unwanted children or planned, but abnormal children. Premise is that the child’s existence is a harm and but for the physician’s negligence the child would not have been born.

A

Wrongful life:

265
Q

What are the two decision-making modalities for surrogates?

A

Patient’s best interest
To attempt to act in the incompetent patient’s best interest
Surrogate’s substituted judgement
To base the decision on what is believed the incompetent patient would want

266
Q

To attempt to act in the incompetent patient’s best interest

A

Patient’s best interest

267
Q

To base the decision on what is believed the incompetent patient would want

A

Surrogate’s substituted judgement

268
Q

Preservation of life
Prevention of suicide
Protection of innocent third parties
Protection of the ethical integrity of healthcare professionals

A

states’ interests THAT are normally involved

269
Q

What states’ interests are normally involved?

A

Preservation of life
Prevention of suicide
Protection of innocent third parties
Protection of the ethical integrity of healthcare professionals

270
Q

What is the difference between capacity and competence?

A

Capacity: medically determined
Individual abilities of the patient
The requirements of the task at hand
The consequences of the decision

Competence: court determined
Adjudged by the court
Recognized as incompetent

271
Q

Capacity: medically determined

A

Individual abilities of the patient
The requirements of the task at hand
The consequences of the decision

272
Q

Competence: court determined

A

Adjudged by the court

Recognized as incompetent

273
Q

What is the therapeutic privilege?

A

An exception to the general rule of informed consent, and only applies when disclosure of the information itself could pose serious and immediate harm to the patient, such as prompting suicide

274
Q

What are the elements of informed decision making?

A 
Decision Making Capacity
Information
Voluntariness
Agreement/Request OR
Declination/Refus
275
Q

What are the elements of decision making capacity?

A 
Legal age (determined by state law)
Ability to take in information
Ability to process information
Ability to communicate information
Capacity (medical determination)
Competence (legal determination)
276
Q

What is the purpose of the privacy act?

A

Balance the government’s need to maintain information about individuals with individuals’ privacy rights
Ensure no “secret files” are kept
Restricts the disclosure of personal information maintained by agencies.

277
Q

What is the purpose of the freedom of information act?

A

Allows access to information
The law that keeps citizens in the know about their government.
Provides that when processing requests, agencies should withhold information only if they reasonably foresee that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law.

278
Q

When does the privacy act apply?

A

Applies to Federal Government only

279
Q

Name the FOIA exemptions?

A

Properly classified as secret in the interest of national defense or foreign policy

Related solely to internal personnel rules and practices

Specifically exempted by other statutes

Concerning trade secrets and commercial or financial information obtained from a person that is privileged or confidential

Privileged interagency or intra-agency memoranda or letters, except under certain circumstances

Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy
Investigatory records compiled for law enforcement purposes

Contained in or related to certain examination, operating, or condition reports concerning financial institutions

Geological and geophysical information and data, including maps, concerning wells

280
Q

Name two privacy act obligations?

A

Access and amendment rights
Account for disclosures
Accurate
Safeguard information
Public notice before records are kept
No records on first amendment exercise
Information collection: privacy act statement
Keep only necessary and relevant information
Collect from first part of possibly
No disclosure to 3rd party without consent

281
Q

What is the purpose of HIPAA?

A

A major goal is to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care

Strikes a balance that permits important uses of information, while protecting the privacy of people who seek health care

First nationally recognized act to protect health information

282
Q

What is covered under HIPAA?

A

Protected Health Information
Individually identifiable health information including demographics, in electronic, paper, or oral medium

Held by covered entities or their business associates

Related to the past, present, or future

  • -Physical or mental health of an individual
  • -Provisions of health care to an individual
  • -Payments for health care
  • -Can be used to identify the individual or there is a reasonable basis to believe it could be used to identify the individual

MTF’s responsibility is to protect and safeguard a patient’s PHI

283
Q

Name two covered entities under HIPAA?

A

Military treatment facilities (MTFs)

Health plans (eg TRICARE)

Health care clearinghouses, like companies that perform electronic billing on behalf of MTFs

Health care providers who transmit health information in (standard) electronic transactions, like the military health system

Business associates

—A person or entity that is not a member of the covered entity’s workforce, that performs a function or activity for the covered entity using PHI (eg independent medical transcriptionist, Garrison legal office, DOJ, managed care support contractors)

BA Agreement

  • –A BA may not use or further disclose such information in violation of statute/regulation
  • –Not needed if individual/office covered by the DoD regulation
284
Q

What are the legislative objectives of HIPAA?

A

Improve portability and continuity of health insurance coverage in the group and individual markets

Combat, waste, fraud, and abuse in health insurance and health care delivery

Reduce cost and the administrative burdens of healthcare by improving efficiency of health care system by standardizing the interchange of electronic data for specified administrative and financial transactions

To ensure the privacy of americans’ personal health records by protecting the security and confidentiality of healthcare information

And quality

285
Q

Name two authorized exceptions that allow disclosure HIPAA?

A

“Required by law”

  • –Disclosures of PHI are permitted when required by other laws, whether federal, tribal, state, or local
  • –Includes any mandate contained in a DoD regulation that requires a covered entity to make a use or disclosure and is enforceable in a court of law
  • ——“DoD regulation” includes any DoD directive, instruction or publication OR any Military Department regulation or similar issuance

Disclosures to avert a serious threat to health or safety

Disclosures for law enforcement purposes

Disclosures for judicial and administrative proceedings

AR 15-6 investigations

Disclosures for healthcare operations

Disclosures for specialized government functions

Disclosure to command authorities

The military exception

Fitness for mission

Disclosure of directory information

286
Q

What is the goal of the military exception?

A

To accomplish mission through:

To determine the soldier’s fitness to perform and particular mission, assignment, order, or duty including compliance with actions required as a precondition to performance of such mission, assignment, order, or duty.

Does not apply to civilians, retirees, or family members

287
Q

What information is releasable under the military exception?

A

Only authorized medical information that limits the Soldier’s ability to perform his or her duty.

Minimum amount of information necessary

288
Q

wrongful life vs wrongful birth?

A

Wrongful birth suits are used when the child has serious impairments, resulting in extraordinary medical and other expenses for the parents, who seek damages for these expenses, as well as emotional harm. Wrongful life suits, by contrast, are brought on behalf of the infant plaintiff.

289
Q

wrongful life vs wrongful birth: who are the damages for in each case

A

Wrongful life - for infant plaintiff

Wrongful birth - expenses for parents who are plaintiffs

290
Q

when does the Federal Acquisition Regulation System (FAR) system apply?

A

government contracts

MED LAW (1 decks)

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