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Block 7 PID Exam 6 > Legal Aspects Hours 1-3 > Flashcards

Legal Aspects Hours 1-3 Flashcards

1
Q

4 key sources of law in US

A

US and state constitutions
Statutes/Acts (legislative branch)
Administrative rules/regulations (executive branch)
Common law/court decisions (judicial branch)

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2
Q

Sources of law in US - US constitution vs. Stat constitution

A

US is superior to all other laws in US

State can grant more rights than the federal constitution but not leser rights

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3
Q

Sources of law in US - key constitutional provisions

A

DUE PROCESS

EQUAL PROTECTION

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4
Q

Due process found in

A

Found in the 5th and 14th amendmants

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5
Q

Equal protection found in

A

found in 14th amend

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6
Q

Due process - is what

A

Serves to assure that all levels of American government must operate within the law and provide fair procedures

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7
Q

Equal protection - is what

A

Serves to assure that all levels of american government treat similarly situated persons similarly under the law

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8
Q

Due process - in PT practice

A

State licensure board discipline
- disciplinary hearings before state licensure board

Be aware of your rights

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9
Q

Equal protection in PT practice

A

State licensure board licensing rules
- educational requirements to receive state license to practice legally as PT

Be aware of others’ rights

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10
Q

EXAM !!!

Federal gov branches

A

Legislative
Judicial
Executive

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11
Q

Federal gov branches - legislative

A

represent the interests fo their constituents - HOR, Senate

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12
Q

Federal gov branches - legislative bills

A

Originate from members of congress
Bills are debated in committee and mvoe to full legislative body for consideration
Bills go to executive for signature into law or veto
Signed law is referred to as a Statute or Act

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13
Q

Federal law resources - US code

A

Compilation of the laws of the US

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14
Q

Legislative impact on PT practice

A

Determine scope of practice of PT and professional standards for jurisdiction

Determine scope of practice of other health care professionals

Determine payment systems

Establish penalties for failure to follow law

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15
Q

Federal gov branches - executive branch - federal level

A

Federal - president

Enact regulations to implement legislative statutes

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16
Q

Federal gov branches - executive branch - state level

A

State - governor

Executive administrative agencies enact regulations (AKA administrative rules) to implement legislative statutes

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17
Q

Executive impact on PT practice

A

Administrative agency regulations impact PT

  • licensure regulations
  • employment regulations
  • consumer protection regulation
  • federal/state health care program regulations
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18
Q

Local government - city - ordinances

A

Beyond the state and federal statutes and regualtions there are also laws adopted by local city and county authorities which are referred to as ordinances

Ordinance carry the force of law for that specific city or county and may provide evidence of local standards of care

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19
Q

Federal gov branches - judicial branch

A

Decisions rendered by US court system create the common law which is different than legislative and administrative created law

3 types of common law - Criminal, Civil, Administrative

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20
Q

Types of common law - criminal

A

Think fine or jail

Usually relates to harm to persons or property from committing a crime

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21
Q

Types of common law - civil

A

Think fine or compelling someone to act

Usually relates to disputes btw two private parties or btw gov and citizens

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22
Q

Types of common law - administrative

A

Think fine or removing privileges

These cases involve matters of law implemented by the executive branch its agencies

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23
Q

Federal gov branches - judicial branch - purpose

A

To apply and interpret existing laws

To resolve disputes that arise under existing laws

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24
Q

Federal gov branches - judicial branch - impact on PT practice

A

Common law can impact PT practice

Employment decisions/discrimination decisions/criminal and civil appeals

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25
Q

Medical malpractice in two parts - what are they

A

Lawsuit terms and elements

Lawsuit procedure

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26
Q

Medical malpractice in two parts - Lawsuit terms and elements - Cause of Action

A

A civil lawsuit is brought based upon a cause of action

A cause of action is defined as a factual situation that entitles one person to obtain remedy in court from another person

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27
Q

Medical malpractice in two parts - Lawsuit terms and elements - Civil law

A

Deals with an attempt to compensate a victim monetarily for losses that should or could have been prevented

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28
Q

Medical malpractice in two parts - Lawsuit terms and elements - Tort

A

A civil wrong (other than breach of contract) for which a remedy may be obtained in court in the form of damages or injunction

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29
Q

Medical malpractice in two parts - Lawsuit terms and elements - Tortfeasor

A

One who commits a tort

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30
Q

Medical malpractice in two parts - Lawsuit terms and elements - Types of tort - Negligence Tort

A

A tort committed by failure to observe the standard of care required by the law under a set of circumstances

31
Q

Medical malpractice in two parts - Lawsuit terms and elements - Types of tort - Intentional tort

A

A tort committed by someone acting with general or specific intent

32
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice

A

The most common tort a PT will face is a claim of negligence which in some states is called medical malpractice

medical malpractice = civil law

Medical professional’s failure to exercise the degree of care and skill that a person of the same medical specialty would use under similar circumstances

33
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements

A

To prove a civil cause of action

To prevail in court, the person bringing the cause of action must prove his case by the applicable standard of proof

34
Q

EXAM!!!

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements - Standard of proof for civil vs criminal cases

A

Standard of proof for civil cases - you only need to be after like 50% (so 51% sure would be fine) - Preponderance of the evidence - the “more likely than not” standard

Standard of proof for criminal law - much higher standard of proof - has be beyond a reasonable doubt

35
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements - Standard of proof - in a civil case -

A

Each element of a cause of action must be proven by a preponderance of the evidence

36
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements - Standard of proof - Who makes the decision in a civil trial?

A

Jury or judge

37
Q

EXAM!!!

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action include

A

DUTY of care
BREACH of duty
CAUSATION
DAMAGES - Compensatory, Punitive

EACH ELEMENT MUST BE PROVEN!

38
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Duty of care

A

Establishing the PT/pt relationship

The legal basis for the PT/Patient relationship rests in contract law and common law

39
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Duty of care - Contract law

A

A contract is an agreement to do or not to do a particular thing in exchange for something
PT/pt relationship are usually created by an implied contract concept
Law, as a matter of reason and justice, infers the contract by the conduct of the PT

40
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Duty of care - Contract law - looking for evidence of an implied contract (when a court evaluates facts to determine if relationship exists under implied contract theory - what is considered

A

The PTs actions will be the determining factor in the courts decision

Is the PT providing treatment?

41
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Duty of care - Common law - Under common law,

A

A PT has no duty to provide medical care
However, once a PT accepts a pt and agrees to provide medical care, he or she creates a legal relationship that is no different from signing a contract with that patient

42
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Duty of care - Termination of the PT/pt relationship

A

Unless the law authorizes the PT to break the implied contract by withdrawing from the PT/pt relationship, he or she is obligated to appropriately treat the patient

43
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Duty of care - Abandonment occurs when

A

A PT terminates the PT/pt relationship without giving the pt advance notice sufficient to enable the pt to find another provider AND where th ept is in need of further therapy

This is an intentional tort for which cause of action is possible against the PT

44
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Duty of care - Good samaritan laws and abandonment

A

Several states have laws that protect persons who provide assistance to a stranger despite no pre-existing duty to do so

PTs do NOT have a duty to treat every pt - however, once the duty is established, responsibilities continue on until termination

45
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Duty of care - Examples of an APPROPRIATE termination of the PT/pt relationship

A

Pts condition doesn’t warrant further care
Both parties agreed to end relationship
Pt discharges himself
Pt fails to follow directions
Pt threatens to sue
Pt fails to pay for services
Relationship ends as a function of pre arranged contractual agreement or by statute

46
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Duty of care - Best practice for termination of PT services by PT is to

A

Provide reasonable notice of intent to terminate
Stabilize the pt (if warranted)
Obtain assurance that the pt understands the need for additional PT services

Timely and complete documentation provides evidence that PROPER measures were taken!!!

47
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Breach of duty of care

A

Failure of the PT to meet the prevailing standard of care for a PT professional (can be an act or omission)

48
Q

EXAM!!!

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Breach of duty of care - Local Standards and National standards

A

Local - PT licensure laws, Internal policies and procedures of the SNF

National - Guide to PT practice, APTA code of ethics, APTA center for integrity in practice

49
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Causation

A

The PT act or omission is the legal pr proximate cause of the damages being alleged

The proximate cause of the damages sustained

50
Q

Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Causation involves

A

Asking who, what, when, where, why, how

Identify the event
Identify a result
Was the result cause by the event

NOTE - Defense consideration - could there by other intervening events or non events that contributed to the cause

51
Q

EXAM!!!
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Damages

A

Compensating the proven loss or injury

The amount awarded to a complainant to compensate for a proven injury or loss

52
Q

EXAM!!!
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Damages - Economic

A

Lost wages (past and future)
Lost profits
Past and future medical expenses

53
Q

EXAM!!!

terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Damages - Non economic

A

Pain and suffering
Loss of consortium
Disfigurement
Mental anguish and loss of enjoyment of life

54
Q

EXAM!!!

terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Damages - Punitive

A

Aimed to punish the offender and send message to others - like the defendant - to deter future negligent bx

55
Q

terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Damages - Key damages questions

A

Was there a harm to someone or something
What was the harm
Can the harm be calculated into monetary loss or punitive monetary penalty assigned to the person.entity which caused the harm

56
Q

Professional malpractice and the PT - defenses to alleged malpractice

A

No malpractice occurred at all
Contributory fault/assumption of risk
Waiver release
Statute of limitation has run (Iowa claims must be filled within 2 years of reasonable discovery of the act resulting in injury - all actions though have to be filled within 6 yrs of the wrongful act or omission)

LACK OF INTENT (to hurt someone) IS NOT A DEFENSE TO MALPRACTICE!!!

57
Q

Medical malpractice - lawsuit procedure - plantiff

A

Person bringing the lawsuit

58
Q

Medical malpractice - lawsuit procedure - defendant

A

person/entity names as the alleged wrongdoer

59
Q

Medical malpractice - lawsuit procedure - legal standing

A

A partys right to make a legal claim or seek judicial enforcement of a duty or right

If a court dismisses a case for lack of standing it means the merit of the case is not even considered by the court

60
Q

Medical malpractice - lawsuit procedure - complaint

A

The initial pleading by the plantiff that starts a civil action and states the basis for the claim and demand for relief from the court

NOT part of the pre trial discover process

61
Q

Medical malpractice - lawsuit procedure - answer

A

the defendants response addressing the merits of the plantiffs case (usually a denial)

NOT part of the pre trial discover process

62
Q

Medical malpractice - lawsuit procedure - For civil cases, rules for procedures and evidence

A

apply to both sides to assure a fair and orderly process is followed

63
Q

Medical malpractice - lawsuit procedure - Complaint/Summons Process

A

Do NOT ignore a complaint sent to you
Represents launch of legal claim against you
You will likely need legal assistance to respond
Time sensitive
Opportunity to provide initial answers to the statements/allegations made
Following answer by you, case development begins through process of “discovery’”

64
Q

EXAM!!!

Medical malpractice - lawsuit procedure - Complaint/Summons Process - Discovery

A

A pre trial process of permitting both sides to gather info that could lead to evidence for later use
1 REQUEST FOR DOCUMENTATION
2 INTERROGATORIES
3 DEPOSITIONS

NOTE - protection of privileged documents/info is critical

65
Q

Medical malpractice - lawsuit procedure - Complaint/Summons Process - Discovery - Depositions

A

Question and answer session under oath and recorded by video and/or written transcript

Plaintiff, Defendant(s), Experts, Witnesses, Other interested parties

66
Q

Medical malpractice - lawsuit procedure - - Impeachment

A

The act of discrediting a witness, as by catching the witness in a lie
The act of challenging the accuracy or authenticity of evidence

67
Q

Medical malpractice - lawsuit procedure - Expert witness

A

Medical professionals (often of same specialty) used to offer expert testimony in a medical malpractice case to demonstrate if standard of care was breached by PT

Info provided is intended to assist the fact finder (judge or jury) in forming an opinion about whether or not a standard of care was breached

Experts are often deposed prior to trial

68
Q

Medical malpractice - lawsuit procedure - Motions

Motion to dismiss

Motion for summary judgment

A

Motion is when a party asks the court for a specific ruling or order

Dismiss - pre trial motion made by defendant claiming plaintiff failed to state a claim on which relief can be granted

Summary - request for court to enter judgment without trial because there is no genuine issue of fact to decide

69
Q

Medical malpractice - lawsuit procedure - Anatomy of a malpractice trial

A 
Opening statements by both sides
Presentation of evidence to jury/judge
Direct testimony/cross exam
Expert testimony
Closing arguments by both sides
Jury/judge verdict/ruling
Post trial appeals
70
Q

Medical malpractice - lawsuit procedure - Settlement

A

Most medical malpractice lawsuits will end up settling out of court - but still requires that both sides file motions and go through discovery through the court process

over 90% cases settle outside of court - neither wants to go to court because expensive and time consuming

71
Q

Liability insurance - Malpractice insurance

A

An agreement to indemnify against negligence claims

Personal decision to carry - protect your assets

72
Q

Liability insurance - considerations

A

Always know what coverage your employer provides for malpractice insurance
Understand the risks associated with the setting you work

73
Q

EXAM!!!

Best practices to avoid malpractice

A

Best practices that will avoid or defend medical malpractice claims - Always…
1 provide competent care
2 create complete documentation
3 demonstrate character as a professional

Block 7 PID Exam 6 (4 decks)

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