Legal Aspects Hours 1-3 Flashcards
4 key sources of law in US
US and state constitutions
Statutes/Acts (legislative branch)
Administrative rules/regulations (executive branch)
Common law/court decisions (judicial branch)
Sources of law in US - US constitution vs. Stat constitution
US is superior to all other laws in US
State can grant more rights than the federal constitution but not leser rights
Sources of law in US - key constitutional provisions
DUE PROCESS
EQUAL PROTECTION
Due process found in
Found in the 5th and 14th amendmants
Equal protection found in
found in 14th amend
Due process - is what
Serves to assure that all levels of American government must operate within the law and provide fair procedures
Equal protection - is what
Serves to assure that all levels of american government treat similarly situated persons similarly under the law
Due process - in PT practice
State licensure board discipline
- disciplinary hearings before state licensure board
Be aware of your rights
Equal protection in PT practice
State licensure board licensing rules
- educational requirements to receive state license to practice legally as PT
Be aware of others’ rights
EXAM !!!
Federal gov branches
Legislative
Judicial
Executive
Federal gov branches - legislative
represent the interests fo their constituents - HOR, Senate
Federal gov branches - legislative bills
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
Federal law resources - US code
Compilation of the laws of the US
Legislative impact on PT practice
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
Federal gov branches - executive branch - federal level
Federal - president
Enact regulations to implement legislative statutes
Federal gov branches - executive branch - state level
State - governor
Executive administrative agencies enact regulations (AKA administrative rules) to implement legislative statutes
Executive impact on PT practice
Administrative agency regulations impact PT
- licensure regulations
- employment regulations
- consumer protection regulation
- federal/state health care program regulations
Local government - city - ordinances
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
Federal gov branches - judicial branch
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
Types of common law - criminal
Think fine or jail
Usually relates to harm to persons or property from committing a crime
Types of common law - civil
Think fine or compelling someone to act
Usually relates to disputes btw two private parties or btw gov and citizens
Types of common law - administrative
Think fine or removing privileges
These cases involve matters of law implemented by the executive branch its agencies
Federal gov branches - judicial branch - purpose
To apply and interpret existing laws
To resolve disputes that arise under existing laws
Federal gov branches - judicial branch - impact on PT practice
Common law can impact PT practice
Employment decisions/discrimination decisions/criminal and civil appeals
Medical malpractice in two parts - what are they
Lawsuit terms and elements
Lawsuit procedure
Medical malpractice in two parts - Lawsuit terms and elements - Cause of Action
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
Medical malpractice in two parts - Lawsuit terms and elements - Civil law
Deals with an attempt to compensate a victim monetarily for losses that should or could have been prevented
Medical malpractice in two parts - Lawsuit terms and elements - Tort
A civil wrong (other than breach of contract) for which a remedy may be obtained in court in the form of damages or injunction
Medical malpractice in two parts - Lawsuit terms and elements - Tortfeasor
One who commits a tort
Medical malpractice in two parts - Lawsuit terms and elements - Types of tort - Negligence Tort
A tort committed by failure to observe the standard of care required by the law under a set of circumstances
Medical malpractice in two parts - Lawsuit terms and elements - Types of tort - Intentional tort
A tort committed by someone acting with general or specific intent
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice
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
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements
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
EXAM!!!
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements - Standard of proof for civil vs criminal cases
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
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements - Standard of proof - in a civil case -
Each element of a cause of action must be proven by a preponderance of the evidence
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements - Standard of proof - Who makes the decision in a civil trial?
Jury or judge
EXAM!!!
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action include
DUTY of care
BREACH of duty
CAUSATION
DAMAGES - Compensatory, Punitive
EACH ELEMENT MUST BE PROVEN!
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Duty of care
Establishing the PT/pt relationship
The legal basis for the PT/Patient relationship rests in contract law and common law
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Duty of care - Contract law
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
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
The PTs actions will be the determining factor in the courts decision
Is the PT providing treatment?
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 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
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
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
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 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
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
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
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
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
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
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!!!
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Breach of duty of care
Failure of the PT to meet the prevailing standard of care for a PT professional (can be an act or omission)
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
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
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Causation
The PT act or omission is the legal pr proximate cause of the damages being alleged
The proximate cause of the damages sustained
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Causation involves
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
EXAM!!!
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Damages
Compensating the proven loss or injury
The amount awarded to a complainant to compensate for a proven injury or loss
EXAM!!!
Medical malpractice in two parts - Lawsuit terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Damages - Economic
Lost wages (past and future)
Lost profits
Past and future medical expenses
EXAM!!!
terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Damages - Non economic
Pain and suffering
Loss of consortium
Disfigurement
Mental anguish and loss of enjoyment of life
EXAM!!!
terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Damages - Punitive
Aimed to punish the offender and send message to others - like the defendant - to deter future negligent bx
terms and elements - Medical Malpractice - Elements of professional malpractice/cause of action - Damages - Key damages questions
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
Professional malpractice and the PT - defenses to alleged malpractice
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!!!
Medical malpractice - lawsuit procedure - plantiff
Person bringing the lawsuit
Medical malpractice - lawsuit procedure - defendant
person/entity names as the alleged wrongdoer
Medical malpractice - lawsuit procedure - legal standing
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
Medical malpractice - lawsuit procedure - complaint
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
Medical malpractice - lawsuit procedure - answer
the defendants response addressing the merits of the plantiffs case (usually a denial)
NOT part of the pre trial discover process
Medical malpractice - lawsuit procedure - For civil cases, rules for procedures and evidence
apply to both sides to assure a fair and orderly process is followed
Medical malpractice - lawsuit procedure - Complaint/Summons Process
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’”
EXAM!!!
Medical malpractice - lawsuit procedure - Complaint/Summons Process - Discovery
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
Medical malpractice - lawsuit procedure - Complaint/Summons Process - Discovery - Depositions
Question and answer session under oath and recorded by video and/or written transcript
Plaintiff, Defendant(s), Experts, Witnesses, Other interested parties
Medical malpractice - lawsuit procedure - - Impeachment
The act of discrediting a witness, as by catching the witness in a lie
The act of challenging the accuracy or authenticity of evidence
Medical malpractice - lawsuit procedure - Expert witness
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
Medical malpractice - lawsuit procedure - Motions
Motion to dismiss
Motion for summary judgment
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
Medical malpractice - lawsuit procedure - Anatomy of a malpractice trial
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
Medical malpractice - lawsuit procedure - Settlement
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
Liability insurance - Malpractice insurance
An agreement to indemnify against negligence claims
Personal decision to carry - protect your assets
Liability insurance - considerations
Always know what coverage your employer provides for malpractice insurance
Understand the risks associated with the setting you work
EXAM!!!
Best practices to avoid malpractice
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
