Med Law Flashcards
1
Q
What was the constitution a result of?
A
The Revolutionary war, 1783
2
Q
4 weaknesses of the articles of confederation.
A
- No Seperation of Powers
- Weak Gov’t
- No taxes
- Compeition b/w states
3
Q
What is the US Gov’t a principle of?
A
Federalism
4
Q
What is the importance of amendment 10 of the bill of rights
A
Unallocated power not reserved for federal gov’t
Gives states power
5
Q
Who has the power to provide occupational licensure?
A
The State
6
Q
What are the three branches of gov’t?
A
Legislature
Executive
Judicial
7
Q
Under what branch do all agencies fall?
A
Executive
8
Q
What is the purpose of military law?
A
Promote good order and disicpline
9
Q
What type of law would a trial of the state vs. human represent?
A
Criminal Law
10
Q
What type of wrong is harmful to society?
A
Criminal Law
11
Q
What type of proof do you need in criminal law?
A
Beyond a Reasonable Doubt
12
Q
What type of proof do you need in civil law?
A
Low proof
Liability
13
Q
What are the two components of civil law?
A
Contracts and Torts
14
Q
What are the two types of contracts
A
written and oral
- expressed or implied
- written is preferred
15
Q
What is the rule of 4
A
There must be at least 4 Supreme justice votes (of the 9) to initiate hearing a case,
-50 plus cases a year
16
Q
Something that ends in act is a ________.
A
Statute or Statutory Law
17
Q
If the law is further developed by a court judge it becomes what?
A
Common-Law
18
Q
What branch governs common law?
A
Judicial branch
19
Q
What type of law is medical law?
A
Civil
20
Q
What are the two parts of contracts?
A
Elements and Conditions
21
Q
What are the components of elemental law?
A
Requires an offer (promise), acceptance, and consideration(quid pro quo).
22
Q
What are the components of conditions
A
competent parties
legal subject matter
mutual agreement
23
Q
Between contracts and torts, which is a legally enforceable agreement?
A
Contracts
24
Q
What branch governs administrative law?
A
Executive branch
25
What are the components of a statute
General regulations made by the legislative branch
26
What are the examples of administrative law?
FDA, vaccines
27
What are the 8 contract defenses?
```
Elemental
Performance
Impossibility
Sovereign
Frustration of performance
State of limitations
Res Judicata
Violates Law/public policy
```
28
What is tort law?
Noncontractual civil wrong
| wrong against a corporation [person]
29
What are the 9 Tort Defenses
```
Assumption of risk
Good Samaritan
Elemental Contributory negligence
Comparative negligence
Contributory negligence
Res Judicata
Charitable immunity
Sovereign immunity
Truth
```
30
What type of tort is a deliberate injury to another?
Intentional
31
What are the 6 examples of an intentional tort
```
Assault
Consummated Battery[completed]
False Imprisonment
Violation of Right to privacy
Abandonment
Defamation[libel / slander]
```
32
What are the 4 parts of negligent tort?
Duty of care
Breach of duty
Caused
Injury/Damages
33
What is caused negligent tort
Injury was foreseeable
34
What is the duty of care
Duty to pts, not the world
35
'what is a violation of the right to privacy
Compromise of interest
36
What established sovereign immunity
Fed Tort claims act
37
What is the difference between contributory negligence and comparative
```
Contributory = even @ 1% fault you get 0$
Comparative = if you are 50% or more at fault you get zero
```
38
What is individual negligence
Below the line expected of a reasonable person
39
4 elements of individual negligence
Duty
Negligent breach of duty
Injury
Causation
40
What is res ipsa loquitor
An argument when someone is suing that must meet 2 guidelines:
1) breach of duty to care
2) event is unusual
[no expert witness required] = ruled in favor of the plantiff
41
What are the elements of medical malpractice?
Duty
Breach of duty
Injury
Causation
42
What is the national standard of care?
Keeps the status quo of medical practice on a level standard.
43
What classifies as punitive damages against theUS GOV' T?
Nothing, you cant punish the sovereign. Only compensatory.
44
General vs. Special vs. Punitive damage?
General = all plaintiffs in the same situation would experience this [pain and suffering] non economic
Special = Out of pocket unique to a case, [compensation for losses]
Punitive = Punish the defendant to deter them from future conduct. Malicious/oppressive conduct or fraudulent conduct is shown.
45
General vs. Special vs. Punitive damage?
General = all plaintiffs in the same situation would experience this [pain and suffering] non economic
Special = Out of pocket unique to a case, [compensation for losses]
Punitive = Punish the defendant to deter them from future conduct. Malicious/oppressive conduct or fraudulent conduct is shown. (NOT AGAINST THE US GOV'T)
46
What are hedonic damages?
A general damage that includes loss of enjoyment of life.
47
What category do nominal damages fall under?
General
48
What is the American Theory of Damages
To make the plaintiff whole
49
What is vicarious liability?
A hospital or doctor can be held vicariously liable for a claim based on the acts of one of its employees.
50
a doctrine which applies when the negligence is so apparent, a presumption of the breach of duty leading to the action or occurrence can be made by the court.
Res ipsa loquitur
51
What qualifies as not med mal practice?
All simple mistakes
Patients unhappy with the results of their treatment
Bad outcome doesn’t always equal malpractice
No harm done to the patient
52
Who can be negligent?
Licensed Personnel,
Unlicensed Interns & Residents
Social Workers, Counselors, and Assistants
Institutions
MTF Commanders
53
What is (RPPUTC) , with respect to Standard of Care?
The legal term: “the reasonably prudent person under the circumstances
Not the highest degree of known professional skill, but that which is reasonable or ordinary...
54
What is the Medical Standard of Care for Physician Assistants?
To act as a reasonable and prudent Physician Assistant would act under the same or similar circumstances.
55
What are examples of negligent torts?
•Failure
to
consult
•Failure
to
refer
```
•Failure
to
obtain
informed
consent
```
Abandonment
Breach of confidentiality
56
What is the 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.
57
Examples (4) of ways Standards of Care can change.
Expert Witnesses
Statutes
Regulations and Rules
Authoritative textbooks
58
What is the "daubert standard"?
the rule of evidence that determines whether an expert witness’ testimony is admissible as a form of evidence at trial
59
Two examples that can stand up as evidence to the "daubert standard"
Scientifically valid reasoning
Trial judge as gatekeeper
60
Three requirements of Res Ipsa Loquitur
Event would not ordinarily occur without negligence
Apparent / presumptive cause was within exclusive control of defendant
No negligence on the part of the plaintiff
61
Wrong limb or body part
Wrong patient
Explosion or fire
Foreign body left in patient
Are examples of what?
Res Ipsa Loquitur
62
What is corporate negligence?
Failure of a corporation to meet its legal obligations to its clients.
63
Elements of Corporate Negligence
Duty
Negligent breach of duty
Injury
Causation
64
What is vicarious liability also referred to as?
imputed liability
65
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
Vicarious Liability
66
Federal Tort Claims Act
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
67
The Feres Doctrine
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
68
Reasonable Physician Standard
what information a reasonable physician would disclose under the same or similar circumstances
69
Reasonable Patient Standard
what information the reasonable patient would consider “material” before making a decision
70
(Legal Determination) adjudged by the court Recognized
Competence
71
Power of Attorney
a written document in which one person appoints another person to act as an agent on their behalf
72
Durable Power of Attorney
Continues beyond incapacity and death of the grantor
73
generally used for terminal illnesses; takes effect when a stated medical problem occurs; provides instructions to health care providers
Living Will
74
Freedom of Information Act (FOIA)
provides the public the right to request access to records from any federal agency
75
balance the government’s need to maintain information about individuals with individuals’ privacy rights. Restricts the disclosure of personal information maintained by agencies
Privacy Act
76
provided the first nationally-recognized regulations for the use/disclosure of an individual's health information
HIPPA,
| Health Insurance Portability and Accountability Act
77
You do not need a patient's consent for the following PHI release.
TPO –
A)Treatment,
B)Payment
C)Healthcare Operations
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
78
Why are employers responsible for their employee conduct?
Respondeat Superior
"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.”
79
What defense could an employer use against the doctrine of term respondeat superior ?
Simply that the employee in question doesn't work at or represent the corporation
80
How is the standard of care measured in negligence cases?
Not the highest degree of known professional skill, but that which is reasonable or ordinary...
81
What is the purpose of compensatory damages
A sum of money that may be awarded by a court of law to an individual or entity as compensation for property damage, a physical injury, or other loss caused by another person’s actions.
82
What are the elements of Informed Decision-
| Making?
Decision Making Capacity
Information
Voluntariness
Agreement / Request
- - or - -
Declination / Refusal
```
Think “PARQ”:
–Procedure
–Alternatives
–Risks and Benefits
–Questions
```
83
What are the elements of Decision-Making capacity?
Legal age (determined by state law)
Ability to take in information
Ability to process information
Ability to communicate information
84
Requirements to provide informed consent
Capacity
Competence
Consent
85
What does the Patient Self-Determination Act require?
Organizational polices concerning the patient rights
Document in the medical record whether the patient has an Advance
Directive
Hospitals must provide at the time of admission
86
What are three exceptions to the informed consent requirement?
Patient Waiver
Emergency
Therapeutic Privilege
87
What is the purpose of HIPAA?
| What is covered under HIPAA?
assure that individuals’ health information is properly protected while allowing the flow of health information to provide care.
- HIPAA applies only to Covered Entities (CEs)
- Individually identifiable health information including demographics, in electronic, paper or oral medium
- Payments for health care
88
Name two Covered Entities under HIPAA?
Military providers
Insurers
89
Name two authorized exceptions that allow disclosure HIPAA?
PHI shall not be used or disclosed UNLESS patient provides an authorization OR except for specifically permitted purposes.
90
What is the goal of the Military Exception?
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.
91
What information is releasable under the Military Exception?
-restriction of duty
| not necessarily reason for restriction
92
Remittur vs. additur
R = the settlement amount is too large and must go down
A = settlement should be larger
*additur is not allowed in federal court
93
which act is administrative claims only (you can not sue)
Foreign claims act
94
Medical Accountability Act allows what kind of claims.
Allows service members to be sued administratively
95
3 types of advanced directives
A living will - what you " would " or " wouldnt want " , instructions
Durable power of attorney
DNR order
96
Judgement as a bar
A statute under FTCA that has already been ruled cant be ruled again. ruling = the previous judgement
97
3 sources of law
administrative
common
statutes
98
what is the goal of statutes
Used to forbid a certain act, direct a certain act, make a declaration, or set forth governmental mechanisms to aid society
99
Types of Torts ... SIN.
Strict liability
Intentional Torts
Negligent Torts
100
Assault is _______
| Battery is _______
a threat.
bodily harm.
101
What kind of acts cause liability?
individual
corporate
102
Punitive damage considerations
To determine (necessary amount)
Character of defendant’s conduct
Extent and nature of the harm (actual and intended)
The wealth of the defendant.
103
When the FTCA Applies
negligent torts of agents and employees
In the United States
***in the scope of duty
104
what has to happen before the us government can be sued?
a written claim must first be made to the responsible federal agency
105
The government is not liable under the _________ and the _______ for injuries to service-members when those injuries arose out of, or were in the course of duty.
FTCA or Military Claims Act
106
Decision – Making Capacity
Legal age (determined by state law)
Ability to take in information
Ability to process information
Ability to communicate information
107
3 important exemptions of which protect FOIA
personal privacy, national security, and law enforcement.
108
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
privacy act of 1974
109
What does HIPAA stand for?
what does it provide?
Health Insurance Portability and Accountability Act (HIPAA)
The HIPAA Privacy Rule defines how covered entities use individually identifiable health information or PHI (protected health information).
Insurance
