Med Law Flashcards
What was the constitution a result of?
The Revolutionary war, 1783
4 weaknesses of the articles of confederation.
- No Seperation of Powers
- Weak Gov’t
- No taxes
- Compeition b/w states
What is the US Gov’t a principle of?
Federalism
What is the importance of amendment 10 of the bill of rights
Unallocated power not reserved for federal gov’t
Gives states power
Who has the power to provide occupational licensure?
The State
What are the three branches of gov’t?
Legislature
Executive
Judicial
Under what branch do all agencies fall?
Executive
What is the purpose of military law?
Promote good order and disicpline
What type of law would a trial of the state vs. human represent?
Criminal Law
What type of wrong is harmful to society?
Criminal Law
What type of proof do you need in criminal law?
Beyond a Reasonable Doubt
What type of proof do you need in civil law?
Low proof
Liability
What are the two components of civil law?
Contracts and Torts
What are the two types of contracts
written and oral
- expressed or implied
- written is preferred
What is the rule of 4
There must be at least 4 Supreme justice votes (of the 9) to initiate hearing a case,
-50 plus cases a year
Something that ends in act is a ________.
Statute or Statutory Law
If the law is further developed by a court judge it becomes what?
Common-Law
What branch governs common law?
Judicial branch
What type of law is medical law?
Civil
What are the two parts of contracts?
Elements and Conditions
What are the components of elemental law?
Requires an offer (promise), acceptance, and consideration(quid pro quo).
What are the components of conditions
competent parties
legal subject matter
mutual agreement
Between contracts and torts, which is a legally enforceable agreement?
Contracts
What branch governs administrative law?
Executive branch
What are the components of a statute
General regulations made by the legislative branch
What are the examples of administrative law?
FDA, vaccines
What are the 8 contract defenses?
Elemental Performance Impossibility Sovereign Frustration of performance State of limitations Res Judicata Violates Law/public policy
What is tort law?
Noncontractual civil wrong
wrong against a corporation [person]
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
What type of tort is a deliberate injury to another?
Intentional
What are the 6 examples of an intentional tort
Assault Consummated Battery[completed] False Imprisonment Violation of Right to privacy Abandonment Defamation[libel / slander]
What are the 4 parts of negligent tort?
Duty of care
Breach of duty
Caused
Injury/Damages
What is caused negligent tort
Injury was foreseeable
What is the duty of care
Duty to pts, not the world
‘what is a violation of the right to privacy
Compromise of interest
What established sovereign immunity
Fed Tort claims act
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
What is individual negligence
Below the line expected of a reasonable person
4 elements of individual negligence
Duty
Negligent breach of duty
Injury
Causation
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
What are the elements of medical malpractice?
Duty
Breach of duty
Injury
Causation
What is the national standard of care?
Keeps the status quo of medical practice on a level standard.
What classifies as punitive damages against theUS GOV’ T?
Nothing, you cant punish the sovereign. Only compensatory.
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.
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)
What are hedonic damages?
A general damage that includes loss of enjoyment of life.
What category do nominal damages fall under?
General
What is the American Theory of Damages
To make the plaintiff whole
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.
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
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
Who can be negligent?
Licensed Personnel,
Unlicensed Interns & Residents
Social Workers, Counselors, and Assistants
Institutions
MTF Commanders
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…
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.
What are examples of negligent torts?
•Failure
to
consult
•Failure
to
refer
•Failure to obtain informed consent
Abandonment
Breach of confidentiality
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.
Examples (4) of ways Standards of Care can change.
Expert Witnesses
Statutes
Regulations and Rules
Authoritative textbooks
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
Two examples that can stand up as evidence to the “daubert standard”
Scientifically valid reasoning
Trial judge as gatekeeper
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
Wrong limb or body part
Wrong patient
Explosion or fire
Foreign body left in patient
Are examples of what?
Res Ipsa Loquitur
What is corporate negligence?
Failure of a corporation to meet its legal obligations to its clients.
Elements of Corporate Negligence
Duty
Negligent breach of duty
Injury
Causation
What is vicarious liability also 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
Vicarious Liability
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
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
Reasonable Physician Standard
what information 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
(Legal Determination) adjudged by the court Recognized
Competence
Power of Attorney
a written document in which one person appoints another person to act as an agent on their behalf
Durable Power of Attorney
Continues beyond incapacity and death of the grantor
generally used for terminal illnesses; takes effect when a stated medical problem occurs; provides instructions to health care providers
Living Will
Freedom of Information Act (FOIA)
provides the public the right to request access to records from any federal agency
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
provided the first nationally-recognized regulations for the use/disclosure of an individual’s health information
HIPPA,
Health Insurance Portability and Accountability Act
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
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.”
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
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…
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.
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
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
Requirements to provide informed consent
Capacity
Competence
Consent
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
What are three exceptions to the informed consent requirement?
Patient Waiver
Emergency
Therapeutic Privilege
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
Name two Covered Entities under HIPAA?
Military providers
Insurers
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.
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.
What information is releasable under the Military Exception?
-restriction of duty
not necessarily reason for restriction
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
which act is administrative claims only (you can not sue)
Foreign claims act
Medical Accountability Act allows what kind of claims.
Allows service members to be sued administratively
3 types of advanced directives
A living will - what you “ would “ or “ wouldnt want “ , instructions
Durable power of attorney
DNR order
Judgement as a bar
A statute under FTCA that has already been ruled cant be ruled again. ruling = the previous judgement
3 sources of law
administrative
common
statutes
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
Types of Torts … SIN.
Strict liability
Intentional Torts
Negligent Torts
Assault is _______
Battery is _______
a threat.
bodily harm.
What kind of acts cause liability?
individual
corporate
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.
When the FTCA Applies
negligent torts of agents and employees
In the United States
***in the scope of duty
what has to happen before the us government can be sued?
a written claim must first be made to the responsible federal agency
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
Decision – Making Capacity
Legal age (determined by state law)
Ability to take in information
Ability to process information
Ability to communicate information
3 important exemptions of which protect FOIA
personal privacy, national security, and law enforcement.
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
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
