MED LAW Flashcards
What is the U.S. Constitution?
Supreme law of the land:
- Provides the framework of the U.S. Government.
- Establishes branches of government.
- Gives them unique powers (checks and balances).
- Federalism
- Civil Rights (mostly in amendments)
What is Federalism?
Tension between federal and state powers. Federal has special enumerated powers.
How many branches of government do we have? What are they?
3:
- Executive branch
- Legislative branch
- Judicial branch
What is the purpose of the Judicial Branch?
- INTERPRET LAWS and presidential actions.
- determine constitutionality - review and apply constitution
Why do we have a military justice system?
- promote justice
- maintain good order and discipline in Armed Forces
- Promote efficiency and effectiveness in the military
- Strengthen national security
What is a Law?
A system of rules that defines socially acceptable behavior and sets punishments for violations.
What are the three sources of Law?
- Statutes
- Common Law
- Administrative Law
What is a Statute Law?
- A written law passed by a legislature of the State or Federal Government.
- Set forth general propositions of law that courts apply to specific situations.
- Used to forbid a certain act, direct a certain act, make a declaration, or set forth governmental mechanisms to aid society.
What is Common Law?
- Unwritten law that is based on custom and general principles
- Embodied in case law
- Serves as precedent for similar situations
- Is applied to situations not covered by statute
- Developed by judges and courts
What is Administrative Law?
- The body of law concerned with the establishment and operations 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
Examples of Statutory Law?
- Ethics in Gov’t Act
- Federal Tort Claims Act
- Military Claims Act
- Foreign Claims Act
- Gonzales Act
- UCMJ
- Patient Self Determination Act
- Statutes of Limitation
Examples of Common Law (Case Law)?
- Feres v U.S.
- Roe v Wade
- Maher v Roe
- U.S. v Karl Brandt
- Moore v Regents Univ. of California
- Parker v Brown
Examples of Administrative Law (Executive agencies)?
- OSHA regulations
- FDA regulations
- DoD regulations
- AF/Army/Coast Guard/Marine/Navy regulations
Civil law
- Individual harmed
- self help permitted
- damages
- By a preponderance of the evidence (burden of proof)
- limited right to Trial by jury
what is the difference between criminal law and civil law?
criminal law - restriction on liberty and beyond a reasonable doubt
civil law - damages and preponderance of the evidence
What is a contract?
A legally binding agreement
What are the elements of a contract?
- Competent parties
- Legal subject matter
- OFFER
- ACCEPTANCE
- CONSIDERATION
- Mutual agreement
Types of contracts?
- Written or oral
- Express or implied
Express contract and example of it?
-can be oral or written or both
-exhchange of promises
-all elements are specifically stated
-parties agree to bound
EXAMPLE: Lease Agreement
Implied contract and example of it?
- Exist based on the actions of people involved
- Contractual obligation assumed based on behaviors of the parties
- just as legal as an express contract
- EXAMPLE: Babysitting/defective products
Remedies sought in contract?
- Specific performance
- Damages
What is specific performance?
Specific performance - applied in breach of contract actions where monetary damages are inadequate.
What are damages in a contract and give example?
- Specific performance
- Awarded to compensate the injured party
- Primary purpose is to placed the injured party in the position they would have been in if the contract had been performed
- EXAMPLE: Sale of land or unique personal property
What is the primary purpose of damages in breach of contract?
place the injured parties in the position they would be if contract had been performed.
What is tortious conduct?
A wrongful act, damage, or injury, not involving contractual obligation,
- done willfully or negligently - for which a civil suit can be brought
What are the types of Tort?
- Torts of strict liability
- Intentional torts
- Negligent torts
Strict Liability Tort?
Activities so dangerous that an individual engaging in those activities is liable regardless of intent or negligence resulting in harm.
ELEMENTS:
- tort occurred
- defendant is responsible
EXAMPLES: owning a dangerous animal
What is a tort?
a non-contractual, civil wrong committed against a person or his property for which a court may award a remedy in damages
What is an Intentional Tort?
- CIVIL: Deliberate acts resulting in injury to another
- CRIMES (criminal law): Virolations of federal or state criminal law
- One act may be both a crome against society and a tort against an individual.
EXAMPLE: surgery without informed consent = medical malpractice and criminal act
What are 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
Tort Defense Review:
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?
Pure comparative negligence: $382,500
Modified comparative negligence: $ 382,500
Contributory negligence:$0.00
Tort Defense Review:
In a modified comparative negligence state, wehre the bar to recovery is 50% negligence, what would the dollar amount of the verdict be if a plaintff were shown to be 51% negligent and damages were $130,000? What if using a pure comparative negligence rule? A contributory negligence rule?
Pure comparative negligence: $63, 700
Modified comparative negligence: $0.00
Contributory negligence: $0.00
What is a plaintiff?
A person who brings a legal action against another person or entity, such as in civil lawsuit, or criminal proceedings
What is a defendent?
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
What is negligent tort?
a breach of duty, other than contractual duty, which gives rise to cause of action for damages.
ELEMENTS: -duty -negligent Breach -causation -injury -damages
EXAMPLES: auto accidents, slip & falls, product defects, medical malpractice
Tort Defenses?
-Elemental - missing an element such as no duty or no negligent breach
-Good samaritan:
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
- Res Judicata - a matter that has been adjudicated by a competent court and may not be pursued further by the same parties
- Truth - if the statement made is true, there can be no claim for libel or slander. A reasonable belief that the statement is true will also be a successful defense, though other courts will require higher degrees of care
Assumption of the risk
