Med Law Slides Flashcards
What is the purpose of the Constitution
-Separation of powers (establish branches) -form a central government (framework) -power to tax -Federalism -Civil Rights
What is the supreme law of the land
The US constitution since 1787
What does the constitution provide:
A republican form of government for free and independent states
A federation by which powers are allocated to the central government and others to the state
And a separation of legislative, executive, and judicial branches of government
What are the basic principles of the constitution
Government by the people
All states equal
3 branches of Gov
All persons equal
Inherent rights of the people
Gov authority can be changed by altering the constitution
Is the highest law in the land
How many articles are in the constitution
7
How many amendments are in the constitution
27 total
What are teh 1 ten amendments of the constitution considered
The bill of rights
Why do we have a military justice system
Promote Justice
Maintain Good order and discipline
Promote efficiency and effectiveness
Strengthen National security
What is the definition of a law
A system of rules that defines socially acceptable behavior and sets punishments for violations
What is the difference in Criminal and Civil law determination
Criminal is beyond a reasonable doubt
Civil is by the preponderance of evidence.
What are the three sources of law
Statutes
Common Law
Administrative Law
What is a statute
A written law passed by a legislature of the state or federal government
General propositions that courts apply to specific situations
Used to forbid certain acts to aid society
What type of law is the UCMJ
Statutory Law
Define Common Law
Unwritten law that is based on general principles
Developed by judges and courts
Define administrative law
Concerning the establishment and operation of gov agencies
Defines duties, rules, and powers of government agencies
What type of law is OSHA and DoD regulations
Administrative Law
What is the definition of a contract
A legally binding agreement
What are the elements of a contract
- competent parties
- legal subject
- OFFER
- ACCEPTANCE
- CONSIDERATION
- mutual agreement
What are the types of contracts that are valid
Written, oral, expressed, or implied
What type of contract is a lease agreement
Express contract
What type of contract is babysitting or mowing a persons lawn
Implied contract
What are the two types of remedies sought in contracts
Specific performance and damages
When would specific damages be applied
When monetary damages are inadequate
What is the primary purpose of damage awards under contract law
To place the injured party in the position they would have been in if the contract had been performed
What is an elemental contract defense
States that an element requires for contract formation is missing
What is a performance/ satisfaction contract defense
The parties have accepted the contract performance as adequate
What is a impossibility contract defense
Something happens after contract formation that makes the contract impossible or impracticable
What is sovereign immunity
The sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution
What is a frustration of performance contract defense
Events occur or circumstances arise which substantially frustrate a party’s purpose in entering the contract
What is a statute of limitations
Sets the maximum time after an event when legal proceeding may be initiated
What is res judicata
A case in which there has been a final judgment and is no longer subject to appeal
What law governments commercial contracts
State Law
Admin law does not apply
Changes must be approved unanimously
What is a civil lawsuit
A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person
What is civil liability
Responsibility for payment of damages, or for other court imposed penalties in a civil lawsuit
Define negligence
Failure to exercise a degree of care that would be taken by another reasonable person under the same circumstances
What is a Tort?
A non-contractual civil wrong
- Against a person (real or corporate)
- Against a persons property
What is meant by tortious conduct
A wrongful act, damage, or injury, not involving contractual obligation
-done willfully or negligently
(Civil suit)
What are three types of tort
Torts of strict liability
Intentional torts
Negligent torts
Define strict liability tort
Activities so dangerous that an individual engaging in those activities is liable regardless of intent or negligence resulting in harm.
Ex) blasting or owning a dangerous animal.
Surgery without informed consent is…
Both an intentional tort and a criminal act
What are the types of intentional torts
Assault Abandonment Defamation False imprisonments Violation of the right of privacy Intentional infliction of emotional distress
What are the elements of strict liability torts
The tort occurred
The defendant is responsible
What are the elements of negligent tort
Duty Negligent Breach Causation Injury Damages
What is a negligent tort
A breach of duty, other than contractual duty, which gives rise to a cause of action from damages
What is the standard of duty under negligent tort
What an ordinary person with common sense would do
What is the definition of causation under negligence tort
An injury was a reasonably foreseeable consequence of a breach of duty
What are damages awarded for in torts of negligence
Compensation for a financial loss, loss of or damage to personal property, or an injury to a person.
How are damages awarded under contract law
Applies in breach of contract actions
Awarded to compensate the injured party
To place the injured party in the position they would have been in the contract was performed.
What defines negligent medical torts
Failure to need the standard of care
- failure to consult
- failure to refer
- failure to obtain informed consent
- abandonment
- breach of confidentiality
What is the Good Samaritan defense
Legal protection to people who give reasonable assistance to those who are, or who they believe to be, inured, ill, in peril, or otherwise incapacitated
What is the assumption of risk tort defense
Once a person has knowingly and voluntarily engaged in the risky activity, he cannot sue the host for injuries or damages incurred
What is contributory negligence
If negligent conduct on the part of the plaintiff/injured party contributes to the negligence of the defendant in caused the injury or damage, the plaintiff is barred from recovery
-if you were also negligent then it was your fault too.
What is comparative negligence
A partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiffs own negligence contributed to causes the injury.
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
What is respondeat superior
Let the master answer
What is res ipsa loquitur
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.
Who can be negligent under med mal practice
Health care providers Social Workers Counselors Assistants Institutions MTF commanders
What is the standard of care
RPPUTC
The Reasonably Prudent Person Under The Circumstances
What is the locality rule
The standard of care to be applied to the professionals conduct is the reasonable care exercised by similar professionals in the same vicinity and professional community
What is the National/ profesional rule of standard of care
Requires a doctor to the use the degree of skill and care of a reasonable competent practitioner in his field under same or similar circumstances
How are standards of care determined
Statutes Federal agencies Regulations and Rules ByLaws Textbooks Job descriptions Expert Witness
What is the Daubert Standard and where does it come from
The rule of evidence that determines whether an expert witness is admissible as a form of evidence at trail
Duabert v. Merrill Dow Pharma
What is rule 702
Sets the parameters for expert witness
What does res ipsa loquitur literally mean
“The thing speaks for itself”
What doctrine would a hospital be liable if it fails to uphold a proper standard of care to the patient
Corporate negligence
What does the term vicarious liability mean
Aka imputed liability
Assigns liability to an individual who did not actually cause the harm but who has a specific superiors legal relationship to the person who did
What must an employee be within for respondeat superior to apply?
Within the scope of their employment
What is a Potentially compensable event
An adverse event that occurs in the delivery of healthcare or services with resulting injury to the patient
How are providers reported to the national practitioner data bank
If they are found not to have met the Standard of Care in a medical mal case
Who makes the final decision on Standard of Care evaluation
The Surgeon General
What is the National Practitioner Data Bank
A collection of reports on medical mal prac payments made on behalf of health care providers
What is the Defense Practitioner Data Bank
Accounts for personal injury or death of service members caused by the failure of a practitioner to meet the profesional standard of care.
What is the health care integrity and protection data bank
Contains information on important health care related criminal convictions
What is the American theory of damages
The amount of money necessary to make the injured party whole
What are the types of damages in Tort
Compensatory
Punitive
Special
General
What are nominal damages
Token damages awarded to redress a violation of a legal right that the law deems necessary to protect. Even if there has been no actual harm or monetary loss
Damages affirm that a legal right has been violated
What is the difference between special and general damages
Special- financial losses of monetary value directly caused by the defendants actions
General- money awarded for things for which the value is more difficult to determine
Are additurs allowed in federal court
NO
What is an additur
The power of a trial court to assess damages or increase a jury award of damages found to be excessively low
What is a remittitur
A ruling by a judge lowering the amount of damages granted by a jury in a civil case
What is the federal tort claims act…
Waiver of sovereign immunity that allows individuals to sue the US for neglect acts of US government personnel acting within the scope of employment
What are the exceptions to liability under the federal tort claims act
Employees intentional acts
Claims raising from combat
Claims arising in foreign countries
Service-members injured incident to service or while exercising a military privilege.
Federal tort claims act uses what doctrine to make the government reliable
Respondeat Superior
What does the Federal Tort Claims act gov agents from
Personal liability for harm resulting from their negligent IN SCOPE torts
What is the feres doctrine
The government is not liable under the FTCA for injuries to service embers when those injuries arose out of, or were in the course of, activities incident to service.
How long does the US government have to process a FTCA claim>
6 months
If a party is not satisfied with the outcome in a FTCA claim, what can they do next?
File suit in Federal District Court
What are the rules and limits to the FTCA
2 year statute of limitations Trial by judge alone ( no jury) Trial in district US court No limit on damages NO PUNITIVE DAMAGES
To use the FTCA, a plaintiff must first….
Submit an administrative claim to the responsible federal agency prior to the initiation of a lawsuit
What is the motion for party substitution
When the US “steps into the shoes” of employees who acted within the scope of their employment in FTCA claim
What are the three proper claimants under the FTCA
Civilians
Dependents
Retirees
Where is the military claims act valid
Overseas and is administrative only
What are the rules of the military claims act
2 year SoL (extended during war) Administrative only No right to a trial Damages in excess of 100,000 must be forward to the Comptroller General No punitive damages
What does the foreign claims act do
Operates overseas to promote and to maintain friendly relations through prompt payment of meritorious claims
When does the foreign claims act not apply
When the claimant is an enemy of the US
Or is resulting from enemy actions
What provided immunity to doctors acting within the scope of their duties in the military
Gonzales act/ FELRTCA
Federal employees liability reform and tort compensation act
What is the Military medical accountability act
Passed in 2019
Allows claims against the US for injuries and deaths of a solider caused by medical malpractice that occurs in a covered military medical facility
Cannot be from before 2017
Limited to 100,000 by the DoD
Over 100,000 by US treasury
(NO PUNITIVE DAMAGES)
Who determines capacity to consent
Determined by a physician
What information much a patient receive in order to make an informed consent
Procedure
Alternatives
Risk and Benefits
Questions
What is the difference between reasonable physician standard and reasonable patient standard
Physician- what a reasonable physician would disclose
Patient- what an reasonable patients would consider material before making a decision
What determines the ability to make a decision
Legal age
To take in, process, and communicate information
What is the difference of capacity and competence
Capacity is a medical determination or ability
Competence is a legal determination adjudged by the court
What are exceptions to informed consent
Patient waiver Emergency Therapeutic privilege Order by court Required by law Non consensual treatment permitted by law
Medical care furnished without consent may be considered assault under which UCMJ article
Article 128
What must hospitals provide at the time of admission
Advance Directives
What are the three types of Advanced Directives
DNR
Durable Medical Power of Attorney
Living Will
Define power of attorney
A written document that appoints another persons to act on their behalf
General or specific
Requires legal capacity
Terminates when the granger dies or becomes incompetent
What is a durable power of attorney
Same as a Power of attorney except
it continues beyond incapacity and death of grantor
Most often used for health care issues
What is a living will
General used for terminal illnesses
Takes effect at start of medical problem
Provides instructions to HC providers
What are the states with death with divinity statues
Oregon, Washington, Vermont, Californian, colorado and Hawaii
What are the rules for death with dignity
Terminally Ill prognosis form at least 2 different doctors
Evaluation from a mental health professional from capacity
Request for life ending meds made at least 20 days apart
2 witness cant be relatives
Death witnessed by non interested party
What is the freedom of information act
Since 1967
Provided the public the right to request access to records from any federal agency
What are the exceptions to the freedom of information act
Properly classified secret information
Related solely to internal personnel rules and practices
Excerpted by other statutes
Trade secrets
Privileges letters or memoranda
Personnel medical files
Law enforcement investigations
Maps
What is the privacy law
Enacted in 1974
Ensures that no secret files are kept on US citizens
What is HIPAA
Enacted in 1996
Provided the first nationally recognized regulations for the use/disclosure of individuals health information
Protected health information
