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Medical Law Exam Flashcards

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1
Q

What are the elements of a contract?

A
  • Competent parties
  • Legal subject matter
  • Offer
  • Acceptance
  • Consideration
  • Mutual agreement
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2
Q

What are three defenses to a Contract?

A

(Every Person Is Suing For Santa’s Red Velvet suit)

  • Elemental - elements missing required for contact formation
  • Performance/Satisfaction - parties have accepted the contract performance or a substitution
  • Impossibility - something that makes completion impossible
  • Sovereign Immunity - state is immune from civil or criminal punishment
  • Frustration of performance - outside event occurs which substantially frustrates a party’s purpose in entering the contract
  • Statute of limitations - max time after an event when legal proceedings may be initiated
  • Res judicata - a final judgment had been made and is no longer subject to appeal; bars continual litigation
  • Violates law/public policy - breaks a law or public policy (fraud) or mutual mistake
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3
Q

What is specific performance?

A
  • Requiring the individual to do what they said they would do
  • Applied in breach of contract actions where monetary damages are inadequate
  • The primary purpose is to place the injured party in the position they would have been in if the contract had been performed
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4
Q

What is the primary purpose of damages

in a breach of contract action?

A
  • The primary purpose is to place the injured party in the position they would have been in if the contract had been performed
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5
Q

What are the three sources of Law?

A

Statutes:

  • A written law passed by the 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

Common-Law:

  • Unwritten law that is based on custom and general principles
  • Embodied in case law
  • Serves as precedent for similar situation
  • Developed by judges and courts

Administrative Law:

  • Body of law concerning with establishment and operation of government agencies
  • Define the duties, rules, and powers of government administrative agencies
  • Establishes the legal relationship between agencies, other government bodies, and the public at large
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6
Q

What are two types of contracts?

A
  • Written or oral
  • Express or implied

o Express contracts can be oral or written or both… exchange of promises

o All elements specifically stated … Ex: Lease

o Implied contract is based on the actions of the people involved

o Contractual obligation is assumed…. Pattern of behavior or status quo

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7
Q

What is the U.S. Constitution?

A

Supreme law of the land:

  • Provides the framework of the US Gov
  • Establishes branches of Gov
  • Provides checks and balances

(no state law that conflicts with the constitution can be passed)

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8
Q

How many branches of government do we

have?

A

3: Legislative (makes laws), Executive (execute laws), Judicial (settle disputes)

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9
Q

What is the purpose of the Judicial

Branch?

A
  • Settle disputes
  • Review and apply the constitution
  • Interpret the law set forth by the legislative branch
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10
Q

What is Federalism?

A

Tension between Federal & State powers:

  • Federal law regulates and all states must follow.
  • Any previous state laws are superseded by Federal law
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11
Q

What is the difference between Criminal

Law and Civil Law

A
  • Criminal - restriction on liberty and beyond a reasonable doubt (jail time)
  • Civil - damages and preponderance of the evidence (money)
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12
Q

What is the definition of a Tort?

A
  • A non-contractual, civil wrong against a person (real or corporate) or against a person’s property for which a court may award a remedy in damages
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13
Q

Name the three types of Tort.

A
  • Torts of strict liability
  • Intentional torts
  • Negligence torts
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14
Q

What is the standard of proof for Civil

Cases v. Criminal Cases?

A
  • Civil: Preponderance

- Criminal: Without a doubt

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15
Q

What are the elements of Strict Liability

Torts?

A
  • Activities so dangerous that an individual engaged in those activities is liable regardless of intent or negligence resulting in harm
  • Elements
    o Tort Occurred
    o Defendant is Responsible
  • Engaging in hazardous activities (blasting)
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16
Q

Name three Intentional Torts?

A
  • Assault: act intended to create fear of harm
  • Assault consummated by battery: Intent to commit touching
  • False imprisonment: Unlawful restraint
  • Violations of the right of privacy
  • Abandonment
  • Defamation
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17
Q

What is the difference between a

Negligent Tort and an Intentional Tort?

A

a. Negligent Tort Elements - A breach of duty, other than a contractual duty, which gives rise to a cause of action for damages

  • Duty
  • Negligent Breach
  • Causation
  • Injury
  • Damages

b. Intentional Tort Elements - In civil law it is a deliberate act resulting in injury to another. In Criminal law it is a state or Fed violation… one act may be both a crime against society and a tort against an individual!

  • Assault
  • Assault consummated by battery
  • False imprisonment
  • Violation of the Right to Privacy
  • Abandonment
  • Defamation
  • Intentional infliction of emotional distress
  • Outrage
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18
Q

What are the elements of legally

actionable negligence?

A
  • Duty
  • Negligent Breach
  • Causation
  • Injury
  • Damages
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19
Q

What are the elements of intentional torts?

A
  • Intentional infliction of emotional distress
    o D acted intentionally or recklessly
    o Conduct was extreme and outrageous
    o D act caused distress
    o Plaintiff suffered severe emotional distress because of D conduct
    o Outrage
  • Same as emotional distress except that there has to be an underlying tort
  • Must be physical injury
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20
Q

Name and define Tort Defenses?

A
  • Elemental - missing an element such as no duty or no negligent breach
  • Good Samaritan - legal protections to people who give reasonable assistance to those who are ill, injured
  • Res-judicata - matter that has been adjudicated by a competent court and may not be pursued further by the same parties
  • Truth - if statement made is true, there can be no claim for libel or slander (reasonable belief)
  • Charity immunity - legal doctrine which holds that a charitable organization is not liable under tort law
  • Sovereign immunity - legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution
  • Contributory negligence- negligent conduct on the part of the plaintiff/injured part contributes to the negligence of the defendant in causing the injury or damage, plaintiff is barred from recovery
  • Comparative negligence - a partial legal defense that reduces the amount of damages that. Plaintiff can recover in a negligence based claim, based upon the degree to which the plaintiff’s own negligence contributed to cause the injury
  • Assumption of risk - once a person has knowing and
    voluntarily engage in the risky activity, he cannot sue the host for injuries or damages
  • Statute of limitations - law which sets the maximum time that parties have to initiate legal proceedings from the date of an alleged offense or injury
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21
Q

What is the difference between
individual negligence and corporate
negligence?

A
  • Individual

o Failure to exercise the degree of care expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation

o Person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances

  • Corporate

o Failure of a corporation to meet its legal obligations to its clients

o Doctrine under which the hospital is liable if it fails to uphold the proper standard of care

      o Responsible for supervision and behavior of its employees
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22
Q

What is National Standard of Care?

A
  • Requires a doctor to use the degree of skill and care of a reasonably competent practitioner in his field under the same or similar circumstances
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23
Q

What are the elements of Medical

Malpractice?

A
  • Failure to consult
  • Failure to refer
  • Failure to obtain informed consent
  • Abandonment
  • Breach of confidentiality
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24
Q

What does Res Ipsa Loquitur mean?

A
  • Injury must be a type that does not ordinarily occur unless someone has been negligent
  • “Let things speak for itself”
  • Laymen understands
  • Expert testimony not required
  • Examples: wrong limb, wrong patient, fire, foreign body left inpatient
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25
Q

What is the purpose of expert testimony?

A
  • Provide testimony to teach the jury about a difficult topic of which they have superior knowledge
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26
Q

How are the doctrines of Vicarious

Liability and Respondeat Superior related?

A
  • Both allow for the supervisors or employers to be held liable for the action of their employees in the course of their employment
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27
Q

How is the standard of care measured in

negligence cases?

A

Not the highest degree of known professional skill, but that which is reasonable or ordinary

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28
Q

What is the difference between
contributory negligence and comparative
negligence?

A
  • Contributory negligence- negligent conduct on the part of the plaintiff/injured part contributes to the negligence of the defendant in causing the injury or damage, plaintiff is barred from recovery
  • Comparative negligence - a partial legal defense that reduces the amount of damages that. Plaintiff can recover in a negligence based claim, based upon the degree to which the plaintiff’s own negligence contributed to cause the injury
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29
Q

What is the American Theory of Damages

A
  • The amount of money necessary to make the injured party whole
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30
Q

Define general damages?

A

Money awards for things which the value is more difficult to determine
Examples:

  • Pain and suffering
  • Physical impairment
  • Loss of use
  • Visible scarring
  • Loss of enjoyment
  • Mental anguish
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31
Q

What is the purpose of compensatory damages

A
  • Intended to restore what a plaintiff has lost as a result of a defendant’s wrongful conduct
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32
Q

What is the difference between special and general damages?

A

Special:
- Objective Factors eg. cost of repairs, loss of earnings, medical expenses

General:
-Subjective Factors eg. pain and suffering, physical impairment, mental anguish

33
Q

What are Hedonic Damages?

A
  • Loss of enjoyment of life
34
Q

What is the purpose of punitive damages

A
  • Intended to punish the defendant for their misconduct
35
Q

What is the difference between Remittitur and Additur?

A
  • Additur = not allowed in federal court
  • Additur increase
  • Remittitur decrease
36
Q

What is the difference between damages in Tort and Damages in a Contract Action?

A
  • Tort: awarded based off of losses the plaintiff would have avoided had the incident not happened
  • Contract: awarded based off of benefits the plaintiff would have gained had the contract been completed
37
Q

When are punitive damages appropriate?

What type of damage cannot be awarded against the United States?

A
  • When the acts of the individuals were egregious in nature

- Punitive damages

38
Q

What is the FTCA?

A
  • Federal Tort Claims Act: applies the doctrine of respondeat superior to make the government liable
39
Q

Name 3 examples of proper claimants under the FTCA ?

A
  • Retirees
  • Civilians
  • Dependents
40
Q

Who is protected under the FTCA?

A
  • The government and their health care providers
41
Q

What is the significance of filing an administrative claim?

A

Administrative claim is what you have to file before you can get to federal court. Administration gets 6 months to process.

42
Q

What is the statue of limitations of the FTCA?

A
  • 2 years
43
Q

When does the Foreign Claims Act apply?

A
  • Damage to or loss of real property of any foreign country or political subdivision or inhabitant of a foreign country including incident to use and occupancy
  • Damage to or loss of personal property of any foreign country or political subdivision or inhabitant of a foreign country, including property bailed to the U.S.
  • Personal injury to or death of inhabitant of a foreign country
44
Q

What is the statute of limitations for the Military Claims Act?

A
  • 2 years
45
Q

Define the Feres Doctrine.

A
  • The government is not liable under the FTCA for injuries to service members when those injuries arose out of, or were in the course of activities incident to service. Also applies to Military Claims Act
46
Q

Who does the Feres Doctrine apply to?

A
  • Applies to both FTCA and Military Claims Act.

- SMs injured “incident to service” may not sue the U.S. Government.

47
Q

What is the primary difference between the FTCA and the Military Claims Act?

A
  • Military Claims Act operates overseas and FTCA operates in the U.S.
  • Military claims act is Administrative only.
48
Q

What are the elements of Informed Decision-

Making?

A
  • Informed Consent and Informed Refusal.
49
Q

What are the elements of Decision-Making

capacity?

A

Legal Age (State determined)
Ability to take in information
Ability to process information
Ability to communicate information

Capacity (Medical Determination) and Competence (Legal Determination)

50
Q

What does the Patient Self-Determination

Act require?

A

Purpose - to ensure patient is made aware of advance directives and are given the opportunity to execute one.

51
Q

What are three exceptions to the informed

consent requirement?

A 
Patient Waiver
Emergency
Therapeutic Privilege
Treatment ORDER by court
Treatment REQUIRED by law
Non consensual treatment PERMITTED by law.
52
Q

How do we measure whether the informed

consent was sufficient?

A
  • Was it reasonable from two perspectives
    The patient
    The physician
53
Q

What type of Advance Directive can you use in

case you become incompetent?

A
  • Durable power of attorney. Used for healthcare issues, continues beyond death and/or incapacitation.
54
Q

What is the difference between Durable POA and

Living Will?

A
  • Living Will
    Used for terminal illness, allows you to make decisions concerning future treatment
  • Durable POA
    Someone else making decisions for you
55
Q

What are the two Decision-Making Modalities for

surrogates?

A
  • Patient’s best interest
    To attempt to act in the incompetent patient’s best interest
  • Surrogate’s substituted judgement
    To base the decision on what is believed the incompetent patient would want
56
Q

What States’ interest are normally involved?

A
  • Preservation of life
  • Prevention of suicide
  • Protection of innocent third parties
  • Protection of the ethical integrity of healthcare professionals
57
Q

What are the three types of Advance Directives?

A
  • Do not resuscitate (DNR) orders
  • Durable medical power of attorney
  • Living will
58
Q

What is the difference between capacity and

competence?

A

Capacity: medically determined

  • Individual abilities of the patient
  • The requirements of the task at hand
  • The consequences of the decision

Competence: court determined

  • Adjudged by the court
  • Recognized as incompetent
59
Q

What is the Therapeutic Privilege?

A
  • An exception to the general rule of informed consent, and only applies when disclosure of the information itself could pose serious and immediate harm to the patient, such as prompting suicide
60
Q

What is the purpose of the Privacy Act?

A
  • 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.
61
Q

What is the purpose of the Freedom of

Information Act?

A
  • Allows access to information
  • The law that keeps citizens in the know about their government.
  • Provides that when processing requests, agencies should withhold information only if they reasonably foresee that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law.
62
Q

When does the Privacy Act apply? (three

requirements)

A

Applies to “agency” “records” relating to an “individual” maintained within a “system of records”

  • Record- personal information about an individual
  • Individuals - Citizen or lawfully admitted alien
  • System of Records - group of records in which information is retrieved by the subjects name or some personal identifier (SSN)
63
Q

What should you do before submitting a

FOIA request?

A
  • Check to see if the information is already publicly available
  • Search the agency’s website
  • Search the information posted on FOIA.gov website
  • Information is not publicly available FOIA request must be submitted to the agency that has control of record
  • Request must be in writing and reasonably describe the records
  • Most federal agencies accept electronically
64
Q

Name two FOIA exemptions?

A

Properly classified as secret in the interest of national defense or foreign policy

Related solely to internal personnel rules and practices

65
Q

Name two Privacy Act Obligations?

A

Access and amendment rights
Account for disclosures
Accurate
Safeguard information
Public notice before records are kept
No records on first amendment exercise
Information collection: privacy act statement
Keep only necessary and relevant information
Collect from first part of possibly
No disclosure to 3rd party without consent

66
Q

What is the purpose of HIPAA?

A
  • A major goal is to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care
  • Strikes a balance that permits important uses of information, while protecting the privacy of people who seek health care
  • First nationally recognized act to protect health information
67
Q

What is covered under HIPAA?

A

Protected Health Information

  • Individually identifiable health information including demographics, in electronic, paper, or oral medium
  • Held by covered entities or their business associates
  • Related to the past, present, or futureo Physical or mental health of an individual
    o Provisions of health care to an individual
    o Payments for health care
    o Can be used to identify the individual or there is a reasonable basis to believe it could be used to identify the individual
    o MTF’s responsibility is to protect and safeguard a patient’s PHI
68
Q

Name two Covered Entities under HIPAA?

A
  • Military treatment facilities (MTFs)
  • Health plans (eg TRICARE)
  • Health care clearinghouses, like companies that perform electronic billing on behalf of MTFs
69
Q

What are the legislative objectives of HIPAA?

A
  • Improve portability and continuity of health insurance coverage in the group and individual markets
  • Combat, waste, fraud, and abuse in health insurance and health care delivery
  • Reduce cost and the administrative burdens of healthcare by improving efficiency of health care system by standardizing the interchange of electronic data for specified administrative and financial transactions
  • To ensure the privacy of americans’ personal health records by protecting the security and confidentiality of healthcare information
  • And quality
70
Q

Name two authorized exceptions that allow

disclosure HIPAA?

A
  • Disclosures to avert a serious threat to health or safety
  • Disclosures for law enforcement purposes
  • Disclosures for judicial and administrative proceedings
71
Q

What is the goal of the Military Exception?

A

To accomplish the mission through:

  • To determine the soldier’s fitness to perform and particular mission, assignment, order, or duty including compliance with actions required as a precondition to performance of such mission, assignment, order, or duty.
    Does not apply to civilians, retirees, or family members
72
Q

What information is releasable under the

Military Exception?

A
  • Only authorized medical information that limits the Soldier’s ability to perform his or her duty.
  • Minimum amount of information necessary
73
Q

What is a law?

A
  • A system of rules that define socially acceptable behavior and sets punishments for violations
74
Q

What is an example of negligent tort?

A
  • Auto accidents
  • Slip and Falls
  • Product Defects
75
Q

What are the elements of negligent tort?

A
  • Duty
  • Breach
  • Injury
  • Causation
76
Q

What is the doctrine of vicarious liability?

A
  • A hospital or doctor can be held vicariously liable for a claim based on acts of its employees
77
Q

Why are employers responsible for their employee’s conduct?

A
  • Respondeat Superior

o Legal doctrine that allows employers to be held responsible for the actions of their employees in the “course of employment”.

78
Q

Define Special damages?

A

Financial losses directly caused by the defendant’s actions
Examples:

  • Cost of repairs
  • Loss of earnings
  • Impairment of earning capacity
  • Medical expenses
  • Service in the home
  • Cost to repair or replace property
79
Q

What is the statute of limitations of the military medical accountability act?

A
  • 3 years

Medical Law (1 decks)

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