Midterm Flashcards
Administrative Law
Subset of statues; regulatory; government agency will administer (ex: DRROA, CO Department Health); Administrative agencies 1- pass rules 2- ajudicatory process (enforce violations of rules)
Due Process of Law
Fundamental principle in fairness of legal matters, particularly in courts (civil and criminal); 1- Notice 2- Opportunity to be heard 3- Impartial Tribunal
Dred Scott Decision, 1857
Congress does not have the right to pass anti-slavery statues
Henry II
Consolidated ecclesiastical law, set up King’s courts, Court of Equity with deeds, set up Lord Chancellor of England; merged with court of law in England; merged early 1800s in US courts
Jurisdiction
Area over which they preside
Starry Decisis
Let it stand; established precedent
In rein vs personenum
jurisdiction over individuals; jurisdiction over the thing/property in their area
Subject matter jurisdiction
Arises from statutes; state vs federal
Court Rules
Rules of procedure; rules for discovery (facts/evidence; deposition0 exam under oath; issue requests for admission
Spoliation of evidence
if you destroy evidenced in pending case before disclosing to other side, you will be sanctioned (ex: email)
Alternative dispute resolutions for contracted, binding agreements
Arbitration (quicker), mediation (not binding, someone facilitates)
Affordable Care Act and the Supreme Court
SC ruled that Obamacare went too far regarding the commerce clause with the individual mandate; The commerce clause prohibits, but can it mandate/force?
MLR under ACA
MLR must be at least 80%; for Medicare, 97% MLR
ACA Goals: Obama & Pelosi
1- Slow growth rate of health care expenses; 2- improve quality and access to care (by expanding coverage, including young and healthies); this act expanded Medicaid payments; eliminated coverage denials 2/2 pre-existing conditions and gender/sex differences; expanded coverage of parents’ plan til age 26; strengthened HC fraud provisions; encouraged ACOs; passsed “individual mandate (controversial)- everyone must obtain insurance; employee mandate- if 50+ employees, required to purchase HC (44% US population)
ACA criticisms Case 1
1 National Federation of Independent Businesses vs Sebelius (HHS Secretary); does the individual mandate exceed the reach of the commerce clause? Ruled that is was too far, can prohibit but not mandate; Necessary & Proper Clause- in Constitution- Congress can doe whatever necessary and proper to enhance other powers of Congress/Constitution- mandate is necessary and proper; Roberts majority opinion of Republican court- individual mandate NOT supported by commerce clause, but supported by taxation; pay alternative to insurance requirement statue constitutional under tax, upheld the individual mandate
ACA Criticisms Case 2
Opponents found ACA clause suggesting only state-wide exchanges; SC didn’t answer, but said Act supports expantion of state & federal exchange
ACA Criticisms Case 3
11th Circuit (deep South) sued to reduce individual mandate to $0 by Republican legislation; so the act says you have to opt in, but you weren’t penalized if you didn’t do it; conflicts with in-good-conscious healthcare purchase undue burden. TX vs US Azar case- sued HHS self- Supreme Court says you can’t create a standing to sue creating counter, challenge thrown out- self-inflicted injuries cannot establish standing to sue; ACA still stands without individual mandate
Social Security Act of 1965
Lyndon Johnson; Established Medicaid for poor and Medicare for elderly; diability; baseline illegal alien coverage
HMO Act of 1973
organizations compensated based on capitation per head; ex: Kaiser; benefit financially if people stay healthy
PPO Preferred Provider Org
physician group similar to HMO with capitation per head, goals of keeping people healthy
Medicaid Parts A, B, C, D
A: hospitalization/inpatient coverage 65+, B: Self-funded insurance (social security) outpatient/medical coverage; C: Medicare Advantage: Private insurance services funded by Medicare; D Prescription coverage
Employee Retirement Income Security Act 1993 (ERISA)
Use ERISA to sue government funded insurance that fails to provide sufficient coverage (NOT private employer-funded insurance, which usually holds up better in court); will only reimburse coverage amount
Health Planning & Resource Development Act of 1974
Established “certificate of need” at state level to review/approve new technologies in attempt to control costs; widely unpopular, including in CO; bureaucratic, expensive, conflict of interests/politics; no longer federally mandated, but present in 34 states
TEFRA Tax Equity & Financial Responsibility Act of 1984
Introduced DRGs, standardized costs for diagnosis instead of costs
COBRA Consolidate Omnibus Budget Reconciliation Act 1985
Used 10% of people; health insurance from employer still available for set period of time at same price
EMTALA Emergency Medical Treatment Act & Active Labor Act of 1985
Anti-dumping statue; hospitals with an ED can’t dump patients/send elsewhere (e.g., community hospital) for care; 1 must be examined 2 must be stabilized (regardless of ability to pay)
Health Care Quality Improvement Act of 1986 HCQIA
offers broad immunity against damages for health care entities & individuals conducting peer review activities; national practitioner databank in MD- receives complaints/info re: physicians w/ malpractice complaints, suspended privileges over 30 days- must recertify every 2 years; POC, women, foreign or MDs not involved in political structure most likely to have complaints
HCQIA 1986 HC Quality Improvement Act Immunity for reporting if (x4)
1 act in reasonable belief for quality of patient care; 2 reasonable effort to obtain facts; 3 adequate notice of procedures provided to practitioner; 4 action warranted by reasonable belief given facts (*in practice, limited due process of law and easy to report)
STARK Statute 1988
prohibits self-referrals; covers most medical procedures EXCEPT kidney-failure tx; huge penalties if violated, consideration when setting up physician hospital contracts
HIPPA Health Insurance Portability & Accountability Act 1996
Protects PHI; nondisclosure provisions with government sanctions; increases patient access to medical records and patients can disagree (medical records as basis for liability claims)
Patient Self-Determination Act of 1990
Mandates advanced healthcare directives upon admission (e.g., living will)
CHIPS Children’s Health Insurance Program 1997
Provides increased healthcare funding for children living in poverty
HITECH Act 2009 Health Information Technology for Economic & Clinical Health Act
Provides some funding and standards/guidelines for EHR
Colorado Reve Stat 8-2-113
Non-compete; can’t intimidate people from working elsewhere before they start employment
Emmanuel Kant system for ethics (process to approach ethical problem)
1 ID & clarify the problem; 2 Gather info 3 Evaluate evidence 4 consider evidence 5 choose and implement best alternative
Emmanuel Kant System for Ethics based upon
1 autonomy 2 beneficence 3 non-malefice 4 justice (5 confidentiality 6 role fidelity 7 veracity)
Types of business organizations (4)
1 sole proprietor (1 person doing business on their own) 2 Partnerships (2+ people doing business- share profits/risks and operate together; mutual agents for each other; only taxed once); 3 LLC- members are their own managers, state level LL act; 4 corporations- legally a person but not an individual or citizen; has 1st amendment right (for campaign donations) but not 5th amendment rights (corporations CAN incriminate themselves); could be C corp (taxed separately from owners, go public), S corp (smaller, 100 shareholders max, only taxes on profits received)
Fiduciary relationship/duty
top execs, employees, shareholders OWED fiduciary duties by board members, bankers, lawyers; to work in interests of your clients/organization loyalty, responsibility, reasonable care; obligation to act in good faith and not be diverted by outside interests
Business judgement rule
If decision made in good faith with reasonable evidence in best interest of organization, can’t be sued by shareholders (protects Board of Directors from complaints)
A trust
Controls other corporations; amasses more power
Corporations
created for liability purposes (e.g., not personal liability); longevity- exist externally as entity; Can double taxation (corporate & shareholders); Separates management (Board of Directors) from people who own the business
Major hospitals as corporations (x3)
1 general shareholders; 2 c-corp- tax benefit flows to individual members, less than 100, operation as a partnership; non-profit/501c3- tax exemption/revenue code for charitable purposes; profits back to operations, not to shareholders
inurement
“benefit” can’t overpay reasonable/market value, espeically in 501c3
estoppel
principle of law; party estopped from asserting something that contradicts what they previously established or did
Independent contractor
Assigned actions/duties; can perform in their own way
Employees
Services at direction/whim of employer
Corporate Practice of Medicine
Prohibits private ownership of clinics; active in CO, many states; outsiders/nonprofessionals cannot have corporate ownership of clinicians; so hospitals (eg. not a doctor) hire MDs as IC as a result; MSO as corporate owner
Respondeat superior
employer is responsible for actions of employees; principle (employer) is liable; if employee commits crime, employer can still be liable if they knew or reasonably should have known (EXCEPT in CO- Captain of the Ship- MD as IC controlling their unit team, taking on liability)
How to terminate agency (of employee?)
fire them; frustration of purpose for which hired; impossibility performance (e.g., unprecedented/impossible circumstances); material breach contract
Uniform Partnership Act 1997
Establishes partnership as a separate legal entity, no aggregate of individual partners
Limited partnership
(LL, not corporation), can trade fairly easily; no management, just investment; if someone dies, no rights to assets but get comparable economic value
Joint Venture
Ancillary jv- part of org; 2 orgs open 3rd org; to raise money, increase range, expand business interests
1864 Civil Rights Acts
Protects from discrimination based on race, gender, color, sex; becomes ? ofintent
Spoliation of evidence
deleting emails prior to upcoming court case
Employees (at-will)
at-will: can be fired w/out reason UNLESS it’s discrimination
Public employees
Protected by due process principles; 5th and 14th amendment (can’t take my property, eg. my job/livlihood, without due process)
Joint Employess
agency RN; employed by company/agency AND current facility
Contract employees
professional/higher management; salary, benefits, duration, non-disclosures and termination providisions defined in contract; often termed immediately if change in power dynamics
Non-compete
Usually for set amount of time/region; not favored in the law due to decreasing competition; “liquidated damages”/draconian consequences and don’t represent actual damages, so often hard to enforce *common for MDs
Revenue 8215 Statue in CO
2022; restricts non-compete to $100k salary threshold and gives prohibition against stealing employees when you go
Statutory non-employees
Personal care aides in HHC, real estate agents; not employees by statue
Americans with Disabilities Act of 1990 ADA
Must provide reasonable accommodations for completing job duties
Civil Rights Acts USC 1983
Prohibits discrimination based on race, creed, color
Color of state law
can’t deprive somebody of liberty or constitutional rights; state employees/police often tried under this
Age Discrimination Act of 1967
if you have 20+ employees, can’t discriminate over ages 40+ UNLESS safety risk/unreasonable for this age; execs 65+ CAN be discriminated against and you CAN reduce benefits based on age to equal cost of full benefits to younger workers
Equal Pay & Compensation Act 1963
Fair labor standards act; equal pay for equal work UNLESS 1 seniority 2 merit 3 earnings by quantity or quality of production 4 any other factor (besides sex)
Can’t discriminate based on
Quality of Life (e.g., disabled children and failed abortions), genetic info
PHEW Whistleblower Act Co Statue
If person raises concern with solid evidence and public health is protected, whistleblower protected
FMLA
if 5+ employees, this applies to employees
Fair Labor Standards Act
Established minimum wage, over time pay, no child labor
Union/union activity/collective bargaining
Collective bargaining rights- groups can bargain for insurance, bonuses, ect; supervisors are management, NOT part of these groups
Wagoner Act- Taft Hartley Bill 1947
rolled back collective bargaining activities; employees had right to refrain from participating in union activities ; no secondary boycotts; no featherbedding (paid to do nothing), no excessive initial union dues; no causing employer to discriminate against employees based on union activity; no coercion of employees into union participation
When to break patient confidentiality?
hard to prove/poor evidence of prediction of violence; If direct threat to individual by name, duty to warn that individual and the police if you have time
Contract
“a meeting of the minds;” agreement between competent parties after offer and negotiation of terms; offer must be detailed enough to convey expectation and be enforceable; acceptance must exactly match offer, if not, counter-offer
Competency and contracts
Minors and incompetent people can center contracts, but their conservator or guardian can overturn
Advertisements
Not contracts
“Quasi contract”
Still enforceable based on mutual understanding
Silence as contract acceptance
Can be if terms stated and then actions not stopped; if they proceed as if there’s a deal and you don’t stop them, that can be acceptance
Implied covenant of good faith and fair deal
implied within contract; parties will deal with each other honestly, fairly and with good faith; will not interfere with reasonable completion of the contract
Promissory estoppel
- clear promise 2. reliance by the party to whom the promise is made 3. reliance reasonable and foreseeable 4. party asserting the estoppel must be injured by his reliance
To resist liability for promissory estoppel, say
1 there was no promise; 2 there was no consideration; 3 interpretation- we didn’t agree to what you think we agreed; 4 excuse/defense provision- force major, I’m excused (act of God/COVID); 5 I promised a remedy, but here’s an easier/better solution
“Cover” damages for sale of goods
If you bought goods and didn’t get them and act reasonably, purchase from elsewhere- the difference between 2nd price and original agreed upon price is the “cover” damages
Uniform COmmercial COde
Buyer’s choice; if you receive goods that are not to contract standard, can accept, reject, or obtain cover
Accordant satisfaction
buy-out of obligation; release from further obligation
Novation in contract
New contract that changes terms or parties significantly
Rescission in contract
Contract rendered null & void, no longer legally binding
Is a promise to provide charitable donation an enforceable contract?
Yes
Is a family agreement an enforceable contract?
No
Bailment
leaving property to someone else for a set period of time (e.g., lease a car)
Contractual obligations under bankruptcy?
Divvy among creditors UNLESS they promise “I’ll take care of you specifically anyway”- enforceable contract
Statue of Frauds
State specific; defines what contracts must be in writing to be enforceable, *BUT if partial performance, can be enforced verbally (written required for: sale of real estate/lease if performance takes over a year, sale of goods over $500, assume someone else’s debt, marriage/prenup)
Parole evidence rule
If there’s a written contract, that supersedes ambiguity/unwritten but allegedly verbal terms
3rd party beneficiary of contract
Can enforce the contract, even though they weren’t within original parties
Assigning terms of agreement (contract)
Rights of contract can be transferred to someone else, UNLESS a personal services agreement
Warranty types (2)
1 express- based on model, product description; 2 implied (universal commercial code)- 1 merchantability- goods are of normal quality and 2- particular purpose- designed to meet specific needs (if it doesn’t then that’s a breach of contract)
Anticipatory breach of contract
if aware that they’re going to be unable to meet needs of contract you can void this agreement, because they’re likely to breach anyway (e.g., specific machine broke); prospective inability to perform
What voids a contract?
mutual mistake (e.g., contract made based on fact that was untrue); 1 party under duress or “undue influence”; contract of adhesion- great difference in bargaining power; contract induced by fraud
Fraud
1 misrepresentation of material fact made knowingly with intent to defraud 2 that causes injury 3 could reasonably rely on the statement
Tort
Civil wrong resulting in potential recovery of damages based on 1 intentional acts that harm an individual, result in damages and 2 negligence
Assault
Threat to commit violence; intentional act of harm that creates a fear of harm with immediate capability of doing it
battery
causes harm and unwanted touching/contact (e.g., procedure without consent)
(Medical) consent
Consent goes to individual physicians for specific procedure, but “good samaritan” applies
Defamation: a tort (2 types)
1 libel (written) or 2 slander (oral); both can be per se- false, defamatory statement published to 3rd parties or per quode- requires special knowledge to understand the defamatory statement; have to prove that they proceeded with actual malice’ “reckless disregard of the truth”
Immunity from defamation
qualified immunity: immune if presented in good faith to protect the public (e.g., MD reports that patient shouldn’t drive to the DMV); if statement presented in court; satire; “we’re expressing this opinion based on known facts”
False imprisonment
intentional tort; for state-mandated psych hold- must relase within 72-hours and hearing w/out participatn/patient
Confidentiality and invasion of privacy
Potential tort
Listening devices/recordings
State dependent- in CO, if one party consents, it’s okay to record
Commercial appropriation
If you present someone in a “false light”
Intentional tort
Outrageous conduct/beyond unreasonable to inflict emotional harm
Diversion
Civil component of theft (e.g., property missing in SNF)
Economic loss rule
Arises in some tort cases; cannot get punitive damages for tort/contract actions; arises in cases of 1 breach of fiduciary duty, 2 interference with someone else’s contract 3 induce someone to breach their contract
Negligence (definition)
1 forseeable 2 breach 3 duty/obligation (e.g., standard of care) that 3 causes 4 injury
Standard of Care (in court)
What a reasonable person would do in that situation; 1 by learned treatise, 2 by admission (if MD states after surgery) 3 widespread standard of care
Negligence (types)
1 respondiat superior- liability of employer for acts/omissions by employees in day to day acts of business; 2 negligence per se- violation of statute/ordinance that’s designed to protect public from injury (e.g., speeding); 3 res ipsa loqutur- the thing speaks for itself- some mistake that would need someone to do it (e.g., sponge left in a lady); 4 strict liability- negligence presumed by nature of dangerous product (ex: radioactive drugs)
approximate cause
but for that action, injury would not have occured
types of negligence cases
1 contributory negligence- other party contributed to negligence by any %; comparative negligence- many parties sued, comparitively, for contributing to danger/cause- who, by how much
medical malpractice case objectives
1 out of pocket costs 2 pain and suffering (damage caps tied to actual damage rates)
Joint & Severable liability
if one party released, all released (versus covenant not to sue- only protects that party)
CO Certificate of review
Need certificate of review by another MD within 60 days before can bring a claim for lawsuit- reason to bring claim
Sovereign immunity & Government Immunity Act
the state; can only sue for tort within 182 days- file notice with attorney general to 1 prompt investigation 2 repair problem and 3 quick amicable settlements
Corporate liability
hospital providing community service, responsible for all that happens within it b/c of apparent authority
To establish negligent credentialing
show that hospital failed to reference national practitioner databank with 1 hospital complaints (30+ days suspension of privileges, then due process of law) and 2 malpractice accusations; if facility A calls facility B to get info and facility B fails to report, facility B can be liable because foreseeable problem/duty to report correctly
Can MDs make insurances pay malpractice fines?
No; rarely in they have great policy/control
Qui Tam Cases aka “Mr Lincoln’s Law”
most dangerous type of potential liability cases for government contractors; makes plaintiff a private attorney general for cases involving any defrauding of government (Medicare, Medicaid); ANYONE with knowledge can bring this case and receive up to 35% of the award; notify government, sue hospital, and government can take over case, whistleblower shares proceeds
Types of Due Process Cases against State Actors (2)
1 substantive due process- liberty offended/obstructed by action of the state actor with injury, harm to reputation (often police) 2 procedural due process- 14th amendment violation, the state took away my rights w/out using due process
FSMD Federation State Medical Boards
List of states that waive in-state liscensure for telemedicine
Apology statute
if MD or hospital apologizes to patient, they don’t incur liability (tends to increase the number of cases but decrease the sixe of settlements)
