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ABPP Writens > Personal Injury, Workers Comp, ADA, Child Custody And Neglect > Flashcards

Personal Injury, Workers Comp, ADA, Child Custody And Neglect Flashcards

1
Q

Christie Bros v Turnage

1928

A

You can recover damages from mental suffering, humiliation, or embarrassment (considered personal injury)

ANY unlawful touching of a person’s body

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2
Q

Dillon v Legg

1968

A

Suffering emotional injury only (with no physical injury) can permit suing for negligence

Legg hit a child of Dillon, Dillon sued for emotional damages
Initial case was thrown out because Dillon herself was not in the “zone of danger,” however the CA SC reversed noting you don’t need to be within a “zone”

Closed enough to the scene, shock was a direct result of observing the accident, closely related to the direct victim

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3
Q

Tort

A

The event or events that give rise to a lawsuit

A “civil wrong” - requires a breach of duty

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4
Q

Three types of relief sought in civil lawsuits

A

Monetary damages for harm suffered

Injunction (prevents the defendant from doing something)

Specific performance (getting the defendant to do something they were supposed to do)

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5
Q

Cause of action

A

The elements for one of the various torts that are necessary for the legal theory of the lawsuit

Must prima facie (on its face) demonstrate wrongdoing
- One must prove liability to receive damages

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6
Q

Canterbury v Spence

1972

A

Plaintiff is responsible for all harm caused conduct, no matter how disproportionate it may seem

“Take the victim as he finds him”

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7
Q

Types of torts

A

Intentional torts - volitional act, tortfeasors goal was to cause harm, conduct caused the injury
Defamation - false utterance, must be about the plaintiff, transmitted to a third person, results in damage to plaintiffs reputation
Privacy torts
Strict liability - liability without fault
Negligence - no intention but a failure to act
Vicarious liability

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8
Q

Requirements for intentional torts

A

Defendant engaged in a volitional act

Intent - tortfeasors goal was to cause harm

Cause - conduct caused the injury

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9
Q

Elements of a defamation tort

A

(Libel is written defamation, slander is spoken defamation)

False, defamatory utterance

About the plaintiff

Transmitted in some form to a third person

Resulting in damage to the plaintiff’s reputation

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10
Q

Types of privacy torts

A

Appropriation - unauthorized use of image for commercial advantage

Intrusion - intrusion into plaintiffs private life

False light - misattribution of the plaintiffs values

Public disclosure of private facts

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11
Q

Strict liability

A

Liability without any kind of fault

Defendant engaged in an act so inherently dangerous that they do so at their own risk and accept any damages that result

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12
Q

Negligence

A

Duty

Breach

Damage

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13
Q

Nominal damages

A

Plaintiff proved liability but has suffered no harm

Receives a small amount of money

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14
Q

Compensatory damages

A

Most common type of damages sought

An amount to pay the plaintiff for actual losses suffered as a result of the injury (and nothing more) - could look like covering medical or mental health expenses, lost earnings, etc.

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15
Q

Loss of consortium

A

The loss of benefits of the relationship that one person is entitled to receive another (companionship, cooperation, sexual relations)

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16
Q

Punitive damages

A

Intended to punish the defendant for their blameworthy conduct, or to set an example to deter future behavior

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17
Q

The evaluation model for personal injury cases

A

Determine the presence of sxs in four areas:
Cognitive, affective, physiological, and interpersonal

And how they impact functioning in four ways:
ADLs, relationships, workplace, and hedonics (quality of life)

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18
Q

Five distinct time intervals for evaluating personal injury

A

Time before the tort occurred

Time during which the tort occurred

Time since the tort up until the evaluation

The evaluation

Projecting into the future

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19
Q

Legal test for workers compensation

A

Whether there is a connection between work activities and the injury

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20
Q

Burden of proof for workers comp cases

A

Preponderance

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21
Q

Three major types of workers comp

A

Total disability - paid out over lifetime or large number of weeks

Permanent partial disability - percentage of total impairment

Temporary total/partial disability - paid weekly for the duration of the disability

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22
Q

What a beneficiary must demonstrate for workers compensation

A

Injury or disability

Arose out of employment (during normal work hours doing normal duties)

Is accidental/unanticipated

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23
Q

Three kinds of emotional damages cases

Workers compensation

A

Physical trauma causing mental injury

Mental stimulus causing physical injury (protracted stress leading to heart issue)

Mental stimulus causing mental injury (seen as less legitimate)

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24
Q

Commonality between tort law and workers compensation

A

Both require proximate cause

Aka. Recent cause, straw that broke the camels back

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25
Q

Most important kind of testing to workers compensation cases

A

Response bias and impression management

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26
Q

Impact of diagnosis on workers compensation cases

A

Compensation does not hinge on diagnosis alone, you can have no formal diagnosis (ex. Experience headaches, irritability) and still be entitled to compensation

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27
Q

How to establish proximate cause

A

Have some knowledge of the alleged event (accident)

Know what research suggests may be common sequelae

The fact finder ultimately decides if there is proximate cause

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28
Q

Prognosis in tort and workers compensation cases

A

Tort prognosis - related to the damage award the plaintiff will receive

WC prognosis - used to determine the likely duration of the impairment caused by the injury

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29
Q

How disability is defined in tort and workers compensation cases

A

Tort - disability is defined by case law
(Can win a LOT of money…wild wild west)

Workers compensation - disability is defined by statute in your jurisdiction
(Pay out amounts are fixed)

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30
Q

Four main ways to obtain benefits when your ability to work is compromised

A

Private disability insurance - privately purchased, commonly seen in self-employed arena

Employer-paid disability insurance - provided as part of employer-provided health benefits

Workers Compensation - illness or injury MUST be related to the work

Social security disability - eligibility is contingent on work history and contributions to the social security system

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31
Q

Leading causes of disability in the US

A

For those between ages 15-44

Depression

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32
Q

Four domains of consideration for sx exaggeration in disability claims

A

Motivation and incentives

Atypical, exaggerated, incongruent symptoms

Discrepancies in interviewer presentation/noncompliance

Activity outside the interview (noncompliance with tx)

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33
Q

Doctor-patient duty case law

A

Ryans v Lowell - no malpractice if no relationship

Ervin v American Guardian Life Insurance Co - no relationship if a doctor conducts a file review for an insurance company

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34
Q

Case law for disability as it pertains to loss of job

A

Damascus v Provident Life and Accident Insurance Co - if negligence is the reason for your loss of license, companies can refuse to pay out

Massachusetts Mutual v Ouellette - inability to work because of a criminal conviction isn’t compensable

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35
Q

Meritor Savings Bank v Vinson

1986

A

Hostile work environment sexual harassment is a form of sex discrimination that is actionable under Title 7 of the Civil Rights Act

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36
Q

Olmstead v L.C. ex rel Zimring

1999

A

Financial constraints cannot entirely determine whether states comply with the 1990 ADA guidelines concerning placement in community treatment for the mentally disabled

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37
Q

Americans with Disabilities Act

A

Those with disabilities must be treated (like?) other people unless it could be demonstrated that a persons disability creates substantial barriers to their employment or other things

38
Q

Who ADA is designed to protect

A

A QUALIFIED individual with a DISABILITY who, with or without REASONABLE ACCOMMODATION, can perform essential functions of the employment position that such individual holds or desires

(Qualified individual, disability, reasonable accommodation)

39
Q

“Qualified individual”

Per ADA

A

Must meet necessary job prerequisites (training and experience)

Must be able to perform essential functions of the job

(To keep people from claiming disability based on being unqualified)
- You can meet the “disability” standard and not be a qualified individual

40
Q

“Disability”

Per ADA

A

Physical or mental disability that “substantially limits” a “major life activity”

Treatable disabilities are still disabilities
Not included: drug use, sexual orientation disorders, criminal pathology
Included: walking, speaking, learning, sitting/standing, interpersonal skills, cognitive processing…

3 prongs (only need to have one): limits major life activities, record of impairment exists, being regarded as having such impairment (???)

41
Q

“Reasonable accommodation”

Per ADA

A

Includes modifications or adjustments to the job application process, work environment, or other changes that allow the employee to enjoy equal benefits and privileges of employment as they are enjoyed by others

Employers are only required to accommodate KNOWN disabilities
Reasonable doesn’t have to mean best possible
Cannot cause the employer undue hardship

42
Q

How the ADA limits rather hiring process

A

The types of questions an employer can ask an applicant

The types of tests that can be administered before and after a job offer

Rules for the administration of the tests

43
Q

Fair Housing Amendments Act

A

Prohibits discrimination in the sale or rental of housing on the basis of handicap

Goal is to integrate those with disabilities into American life, allowing them to live where they want to

Must be “qualified for tenancy” // cannot pose “a direct threat”

44
Q

SSI vs SSDI

A

SSI - available to anyone meeting eligibility criteria, regardless of work history of proof whether they’ve paid taxes

SSDI - functions as an insurance program, providing benefits to those who have worked and paid into social security fund in 20 of the last 40 calendar quarters

45
Q

Determining eligibility for SSI or SSDI

A

Whether the person has a disability - an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of no less than 12 months

(Can’t engage in substantial gainful activity, physical or mental impairment, could result in death or impairment for at least 12mo)

46
Q

Domains for potential impairment for social security

A 
Acquiring or using new information
Attending to and completing tasks
Interacting and relating with others
Moving about and manipulating objects
Caring for self
Health and physical well-being
47
Q

What to use for a social security eval

A

Psychiatric review technique form

Residual functional capacity assessment form

And a clinical interview, testing if appropriate, etc.

48
Q

Reasons an immigrant can petition for relief (not be deported)

A 
Asylum
Hardship (if a caregiver to someone already here legally)
Risk for torture 
Domestic violence
Abused, neglected, abandoned children
49
Q

If you’re doing an ADA evaluation for safety (risk)

A

Consider the duration of the risk, nature and severity of the potential harm, likelihood that potential harm would occur, and the imminence of the potential harm

50
Q

What do employers need to do for an ADA risk eval

A

Specifically identify the behaviors of concern that constitute a threat
(The mere presence of a psychiatric diagnosis is not sufficient)

51
Q

Major question in return-to-work evaluations

A

Has the worker regained a level of functioning so that he or she would qualify as a “qualified individual with a disability?”

52
Q

Four opportunities for evaluations in litigation-based ADA claims

A

Allegations the employer failed to provide reasonable accommodation

Disparate treatment and disparate impact (when a similarly situated employee without disability would have received better treatment)

Reprisal for protected conduct (employee files EEOC claim and is retaliated against)

Disability harassment or hostile work environment

53
Q

Individuals with Disabilities Education Act

A

Children with disabilities are entitled to the same education as their nondisabled peers

Provides “free and appropriate” public education in the “least restrictive environment” for all disabled kids

Places the burden on the school to prove removing a student from a mainstream class is the least restrictive option

54
Q

Case law for IDEA

A

Brown v BOE - no “separate but equal” race discrimination, personalized instruction with sufficient support services to allow the child to benefit from the education

P.A.R.C. v Commonwealth of PA - schools can’t deny admission based on disability

Mills v BOE - PARC extends to emotional disability, school can’t use “lack of funds” as an excuse

55
Q

Who does IDEA cover

A

Guarantees those up to age 22, who have a disability, free and appropriate public education and related services in a least restrictive environment

56
Q

IEPs

A

Evaluations occurs once per year
Evaluation goals every year must be “measurable”
Must include standardized assessments

In addition to describing the disability, accommodations, etc.

57
Q

Individualized family service plan

A

Similar to an IEP abut the focus is on the whole family, and the plan is geared towards children under the age of 6 who are at risk for developmental delays

58
Q

“Difference dilemma”

A

You need to identify special needs of children under IDEA, but do so in a way that is not stigmatizing nor highlights differences

59
Q

What does it mean to consider a students “ecology” when doing IDEA evals?

A

Take into account the various systems within which the particular child may interact

60
Q

Tender years presumption

A

From birth to 7yo, the best interest of the child was to be with the mother

Freudian principles, largely ignored dad
19th century

61
Q

BIOC

A

Late 1960s

Tender years became BIOC, researchers started paying attention to the role of dad

62
Q

In re Bort

A

First spoke of BIOC in 1881 (children aren’t chattel)
(In addition to Chapsky v Wood, 1881)

BIOC was later solidified in Findlay v Findlay (1925)

63
Q

Uniform Parentage Act

A

1970s

Eliminated measures that discriminated against illegitimate children

(Also gave notice to dads who wanted full custody, race issues, etc.)

64
Q

What factors constitute BIOC

A

No idea, it varies based on jurisdiction and some states don’t even try to define it

65
Q

Approximation rule

A

2002

Custodial responsibilities should be approximate to the amount of time and caretaking each parent did with the child prior to separation

66
Q

Parenting Plans

A

Can range from informal agreements to written and court sanctioned documents

Address issues of legal custody and physical custody

67
Q

Legal custody v physical custody

A

Legal custody - care, control, maintenance of the child…which parent has control over the child (schooling, medical, etc.)

Physical custody - where the child resides and who is responsible for day to day care, where the child will go for certain holidays

68
Q

Three prongs of child custody evaluations

A

Parenting attributes
Child’s developmental needs
Fit

69
Q

Impact of Griggs v Duke Power Co (1971)

A

Unrelated to child custody

Assessments must be demonstrably reasonable measures of job performance

You can’t give measures to parents that measure attributes unrelated to parenting (e.g., psychopathy)

70
Q

Otto and Edens three-part model to assessing functional abilities in child custody evaluations

A

Parents characteristics and abilities to care for children

Assessment of the caretakers knowledge, understanding, beliefs, values, attitudes, etc. pertaining to parenting the child

Goodness of fit - specific functional abilities each parent has or needs to meet the unique developmental needs of each up child

71
Q

What is gatekeeping

Child custody

A

One parent attempting to block or limit access to the other parent

72
Q

Relocation analysis

A

Investigate the advantages and disadvantages the proposed move would have on the child’s QOL

The genuineness of the move and motives for and against it

Whether there can exist a realistic and substitute visitation arrangement that will adequately foster an ongoing relationship between the child and the noncustodial parent

73
Q

Uniform Marriage and Divorce Act

A

Tries to define BIOC…

Wishes of parents
Wishes of child
Interaction of the child with parents, siblings, etc.
Adjustment to the home, school, and community
Mental and physical health of all involved

74
Q

Uniform Deployed Parents Custody and Visitation Act

A

Bars consideration of deployment and relocation from being considered in custody disputes

75
Q

Painter v Bannister

1966

A

BIOC case

Kid had stronger relationship with his grandparents, dad was a hippie

76
Q

Santosky v Kramer

1982

A

Child custody

For legal termination of parental rights, courts must use the clear and convincing standard

77
Q

Juvenile Justice Standards of child maltreatment

A

Defines if a child has suffered, or is at substantial risk of suffering non-accidental physical harm

Designed to prevent broken bones, burns, internal injuries…not small bruises, small black and blues, etc.

More or less requires a finding of serious physical harm before a child can be said to have been neglected

78
Q

Two questions often included in abuse and neglect INVESTIGATIONS (and evaluations)

A

What happened?

What can we do about it?

79
Q

Maryland v Craig

A

Must give special consideration to the child in determining if they need to be required to testify in child abuse and neglect cases

80
Q

Things to consider in parental termination evaluations

A

If the child was abandoned

If the child had been previously removed because of maltreatment

If another child in the family has been abused, requiring treatment for the parents

81
Q

Incorrect assumptions about IPV

A

Men abusive towards their wives will be abusive towards their children

Relationships with (abusive) fathers is always important

Women in abusive relationships are always preoccupied with their own safety to care adequately for their children

82
Q

Kinship evaluations

A

Placing children with family or in families that they know/trust instead of in foster care

Appears preferable for the kiddos, reduces trauma, reinforces esteem and culture, continuity of community support…

However, there are often far fewer resources for kinship “parents” than there are foster parents

83
Q

Parental traits that could lead to maltreatment and abuse

A

Unrealistic expectations

Harshness

Rigidity

84
Q

Attachment theory and child neglect/abuse

A

Bowlby and Ainsworth

Physically abusive and neglectful parents will display less positive and responsive behavior towards their children

Disorganized attachment styles put children at risk for psychopathology

85
Q

Parenting style and child neglect/abuse

A

Baumrind

Parenting on dimensions of demandingness and responsiveness…
Physical abuses and neglect through to arise from those parenting in the extremes of authoritarian and uninvolved parenting styles

86
Q

Ecological systems theory and child abuse

A

Bronfenbrenner and Belsky

Children develop in a multilevel system of relationships - there are many pathways to abuse and therefore many pathways to treatment and intervention

Treatments aimed at single factors are likely to be unsuccessful

87
Q

Child abuse and parenting measures for evaluations

A

Child abuse potential inventory (CAPI)

Parenting stress index (PSI)

88
Q

Things to consider when performing “bonding assessments”

Who a child has bonded to most

A

How removal from the foster family may impact the child

Caregiving strengths and limitations of the original parent(s)

Positive and negative factors associated with returning the child back to the parents

89
Q

Landerlos v Flood

1976

A

A physician who fails to diagnose battered child syndrome can be found liable for subsequent injuries to the child

90
Q

Chapsky v Wood

1881

A

Tender years case - children do best by being with their mother

91
Q

Three main perspectives for child abuse and neglect reporting

A

Child savers - err on the side of ensuring protection of the children (can be destructive to the families)

Juvenile justice standards - limits involvement to situations where the child HAS suffered

Goldstein et al - even higher than JJS…if you cross this bar parental rights are being terminated

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