Term
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Definition
| When state or local law conflicts with federal law. Valid federal law supercedes or trumps or pre-empts the state or local law |
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Term
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Definition
to abide by decided cases
Vertical not horizontal |
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Term
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Definition
literally a thing or matter settled by judgment.
When a legal controversy has been decided by a court and no more appeals are availble, those involved in the suit cannot take the same matters to court again. -- this applies to the parties involved in the prior suit and to the issues decided in that suit. |
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Term
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Definition
The Complaint
The Answer
Discovery
Deposition
Interrogatories
Discovery of documents
Physician or mental examination
Admission of facts |
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Term
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Definition
respect for individual autonomy
Beneificence – helping others
Nonmalificence – (not harming others)
And Justice and Fairness
Regardless if these come from religious faith, natural law or social contract thes e principles form the basis for the legal rules of our society. ---- violence and theft… nonmaleficience |
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Term
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Definition
| the failure to adhere to the standards of the medical profession |
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Term
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Definition
| an intentional tort that can occur if all established professional standards have been followed; all that is required is a touching that has not been consented to. |
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Term
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Definition
| Failure to provide a promised outcome = malpractice AND breach of warranty |
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Term
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Definition
| Failure to perform contracted service with reasonable care and skill =negligence AND breach of contract |
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Term
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Definition
A civil wrong in which a person intends to do the wrong.
Intends no harm but fails to act as a reasonable person would.
Act is wrongful not because of intent- just because of its inherent high risk. |
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Term
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Definition
Move to kiss without permission = assault
Battery= actual touching |
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Term
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Definition
Duty of care
Breach of duty
Causation
Damages |
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Term
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Definition
1.that the law was intended to protect people like himself….
2.The law was violated
3.The injury is the type that the law was trying to prevent
4.The injury was caused by the violation….. |
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Term
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Definition
*Respondeat superior
Under control of master
Within scope of employment
1.Was the actor a servant or an independent contractor,
2.Did the act constitute a tort to the plaintiff, and
3.Did the actor commit the tort while acting within the scope of his employment?
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Term
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Definition
-Assumption of risk
-Contributory and comparative negligence
-Contracts
-Release
-Good Samaritan laws
-Worker’s compensation laws
-Governmental immunity
-Statute of limitations |
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Term
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Definition
if the patient failed to act a s a responsibly prudent person would be expected to act, and that failure contributed to the injury…. The patient cannot recover damages for the physician’s negligence.
Examples would be:
The patient fails to follow clear orders and does not return for follow-up care
The patient fails to seek follow-up care then he knows or suspects a problem
Patient gives wrong information |
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Term
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Definition
| Attempting to compensate the injured party… patient showering example = slipped in the shower… 20% hospital problem for not installing safety devices… 80% responsibility to patient for his negligence. |
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Term
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Definition
-Defamation
-Abuse of process
-Malicious prosecution |
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Term
| Advantages of corporations |
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Definition
1. Limited liability
2. Continuity of existence
3. Free transfer of ownership interests
4. Corporation separate taxable entity
5. Ability to raise outside capital |
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Term
| For-profit vs. not-for-profit |
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Definition
For profit= owned by shareholders
Not-for-profit= run by members and board; may be tax-exempt; reinvestments for institutional purposes |
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Term
| Responsibilities of governing board of health care institutions |
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Definition
-Develop policy and strategic plans
-Appoint senior administration and medical staff
-Delineate clinical privileges
-Evaluate institutional performance |
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Term
| Duties of Governing Board |
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Definition
Fiduciary duties (duty of loyalty)
Duty of care/duty of responsibility
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Term
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Definition
duty to act with same reasonable care as that practiced in similar hospitals in similar communities
*Breach of duty
*Harm/damages
*Proximate cause |
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Term
| Hospital liability immunity |
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Definition
Sovereign immunity
Charitable immunity
Independent contractor |
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Term
| Vicarious Liability Questions |
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Definition
1. Was a tort committed?
2. Was the tortfeasor an agent/employee of the defendant hospital?
3. Was tortfeasor acting within scope of agent/ employee duties |
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Term
| Employee/Agent v. Independent Contractor Questions |
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Definition
Who controls work plan
Who controls work schedule
Paid for product |
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Term
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Definition
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Term
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Definition
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Term
| Medical staff appointments unacceptable criteria |
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Definition
Citizenship
Discrimination
Required kickbacks
Restraint of trade
Medical society membership
Non-standardized test |
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Term
| Actions resulting from disciplinary action or termination of privelages |
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Definition
Breach of Contract
Interference with Business Relationships
Antitrust
Defamation |
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Term
| to respond to the medical care crisis and to discourage patient dumping, Congress enacted this in 1985 |
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Definition
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Term
| Right to services= emergency care |
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Definition
| When an individual comes to the hospital emergency department and a request is made on his behalf for examination and treatment of a medical condition, the hospital must provide an appropriate medical screening examination within the capability of the hospital, to determine if an emergency medical condition exists (EMTALA) |
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Term
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Definition
A medical condition manifesting itself by acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonably result in
Serious jeopardy to individual, woman, unborn child
Serious bodily function impairment
Serious bodily organ dysfunction
Not enough time to transfer a laboring woman before delivery
Transfer may harm woman or unborn child |
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Term
| Penalties for not following EMTALA |
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Definition
OIG brings action of civil penalties of up to $50,000
Adverse publicity
Other hospitals can file for financial loss as a direct result of EMTALA violation
Private individuals can file claims to hospital, but not physician. |
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Term
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Definition
exercise reasonable care
transfer patients when appropriate
Know professional practice guidelines (JCAHO, state hospital licensure laws)
Develop written guidelines and follow them
Staff emergency rooms fully with staff and fee for service payments |
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Term
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Definition
Vary by state
Some include only scene of accident
Others include scene of emergency
Know the law of the state where you live and/or practice |
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Term
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Definition
| Very common: vaccinations, physicals, routine office visits; emergencies to save limbs or whatever; treat the emergency and get consent later. |
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Term
| Elements of informed consent |
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Definition
Diagnosis and prognosis
An explanation of procedures planned in lay terms
Foreseeable risks, consequences, side effects
Probability of success
Reasonable alternatives
Prognosis without treatment (“informed refusal”)
Type of recuperation likely
*Primarily informed consent is the physician's responsibility (cannot delegate to nursing staff) |
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Term
| Risks not disclosed, but consent ok |
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Definition
Sound therapeutic reasons
When patient requests not to be informed
Blood loss during surgery (common knowledge)
If patient had the procedure before
Risks that arise only when procedure is poorly performed
1 in 800,000 risk of aplastic anemia |
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Term
| Competency determined by... |
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Definition
In Physician judgment the patient
Understands condition
Understands medical advice given
Understand consequences of refusing treatment
Court adjudicates incompetency and appoints a guardian
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Term
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Definition
Guardian appointed – follow guardian direction
If no guardian but wishes are known, follow them
Living will, durable power of attorney, etc.
Proxy - in line by state law
CLEAR AND CONVINCING EVIDENCE
If no guardian and wishes are not known
Review benefit/burden with family
Involve ethics committee, if necessary
Build consensus
Guardian role of parens patriae |
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Term
| Not for profit does not equal tax exempt |
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Definition
not for profit
-Meets state statute requirements
PA NON- PROFIT CORPORATIONS LAW 15 Pa. C.S. 5301 et. seq.
-Tax exempt
-Meets the IRC 501(c)3 definition
-Meets “purely public charity” under Pa. Const. art. VIII, § 2(a).
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Term
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Definition
-Avoid federal and state income taxes on net income
-Can receive contributions that are deductible to donors
-Grants
-Exempt from federal unemployment tax
-May be exempt from state and local property tax
-Purchases may be exempt from state and local sales taxes |
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Term
| Taxing of unrelated business income |
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Definition
May be Taxed
nIncome from gift shops, restaurants, parking lots, hospital pharmacies, physician offices, residences for interns nurses or other staff
NOT taxed
§Investment income
§Research income
§Sales of goods and services to “patients”
•Gift shop
•Pharmacy
•Extended care center
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Term
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Definition
Section 1
Prohibits every agreement that unreasonably restrains competition
-- Contracts, combinations or conspiracies in restraint of trade are illegal
Section 2
Monopolization (unilateral action)
power to control price or exclude competition – purposeful act
Persons engaging in these activities are guilty of a federal crime - felony |
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Term
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Definition
prohibits price discrimination
•Cannot give price breaks to purchasers of like products
•Applies only to commodities not services
--Prohibits
No tie-in sales or exclusive dealing
•cannot contract for sale of commodities on the condition that the purchaser will not use or deal in goods from another vendor
Prohibits
Corporate mergers, consolidations, acquisitions which substantially lessen competition or tend to create a monopoly.
•Cannot produce an anticompetitive effect in a relevant product and/or geographic market |
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Term
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Definition
Made unfair methods of competition and unfair or deceptive acts unlawful.
Made the FTC responsible for enforcement of Sherman and Clayton Acts
--Prohibits unfair or deceptive trade practices towards consumers
Failure to reveal material facts about products
False claims and misrepresentations
Disparaging a competitors products
Unsupported endorsements
Baiting and switching
Contests with few prizes
Sending of unsolicited merchandise
Overbearing door-to-door sales methods |
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Term
| Exemptions from antitrust law |
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Definition
1. Implied repeal – used when the antitrust laws conflict with another federal regulatory scheme
Example = National Health Planning and Resources Development Act of 1974 Certificate of Need process not an antitrust violation
Disfavored – Supreme Court rules that requires “clear repugnancy” between antitrust principles and conflicting regulatory system
2. State Action – state regulations that have the impact of restricting or restraining competition
Must really be state action
Must be required by law, not just permitted
State itself must actively supervise
3.Noerr-Pennington Doctrine
– Activities to influence legislators are not antitrust
– Based on 1st Amendment protections
4.McCarran –Ferguson Act
– Exempts the business of insurance (not business of insurers) from federal antitrust laws
– Does not apply to any agreement to boycott, coerce or intimidate
5.Labor – Management Activities
- Mutually negotiated provisions of labor contracts between employer and labor union are exempt |
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Term
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Definition
Plaintiff must prove
- Geographic market impact
- Product market impact
- Motivation for alleged illegal activity
- Condition of the industry before and after restraint of trade –i.e., the Antitrust injury |
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Term
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Definition
Prohibits knowingly
presenting a false or fraudulent claim
using a false record or statement to get a claim paid
avoiding an obligation to pay back the government (“reverse false claims”) |
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Term
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Definition
| Private "whistleblowers": person, partnership, political subdivision, association, etc. |
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Term
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Definition
Complicated
Ambiguous
“Facts and circumstances” analysis
Need competent legal advice |
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Term
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Definition
The Stark Law prohibits “referrals” of Medicare or Medicaid patients by “physicians”
for “designated health services”
to entities with which they (or their immediate family members) have a “financial relationship”
if no exception applies
No intent required
No criminal penalties |
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Term
| Stark self-referral penalties |
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Definition
Refunds of amounts collected in violation
CMP up to $15,000 for each claim
Treble damages for each claim
Exclusion from Medicare/Medicaid program
CMP up to $100,000 for each referral arrangement
No criminal sanctions |
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Term
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Definition
Ownership or investment interest
Compensation arrangement
direct or indirect to physician or family member
includes:
compensation for services
rent for space or equipment
discounts on goods/services |
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Term
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Definition
Physician services
In-office ancillary services
Personal services arrangements
Reasonable rent for office space or equipment
Bona fide fair employment relationships
Physician recruitment / Payment to induce physician to move to hospitals geographic area
Intra-group referrals
Ownership in large entities or certain rural providers |
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