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| 8 Associates and 1 Chief Justice |
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John G. Roberts (Chief Justice)
Antonin Scalia
Anthony M. Kennedy
Clarence Thomas
Ruth Bader Ginsburg
Stephen G. Breyer
Samuel Anthony Alito
Sonia Sotomayor
Elena Kagan |
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| Govern the relationships btw individuals and organizations; and btw both of these parties and government |
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PUBLIC LAW
PRIVATE LAW
COMMON LAW
STATUTORY LAW
ADMINISTRATIVE LAW |
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| Deals with the relationships btw government and individuals Ex. criminal law |
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Deals with relationships among individuals
Torts for malpractice |
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Derived from judicial decisions, both state and federal.
Body of principles that has evolved and expanded from judicial decisions.
Origins in English Common Law |
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Written laws made by legislator, state and federal
Written law emanating from legislative body |
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| Public law, rules & regulations issued by administrative agencies to direct the enacted laws of the federal and state governments |
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Precedent: binding decision (previous)
Res Judicata: thing is decided and should not be relitigated. |
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| Branches of the Government |
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Definition
Legislative Branch
Executive Branch
Judicial Branch |
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Enacts laws
Amends and repeals
ACA or HIPPA
State Statues |
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| Administers and enforces the law. Signs executive orders and males treaties |
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U.S. District Court
U.S. Court of Appeals
U.S. Supreme Court
All Federal judges |
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| Highest Court in the Land |
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| All federal Judges are appointed by |
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| the President, Approved by the Senate, and serve life |
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Trial court of Federal System
94 district court in 50 states, the District of Columbia, and territories
One judge, with out w/o jury |
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Eleven circuits, plus D.C. and the Federal Circuit
6-29 judges together to get a uniform decision for that circuit |
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Highest federal court
Created by U.S. Constitution
Chief Justice Roberts |
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vary to state from state
1 trial court for each county=minor matter (misdemeanors and traffic offenses)
20 circuit courts for others general trial cases |
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| has 5 district courts of appeals, and a supreme court with 7 justices |
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Write Laws
Enacts Laws
Senate confirm justices
Enact taxes and set the budget |
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Veto Laws
Wage war
Appoint justices
Refuse certain expenditures |
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Declare laws unconstitutional
Interpret laws
Apply Laws
Compel Testimony |
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Term
| If a civil case does go to court the stages follow |
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Definition
1) Pleading
2) Discovery
3) Trial
4) Post-trial and appeals |
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Definition
Alternate Dispute Resolution
Arbitration and mediation
After 2000 Supreme court decided to allowed contracts to contain arbitration clauses (Financial v. Randolph |
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| quicker, cheaper, more private, ofter have lower verdicts than jury verdicts |
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settle claims in flu
nondisclosure
not admit any guilt or liability
decided before, during, or even after appeal |
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Plaintiff's Summons & Complaint
-Allegations of fact
-One or more legal causes of action
-Includes damages
-Defendant's answer (admits or denies)
-Defendant's possible counterclaim |
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| process of investigating facts of a case before trial. Rules promulgated to prevent trial |
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| Testimony of a witness in a written format |
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doesn't mean we did anything wrong
is just to see what we know or saw |
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| Attorney-Client Privilege |
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Definition
Confidential btw client and attorney
Exceptions |
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Definition
Review records
Do not be antagonistic
Be organized
Answer only questions asked
Explain simply, succinctly
not ever-dramatize
polite, sincere & courteous
Dress and well groomed
Listen objections
Be honest
ask for clarifications
not sure say it |
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Occur before the trial
After pleading
Court examine the entire case decide wether enter judgment |
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Motion to dismiss a case
Motion for summary judgment |
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| is an informal discussion during which the judge and the attorneys eliminate matters not in dispute, agree on the issues and settle procedural matters relating to the trial |
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| defendant alleges plaintiff complaint does not set forth claim or cause of action recognized by law |
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| Motion for Summary Judgment |
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Definition
| Either party to a suit may make a motion for summary judgment, bc they believe there are no facts in dispute |
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VII amendment U.S. Constitution
Grants right to trial by jury |
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Selected from jury list
Determines issues of fact
Determines damages, if any |
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| a legal order requiring the appearance of a witness and/or the presentation of documents at a legal proceeding |
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| Obligation of the plaintiff to persuade the jury regarding the truth of his or her case |
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legal doctrine that shifts the burden of proof from the plaintiff to the defendant
Unusual cases |
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| RES IPSA LOQUITUR Required |
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Definition
proof
event causing injury
defendant-control instrument causing injury
Plaintiff- must not have contributed to the event causing injury |
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Definition
Plaintiff's attorney: views of the facts from plaintiff, description of the damages
Defense attorney: explain facts from the defendant's perspectives |
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Definition
Direct-testomony
Demontsrative-things, photos
Documentary-written
Hearsay -medical books
Expert necessary-outside experience of juror
Expert not always necessary-within common knowledge |
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| Negligence Defenses, Legal defendant's cases |
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Definition
Ignorance of Fact/Unintentional wrongs
assumption of a risk
Contributory/comparative negligence
Good samaritan statutes
Statute of limitations
Sovereign immunity
Intervening causes |
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| Ignorance of Fact/Unintentional wrongs |
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| ignorance of law excuses no man |
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| knowing that the danger exist and voluntarily accepting the risk, aware that harm might occur |
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| when person does not exercise reasonable care for his or her safety |
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| healthcare providers relieve liability in emergency situations |
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| legislatively imposed time constraints that restrict the period after the occurrence of an injury during which a legal action must be commenced |
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| common law doctrine by which federal and state governments historically have been immune from the tortious conduct of employees |
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| when the act of a third party, independent of the defendant's original negligent conduce, is the proximate cause of injury |
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Closing statements
Judge's charge to Jury
Jury deliberation & decision
Awarding damages |
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Definition
Nominal: $1 recognition of wrong
Economic: Pay back for loss. Non capped
Non-economic or Hedonic : hard to quantify. pain, suffering. Some states caps, Florida 2013 threw out the caps McCall V. U.S.
Punitive Damages: extra damages. some state limited. |
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Verdict excessive
Evidence rejected
Inadmissible evidence permitted |
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| Civil wrong. plaintiff must prove the tort by a preponderance of the evidence |
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Negligent
Intentional
Strict liability regardless of faults |
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is a form of conduct caused by heedlessness or carelessness without the standard of care. Malpractice
tort a civil or personal wrong. |
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Definition
Preservation of peace
Culpability
Deterrence
Compensation |
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Definition
Negligent
Intentional torts: assault, battery, false imprisionment, invasion of privacy, infliction of mental distress
Strict liability: regardless of fault |
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Malfeasance: unlawful or improper act
Misfeasance: Improper performance
Nonfeasance: Failure to act. |
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Ordinary: failure to do
Gross negligence: Intentional omission of care or doing improperly |
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plaintiff has to prove
-Duty to use due care
-breach of duty
-injury/actual damages
-Proximate cause/causation |
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| Reasonable anticipation that harm or injury to result from an act or an omission to act |
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Comparative negligence: reduce damages
Assumption of the risk: warned and engaged anyway |
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Definition
Assault and battery
False imprisionment
False Arrest
Defamation of character
Fraud
Invasion of privacy
Intentional infliction of mental distress |
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Definition
| deliberate threat. no contact. must fear it |
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| intentional touching without consent |
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| Unlawful restraint of individual |
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| Legal Justification for Restraint or Seclusion |
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Definition
danger to self or others
criminal conduct
contagious diseases |
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| Proof of harm not required to recover damages when |
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Definition
accusing a person of a crime
person having a loathsome disease
using harmful words to a person, profession or business
calling a woman unchaste |
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Term
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Definition
| is a written form of defamation |
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| person who brings suit must prove special damages |
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| Defenses to a defamation action |
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Definition
Truth- no liability for defamation
Privilege:
Absolute: statements confidential
Qualified: third persons statements for a successful defense |
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Definition
| lie or misrepresentation of a material fact by the defendant, cause damage, intentional |
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Definition
right to
-left alone
-be free unwarranted publicity
-be free of exposure to public
-free of intrusions
-personal privacy
-records kept confidential |
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Term
| Types of Invasion of Privacy |
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Definition
public disclosure of private facts
Intrusion
misappropriation of one's name
false light |
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| Intentional Infliction of Mental Distress |
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Definition
| conduct that is so outrageous that it goes beyond bounds tolerated by decent society |
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Definition
| causing another's death, intentional, negligently, or by strict liability |
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Concerning goods or services guarantee
Express warranty
Implied warranty |
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Definition
| includes specific promises by seller to buyer |
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Definition
| implies protection to public |
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| Elements required to establish strict liability |
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Definition
product manufactured by defendant
Product defective and unreasonably dangerous
3 possible types of defects:
-design
- manufacturing defect
-failure to warn |
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| Products Liability & Res Ipsa Loquitur |
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Definition
Must establish
product did not perform in way intended
product not tampered with buyer
defect existed at time if left defendant |
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| Products liability defenses |
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Definition
assumption of the risk
intervening cause
disclaimers
contributory negligence
comparative fault |
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Definition
to be inadequate in the prevention of medical practice
Damage awards as deterrent have failed to hold # of claims
Exorbitant jury awards & malpractice insurance premium |
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Definition
undertreatment: avoiding high risk test
Overtreatment: excessive use of diagnostic tests |
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Definition
arbitration & mediation
Structured awards
pre-trail screening panels
Collateral source rule
contingency fee limitation
Countersuits & frivolous claims
Joint & several liability
malpractice CAPS
no-fault system
peer review
profesional misconduct
regulation of insurance practices
implementation of best practices |
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| Types of tort Damages (remedies) |
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Definition
Compensatory: pay back
Punitive: extra money to punish |
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economic: tangible losses
Noneconomic: intangible, pain, loss |
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Definition
few states cap economic losses
FL 2003 cap 1 million per incident, 1/2 million per claimant. March 2014 struck down for noneconomic damages |
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States caps
Guidelines on punitive damages
-reprehensibility (how bad)
-Ratio 1:1- 10:1 range
-Comparable civil fines and penalties |
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Definition
body of statutory
deal with crime and legal punishment |
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Definition
| Social harm defined & made punishable by law |
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| offense punishable by less than 1 yr. in jail and/or a fine |
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Definition
| imprisonment in a state or federal prison for more than a year |
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| Criminal Law vs. Civil Law |
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Definition
civil: wrong against and individual or business. Under statutory law or common law don't have to be on the books at the time of incident
Criminal: innocent until proven guilty. Constitutionally protected rights
Some incidents both criminal and civil |
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| The Fifth Amendment requires |
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Definition
| a grand jury indictment or information. doesn't prove guilt just probability |
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Definition
formal reading of the charges
Includes the setting of bail, if the judge grants bail |
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Definition
meeting for purposes of deliberation
Plea bargaining time
Commences with the goal of an agreed-upon disposition |
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| Sixth amendment of the Constitution |
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Definition
| right to a speedy and public trial by an impartial jury |
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Definition
Jury selection
opening statements
Presentation of witnesses and evidence
Summation/closing statements
Instructions to the jury by the judge
Jury deliberations
Verdict
Opportunity to appeals |
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Definition
31 U.S. Code 3729-33
1863 suppliers to the Union Army
Became a crime to submit false claims to the government |
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Definition
False claim to the government
false record to get claim paid
false record to avoid an obligation to pay government |
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Definition
used in the defense industry, medicare/medicaid fraud
whisteblowers may recover 15-25% of government recovers |
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Definition
42 U.S. Code Section 1320a-7b
Provides criminal penalties for offering or receiving referral payments for medicate or medicaid programs, laboratory, architectural contract and ambulance services |
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| Health Insurance Portability and Accountability Act |
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Definition
1996
criminal and civil enforcement tools and funding to fight healthcare fraud
Privacy rules, security rules, date breach notification rules
Set national standards for pt privacy
rules all types of communication
no monetary damages for pt's wrongfully disclosed |
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Definition
similar to tort of fraud
Intentionally deceiving about a material fact which the defendant knows but victim doesn't |
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Definition
grounds for criminal prosecution
provider could lose medicare & medicaid funding |
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| is the mistreatment or neglect of individuals who are under the care of a healthcare organization |
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Definition
criminal consequences state of law
Fatal injection of pavilion, lidocaine, codeine, anesthesia, wrongful removal of life support |
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| Constitution First 3 articles |
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Definition
check and balances
1- Legislative powers
2- executive powers
3- Judicial powers |
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| don't have to quarter soldiers in our homes during peace time |
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Definition
no unreasonable searches and seizures, no warrant without probable cause
Exception:
emergency, consent, border searches, plain view |
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no double jeopardy
property cannot be taken for public use |
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| right to public trial, impartial jury, and process |
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Definition
| right to trial by jury in some civil cases |
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no excessive bail or excessive fines
no cruel and unusual punishment |
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Definition
| the powers not enumerated to the Federal Government by the Constitution are left to the States or the people |
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fifth extended to state proceedings
equal protection |
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Definition
1789 most recent
no midterm pay raises for Congress |
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Term
| Healthcare entity structured Examples |
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Definition
Government entity
Nonprofit corporation
For-profit corporation
Partnership, general or limited
LLC
Sole proprietorship |
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| First step for healthcare entities |
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Definition
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Definition
federal and state statutes
spend the most per patients
open meeting and open records
VA, Military |
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| Corporations, for an not-for profit |
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Definition
separate legal entity set up by articles of incorporation under state of law
Can lose resources
Individuals have liabilities |
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Definition
charitable organization for tax purposes
Subject to state rules |
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Definition
5 or fewer shareholders
board of directs
federal and state securities laws |
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Definition
publicly traded corporations
audits, annual and quarterly reports
no insider trading
balance sheet transactions
internal controls
code of ethics
criminal fraud accountability
whistle-blowing protection |
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Definition
negligence in hiring or failing to supervise subordinates
Contract liability |
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Definition
must give under 14th amendment, minimum notice
opportunity to correct deficiencies
degree of violation and penalties |
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Definition
chapter 11 reorganization
chapter 7 bankruptcy |
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Term
| Foreign Corrupt Practices Act |
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Definition
US Department of Justice criminal and civil enforcement of domestic companies, foreign and national companies
applies to any individual, firm, officer, director employee, or agent on behalf of a firm
Corruption intent, conscious, or deliberate ignorance
no payment or anything of value
no third party agents
permissible payments for permits or routine
Criminal penalties: 2 million corporations and business. $250,000 employees agents, alternatives fines act double the value
Civil penalties 10,000 against corp.
5,000-100,000 per person or up to 50,000-500,000 entity |
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Definition
| is responsible for civil enforcement with respect to security issues |
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Definition
Background: Bartlett was Prescribed Clinoril (NSAID) Medication
But Pharmacist dispensed generic sulindac and it caused Bartlett Toxic epidermal necrolysis
There was no specific warning in labeling
Case was taken to court
Mutual Pharmaceutical moved to federal court
Supreme Court
FDA legislation laws premp this. FDA has to rewrite the law. |
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Definition
| In March 2014, the Florida Supreme Court struck down those caps as unconstitutional in medical malpractice wrongful death cases in Estate |
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Definition
| Allows contracts to contain arbitration clauses. After 2000 by Supreme Court |
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Definition
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$185,846 appeal. Utah Supreme Court later 145 million punitive damages. U.S. Supreme court reduce by amendment 14 Punitive damages were remitted to $9 million.
Approximately 9:1
ratio |
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Definition
Prescribed Clinoril NSAID. Delvelop necrolysis.
adequacy of Warning, punitive damages, non label warning theories, negligence based on failure to survey medical literacy
Not guilty |
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