a system of rules that defines socially acceptable behavior and sets punishments for violations
What are the 3 Bodies of Government? What does each do?
Legislative- make law
Executive- enforce law
Judicial- interpret law
What Law governs the relations between people and government?
What type of law is between non government entities?
Define REAL PROPERTY
land and everything attached to it
Define PERSONAL PROPERTY
everything except land and that which is attached to it
Name the 5 Traits of Criminal Law (crimes by society)
*No self help
Restriction on liberty; punishment
*Trial by jury
*Beyond a reasonable doubt
Name the 5 Traits of Civil Law (everything else)
Limited right to jury
*By a preponderance of the evidence
Name the 2 types of Civil Law
1) contracts- legally binding agreement
Name the 6 elements of a Contract (CLAM-CO)
1) Competent parties (legal age & sound mind)
2) Legal subject matter
4) Mutual agreement
What are the remedies sought in contract?
1) specific performance- do what u promised
2) damages- $$$$
What is a DEFENSE?
A legal excuse
What are the types of Contract Defenses?
2) Sovereign Immunity
3) Res Judicata- no trial; (already decided)
7) Statute of Limitations (4-6yrs)
non-contractual, civil wrong committed against person or their property for which a court may award a remedy in damages
Identify Statutory Law (legislative law)
a. all end in Act; Tucker Act, Patient Self Determination Act
b. except: UCMJ & Statutes of limitations
Identify Common law: (judge made law)
a. name vs. name; Feres, Roe v. Wade, Schloendorf
Identify Administrative law (rules/regulations of agency)
a. OSHA, FDA, DoD Regs
b. The common rule (universal) *research done on people
Name the 3 types of Torts (SIN)
1) Strict liability
Define TORT of STRICT LIABILITY
people will be held responsible for damage even though they did not act negligently or intend to cause any loss or harm. ie. unleash a dangerous instrument (tiger, certain dog breeds, vaccines)
What are the types of INTENTIONAL TORT (FABO-DIVA)?
1) False imprisonment
2) Assault- fear or assumption of battery
3) Battery- unconsented touching likely to cause harm
5) Defamation (slander- oral, libel-written)
6) Infliction of emotional distress
7) Violation of rights of privacy
What are the types of NEGLIGENT TORT?
2) Breach of duty
What 2 things must you have for an Intentional Tort?
1) doing the thing
2) likelihood of causing harm
What are the 2 types of damages in a Tort? Describe each.
1) Punitive- punish wrong doer & prevent others from committing
2) Compensatory (may be substantial or nominal) pay for the wrong.
a. general- pain & suffering
b. specific- lost wages
What is the "failure to meet the standard of care"?
Negligent Medical Tort
What are the 5 things that cause actions for a NEGLIGENT MEDICAL TORT?
c. Obtain informed consent
e. Breach of confidentiality
What are the differences between Contract Law and Government Law?
contract law is about common law, not true in gov't contracts
What are the 10 defenses to a Medical Tort?
2) Good Samaritan
3) Res Judicata
4) Assumption of risk
5) Contributory negligence
6) Comparative negligence
7) Charitable immunity
8) Sovereign immunity
9) Statute of limitations- 2yrs
being made to take responsibility
What is the difference between individual and corporate negligence?
They have the same responsibilities but...
Individual - negligent before liability
corporate negligence - Corporation had duty & breached duty
vicarious liability - person held liable for someone elses actions
ex. Corp held liable for employees negligent scope torts
Define RESPONDANT SUPERIOR
let the master answer (makes employer responsible)
What is the Medical Standard of Care?
"To act as reasonable & prudent _PA__ would act under similar circumstances."
When do you need expert medical testimony?
beyond the knowledge of average laymen
Define RES IPSA LOQUITOR
the thing speaks for itself- Res Ipsa Loquitor (ie. infection, scarring). ( Do not need expert medical testimony)
had the individual had the information before procedure, they would not have had the procedure- 'Canterbury Case'
What are the 3 conditions for Res Ipsa Loquitor
1) event would not normally occur
2) cause was within exclusive control of defendant
3) no negligence on part of plaintiff
Name the 4 situations where Res Ipsa Loquitor apply.
1) wrong patient
2) wrong limb/body part
3) explosion or fire
4) foreign body left in patient
What are the 2 sides to Informed Descision Making?
1) Informed consent
2) Informed refusal
What are the 2 applications of Standard of Care?
1) Locality Rule or Standard - Small v. Howard
2) National or Professional Rule or Standard - Brune v. Belinkoff
What are the 4 parts fo Corporate Negligence?
2) Breach of Duty
What are the 5 elements of Informed Decision Making?
1) Decision making capacity- (sound mind/legal age) able to: take in information, process information, communicate information
2) Information-(procedure, benefits, risks, alternatives- also risk of doing nothing) MUST BE PATIENT CENTERED
3) Voluntariness- consent/refusal; cannot be coerced; can be influenced
4) Agreement / Request
5) Declination/ Refusal
When is Consent NOT required?
b. Therapeutic Privilege
c. Treatment by Court Order
d. Treatment required by Law
e. Non-consensual treatment permitted by Law
What are the 2 ways in which surrogates may make decisions?
1) Patients best interest
2) Surrogates substituted judgment (act as the patient would have wanted)
What are the State's Interests? (4)
1) Preservation of Life
2) Prevent Suicide
3) Protect Innocent 3rd Parties
4) Protect ethical integrity of healthcare professionals
Define "Patient Self Determination Act"
patients be told about their right to refuse care & right to execute advance directives
Why is the Schloendorff case important?
1914 RIGHT OF INFORMED CONSENT
Most quoted in medical law
"Every human being of adult years and sound mind has right to determine what shall be done with his own body"
What is required Care for Military? (7)
3) Isolation /Quarantine
4) Detention on closed wards
5) Medical care related to mental disorders
6) Diagnostic procedures
7) Physical exams
What are the 2 types of Advanced Directives?
1) Durable POA
2) Living Will
* some states- DNR orders
What is the difference between Durable POA for Medical Care & POA?
POA- becomes effective on date stated & ineffective upon grantor's incapacity
Durable POA for Medical Care 'SPRING POA'- becomes effective upon the grantor's loss of decision making capacity
What is the difference between Living will & Durable POA?
Living Will - Requires terminal condition and Relies on health care providers
Durable POA - Takes effect upon loss of decision making capacity, Employs a named agent and Grants decision making power for any medical situation
What is the difference between special & general damages?
Special- objective (numerical value); (i.e. cost of repairs, loss of earnings, medical expenses, etc..)
General- subjective; (i.e. pain & suffering, impairment, loss of enjoyment of life (Hedonic damages/loss of pleasure))
The reduction in $$ when judge finds jury's decision out of line
The Judges right to raise the $$ award when jury makes a mistake.
Define the Federal Tort Claims Act (civil law & statuatory federal law)
The FTCA provides a limited waiver of the federal government's sovereign immunity when its employees are negligent within the scope of their employment.
-allows suit & protects us from damages
What are the Federal Tort Claims Act (FTCA) Rules? (5)
1) Two year statutory of limits
2) Trial by judge alone
3) Trial in U.S. District Court- bottom level trial court
-where problem occurred or where the plaintiff lives
4) No limit on damages
5) No punitive damages
When does the Federal Tort Claims Act (FTCA) NOT Apply? (4)
1) intentional tort; except of law enforcement officers
2) in foreign countries
3) involving combatant parties
*4) service members injured incident to service or while exercising a military privilege (includes hospital, officers club/ or NCO club)
What is the Act that operates overseas as the FTCA operates in the US?
Military Claims Act
* except it is administrative only
Are Military dependents barred by the FERES doctrine from bringing a claim for the physical injuries they, themselves, have suffered as a result of medical malpractice?
Are military retirees barred by the FERES doctrine from bringing a medical malpractice claim for injuries suffered after their retirement, even if the medical treatment they received was for a service connected injury?
What applies to both FTCA & Military Claims Act?
What is the rationale behind the Feres Act? (2)
1) a system of compensation exists for military members
2) it is necessary to maintain military discipline
What are FTCA claim filing steps? (5)
What are the Military Claims Act claim filing steps?
What is the Feres Doctrine?
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 ot service.
What are the 4 parts to Individual Negligence?
2) Breach of Duty
What are the 2 types of Contracts?
1) Written or Oral
2) Express or Implied
What is the term for "medical promises a result"?
Contract to Cure
(Sullivan v. O'Conner)
Parts to a Government Contract
1. Enabling statutes
2. Administrative Law (FAR)-Federal Acquisition Regulation
3. Prescriptive statutes:
-Favoring small business, organized labor, veterans, depressed areas
-not like contract law-NOT a matter of common law
What are the two types of Defamation?
Application of the Standard of Care
Locality rule or standard
-Small v Howard
National or professional rule or standard
-Brune v Belinkoff
-National certifying exams