Legal and Ethical Aspects of HIM Ch.'s 1 & 2
****Possible Essay**** Common law is formed when a court, attempting to resolve a dispute, renders a decision. In reaching this decision, courts may interpret relevant constitutional provisions, statutes, regulations, or a previous court decisions. The resulting court decision establishes a precedent that may be relied on in future court cases on similar issues. This reliance on precedent is referred to as stare decisis, meaning to let the decision stand.
***stare decisis***
applies to all courts within the same geographic area and within the same jurisdiction and operates in a pyramid type fashion.
***stare decisis***
Refers to an inconsistency between different jurisdictions over the same issue in a legal action.
A Conflict of Laws
Provisions of this demonstrate the interplay of federal and state law
ARRA - American Recovery and Reinvestment Act
Under this provisions include financial incentives in the form of grants to states or promote adoption of health information technology
ARRA - American Recovery and Reinvestment Act
are not limited to the federal level, many administrative bodies also operate at the state and local levels, sometimes addressing the very same substantive matter
Administrative decisions and regulations
are valid only to the extent that they fall within the scope of the authority granted to the agency by the legislature
Administrative rules and regulations
differ from trial courts there is no testimony or witnesses they just look to the record of events at trial to determine if an error in law occurred
Appellate courts
Legislative proposals are called
Bills
Both parties may be anybody, including governments, corporations, and individual persons
Civil Law
More properly defined however as that part of the law that does not include criminal law
Civil Law
Private law is sometimes referred to as
Civil Law
The loser in a civil case cannot be imprisoned even if she cannot pay the damages assessed by the court
Civil Law
are of most interest to HIM Professionals because they govern the admissibility of the health record into evidence
Civil Procedure Rules and the Evidence Rules
Either party may appeal in a civil case
Civil law
In some state court systems a majority vote of the jury is required to win a dicision
Civil law
The burden of proof is defined as more likely than not
Civil law
The plaintiff and the defendant may both be found partially right and partially at fault
Civil law
is established both through state and federal statutes and through court decisions
Civil law
A fourth source of law is the decisions of courts, sometime referred to as
Common Law
It is formed when a court attempting to resolve a dispute, render a decision
Common Law
passed HIPAA in part to battle perceived health care fraud and abuse
Congress
establishes the basic principles to which the nation or state must conform, organizes the branches of government and limits the functions of it different departments.
Constitution
is the fundamental law of a nation or state and may be written or unwritten
Constitution
A constitution familiar to most Americans is the
Constitution of the United States
Is concerned with an agreement between two or more parties that creates some type of obligation to act or refrain from acting in exchange for some type of consideration
Contract Law
Generally lawsuits brought between private parties fall into one of two categories
Contract Law or Tort Law
The plaintiff is always the state or federal government
Criminal Law
Only the defendant may appeal a guilty verdict in a criminal case
Criminal law
Punishment may be a fine and/or imprisonment
Criminal law
State or federal statutes always establish
Criminal law
The burden of proof is beyond a reasonable doubt
Criminal law
The defendant is either guilty or not guilt, there is no partial fault
Criminal law
The jury decision in a criminal trial must be unanimous
Criminal law
to declare certain conduct injurious to the public order and provide specified punishment for those found to have engaged in such conduct - it is one very large segment of public law
Criminal law
means that compliance with the requirements and standard of either or both accrediting organizations may substitute for compliance with the Medicare Conditions of Participation for Hospitals published by CMS
Deeming authority
Testimony given under oath outside a courtroom pursuant to a subpoena
Deposition
can be defined as those devices or tools used by one side to obtain facts and info about the case from the other side in order to prepare for trial
Discovery
the case in question involves parties who are citizens of different states and the amount in controversy is over $75,000. both points must exist in order to meet the requirements of
Diversity jurisdiction
refers to a distinct category of information that includes e-mails, web pages etc.
Electronically stored information
Enforces and administers the laws
Executive Branch
Functions to enforce and administer the laws
Executive Branch
Health care providers deal most frequently with the
Executive Branch
refers to cases that call into question or involve a US constitutional principle, treaty, federal statute or federal rule or regulation.
Federal question jurisdiction
required congress to take action to establish privacy standards within a prescribed time frame, if it did not take action, the U.S. Department of ____ __ ____ ____. was required to establish privacy standards.
HIPAA Health and Human Services (HHS)
Two Acts that address the privacy and security of health records
HIPAA - Health Insurance Portability and Accountability Act ARRA - American Recovery and Reinvestment Act
A court order that commands or prohibits some act or course of conduct.
Injunction
Ordinarily associated with patents and trademarks, it involves the question of legal rights to processes and products of technology, in particular, the concrete application of a principle or idea.
Intellectual property
is used in the health information management field as the basis for the legal rights to the software used to control and store information in the patient's electronic health record
Intellectual property
Written questions presented to a party or witness designed to gather info
Interrogatories
Functions to interpret the law through the adjudication and resolution of disputes
Judicial Branch
Interprets the laws
Judicial Branch
Sources of Law - JACS
Judicial, Administrative, Constitution, Statutes
is the authority by which courts and judicial officers may hear and decide a case
Jurisdiction
Is defined as a system of principles and processes devised by organized society to deal with disputes and problems without resorting to the use of force
Law
Enacts the Law
Legislative Branch
Functions to enact laws and determines the need for new laws and for changes in existing laws
Legislative Branch
Like arbitration and mediation, negotiation and settlement seeks to resolve a dispute. This differs in that no neutral party is used. The parties must work with each other in order to succeed in reaching resolution of the dispute.
Negotiation and settlement
Conflicts between private parties consitute
Private Law
Consists of the body of rules and principles that governs the rights and duties between private
Private law
Conflicts between the government and private parties constitute
Public Law
Defines appropriate behavior between citizens, organizations, and government
Public law
The body of rules and principles that governs the rights and duties between government and a private party, or between two parts or agencies of government.
Public law
They differ from written interrogatories in that these questions are not designed to gather information rather the questions are designed so that the other side will admit certain facts
Requests for Admission
applies only to the parties and issues involved in a particular lawsuit
Res Judicata
are principles established by authorities that prescribe or direct certain action or forbearance from action
Rules
applies to future decisions involving different parties with similar issues
Stare Decisis
A second source of law flows from federal and state legislatures. The laws written by these legislatures are called
Statutes
Become effective after being signed by the president, in the case of federal _____, of by the governor, in the case of state ______.
Statutes
____ written in one state can differ greatly from ____ written in other states on the same topic.
Statutes
defines the specific offenses, the general principles of liability and the specific punishment
Substantive law
Criminal law can be divided into two subcategories
Substantive law and procedural law
Federal Court System - SAD
Supreme, Appeals, District (trial)
Activities that are covered by ____ ____ include medical malpractice, defamation, and invasion of privacy.
Tort law
Encompasses the rights and duties that exist between parties that are independent of a contract.
Tort law
Private Law - TIC
Tort, Intellectual, Contract
Court Structure bottom tier
Trial court
An example of a pyramid structure is the federal court system. At the top of the pyramid is the
U.S. Supreme Court
Under Stare Decisis, U.S. District Courts and Bankruptcy courts are bound by decisions of both the
U.S. Supreme Court and the U.S. Court of Appeal
Legislative consists of two houses
Upper house - Senate Lower house - House of Representatives or Assembly
governed by Federal Rule of Civil Procedure 33 and are a far less expensive method to uncover details of a case. This discovery device consists of one party submitting written questions about the case to another party or witness.
Written interrogatories
A third source of law comes from the decisions and regulations of ____ _____.
administrative agencies
Common at both the federal and state levels, ____ ____ are governmental bodies charged by the legislature with administering and implementing particular legislation.
administrative agencies
Res Judicata applies only after all avenues of _____ have been exhausted.
appeal
a case may be affirmed, modified, or reversed, a new trial may be ordered
appeal
This is like mediation it uses neutral third party to hear both sides of a dispute and render a written decision called an award
arbitration
These courts of appeal are called
circuit courts of appeal
a written document that describes the grounds of jurisdiction of the court, the plaintiffs claim, the demand for relief to which the plaintiff feels entitled too
complaint
which is a claim presented by the defendant against the plaintiff
counterclaim
The person sued by the plaintiff is
defendant
the person answering the questions is called the
deponent
a discovery device provided for in Federal Rule of Civil Procedure 26 which one party subpoenas a witness to appear at a given time and place to testify under oath
deposition
When discovery seeks information stored electronically in any medium, including business records such as the patient's electronic health record it is referred to as
e-discovery
The process of making court decisions more widely available has been aided by the advent of
electronic case filing systems
These systems are similar to EHR systems but differ in the sense that all record content in a court proceeding are available to the public
electronic case filing systems
crimes of a grave or serious nature punishable by fine or a term of imprisonment of less than one year
felonies
Examples of specific offenses
felonies and misdemeanors
Above trial courts
intermediate courts of appeals
Following closing statements the trial judge will provide directions to the jury concerning the law that applies to the case
jury instructions
_______ is not constant, rather, it is constantly _____
law changing
The stages through which a lawsuit passes are referred to as
legal process
refers to the actions of a party who possesses data to make efforts to prevent data to make efforts to prevent routine destruction and preserve ESI that may be discover able even before the time when a lawsuit is filed.
litigation hold
a neutral third party assists both sides of a dispute in resolving their differences and reducing their resolution to writing
mediation
A third important concept concerning e-discover is
metadata
sometimes referred to as "data about data" and refers to unseen info in common text files and indictates when a document was created, viewed etc.
metadata
crimes of a less serious nature punishable by fine or a term of imprisonment of less than one year
misdemeanors
The opposing party may trigger this duty by advising that he may intend to file a lawsuit or by sending a ___ ___ ____ a letter notifying an adversary of the need to preserve relevant electronic evidence even if paper copies are available.
notice of preservation
a court order requiring a party to preserve electronic and other evidence, regardless of the party's need to engage in routine deletion or destruction practices and procedures.
order of preservation
City councils or boards of aldermen may also pass laws to supplement federal or state laws. Frequently, laws passed at the local level are called ______.
ordinances
Jurisdiction encompasses authority not only over the parties involved called
personal Jurisdiction
The person who initiates the lawsuit is called the
plaintiff
The first step of every lawsuit is the filing of the
plaintiff's complaint
Testimony kept private
pleadings
Many trial courts have local rules that require the parties to meet with the trial judge before a trial date is set and discuss the status and issues of the case
pretrial conference
Are most often used to establish the standard of care in medical malpractice lawsuit or a licensing hearing
quasi legal requirements
can also be seen in the context of accrediting standards used in replacement for compliance with regulations
quasi legal requirements
However the doctrine of stare decisis does not operate in the
reverse direction
After all appeals have been exhausted the winning party must still collect the amount of the judgement if a money award has been made. This process is referred to as
satisfying the judgment
The system of checks and balances is referred to as the
separation of powers
the delivery of the summons and complaint is referred to as
service of process
refers to the wrongdoing destruction or material alteration of evidence or the failure to preserve property or data for anothers use as evidence in pending or reasonably foeseeable litigation
spoilation
But also authority over the question at issue called
subject matter Jurisdiction
in federal court is limited by both the US Constitution and statue
subject matter Jurisdiction
a formal request to produce a record made pursuant to Federal Rule of Civil Procedure 45 would require a person who possesses the document in question to produce the document at a certain time and place
subpoena duces tecum
a document used to start a civil action and acquire jurisdiction over a defendant
summons
Immediately below the Supreme Court is
the U.S. Court of Appeal
above intermediate courts of appeals
the highest courts - supreme courts
hearing or determination by a court of the issues existing between the parties to an action
trial
The lower level of the pyramid includes the
trial courts called U.S. District Courts
To understand statutes and ordinances, one must be familiar with certain verbs that hold legal meaning. Referred to as ____ ____ _____, these verbs set forth duties, rights, prohibitions, and responsibilities in statues and ordinances.
words of authority
a written document that orders the sheriff or other local official to take the property of the losing party and sell it to satisfy the judgment
writ of execution
Among the most common ways to satisfy a judgment is to obtain a
writ of execution or an order of granishment
