Chapter 2: Government and the Law

Statutes (Black Letter Law)

-Come from federal and state legislatures (Congress). They usually command, prohibit or declare policy. State statutes are signed by the governor, federal statutes are signed by the President. State statutes will address issues that are state specific (eroding of the wetlands, making Mardi Gras a State Holiday etc.) -Hebrew translation of "statute" means law given without reason

Judicial Decisions

-Court Decisions, Common Law -When a court rules, it sets a precedent for future cases with similar issues : Stare Decisis (to stand by things decided) -Therefore, LA lawyers can only use precedents from LA courts as law, but can use similar cases in other states as a suggestion or an example of how another state came to the conclusion

Private Law

-Deals with relationships among individuals -Conflicts between private parties -Contract Law -Torts

Public Law

-Deals with the relationships between government and individuals -Concerned with one party vs. a governmental agency or between 2 governmental agencies. -Criminal Law

The U.S. Constitution

-Establishes the basic principles to which the nation must conform. It also defines the branches of the government and tells us what each branch can or cannot do. -It is the "supreme law" of the USA. It was adopted September 17, 1787. -"We the People"... -The Bill of Rights or the 10 Amendments were added between 1789-1791. Gives us our "freedoms"

Laws

-Govern the relationships between private individuals and organizations -Govern the relationships between both of these parties and government

Louisiana

-Is the only state with a legal system based on civil law. All other states' legal systems are based on Common Law. -Many of the differences between the two types have been bridged by the Federal government (common law)

Branches of Government

-Legislative Branch -Executive Branch -Judicial Branch

Administrative Decisions and Regulations

-Most famous HIPAA!! Created by Department of Health and Human Services not a Congressman! DHHS is a part of the "Cabinet" -The decisions must fall within the scope of authority of the agency that makes the regs. -Usually these agencies fall under the executive branch of the government and are called "executive agencies"

All of the other stuff that is NOT exactly law, but you must follow

-Policies -Procedures -Bylaws -Accreditation -Licensure Requirements -Healthcare is inundated with these types of requirements that often are not synonymous.

Categories of Law

-Public Law -Private Law

When state and federal laws conflict

-Resolution sought in appropriate federal court -You go with Strictest Laws or ones that protect the individual or the public most (Cell Phone use while Driving)

Model for Government

-Under this model government is divided into branches -Each branch has separate and independent powers, has separate areas of responsibility, is able to place limited restraints on the power exerted by the other branches

Contract Law

-When two parties have agreed upon an arrangement and one party is accused of breaching (breaking) that contract -Contractor said he will fix your roof for $400, you pay him, he does not fix it. -Patients may sue their insurance company for not paying their bill (Mordecai v. Blue Cross/Blue Shield of Alabama)

Res Judicata

-"matter already judged" -After the judge and jury decides and all appeals have been settled, it's over and cannot be tried again. (Double Jeopardy) -Only applies to the parties of the litigation, doesn't impact future proceedings.

Criminal Law

-A subdivision of public law that declares certain actions to be in violation of public order -Substantive Law and Procedural Law are types of Criminal Law (felonies and misdemeanors are included) -In state criminal cases, you will usually see: State v. Theodos or called People v. Theodos

Stare Decisis

-Applies to courts in the same geographical area and jurisdiction. -U.S. Supreme Court -> Courts of Appeal -> Trial Courts: US District Courts

Executive Branch

Administers and enforces the laws, President and his/her cabinet

Should

Can if you want to

Legislative Branch

Congress elected by the people, Divided into two chambers: House of Representatives and the Senate (the word senate comes from the Latin word meaning "old man"). Their function is to enact (create) laws

May not

Disallowed

Is entitled to

Has a legal right to

May

Is allowed to

Civil Law

Is based on Roman law, which primarily uses statutes to derive solutions

Judicial Branch

Judge interprets the law according to situations (cases)

Torts

No contract is established, but harm is caused by one party (med. malpractice) (VERY common in healthcare)

Common Law

Primarily uses previous cases to justify a judgement

State Constitution

Subordinate to the US Constitution. May address specific areas that the US doesn't with language that is familiar to the locale (parishes, coastal restoration)

Must not

You cannot do it...disallowed

Must

You have to do it... required

Shall

You have to do it... required

Where do Laws Come From?

1. The U.S. Constitution 2. State Constitution 3. Statutes (Black Letter Law) 4. Administrative Decisions and Regulations 5. Judicial Decisions: Court Decisions, Common Law