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Chapter 5-6

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Healthcare fraud is committed when a dishonest provider or consumer intentionally submits or causes someone else to submit false or misleading information for use in determining the amount of healthcare benefits payable. Some examples of provider healthcare fraud include the following:

- Billing for services not rendered - Falsifying a patient's diagnosis to justify tests, surgeries, or other procedures that are not medically necessary -Misrepresenting procedures performed to obtain payment for services not covered, such as cosmetic surgery -Upcoding services (billing for a more costly service than the one actually performed) -Upcoding medical supplies and equipment (billing for more expensive equipment than what was delivered to the patient) -Unbundling (billing each stage of a procedure as if it were a separate procedure) -Billing for unnecessary services (services that are not medically indicated) -Accepting kickbacks for patient referrals -Waiving patient copays or deductibles for medical or dental care and overbilling the insurance carrier or benefit plan -Billing a patient more than the co-pay amount for services that were prepaid or paid in full by the benefit plan under the terms of a managed care contract -Overbilling the insurance carrier or benefit plan

The position of a court or agency, relative to other courts and agencies, determines the place assigned to its decision in the hierarchy of decisional law. The decisions of the Supreme Court of the United States are highest in the hierarchy of decisional law with respect to federal legal questions. Because of the parties or the legal question involved, most legal controversies do not fall within the scope of the Supreme Court's decision-making responsibilities. On questions of purely state concern—such as the interpretation of a state statute that raises no issues under the U.S. Constitution or federal law—the highest court in the state has the final word on proper interpretation. The following are explanations of some of the more important common-law principles:

- Precedent: A precedent is a judicial decision that can be used as a standard in subsequent similar cases. A precedent is set when a court decision is rendered that serves as a rule for future guidance when deciding similar cases. -Res judicata: In common law, the term res judicata—which means "the thing is decided"—refers to that which has been previously acted on or decided by the courts. According to Black's Law Dictionary, it is a rule where "a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to subsequent action involving the same claim, demand, or cause of action."[11] -Stare decisis: The common-law principle of stare decisis ("let the decision stand") provides that when a decision is rendered in a lawsuit involving a particular set of facts, another lawsuit involving an identical or substantially similar situation is to be resolved in the same manner as the first lawsuit. The resolution of future lawsuits is arrived at by applying the rules and principles of preceding cases. In this manner, courts arrive at comparable rulings. Sometimes, slight factual differences may provide a basis for recognizing distinctions between the precedent and the current case. In some cases, even when such differences are absent, a court may conclude that a particular common-law rule is no longer in accord with the needs of society and may depart from precedent. It should be understood that principles of law are subject to change, whether they originate in statutory or in common law. Common-law principles may be modified, overturned, abrogated, or created by new court decisions in a continuing process of growth and development to reflect changes in social attitudes, public needs, judicial prejudices

Injury/Actual Damages

-3. A defendant may be negligent yet not incur liability if there is no injury or actual damages suffered by the plaintiff, the third element necessary to establish negligence. Injury includes more than physical harm. Without harm or injury, there is no liability. Injury is not limited to physical harm but includes loss of income or reputation and compensation for pain and suffering. The mere occurrence of an injury does not necessarily establish negligence for which the law imposes liability, because the injury might be the result of an unavoidable accident or act of God, such as a lightning strike that is the direct cause of an injury. -The third element of negligence—injury—is portrayed in FIGURE 6-3, where the death of an infant in General Hospital's nursery occurred 3 hours following administration of an improper dose of an IV medication. -In Hastings, the patient's death was a direct result of the breach of duty.

Causation/Proximate Cause

-4. Causation, the fourth element necessary to establish negligence, requires that there be a reasonable, close, and causal connection between the defendant's negligent conduct and the resulting damages suffered by the plaintiff. In other words, the defendant's negligence must be a substantial factor causing the injury. Proximate cause is a term referring to the relationship between a breached duty and the injury. The breach of duty must be the proximate cause of the resulting injury. -The courts generally apply the but-for rule to determine if the injury is the direct result of a defendant's act or omission of an act. A finding that an injury would not have occurred but for a defendant's act establishes that the particular act or omission is the proximate cause of the harm. If an injury would have occurred regardless of a defendant's negligent act, liability cannot be assigned to the defendant. "Thus, in a death case, if a defendant physician, by action or inaction, has destroyed any substantial possibility of the patient's survival, such conduct becomes a proximate cause of the patient's death. The law does not require the plaintiff to prove to a certainty that the patient would have lived had he received more prompt diagnosis and treatment for the condition causing the death."[9] -FIGURE 6-4 portrays a defense attorney successfully arguing that the cause of death of an infant in General Hospital's nursery was due to the failure of the pharmacist to properly verify that the IV medication had been properly diluted and labeled by the pharmacy technician in the hospital's pharmacy. The IV solution, containing the medication, was delivered to the nursery, where the nurse checked the label, unaware that the medication left the pharmacy mislabeled and improperly diluted, administered it to the infant, who subsequently died

Standard of Care Expected

-A duty of care carries with it a corresponding responsibility not only to provide care but also to provide it in an acceptable manner. Because of this obligation to conform to a recognized standard of care, the plaintiff must show that the defendant failed to meet the required standard of care. The mere fact that an injury is suffered is not sufficient for imposing liability without proof that the defendant deviated from the practice of competent members of his or her profession. -The standard of care describes what conduct is expected of an individual in a given situation. The standard of care that must be exercised is that which a reasonably prudent person would adhere to when acting under the same or similar circumstances. A nurse, for example, who assumes the care of a patient, has the duty to exercise that degree of skill, care, and knowledge ordinarily possessed and exercised by other nurses. If a patient's injury is the result of a negligent act of a physician, the standard of care required would be that degree of skill, care, and knowledge ordinarily possessed and exercised by other physicians. For an injury involving a specific specialty, the treating physician, nurse, pharmacist, etc., would be expected to treat the patient in that same manner as the specialist in the field in which the caregiver is practicing. -The reasonably prudent person concept describes a nonexistent, hypothetical person who is put forward as the community ideal of what would be considered reasonable behavior. It is a measuring stick representing the conduct of the average person in the community under the circumstances facing the defendant at the time of the alleged negligence. The reasonableness of conduct is judged in light of the circumstances apparent at the time of injury and by reference to different characteristics of the actor

Separation of Powers

-A vital concept in the constitutional framework of government on both federal and state levels is the separation of powers. Essentially, this principle provides that no single branch of government is clearly dominant over the other two; however, in the exercise of its functions, each may affect and limit the activities, functions, and powers of the others. The concept of separation of powers—in effect, a system of checks and balances—is illustrated in the relationships among the branches of government with regard to legislation. On the federal level, when a bill creating a statute is enacted by Congress and signed by the president, it becomes law. If the president vetoes a bill, it takes a two-thirds vote of each house of Congress to override the veto. The president also can prevent a bill from becoming law by avoiding any action while Congress is in session. This procedure, known as a pocket veto, can temporarily stop a bill from becoming law and may permanently prevent it from becoming law if later sessions of Congress do not act on it favorably. -The Supreme Court may declare a bill that has become law invalid if the law violates the Constitution. As noted in Marbury v. Madison, "It is also not entirely unworthy of observation, that in declaring what shall be the Supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank."[15] -Even though a Supreme Court decision is final regarding a specific controversy, Congress and the president may generate new, constitutionally sound legislation to replace a law that has been declared unconstitutional. The procedures for amending the Constitution are complex and often time consuming, but they can serve as a way to offset or override a

Defamation on its face is actionable without proof of special damages. In certain cases, a court will presume that the words caused injury to the person's reputation. There are four generally recognized exceptions whereby no proof of actual harm to reputation is required to recover damages:

-Accusing someone of a crime -Accusing someone of having a loathsome disease -Using words that harm a person's profession or business -Accusing someone of sexual misconduct

Judge's Charge to the Jury

-After the attorneys' summations, the court charges the jury before the jurors recess to deliberate. Because the jury determines issues of fact, it is necessary for the court to instruct the jury with regard to applicable law. This is done by means of a charge. The charge defines the responsibility of the jury, describes the applicable law, and advises the jury of the alternatives available to it. -The judge will instruct the jury in each separate case as to the law of that case. For example, in each criminal case, the judge will tell the jury, among other things, that a defendant charged with a crime is presumed to be innocent and the burden of proving his guilt beyond a reasonable doubt is upon the Government. Jurors must follow only the instructions of law given to them by the trial judge in each particular case.[71]

Jury Deliberation

-After the judge's charge, the jury retires to the jury room and deliberates as to whether or not the defendant is liable. The jury returns to the courtroom upon reaching a verdict, and its determinations are presented to the court. -If a verdict is against the weight of the evidence, a judge may dismiss the case, order a new trial, or set his or her own verdict. At the time judgment is rendered, the losing party has an opportunity to motion for a new trial. If a new trial is granted, the entire process is repeated; if not, the judgment becomes final, subject to review of the trial record by an appellate court.

Exclusive Contracts

-An exclusive contract, in the context of a hospital, is an agreement between two or more entities to deal only with each other regarding a specific area of business (e.g., hospital[s] and radiology physician[s] group). The essential feature of an exclusivity contract is the covenant not to engage in a particular business activity with other parties for a specified period of time. -An organization often enters into an exclusive contract with physicians and/or medical groups for the purpose of providing a specific service to the organization. Exclusive contracts generally occur within the organization's ancillary service departments (e.g., radiology, anesthesiology, and pathology). Physicians who seek to practice at organizations in these ancillary areas but who are not part of the exclusive group have attempted to invoke the federal antitrust laws to challenge these exclusive contracts. These challenges generally have been unsuccessful.

Defamation of Character

-Defamation of character involves communications to someone other than the person defamed that tends to hold that person's reputation up to scorn and ridicule.

State Court System

-Each state in the United States provides its own court system, which is created by the state's constitution and/or statutes. The oldest court in the United States, established in 1692, is the Supreme Judicial Court of Massachusetts.[21] Most of the nation's judicial business is reviewed and acted on in state courts. Each state maintains a level of trial courts that have original jurisdiction. This jurisdiction may exclude cases involving claims with damages less than a specified minimum, probate matters (e.g., wills and estates), and workers' compensation. Different states have designated different names for trial courts (e.g., superior, district, circuit, or supreme courts). Also on the trial court level are minor courts such as city, small claims, and justice of the peace courts. States such as Massachusetts have consolidated their minor courts into a statewide court system. -There is at least one appellate court in each state. Many states have an intermediate appellate court between the trial courts and the court of last resort. Where this intermediate court is present, there is a provision for appeal to it, with further review in all but select cases. Because of this format, the highest appellate tribunal is seen as the final arbiter in cases that are important in themselves or for the particular state's system of jurisprudence.

ghost surgery

-Ghost surgery lawsuits occur when a substitute surgeon without the patient's knowledge and permission performs a patient's surgery. Ghost surgery has both ethical and legal implications. A patient has a right to expect that the surgeon who consents to perform the agreed procedure does not delegate that procedure to a substitute surgeon. Malice or intent to injure is not required to establish a battery. The New Jersey Supreme Court in Perna v. Pirozzi "held that such a battery results when a medical procedure is performed by a 'substitute' doctor regardless of good intentions."[16] The Court here took notice of standards published by the Judicial Council of the American Medical Association, which read:

Healthcare Fraud

-Healthcare fraud involves an unlawful act, generally deception for personal financial gain. It "encompasses an array of irregularities and illegal acts characterized by intentional deception."[26] As shown in this section, every pillar of moral strength is shattered in an industry, rampant with fraudulent activities. Healthcare fraud costs the country billion of dollars annually. And it's a rising threat, with national healthcare spending topping $2.7 trillion and expenses continuing to outpace inflation. As noted in the following news clipping, medical professionals are more willing to risk patient harm in their schemes. [27] -The primary agency for exposing and investigating healthcare fraud is the Federal Bureau of Investigation (FBI) with jurisdiction over both federal and private insurance programs. -Moreover, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) provides for criminal and civil enforcement tools and funding dedicated to the fight against healthcare fraud. The Act requires the U.S. Attorney General and the U.S. Secretary of the Department of Health and Human Services (DHHS), acting through the Office of Inspector General (OIG), to establish a coordinated national healthcare fraud and abuse control program. The program provides a national framework for federal, state, and local law enforcement agencies; the private sector; and the public to fight healthcare fraud. Since its establishment in 1976, "OIG has been at the forefront of the Nation's efforts to fight waste, fraud and abuse in Medicare, Medicaid and more than 100 other HHS programs. HHS OIG is the largest inspector general's office in the Federal Government, with approximately 1,600 dedicated to combating fraud, waste and abuse and to improving the efficiency of DHHS programs." -The Department of Health and Human Services

assult and battery

-It has long been recognized by law that a person possesses a right to be free from aggression and the threat of actual aggression against one's person. The right to expect others to respect the integrity of one's body has roots in both common and statutory law. The distinguishing feature between assault and battery is that assault effectuates an infringement on the mental security or tranquility of another, whereas battery constitutes a violation of another's physical integrity.

Legislative Branch

-On the federal level, legislative powers are vested in the Congress of the United States, which consists of a Senate and a House of Representatives. The function of the legislative branch is to enact laws that may amend or repeal existing legislation and to create new legislation. It is the legislature's responsibility to determine the nature and extent of the need for new laws and for changes in existing laws. The work of preparing federal legislation is the responsibility of the various committees of both houses of Congress. There are 16 standing committees in the Senate and 19 in the House of Representatives. "The membership of the standing committees of each house is chosen by a vote of the entire body; members of other committees are appointed under the provisions of the measure establishing them."[17] -Legislative proposals are assigned or referred to an appropriate committee for study. The committees conduct investigations and hold hearings where interested persons may present their views regarding proposed legislation. These proceedings provide additional information to assist committee members in their consideration of proposed bills. A bill may be reported out of a committee in its original form or it may be reported out with recommended amendments, or the bill might be allowed to lie in the committee without action. Some bills eventually reach the full legislative body, where, after consideration and debate, they may be approved or rejected. -The U.S. Congress and all state legislatures are bicameral (consisting of two houses), except for the Nebraska legislature, which is unicameral. Both houses in a bicameral legislature must pass identical versions of a legislative proposal before the legislation can be brought to the chief executive.

Pharmacist Billing Fraud

-Pharmacists have a duty to act with honesty and integrity in their professional relationships as noted in the following excerpt from their Code of Ethics for ethical behavior.The following legal cases illustrate how not only did the pharmacists break the law; they also failed to adhere to their own code of professional ethics. -The court of appeals in State v. Beatty [48] upheld a lower court's finding that the evidence submitted against the defendant pharmacist was sufficient to sustain a conviction for Medicaid fraud. The state was billed for medications that were never dispensed, for more medications than some patients received, and in some instances, for the more expensive trade name drugs when cheaper generic drugs were dispensed. -The pharmacists in People v. Kendzia [49] were convicted of selling generic drugs in vials with brand name labels. Investigators, working undercover, were provided with Medicaid cards and fictitious prescriptions requiring brand name drugs to be dispensed as written. Between April and October 1979, the investigators had taken the prescriptions to the pharmacy, where they were filled with generic substitutions in vials with the brand name labels.

Standard of Care Set by Statute

-Some duties are created by statute, which occurs when a statute specifies a particular standard that must be met. Many such standards are created by administrative agencies under the provisions of a statute. State statutes can be used in determining the standard of care required in a negligence case. California, for example, describes in part standards for registered nurses working in a hospital: For liability to be established, based on a defendant's failure to follow the standard of care outlined by statute, the following elements must be present: The defendant must have been within the specified class of persons outlined in the statute. The plaintiff must have been injured in a way that the statute was designed to prevent. The plaintiff must show that the injury would not have occurred if the statute had not been violated

Duty to Hire Competent Staff

-Texas courts recognize that an employer has a duty to hire competent employees, especially if they are engaged in an occupation that could be hazardous to life and limb and requires skilled or experienced persons. For example, the appellant in Deerings West Nursing Center v. Scott [7] was found to have negligently hired an incompetent employee it knew, or should have known, was incompetent, thereby causing unreasonable risk of harm to others. -The employee, Ken Hopper, testified that he was hired sight unseen over the telephone by the Deerings director of nursing. Even though the following day he went to the nursing facility to complete an application, he still maintained that he was hired over the phone. In his application, he falsely stated that he was a licensed vocational nurse (LVN) in Texas. Additionally, he claimed that he had never been convicted of a crime. In reality, he had been previously employed by a bar, was not an LVN, had committed more than 56 criminal offenses of theft, and was on probation at the time of his testimony. -The duty of care in this case is clear. The appellant violated the very purpose of Texas licensing statutes by failing to validate whether or not Hopper had a current LVN license. The appellant then placed him in a position of authority and not only allowed him to dispense drugs but also made him a shift supervisor. This negligence eventually resulted in an inexcusable assault on an older woman.

Centers for Medicare and Medicaid Services

-The Centers for Medicare and Medicaid Services (CMS), formerly the Health Care Financing Administration, was created to combine under one administration the oversight of the Medicare program, the federal portion of the Medicaid program, the State Children's Health Insurance Program, and related quality-assurance activities. -Medicare is a federally sponsored health insurance program for persons older than 65 and certain disabled persons. It has two complementary parts: Medicare Part A helps cover the costs of inpatient hospital care and, with qualifying preadmission criteria, skilled nursing facility care, home health care, and hospice care. Medicare Part B helps pay for physicians' services and outpatient hospital services. It is funded through Social Security contributions (Federal Insurance Contributions Act payroll taxes), premiums, and general revenue. The program is administered through private contractors, referred to as intermediaries, under Part A and carriers under Part B. The financing of the Medicare program has received much attention by Congress because of its rapidly rising costs. -Medicaid, Title XIX of the Social Security Act Amendments of 1965, is a government program administered by the states that provides medical services (both institutional and outpatient) to the medically needy. Federal grants, in the form of matching funds, are issued to those states with qualifying Medicaid programs. In other words, Medicaid is jointly sponsored and financed by the federal government and several states. Medical care for needy persons of all ages is provided under the definition of need established by each state. Each state has set its own criteria for determining eligibility for services under its Medicaid program.

Investigation and Prosecution of Fraud

-The Department of Justice-Health and Human Services Medicare Fraud Strike Force is a multiagency team of federal, state, and local investigators that is designed to combat Medicare fraud. Medicare fraud is estimated to cost the nation $80 billion annually.[33] The success of cooperation of agencies on the federal and state levels was evident when in 2018, a Strike Force investigation netted 601 individuals charged with over $2 billion in fraudulent billing of Medicare, Medicaid, TRICARE (a health insurance program for members and veterans of the armed forces and family members), and private insurance companies.[34]

Food and Drug Administration (FDA)

-The Food and Drug Administration (FDA) is responsible for "protecting the public health by assuring the safety, effectiveness, quality, and security of human and veterinary drugs, vaccines and other biological products, and medical devices. The FDA is also responsible for the safety and security of most of our nation's food supply, all cosmetics, dietary supplements and products that give off radiation."[36] -Although the intention of the FDA is to do good, as noted in the following news clipping, ethical conflicts can arise and be detrimental to the good intent of the agency.

Public Health Service

-The Public Health Service (PHS) is responsible for the protection of the nation's physical and mental health. The PHS accomplishes its mission by coordinating with the states in setting and implementing national health policy and pursuing effective intergovernmental relations; generating and upholding cooperative international health-related agreements, policies, and programs; conducting medical and biomedical research; sponsoring and administering programs for the development of health resources, the prevention and control of diseases, and alcohol and drug abuse; providing resources and expertise to the states and other public and private institutions in the planning, direction, and delivery of physical and mental healthcare services; and enforcing laws to ensure drug safety and protection from impure and unsafe foods, cosmetics, medical devices, and radiation-producing objects. Within the PHS are smaller agencies that are responsible for carrying out the purpose of the division and DHHS. The PHS is composed of the offices and agencies described next.

Judicial Branch

-The function of the judicial branch of government is adjudication—resolving disputes in accordance with law. As a practical matter, most disputes or controversies that are covered by legal principles or rules are resolved without resort to the courts. -Alexis de Tocqueville, a foreign observer commenting on the primordial place of the law and the legal profession, stated, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question."[19] This principle was highlighted in the Marbury v. Madison decision of the Supreme Court in 1803:

Summons and Complaint

-The parties to a controversy are the plaintiff and the defendant. The plaintiff is the person who initiates an action by filing a complaint; the defendant is the person against whom a suit is brought. Many cases have multiple plaintiffs and defendants. Filing an order with a court clerk to issue a writ or summons commences an action. -Although the procedures for beginning an action vary according to jurisdiction, there are procedural common denominators. All jurisdictions require service of process on the defendant (usually through a summons) and a return to the court of that process by the person who served it. When a summons is not required to be issued directly by a court, an attorney, as an officer of the court, may prepare and cause a summons to be served without direct notice to or approval of a court. Notice to a court occurs when an attorney files a summons and complaint in a court, thereby indicating to the court that an action has been commenced. -The first pleading filed with the court in a negligence action is the complaint. The complaint identifies the parties to a suit, states a cause of action, and includes a demand for damages. It is filed by the plaintiff and is the first statement of a case by the plaintiff against the defendant. In some jurisdictions, a complaint must accompany a summons (an announcement to the defendant that a case has been commenced). An example of a complaint for damages by the plaintiff is presented here based on legal issues and violations of professional misconduct.

Commercial Ethics and Noncompetition Agreements

-The purpose in allowing noncompetition agreements is to foster "commercial ethics" and to protect the employer's legitimate interests by preventing unfair competition, not ordinary competition. -The respondent hospital in Washington County Memorial Hospital v. Sidebottom [66] employed the appellant/nurse practitioner from October 1993 through April 1998. Before beginning her employment, the nurse entered into an employment agreement with the hospital. The agreement included a noncompetition clause providing in part that the nurse "during the term of [the] Agreement and for a period of one (1) year after the termination of her employment ... will not, anywhere within a fifty (50) mile radius ... directly or indirectly engage in the practice of nursing ... without the express direction or consent" of the hospital. In February 1994, the nurse requested the hospital's permission to work for the Washington County Health Department doing prenatal nursing care. Because the hospital was not then doing prenatal care, the hospital gave her permission to accept that employment but reserved the ability to withdraw the permission if the services the nurse was providing later came to be provided by the hospital. In January 1996, the nurse and the hospital entered into a second employment agreement that continued the parties' employment relationship through January 9, 1998. This agreement included a noncompetition clause identical to the 1993 employment agreement. It also provided for automatic renewal for an additional 2 years unless either party gave written termination notice no less than 90 days prior to the expiration of the agreement. -The hospital's interest lies in protecting its patient base as a primary source of revenue. The specific enforcement of the nurse's noncompetition clause is reasonably necessary to protect the h

Prosecutor

-The role of the prosecutor in the criminal justice system is well defined in Berger v. United States:[23] -The potential of the prosecutor's office is not always fully realized in many jurisdictions. In many cities, the combination of the prosecutor's staggering caseload and small staff of assistants prevents sufficient attention being given to each case.[24]

Ethicists and the Standards of Care

-The standard of care required by a caregiver can in part be influenced by the principles of ethics that apply to the caregiver's profession. For example, a decision concerning termination of resuscitation efforts is an area in which the standard of care includes an ethical component. Under these circumstances, it occasionally may be appropriate for a medical expert to testify about the ethical aspects underlying the professional standard of care. In Neade v. Portes,[4] a physician expert was allowed to base an opinion on the breach of the standard of care based on violation of an ethical standard established by the American Medical Association.

Duty to Provide Timely Care

-The surviving parents in Hastings v. Baton Rouge Hospital [6] brought a medical malpractice action for the wrongful death of their 19-year-old son. The action was brought against the hospital; the emergency department (ED) physician, Dr. Gerdes; and the thoracic surgeon on call, Dr. McCool. The patient had been brought to the ED at 11:56 p.m. because of two stab wounds and weak vital signs. Gerdes decided that a thoracotomy (an incision into the pleural space of the chest) had to be performed. He was not qualified to perform the surgery and called McCool, who was on call that evening for thoracic surgery. Gerdes described the patient's condition, indicating that he had been stabbed in a major blood vessel. At trial, McCool claimed that he did not recall Gerdes saying that a major blood vessel could be involved. McCool asked Gerdes to transfer the patient to the Earl K. Long Hospital. Gerdes said, "I can't transfer this patient." McCool replied, "No. Transfer him." Kelly, an emergency department nurse on duty, was not comfortable with the decision to transfer the patient and offered to accompany him in the ambulance. Gerdes reexamined the patient, who exhibited marginal vital signs, was restless, and was draining blood from his chest. -The ambulance service was called at 1:03 a.m., and by 1:30 a.m. the patient had been placed in the ambulance for transfer. The patient began to fight wildly. The chest tube came out, and the bleeding increased. An attempt to revive him from a cardiac arrest was futile, and the patient died after having been moved back to the emergency department. The patient virtually bled to death. -The duty to care in this case cannot be reasonably disputed. Louisiana, by statute, imposes a duty on hospitals licensed in Louisiana to make emergency services available to all persons residing in the state

Federal Court System

-The trial court of the federal system is the U.S. District Court. There are 89 district courts in the 50 states (the larger states having more than one district court) and one in the District of Columbia. The Commonwealth of Puerto Rico also has a district court with jurisdiction corresponding to that of district courts in the different states. Generally, only one judge is required to sit and decide a case, although certain cases require up to three judges. The federal district courts hear civil, criminal, admiralty, and bankruptcy cases. The Bankruptcy Amendments and Federal Judgeship Act of 1984[22] provided that the bankruptcy judges for each judicial district shall constitute a unit of the district court to be known as the bankruptcy court. -The U.S. Courts of Appeals (formerly called Circuit Courts of Appeals) are appellate courts for the 11 judicial circuits. Their main purpose is to review cases tried in federal district courts within their respective circuits, but they also possess jurisdiction to review orders of designated administrative agencies and to issue original writs in appropriate cases. These intermediate appellate courts were created to relieve the U.S. Supreme Court of deciding all cases appealed from the federal trial courts. -The Supreme Court is the nation's highest court. It is the only federal court created directly by the Constitution. -Eight associate justices and one chief justice sit on the Supreme Court. The court has limited original jurisdiction over the lower federal courts and the highest state courts. In a few situations, an appeal will go directly from a federal or state court to the Supreme Court, but in most cases today, review must be sought through the discretionary writ of certiorari, an appeal petition. In addition to the aforementioned courts, special federal courts have jur

Home Care Fraud

-Today, more Americans are living longer than ever before. A United Nations report states that "the number of people 65 years and older rose from 8% to 12% of the total population between 1950 and 2000."[41] As medicine has advanced, the average life expectancy has been increasing. The average life expectancy of Americans is higher today than in any other period in history.[42] This figure is expected to rise to 20% by 2050 and is likely to continue to rise due to improving patient care, research, and improving healthcare coverage. -An increasing number of older persons receive in-home care, dependent on family and healthcare providers to attend to their physical, financial, emotional, and healthcare needs. Medicare home health benefits allow individuals with restricted mobility to remain home, outside an institutional setting, by providing home care benefits. Home care services and supplies are generally provided by nurses, home nursing aides, speech therapists, and physical therapists under a physician-certified plan of care. -Home care is rapidly being recognized as a breeding ground for abuse. The numerous scams in home care fraud are caused by the difficulty in supervising services provided in the home, Medicare's failure to monitor the number of visits per patient, beneficiaries paying no copayments except for medical equipment, and the lack of accountability to the patient by failing to explain services provided. "Unscrupulous physicians may also fraudulently certify that a beneficiary is home bound. In exchange, the beneficiary will be offered cash on a monthly basis or provided a home health aide that only prepares meals or cleans." Home care fraud is generally not easy to detect. It involves charging insurers for more services than patients received, billing for more hours of care than were provided, falsifyi

Duty to Care

1. The first requirement in establishing negligence is that the plaintiff must prove the existence of a legal relationship between himself or herself and the defendant. Duty is defined as a legal obligation of care, performance, or observance imposed on one to safeguard the rights of others. This duty may arise from a special relationship such as that between a physician and a patient. The existence of this relationship implies that a physician-patient relationship was in effect at the time an alleged injury occurred. The duty to care can arise from a simple telephone conversation or out of a physician's voluntary act of assuming the care of a patient. Duty also can be established by statute or contract between the plaintiff and the defendant. -Duty to care is depicted in FIGURE 6-1, for example, where the pharmacy manager of General Hospital's pharmacy, prior to leaving work for the day, assigns responsibility to a recently hired pharmacist behind the counter, telling her, "You're in charge of the pharmacy, which includes the IV admixture room. Your duties and responsibilities are those as described in the pharmacy's department policy and procedure manual. I will be leaving in an hour, so you should review the pharmacy's policies and procedures before I leave. If you have any questions after I leave, you can reach me on my cell phone." -This assignment established a duty on the part of the pharmacist to adhere to the policies and procedures in the department manual.

The message is clear that those involved in healthcare fraud are being vigorously pursued. The federal government's initiative to investigate and prosecute healthcare organizations for criminal wrongdoing has resulted in the establishment of corporate compliance programs for preventing, detecting, and reporting criminal conduct. An effective corporate compliance program should include:

1.Developing appropriate policies and procedures 2. Appointing a compliance officer to oversee the compliance program 3.Communicating the organization's compliance program to employees 4. Providing for monitoring and auditing systems that are designed to detect criminal conduct by employees and other agents 5. Publicizing a reporting system whereby employees and other agents can report criminal conduct by others within the organization without fear of retribution 6. Taking appropriate steps to respond to criminal conduct and to prevent similar offenses 7. Periodically reviewing and updating the organization's corporate compliance program 8. Working with state and federal law enforcement and regulatory agencies and insurance companies to detect, prevent, and prosecute healthcare fraud 9. Developing appropriate policies and procedures 10. Appointing a compliance officer to oversee the compliance program 11.Communicating the organization's compliance program to employees 12. Providing for monitoring and auditing systems that are designed to detect criminal conduct by employees and other agents 13. Publicizing a reporting system whereby employees and other agents can report criminal conduct by others within the organization without fear of retribution 14. Taking appropriate steps to respond to criminal conduct and to prevent similar offenses 15. Periodically reviewing and updating the organization's corporate compliance program 16. Working with state and federal law enforcement and regulatory agencies and insurance companies to detect, prevent, and prosecute healthcare fraud. Healthcare fraud continues to present significant risks to patient health and is a financial drain on the healthcare system, leading to higher costs for legitimate care. As noted in the following remarks by Attorney General Jeff Sessions, healthcare

Breach of Duty

2. After a duty to care has been established, the plaintiff must demonstrate that the defendant breached that duty by failing to comply with the accepted standard of care required. Breach of duty, the second element that must be present for a plaintiff to establish negligence, is the failure to conform to or the departure from a required obligation owed to a person. The obligation to perform according to a standard of care may encompass either performing or refraining from performing a particular act. -The court in Hastings v. Baton Rouge Hospital,[8] discussed earlier, found a severe breach of duty. Hospital regulations provide that when a physician cannot be reached or refuses a call, the chief of service is to be notified so that another physician can be obtained. This was not done. It is not necessary to prove that a patient would have survived if proper treatment had been administered—only that the patient would have had a chance of survival. As a result of Dr. Gerdes's failure to make arrangements for another physician, and Dr. McCool's failure to perform the necessary surgery, the patient had no chance of survival. The duty to provide for appropriate care under the circumstances was breached. -Breach of duty is illustrated in FIGURE 6-2, where the intravenous (IV) admixture room pharmacist checking the work of a pharmacy technician fails to follow up on his concern as to whether or not the medication in the IV bag had been diluted in the correct dosage. Failure to follow up established a breach of duty.

Battery

A battery is the intentional touching of another's person, in a socially impermissible manner, without that person's consent. It is intentional conduct that violates the physical security of another. The receiver of the battery does not have to be aware that a battery has been committed (e.g., a patient who is unconscious and has surgery performed on him or her without consent, either expressed or implied, is the object of a battery). The unwanted touching may give rise to a cause of action for any injuries brought about by the touching. No actual damages need be shown to impose liability. The physician in Schloendorff v. Society of New York [15] removed a tumor from the abdomen of a patient who had consented only to a diagnostic procedure, not an invasive surgical procedure. Justice Cordoza of the Supreme Court of New York stated, "In the case at hand, the wrong complained of is not merely negligence. It is trespass. Every human being of adult years and sound mind has the right to determine what shall be done with his own body and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable for damages." Generally, a suit based on a battery is actionable if a patient has not consented to a procedure. This is the case if the procedure is successful.

Bill of Particulars

A bill of particulars in a civil case is a written demand for more detailed information concerning the alleged claim/s by the defendant/s. A bill of particulars is requested when there is generally insufficient information provided in the complaint to file an answer. If a counterclaim is filed, the plaintiff's attorney may request a bill of particulars from the defense attorney. In a criminal case the defendant's attorney may request a bill of particulars in order to prepare their case.

The Court

A case is heard in the court that has jurisdiction over the subject of controversy. The judge decides questions of law and is responsible for ensuring that a trial is conducted properly in an impartial atmosphere and that it is fair to both parties of a lawsuit. He or she determines what constitutes the general standard of conduct required for the exercise of due care. The judge informs the jury of what the defendant's conduct should have been, thereby making a determination of the existence of a legal duty. The judge decides whether evidence is admissible, charges the jury (defines the jurors' responsibility in relation to existing law), and may take a case away from the jury (by directed verdict or judgment notwithstanding the verdict) if he or she believes that there are no issues for the jury to consider or that the jury has erred in its decision. This right on the part of the judge with respect to the role of the jury narrows the jury's responsibility with regard to the facts of the case. The judge maintains order throughout the suit, determines issues of procedure, and is generally responsible for the conduct of the trial.

Contracts

A contract is a special kind of agreement, either written (FIGURE 6-6), or oral, that involves legally binding obligations between two or more parties. A contract can be implied as well as voidable. An implied contract can occur when emergency care and treatment is rendered to a comatose patient injured during an automobile accident. A voidable contract is one in which one party, but not the other, has the right to escape from its legal obligations under the contract. It is considered to be a voidable contract at the option of that party. For example, a minor, not having the capacity to enter into a contract, can void the contract. However, the competent party to the contract may not void the contract. Contracts involving fraud, or where one party to the contract is incapacitated, not legally of sound mind, or under undue influence or duress are voidable contracts. The major purpose of a contract is to specify, limit, and define the agreements that are legally enforceable.

Comparative negligence

A defense of comparative negligence provides that the degree of negligence or carelessness of each party to a lawsuit must be established by the finder of fact and that each party then is responsible for his or her proportional share of any damages awarded. For example, if a plaintiff suffers injuries of $10,000 from an accident and is found to be 20% negligent and the defendant is found to be 80% negligent, the defendant would be required to pay $8,000 to the plaintiff. Thus, with comparative negligence, the plaintiff can collect for 80% of the injuries, whereas an application of contributory negligence would deprive the plaintiff of any monetary judgment. This doctrine relieves the plaintiff from the hardship of losing an entire claim when a defendant has been successful in establishing that the plaintiff has contributed to his or her own injuries.

Indictment

A felony complaint or grand jury indictment commences a criminal proceeding. The accused can be tried for a felony after a grand jury indictment (Figure 6-5). The defendant can waive presentment to the grand jury and plead guilty by relinquishing his or her rights to a grand jury hearing and proceed to trial by jury. During a grand jury hearing, the prosecution presents evidence, which may lead to an indictment of the target if the grand jury finds reasonable cause to believe from the evidence presented that all the elements of a particular crime are present. The grand jury may request that witnesses be subpoenaed to testify. A defendant may choose to testify and offer information if he or she wishes. Actions of a grand jury are handed up to a judge, after which the defendant is then notified to appear to be arraigned for any crimes charged in the indictment.

Misdemeanor Crimes

A misdemeanor, on the other hand, is a lesser criminal act that is punishable by a shorter jail sentence and fines. In The State of Oregon v. Hood River Juice, the defendant was accused of polluting natural resources like streams and other bodies of water with chemicals used to process juice. The owner of Hood River Juice pleaded guilty to the misdemeanor crime of polluting and received a punishment of either 80 days of community service or 48 hours in jail. Obviously, polluting a local water source is less heinous than gunning down an unarmed man, and therefore carries a lesser punishment.

Subpoenas

A subpoena is a legal order requiring the appearance of a person and/or the presentation of documents to a court or administrative body. Attorneys, judges, and certain law enforcement and administrative officials, depending on the jurisdiction, may issue subpoenas. A subpoena ad testificandum orders the appearance of a person at a trial or other investigative proceeding to give testimony. Witnesses have a duty to appear and may suffer a penalty for contempt of court should they fail to appear. A subpoena duces tecum is a written command to bring records, documents, or other evidence described in the subpoena to a trial or other investigative proceeding. The subpoena is served on a person able to produce such records.

Tort Law

A tort is a civil wrong, other than a breach of contract, committed against a person or property (real or personal) for which a court provides a remedy in the form of an action for damages. Tort actions touch an individual on both a personal and a professional level, which is why those involved in the healthcare field should be armed with the knowledge necessary for them to be aware of their rights and responsibilities. -The objectives of tort law are as follows: preservation of peace (between individuals by providing a substitute for retaliation); culpability (to find fault for wrongdoing); deterrence (to discourage the wrongdoer [tort-feasor] from committing future torts, as well as dissuade others from committing wrongful acts); and compensation to indemnify the injured person(s) as a result of negligent conduct by the defendant(s).

adminstrative law

Administrative law deals with "the organization, powers, duties, and functions of public authorities of all kinds engaged in administration; their relations with one another and with citizens and nongovernmental bodies; legal methods of controlling public administration; and the rights and liabilities of officials.... One of the principal objects of administrative law is to ensure efficient, economical, and just administration."[ -Public law is issued by administrative agencies to administer the enacted laws of the federal and state governments. Administrative agencies implement and administer administrative law. Rules and regulations established by an agency must be administered within the scope of the authority delegated by Congress.

adminstrative law

Administrative law is the extensive body of public law issued by administrative agencies to direct the enacted laws of the federal and state governments. It is the branch of law that controls the administrative operations of government. Congress and state legislative bodies realistically cannot oversee their many laws; therefore, they delegate implementation and administration of the law to an appropriate administrative agency. Healthcare organizations, in particular, are inundated with a proliferation of administrative rules and regulations affecting every aspect of their operations. -The Administrative Procedures Act[13] describes the different procedures under which federal administrative agencies[14] must operate. The act prescribes the procedural responsibilities and authority of administrative agencies and provides for legal remedies for those wronged by agency actions. The regulatory power exercised by administrative agencies includes power to license, power of rate setting (e.g., Centers for Medicare and Medicaid Services), and power over business practices (e.g., National Labor Relations Board). -The rules and regulations established by an agency must be administered within the scope of the authority delegated to the agency by Congress. Agency regulations and decisions can be subject to judicial review.

Examination of Witnesses

After conclusion of the opening statements, the judge calls for the plaintiff's witnesses. An officer of the court administers an oath to each witness, and direct examination begins. On cross-examination by the defense, an attempt is made to challenge or discredit the plaintiff's witness. The plaintiff's attorney may ask the same witness more questions in an effort to overcome the effect of the cross-examination. Re-cross-examination may also take place if necessary for the defense of the defendant.

Answer

After service of a complaint, a response is required from the defendant in a document called the answer. In the answer, the defendant responds to each of the allegations contained in the complaint by stating his or her defense and by admitting to or denying each of the plaintiff's allegations. If the defendant fails to answer the complaint within the prescribed time, the plaintiff can seek judgment by default against the defendant.

Appeals

An appellate court reviews a case on the basis of the trial record as well as written briefs and, if requested, concise oral arguments by the attorneys. A brief summarizes the facts of a case, testimony of the witnesses, laws affecting the case, and arguments of counsel. The party making the appeal is the appellant. The party answering the appeal is the appellee. After hearing the oral arguments, the court takes the case under advisement until such time as the judges consider it and agree on a decision. An opinion is then prepared, explaining the reasons for a decision. The appellate court may modify, affirm, or reverse the judgment or may order a new trial on appeal.

Employment Contracts

An employer's right to terminate an employee can be limited by express agreement with the employee or through a collective bargaining agreement to which the employee is a beneficiary. No such agreement was found to exist in O'Connor v. Eastman Kodak Co.,[64] in which the court held that an employer had a right to terminate an employee at will at any time, and for any reason or no reason. The plaintiff did not rely on any specific representation made to him during the course of his employment interviews, nor did he rely on any documentation in the employee handbook, which would have limited the defendant's common-law right to discharge at will. The employee had relied on a popular perception of Kodak as a "womb-to-tomb" employer.

Intential torts

An intentional tort is one that is committed deliberately. Proof of intent is based on the premise that the defendant intended the harmful consequences of his or her behavior. An individual's reason to cause harm is irrelevant and does not protect him or her from responsibility for the damages suffered as the result of an intentional act.

Consideration

An offer is a promise by one party to do (or not to do) something if the other party agrees to do (or not do) something. Not all statements or promises are offers. Generally, advertisements of goods for sale are not offers but are invitations to the public to come to the place of business, view the merchandise, and be made an offer. An opinion is not an offer. Preliminary negotiations are not offers.

Offer/communication

An offer must be communicated to the other party so that it can be accepted or rejected. Unless the offeror specifically requires that the acceptance be received before a contract is formed, communication of the acceptance to the offeror is not necessary.

Legislative Branch

Article I of the United States Constitution created and empowered our legislative branch of government. The United States Congress leads the legislative branch. Congress includes both the House of Representatives and the Senate. Generally speaking, Congress makes our laws. Laws are discussed, drafted and enacted through Congress. Together, the two houses of Congress have various important powers. Congress passes legislation, approves treaties, originates spending bills, impeaches federal officials, approves presidential nominations and appointments to federal positions, regulates trade and money and declares war. Our Congress is made up of delegates from each state. The U.S. Senate consists of two senators from each state. These senators serve six-year terms. The U.S. House of Representatives consists of 435 representatives. Each state has at least one representative. A state's population determines the number of representatives per state. For example, Delaware has one representative, while California has 53. Representatives are elected through public election, but only those registered voters who reside in a candidate's district may vote for that candidate. Representatives serve two-year terms. The U.S. vice president serves as the head of the Senate but doesn't vote unless there is a tie. This is one example of how the executive branch can 'check' congressional powers. But Congress can check the president, too. For example, the Senate must approve presidential nominations to federal posts and must ratify all treaties by a two-thirds vote.

The Executive Branch

Article II of the United States Constitution created and empowered our executive branch of government. The United States president leads the executive branch, which also includes the president's advisors, the 15-member cabinet and all federal agencies. Our president serves as our chief executive, or commander-in-chief. This branch is responsible for carrying out laws. Among other significant duties, the executive branch enforces and recommends federal laws, proposes a federal budget, directs our foreign policy, commands the Armed Forces and nominates and appoints federal government officials. The president may veto or approve legislation, which serves as a check on Congress' authority. The president may also grant pardons and amnesty, which serves as a check on the judicial branch. The president is elected through a national public election. Presidential elections are held every four years. The president may serve up to two terms of four years each.

Lesson Summary

Article III of the United States Constitution created and empowered our judicial branch of government. The United States Supreme Court leads the judicial branch, which also includes all lower federal courts. The U.S. Supreme Court serves as the highest court in the nation and has the final, or supreme, say. Judicial powers include interpreting federal laws and the U.S. Constitution, deciding cases on appeal from lower federal or state courts and deciding cases involving a state-vs.-state issue or a branch-vs.-branch issue. But the Supreme Court's most significant power is that of judicial review. This authority doesn't come directly from the Constitution. Instead, the power of judicial review comes from the 1803 Supreme Court case of Marbury v. Madison. Judicial review allows the Supreme Court to check and balance the other two branches by reviewing their actions and determining whether or not they are lawful. Through judicial review, the Supreme Court reviews federal legislation to determine if the laws passed by Congress are in keeping with the Constitution. Judicial review also allows the Court to review the making and enforcing of laws by the states and to review the actions of the president. The Supreme Court includes nine justices, eight associate justices and one chief justice. Once appointed, justices may serve for life. The justices are nominated by the president but must be approved by the Senate. This is another example of a check on powers.

The Judicial Branch

Assumption of a Risk

Assumption of a risk is knowing that a danger exists and voluntarily accepting the risk by exposing oneself to it, knowing that harm might occur. Assumption of a risk may be implicitly assumed, as in alcohol consumption, or expressly assumed, as in relation to warnings found on cigarette packaging. This defense provides that the plaintiff expressly has given consent in advance, relieving the defendant of an obligation of conduct toward the plaintiff and taking the chances of injury from a known risk arising from the defendant's conduct. For example, one who agrees to care for a patient with a communicable disease and then contracts the disease would not be entitled to recover from the patient for damages suffered. In taking the job, the individual agreed to assume the risk of infection, thereby releasing the patient from all legal obligations. The following two requirements must be established in order for a defendant to be successful in an assumption of risk defense: the plaintiff must know and understand the risk that is being incurred; and the choice to incur the risk must be free and voluntary.

United States Supreme Court

Blackstone's Commentaries and the English common law remain an important part of our current U.S. law system. The framers of our Constitution created the United States Supreme Court through Article III. They felt there needed to be one court with final authority to determine cases that had not previously been settled. The Supreme Court has the final, or 'supreme,' say. This court's rulings are the last and final word. The Supreme Court settles disputes involving new law and also rules on the constitutionality of laws. Early Supreme Court decisions cited the Commentaries often, because there were many new cases that did not exactly fit previous U.S. cases. But even in today's times, our modern Supreme Court often looks to the Commentaries for guidance in making new decisions. These new case law decisions then become a part of our American common law system.

Civil Law Examined

Civil law deals with disputes between individuals, groups and organizations who seek an award of compensation for their troubles. Examples of civil cases are: Fraud Breach of contract Negligence Workers' compensation-related injuries When two parties disagree on something, they can take it to civil court. The plaintiff initiates the claim, and the defendant responds by either pleading guilty or innocent. Unlike criminal law, which requires evidence beyond a reasonable doubt, in a civil case, the burden of proof is based on preponderance of evidence - or the greater weight on the meaning of the evidence - not the amount of evidence. In other words, evidence needs to be convincing even if it is gathered from only one source. Punishment in civil law generally involves compensation for injuries sustained by the plaintiff or disposition of property. Incarceration is never a remedy in a civil suit.

Closing Statements

Closing statements give attorneys an opportunity to summarize for the jury and the court what they have proven. They may point out faults in their opponent's case and emphasize points they want the jury to remember. "In civil proceedings, either party may receive a directed verdict in its favor if the opposing party fails to present a prima facie case, or fails to present a necessary defense."[70]

Commission of an act

Commission of an act includes, for example, the following acts: -administering the wrong medication -administering the wrong dosage of a medication -administering a medication to the wrong patient a surgical procedure without patient consent -performing a surgical procedure on the wrong patient -surgically removing the wrong body part -failing to assess and reassess a patient's nutritional needs

Lawmakers

Congress and state legislatures also add to our system of laws. Legislative bodies may generally enact new statutes that modify or build on our existing laws. For example, the United States Congress was created by Article I, Section 1 of our U.S. Constitution. This legislative body is made up of the Senate and the House of Representatives. They may make new statutes as long as those new laws do not conflict with the U.S. Constitution. These statutes are codified, or written down, and organized into codes, such as the U.S. Code, which contains all the laws made by the U.S. Congress.

Lesson Summary

consitiutional law

Constitutional law "deals with the fundamental principles by which the government exercises its authority. In some instances, these principles grant specific powers to the government, such as the power to tax and spend for the welfare of the population. Other times, constitutional principles act to place limits on what the government can do, such as prohibiting the arrest of an individual without sufficient cause."[4]

Contributory Negligence

Contributory negligence can be defined as any lack of ordinary care on the part of the person injured that, combined with the negligent act of another, caused the injury. A person is contributorily negligent when that person does not exercise reasonable care for his or her own safety. As a general proposition, if a person has knowledge of a dangerous situation and disregards the danger, then that person is contributorily negligent.

lesson criminal vs civil

Criminal law and civil law differ in the type of action against the defendant and the type of remedy sought. Criminal cases are considered crimes against society that usually end in jail or prison time. The severity of the crime determines the punishment. A felony is a serious crime, like murder, and carries a prison term of no less than one year. A misdemeanor is less serious and may result in a shorter jail term and fines. Both criminal and civil cases require that the plaintiff prove the case, but the type of evidence necessary differs. Criminal cases require that the plaintiff hold the burden of proof that is beyond a reasonable doubt. A civil case involves individuals in a dispute that generally ends in monetary reward. A civil case requires preponderance of evidence. The evidence a plaintiff is required to present does not have to be lengthy, it just has to be convincing. A good way to understand the difference between criminal and civil law is to review actual legal cases. In our lesson, we analyzed real cases to distinguish the difference between the types of law.

Criminal Law Examined

Criminal law is a set of rules and regulations that describe behaviors that are prohibited by the government. The behaviors generally involve things that would affect public safety and the welfare of society as a whole. Examples of criminal acts are: Murder Theft Robbery Bribery Embezzlement When a criminal act is committed and a person is brought to trial by the state or federal government, it is up to the prosecuting party to prove that the defendant committed the crime. This is known as the burden of proof. In criminal cases, the plaintiff must prove beyond a reasonable doubt that the defendant committed the crime. This means that the plaintiff must demonstrate that a reasonable person would agree that a crime took place based on the evidence presented. If there is any doubt on the part of a reasonable person, the burden to provide further evidence rides on the plaintiff. The defendant is considered innocent until proven guilty by a judge or jury. The punishment for criminal acts generally involves incarceration and/or fines and even death in extreme cases. Certain rights are extended to defendants: The right to a speedy trial The right to counsel Protection against self-incrimination Protection against unreasonable search and seizure Protection against double jeopardy

Criminal Law

Criminal law is concerned with maintaining justice and public order. This is accomplished through sanctions that are imposed on individuals and public entities that break the law. The penalties for breaking the law can vary based on the crime committed and the individual(s) affected. Sanctions include fines, restitution for the wrongs committed, and incarceration for the crimes committed.

Criminal Law

Criminal law is society's expression of the limits of acceptable human behavior. A crime is conduct that unjustifiably and inexcusability inflicts or threatens harm to individual(s) or public interests. The objectives of criminal law are to: maintain public order and safety protect the individual use punishment as a deterrent to crime rehabilitate the criminal for return to society -Crimes are generally classified as misdemeanors or felonies. The difference between a misdemeanor and a felony revolves around the severity of the crime committed and the punishment imposed. A misdemeanor is an offense punishable by less than 1 year in jail and/or a fine (e.g., petty larceny). A felony is a much more serious crime (e.g., rape, murder) and is generally punishable by imprisonment in a state or federal penitentiary for more than 1 year. -Peculiar to healthcare organizations is the fact that patients are often helpless and at the mercy of others. Healthcare facilities far too often are places where the morally weak and mentally deficient prey on the physically and sometimes mentally helpless. The very institutions designed to make the public well and feel safe can sometimes provide the setting for criminal conduct. -The topics in this section run counter to the ethics theory of nonmaleficence—to do no harm—as well as to the codes of professional ethics. For example, as noted in the grand jury indictment in FIGURE 6-5, Dr. Gosnell snipped the spinal cords of infants delivered alive during abortion procedures. Crimes like his and others against society are not only legal wrongs, they are also ethically wrong. -The U.S. Department of Justice and state and local prosecutors are vigorously pursuing and prosecuting healthcare organizations and individuals for criminal conduct. Healthcare fraud, patient abuse, and other such crimes ha

Criminal Procedure

Criminal procedure deals with the set of rules governing the series of proceedings through which the government enforces criminal law as provided by municipalities, states, and the federal government, each of which has its own criminal codes that address and define conduct that constitutes crimes. The following sections provide an overview of criminal procedure and the process for the prosecution of misdemeanors and felonies.

Damages

Damages suffered by plaintiffs can be awarded as compensation for loss or injury as a result of the negligence of the defendants. Damages can be sought for emotional distress, physical pain and suffering, and economic loss. Punitive damages are sometimes awarded over and above that which is intended to compensate the plaintiff for economic losses resulting from the injury. Punitive damages cover such items as physical disability, mental anguish, loss of a spouse's services, physical suffering, injury to one's reputation, and loss of companionship. Punitive damages are referred to as "that mighty engine of deterrence" in Johnson v. Terry.[72] In Estes Health Care Centers v. Bonnerman, it was found that:

Demonstrative Evidence (real)

Demonstrative (real) evidence is evidence furnished by things themselves. It is considered the most trustworthy and preferred type of evidence. It consists of tangible objects to which testimony refers (e.g., medical instruments and broken infusion needles) that can be requested by a jury. Demonstrative evidence is admissible in court if it is relevant, has probative value, and serves the interest of justice. It is not admissible if it will prejudice, mislead, confuse, offend, inflame, or arouse the sympathy or passion of the jury. Other forms of demonstrative evidence include photographs, motion pictures, computer-generated information, drawings, human bodies as exhibits, pathology slides, fetal monitoring strips, safety committee minutes, infection committee reports, medical staff bylaws, rules and regulations, nursing policy and procedure manuals, census data, and staffing patterns. -A plaintiff's injuries are admissible as an exhibit if the physical condition of the body is material to the complaint. The human body is considered the best evidence as to the nature and extent of the alleged injury/injuries. If there is no controversy about either the nature or the extent of an injury, presenting such evidence could be considered prejudicial and an objection can be made as to its presentation to a jury.

Direct Evidence

Direct evidence is proof offered through direct testimony. It is the jury's function to receive testimony presented by witnesses and to draw conclusions in the determination of facts.

Discovery

Discovery is the process of investigating the facts of a case before trial. The objectives of discovery are to: -obtain evidence that might not be obtainable at the time of trial -isolate and narrow the issues for trial -gather knowledge of the existence of additional evidence that may be admissible at trial -obtain leads to enable the discovering party to gather further evidence The parties to a lawsuit have the right to discovery and to examine witnesses before trial. -Examination before trial (EBT) is one of several discovery techniques used to enable the parties of a lawsuit to learn more regarding the nature and substance of each other's case. An EBT consists of oral testimony under oath and includes cross-examination. A deposition, taken at an EBT, is the testimony of a witness that has been recorded in a written format. Testimony given at a deposition becomes part of the permanent record of the case. Each question and answer is transcribed by a court stenographer and may be used at the subsequent trial. Truthfulness and consistency are important because answers that differ from those given at trial will be used to attack the credibility of the witness.

Documentary Evidence

Documentary evidence is written evidence capable of making a truthful statement (e.g., drug manufacturer inserts, autopsy reports, birth certificates, and medical records). Documentary evidence must satisfy the jury as to authenticity. Proof of authenticity is not necessary if the opposing party accepts its genuineness. In some instances, concerning wills, for example, witnesses are necessary. In the case of documentation, the original of a document must be produced unless it can be demonstrated that the original has been lost or destroyed, in which case a properly authenticated copy may be substituted.

Opening Statements

During the opening statement, the plaintiff's attorney outlines what he or she intends to prove. The opening statement by the plaintiff's attorney provides in capsule form the facts of the case, what he or she intends to prove by means of a summary of the evidence to be presented, and a description of the damages to his or her client. The defense attorney makes his or her opening statement indicating the position of the defendant and the points of the plaintiff's case he or she intends to refute. The defense attorney summarizes the facts as they apply to the case for the defendant.

Evidence

Evidence consists of the facts proved or disproved during a lawsuit. The law of evidence is a body of rules under which facts are proved. To be admitted at trial, evidence must be competent, relevant, and material.

False Imprisonment

False imprisonment is the unlawful restraint of an individual's personal liberty or the unlawful restraining or confining of an individual. The personal right to move freely and without hindrance is basic to our legal system. Any intentional infringement on this right may constitute false imprisonment. Actual physical force is not necessary to constitute false imprisonment. All that is necessary is that an individual who is physically confined to a given area experience a reasonable fear that force, which may be implied by words, threats, or gestures, will be used to detain the individual or to intimidate him or her without legal justification. Excessive force used to restrain a patient may produce liability for both false imprisonment and battery.

Foreseeability and Anticipation of Harm

Foreseeability is the reasonable anticipation that harm or injury is likely to result from an act or an omission of an act. As an aspect of causation in a negligence case, the test for foreseeability is whether a person of ordinary prudence and intelligence should have anticipated the danger to others caused by his or her negligent act. "The test is not what the wrongdoer believed would occur; it is whether he or she ought reasonably to have foreseen that the event in question, or some similar event, would occur."[12] There is no expectation that a person can guard against events that cannot reasonably be foreseen. Foreseeability involves guarding against that which is probable and likely to happen, not against that which is only remotely and slightly possible. In Hastings, it was highly probable that the patient would die if the bleeding was not stopped. "The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances."[13] -Duty to care involves a responsibility to do the "right thing." The right thing is based on an acceptable standard of care. If breaching the standard causes harm to the patient, not only is there a legal issue, there are ethical principles that have been violated. Nonmaleficence, for example, requires caregivers to avoid causing harm to patients.

Parties to a Lawsuit

Have you ever watched a really exciting courtroom drama and wondered who's who in the courtroom? Let's make sense out of the parties: A plaintiff is a party who initiates a lawsuit or who yields allegations against another party A defendant is on the receiving end of the allegations A lawyer is a professional who represents a party in a court of law A judge is a professional who oversees and makes decisions in court cases Now that we understand who's who in a courtroom, just how does a person initiate a lawsuit?

Health Resources and Services Administration

Health Resources and Services Administration (HRSA) is the primary federal agency for improving access to healthcare services for people who are uninsured, isolated, or medically vulnerable. Its mission is to improve health and achieve health equity through access to quality services, a skilled health workforce, and innovative programs. HRSA takes a comprehensive approach to addressing HIV/AIDS with activities taking place across multiple bureaus and offices designed to deliver care to people living with HIV, expand and strengthen the HIV care workforce, and improve access to and the quality of HIV care and treatment.

Conference

If the defendant does not plead guilty, both felony and misdemeanor cases are taken to conference, and plea bargaining commences with the goal of an agreed-on disposition. If no disposition can be reached, the case is adjourned, motions are made, and further plea bargaining ensues. Generally, after several adjournments, a case is assigned to a trial court.

Public Law vs Private Law

If you saw a man run from a convenience store with a few pilfered products under his arm, he is violating public law. He committed the crime of theft, and that affects everyone. On the other hand, if your neighbor filed suit against you because your barbeque smoke travels to his yard, you may be violating private law. You infringed on your neighbor's right to the peaceful enjoyment of his property. Essentially, the difference between public law and private law is whether the act or acts affect society as a whole or an issue between two or more people.

Consitutional Convention

In 1787, 11 years after state representatives signed the Declaration of Independence, representatives once again met at the State House in Philadelphia. Fifty-five representatives met over the course of four months in order to draft our United States Constitution. The framers drafted the Constitution to purposely divide governing powers between several administrative branches. This way, no one branch holds too much power, and each branch holds checks and balances over the others. The framers instituted this system of government with hopes that it would last into 'remote futurity.' It worked, as we continue to use this system of government today.

3 Branches

In 1787, leaders from each of the states gathered to write the United States Constitution. The Constitution sets out how our nation is governed and creates a system that separates powers between different branches. This lesson explores the three branches of our federal government.

Physician Strikes Nurse

In Peete v. Blackwell,[18] punitive damages in the amount of $10,000 were awarded to a nurse in her action against a physician for assault and battery. Evidence showed that the physician struck the assisting nurse on the arm and cursed at her when he ordered her to turn on the suction. Dr. Peete appealed the trial court's decision, asserting the evidence presented was insufficient to show the requisite "insult or other aggravating circumstances" required for an award of $10,000 in punitive damages. He contended that, even if sufficient evidence of aggravating circumstances were presented, the actual assessment of punitive damages was against the weight and preponderance of the evidence submitted. On appeal, the Supreme Court of Alabama upheld the judgment of the trial court.

Civil Law in Action

In Pelman v. McDonald's, the plaintiff alleged that McDonald's Corporation was responsible for their obesity and health problems. In Pelman's case, they believed McDonald's falsely advertised its food as being healthy. The Pelman family patronized McDonald's quite frequently. This caused the family to develop diabetes, obesity and other ailments. For this, the Pelmans wanted compensation and for McDonald's to change the way it advertises its food choices. Incidentally, the case was thrown out of court.

Criminal Law vs. Civil Law

In most cases, the difference between criminal and civil law is quite clear. A man runs into a bank brandishing a gun, demands money and runs off. That is a crime of bank robbery and is punishable by incarceration. When a man checks into a hotel, runs up charges at the restaurant and bar and leaves without paying, he is defrauding a business and is punished differently. He will pay fines and make restitution. There are several things that set criminal law apart from civil law. In order to better understand the difference, let's first take a look at criminal law.

Development of the American Law System

In the United States, we have several different types of laws that make up our American common law system. Many of our laws are made through judicial decisions. This judge-made, or court-made, law is case law. A legislative body, such as Congress or a state's legislature, can also make laws. This enactment of laws creates statutory law, or statutes. New law is constantly created through these two main methods, but there are also other sources of law in the United States. Sources of law also includes administrative regulations, local ordinances and treaties. As we've discussed, our system of law has deep historical roots. The U.S. system of law grows upon English common law and inherited all of those established rules.

Indian Health Service

Indian Health Service provides a comprehensive health service delivery system for approximately 2 million American Indians and Alaska Natives (AI/AN) who belong to 566 federally recognized tribes in 35 states.

Schemes to Defraud

Individuals and corporate entities are continuously bombarding the public with fraudulent activities. Fraud has become so rampant that it has led to a decline of trust in corporate leadership. A defendant is guilty of a scheme to defraud when he or she engages in an arrangement establishing a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations, or promises, and so obtains property from one or more of such persons. To show intent in a scheme to defraud, one needs to establish the following elements: That on or about (date), in the county of (county), the defendant (defendant's name), engaged in a scheme constituting a systematic ongoing course of conduct; That the defendant did so with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations, or promises; and That the defendant so obtained property from one or more of such persons, at least one of whom has been identified.[36]

invasion of privacy

Invasion of privacy is a wrong that invades the right of a person to personal privacy. The idea of absolute privacy must be tempered with reality in the care of any patient, and the courts recognize this fact. Disregard for a patient's right to privacy is legally actionable, particularly when patients are unable to protect themselves adequately because of unconsciousness or immobility.

introduction

It is appropriate here to provide the reader with a background regarding the law, as it is the law that enables society to uphold what is right and punish those who transgress its intent—to protect the moral fiber upon which this nation was founded. This chapter introduces the reader to the development of American law, the functioning of the legal system, and the roles of the three branches of government in creating, administering, and enforcing the law in the United States. It is important to understand the foundation of the legal system before one can appreciate or comprehend the specific laws and principles relating to health care. The law is rooted in tradition, culture, customs, and beliefs (e.g., religious influence—the Mosaic law). Laws constantly grow and change to meet the needs of the American culture, which is a mixture of many cultures. Familiarity with the vocabulary enables one to understand the ideas, concepts, and structure of the law. Laws continually evolve because of the ever-changing political, social, religious, and personal values of society, which is composed of many cultures that become more intertwined with each new generation. Supreme Court Justice Oliver Wendell Holmes said that the law "is a magic mirror, wherein we see reflected not only our own lives but also the lives of those who went before us."[1] One hundred years before Holmes served on the Supreme Court, the court decided Marbury v. Madison in a decision that declared, "The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested right."[2] Most definitions of law define it as a system of principles and processes by which people in a society deal with their disputes and probl

Three Branches of Government

It's helpful to remember that many original colonists came from England during a time of tyranny and dictatorship in that country. In forming a new government, it was of primary importance to divide powers so that no person or group of people held the majority of authority. The state leaders sought to form a powerful, yet fair, federal government that protected individual liberties. This is accomplished through the system of checks and balances. This simply means that the governmental powers are divided between separate and independent structures. Each of these structures can check the work of the other structures. In doing so, the power is balanced between all of the structures. Through the first three Articles of the Constitution, the framers divided the new government into three parts. These three parts are known as the three branches of government. They are the legislative branch, the executive branch and the judicial branch. Each branch is independent from the others, but each holds a similar amount of authority.

Ch.6 intro

Laws are enacted to regulate human behavior for the benefit of society. They are designed to prevent harm to others while protecting the rights of individuals. In the law we are taught that we have a duty to care and that if we breach that duty and someone is injured as a result of that breach, there will be a penalty to pay, which could be financial loss, loss of license, and/or jail time to be served. This chapter introduces the reader to tort law, criminal law, contract law, and trial procedures. These are the areas of law that most often affect providers and patients.

Expert Witness

Laypersons are quite able to render opinions about a great variety of general subjects, but for technical questions, the opinion of an expert is necessary. At the time of testifying, each expert's training, experience, and special qualifications are explained to the jury. The experts are asked to give an opinion concerning hypothetical questions based on the facts of the case. Should the testimony of two experts conflict, the jury will determine which expert opinion to accept. Expert witnesses may be used to assist a plaintiff in proving the wrongful act of a defendant or to assist a defendant in refuting such evidence. In addition, expert testimony may be used to show the extent of the plaintiff's damages or to show the lack of such damages.

Lesson Summary

Libel

Libel is the written form of defamation. Libel can be expressed in the form of signs, photographs, letters, cartoons, and various other forms of written communication. To be an actionable wrong, defamation must be communicated to a third person. Defamatory statements communicated only to the injured party are not grounds for an action. Truth of a statement is a complete defense.

Negligence generally involves on of the following acts

Malfeasance: execution of an unlawful or improper act [e.g., performing an abortion in the third trimester when such is prohibited by state law Misfeasance: (improper performance of an act, resulting in injury to another [(e.g., removal of a healthy kidney instead of the diseased kidney,[1] removal of the healthy breast instead of the diseased breast,[2] removal of the wrong leg during surgery[3]); -Nonfeasance (failure to act, when there is a duty to act as a reasonably prudent person would in similar circumstances [e.g., failing to order diagnostic tests or prescribe medications that should have been ordered or prescribed under the circumstances]).

Malpractice

Malpractice is the negligence or carelessness of a professional person (e.g., a nurse, pharmacist, physician, or accountant). Criminal negligence is the reckless disregard for the safety of another (e.g., willful indifference to an injury that could follow an act).

Manslaughter

Manslaughter is the commission of an unintentional act that results in the death of another person. It can be either voluntary or involuntary. Voluntary manslaughter is the intentional killing of another person in what is commonly referred to as the "heat of passion," which is caused by the provocation of the victim (e.g., found having an affair with the defendant's spouse). Involuntary manslaughter is the result of a negligent act (e.g., reckless driving).

Medical Identity Theft

Medical identity theft is the unauthorized use or disclosure of patient information. "Medical identity theft occurs when someone uses another person's name or insurance information to get medical treatment, prescription drugs or surgery. It also happens when dishonest people working in a medical setting use another person's information to submit false bills to insurance companies."[57] Thieves often use patient mail (e.g., credit card information, bank statements, patient bills, checking account information) to obtain information about the consumer, which they use to steal their identity for financial gain.

Trial

Most of the processes of a criminal trial are similar to those of a civil trial. They include jury selection, opening statements, presentation of witnesses and other evidence, summations, instructions to the jury by the judge, jury deliberations, verdict, and opportunity for appeal to a higher court. In a criminal trial, the jury verdict must be unanimous, and the standard of proof is that guilt must be determined beyond a reasonable doubt, whereas in a civil trial the plaintiff need only prove a claim by a preponderance of the evidence.

Murder

Murder is the unlawful killing of a person. It is a homicide, and it involves malice aforethought and the premeditated intent to kill another human being. First-degree murder involves the deliberate and premeditated killing of another with malice aforethought. Second-degree murder is not deliberate, nor is it premeditated; however, it is the killing of another with malice aforethought. The tragedy of murder in healthcare settings that are dedicated to the healing of the sick has all too frequently occurred, as noted in the following examples. -In a highly publicized case, Dr. Kermit Gosnell was convicted of murdering newborn babies by snipping their spinal cords shortly after delivery. Following a 2-month trial and 10 days of deliberation the jury convicted Gosnell of murder. Although it was expected that prosecutors would seek the death penalty, Gosnell made a deal with prosecutors promising not to appeal the jury's decision in exchange for life in prison without parole. -Cullen, a former nurse, pleaded guilty to 16 murders in New Jersey and Pennsylvania.[50] Cullen had refused to cooperate with prosecutors unless they promised not to seek the death penalty. Cullen claimed responsibility for the deaths of 30 to 40 patients over a 16-year nursing career. The case raised concerns about hospital oversight of employees. Cullen worked "at 10 different hospitals in New Jersey and Pennsylvania, over a period of 16 years, despite the fact that at seven of those hospitals, he was investigated, fired or forced to resign..."[51] Cullen had been found violating nursing standards from the beginning of his career. He had problems in every one of the 10 institutions that he worked for in New Jersey and Pennsylvania. As one report noted, "Apparently, not one of those institutions gave Cullen a bad reference, or told other hospitals h

Negligence

Negligence is a tort, a civil or personal wrong. It is the unintentional commission or omission of an act that a reasonably prudent person would or would not perform under given circumstances. Negligence is a form of conduct caused by heedlessness or carelessness that constitutes a departure from the standard of care generally imposed on reasonable members of society. It can occur where a person has considered the consequences of an act and has exercised his or her best possible judgment but fails to guard against a risk that should be appreciated, and engages in certain behavior expected to involve unreasonable danger to others.

Omission of an Act

Omission of an act includes the following: -failure to administer medication(s) -failure to order required diagnostic tests per established hospital protocol for head trauma (e.g., CT scan) -failure to follow up an abnormal test results -failure to perform a "time-out" to ensure the correct surgical procedure is being conducted on the correct patient at the correct time

Acceptance

On proper acceptance of an offer, a contract is formed. It involves: -Meeting of the minds: Acceptance requires a "meeting of the minds" (mutual assent). The parties must understand and then agree on the terms of the contract. -Definite and complete: Acceptance requires mutual assent to be found between the parties. The terms must be so complete that both parties understand and agree to what has been proposed. -Duration: Generally, the other party may revoke an offer at any time prior to a valid acceptance. When the offeror does revoke the proposal, the revocation is not effective until the offeree (the person to whom the offer is made) receives it. After the offeree has accepted the offer, any attempt to revoke the agreement is too late and is invalid. -Complete and conforming: The traditional rule is that the acceptance must be the mirror image of the offer. In other words, the acceptance must comply with all the terms of the offer.

Private Law (civil law)

Private law, also referred to as civil law, is concerned with the recognition and enforcement of the rights and duties of and between private individuals and organizations. Tort and contract actions are two basic types of private law. In a tort action, one party asserts that the wrongful conduct of another has caused harm, and the injured party seeks compensation for the harm suffered. Generally, a contract action involves a claim by one party that another party has breached an agreement by failing to fulfill an obligation. Either remuneration or specific performance of the obligation may be sought as a remedy. -It is clear that without an organized, clear system of laws that regulate society, anarchy would be the result. The goal of this chapter is to help caregivers better understand the law and how it affects the difficulties they face while trying to do the right thing by making healthcare decisions that are both morally and legally acceptable.

Arrest

Prosecutions for crimes generally begin with the arrest of a defendant by a police officer or with the filing of a formal action in a court of law and the issuance of an arrest warrant or summons. On arrest, the defendant is taken to the appropriate law enforcement agency for processing, which includes paperwork and fingerprinting. The police also prepare accusatory statements, such as misdemeanor information and felony complaints. Detectives are assigned to cases when necessary to gather evidence, interview persons suspected of committing a crime and witnesses to a crime, and assist in preparing a case for possible trial. After processing has been completed, a person is either detained or released on bond.

A law is a general rule of conduct that is enforced by the government. When a law is violated, the government imposes a penalty.

Public law deals with the relationships between individuals and the government. Criminal law is a segment of public law. Private law deals with relationships among individuals. Two types of private laws are tort and contract actions.

Public Law

Public law is the term used to describe the "laws that cover administration, constitutional and criminal acts. It controls the actions between the citizens of the state and the state itself. It deals with the government's operation and structure."[3] One important segment of public law is criminal law, which prohibits conduct deemed injurious to public order and provides for punishment of those proven to have engaged in such conduct. Public law also consists of countless regulations designed to advance societal objectives by requiring private individuals and organizations to adopt a specified course of action in their activities and undertakings. Public law includes constitutional law, administrative law, and criminal law.

Slander

Slander is the oral form of defamation. For example, in Eli v. Griggs County Hospital & Nursing Home,[19] a nurse's aide was terminated as the result of an incident in the hospital dining room in which the aide, in the presence of patients and visitors, cursed at her supervisor and complained that personnel were working short staffed. Given the nature of her employment, such behavior justified her termination on a charge of reported breach of patient- and facility-specific information. No defamation finding resulted from the entry of such charges in the aide's personnel file—the reason behind the court case—because the record established that the charges were true.

Citing Precedent

So, stare decisis is essentially 'the rule of precedent.' Courts cite precedent when a court has already considered a particular legal issue and the court has already issued a ruling. For example, now let's say Green borrows Yellow's car. Yellow left the car at Green's house the night before and left the keys in it. He told Green he could move it if he needed to, but he did not give Green any permission to drive the car anywhere. Green gets up to go to work and finds that his own car will not start. Because he's already late, he borrows Yellow's car. Then, on his way to work, Green accidentally runs over a curb and damages Yellow's car. When Yellow sues Green for the amount of his insurance deductible, the court will cite to the case of Red v. Blue.

sovereign immunity

Sovereign immunity refers to the common-law doctrine by which federal and state governments historically have been immune from liability for harm suffered from the tortious conduct of employees. For the most part, both federal and state governments have abolished sovereign immunity.

Difference in Precedent and Stare Decisis

Stare decisis is a Latin term. It means 'to stand by things decided.' Stare decisis is a doctrine used in all court cases and with all legal issues. A doctrine is simply a principle, or an instruction, but it's not necessarily a rule that cannot ever be broken. The doctrine of stare decisis means that courts look to past, similar issues to guide their decisions. The past decisions are known as precedent. Precedent is a legal principle or rule that is created by a court decision. This decision becomes an example, or authority, for judges deciding similar issues later. Stare decisis is the doctrine that obligates courts to look to precedent when making their decisions. These two principles allow American law to build case-by-case, and make our legal system a common law system. For example, let's say that Blue borrows Red's lawnmower while Red is on vacation. Blue doesn't ask Red for permission. Blue accidentally breaks Red's lawnmower, but he doesn't tell Red. He simply places the lawnmower back in Red's garage. When Red returns home and discovers the broken lawnmower, he demands that Blue buy him a new one. The two end up in court, and the court decides that Blue does owe Red the money required for Red to fix his lawnmower; however, Blue does not have to buy Red a new lawnmower. This decision becomes precedent. From now on, lower courts in the same jurisdiction are expected to follow this new rule: When a borrower breaks a borrowee's item and was using the borrowee's item without permission in the first place, the borrower must pay to have the item fixed. Lower courts will follow this new precedent because the doctrine of stare decisis tells them they should.

Statutory Law

Statutory law is written law emanating from federal and state legislative bodies. Although a statute can abolish any rule of common law, it can do so only by stating it in specific words. State and local jurisdictions can enact and enforce only laws that do not conflict with federal law. Statutory laws may be declared void by a court; for example, a statute may be found unconstitutional because it does not comply with a state or federal constitution, is vague or ambiguous, or in the case of a state law, is in conflict with a federal law. -In many cases involving statutory law, the court is called on to interpret how a statute applies to a given set of facts. For example, a statute may state merely that no person may discriminate against another person because of race, creed, color, or gender. A court may then be called on to decide whether certain actions by a person are discriminatory and therefore violate the law. -The principles and rules of statutory law are set in hierarchical order. The Constitution of the United States adopted at the Constitutional Convention in Philadelphia in 1787 is highest in the hierarchy of enacted law. Article VI of the Constitution declares: -The clear import of these words is that the U.S. Constitution, federal law, and federal treaties take precedence over the constitutions and laws of specific states and local jurisdictions. Statutory law may be amended, repealed, or expanded by action of the legislature. -the Constitution is the highest level of enacted law. Statutory law can be amended, repealed, or expanded by the legislature.

Exclusive Contract with Radiology Group

Tennessee code permitted the hospital authority to enter into an exclusive contract with a radiology group. The governing body's decision to close the staff of the imaging department did not violate medical staff bylaws, and the defendant radiologists were not legally or constitutionally entitled to a hearing if their privileges were terminated on entry of the hospital authority into an exclusive provider contract.[65]

Administration on Aging

The Administration on Aging (AOA) is the principal agency designated to carry out the provisions of the Older Americans Act of 1965, which, as amended, focuses on improving the lives of senior citizens in areas of income, housing, health, employment, retirement, and community services. The AOA develops policies, plans, and programs designed to promote the welfare of the aging population. It promotes their needs by planning programs and developing policy, procedural direction, and technical assistance to states and Native American tribal governments.[29] "The Act also empowers the federal government to distribute funds to the states for supportive services for individuals over the age of 60."[30] Chapter 35 of the U.S. Code "Programs for Older Americans" provides in part: The Congress hereby finds and declares that, in keeping with the traditional American concept of the inherent dignity of the individual in our democratic society, the older people of our Nation are entitled to, and it is the joint and several duty and responsibility of the governments of the United States, of the several States and their political subdivisions, and of Indian tribes to assist our older people to secure equal opportunity to the full and free enjoyment of the following objectives: (2) The best possible physical and mental health which science can make available and without regard to economic status. (3) Obtaining and maintaining suitable housing, independently selected, designed and located with reference to special needs and available at costs which older citizens can afford. (4) Full restoration services for those who require institutional care, and a comprehensive array of community-based, long-term care services adequate to appropriately sustain older people in their communities and in their homes, including support to family members

Agency for Healthcare Research and Quality

The Agency for Healthcare Research and Quality (AHRQ) provides evidence-based information on healthcare outcomes, quality, cost, use, and access. Information from AHRQ's research helps people make more informed decisions and improve the quality of healthcare services.

Centers for Disease Control and Prevention (CDC)

The Centers for Disease Control and Prevention (CDC) is recognized as the lead federal agency for protecting the health and safety of people at home and abroad, providing credible information to enhance health decisions, and promoting health. The CDC serves as the national focus for developing and applying disease prevention and control, environmental health, and health promotion and education activities. To accomplish its mission, "CDC conducts critical science and provides health information that protects our nation against expensive and dangerous health threats, and responds when these arise."[35]

Department of Health and Human Services

The Department of Health and Human Services was created on April 11, 1953, to strengthen "the public health and welfare of the American people by making affordable and quality health care and childcare accessible, ensuring the safety of food products, preparing for public health emergencies, and advancing the diagnosis, treatment, and curing of life threatening illnesses."[27] The Department of Health and Human Services (DHHS) is a cabinet-level department of the executive branch of the federal government (FIGURE 5-2) responsible for developing and implementing appropriate administrative regulations for carrying out national health and human services policy objectives. It is also the main source of regulations affecting the healthcare industry. The secretary of the DHHS, serving as the department's administrative head, advises the president with regard to health, welfare, and income security plans, policies, and programs. The DHHS also is responsible for the various health programs designed through its operating divisions and agencies to meet the health needs of the people.[28] -The DHHS develops and implements administrative regulations for carrying out national health and human services policy objectives. DHSS is the main source of regulations that affect the healthcare industry. Operating divisions of DHHS include the: Centers for Medicare and Medicaid Services Public Health Service National Institutes of Health Centers for Disease Control and Prevention Food and Drug Administration Substance Abuse and Mental Health Services Administration Health Resources and Services Administration Agency for Healthcare Research and Quality Agency for Toxic Substances and Disease Registry Indian Health Service

Blackstone's Contribution

The English common law is based on a cultural system of settling disputes through local custom. The early tribes of England each held their own set of customs, but this system became increasingly formalized as those early tribal peoples came together and organized. These ancient customs are the basic principles that eventually became part of the American system of justice. Under English common law, disputes between two parties were handled on a case-by-case basis. However, the decision-maker did not act without guidance. The decision-maker was required to look to similar, previously decided cases and use those established guidelines and traditions. The customs of England were built upon and expanded for centuries, all through court decisions. By carrying forward and preserving these customs, the courts assured that the law was truly 'common' to all. For example, imagine that Smith and Jones own land adjacent to one another. Smith intends to build a barn on his own land, near his border with Jones. However, Smith inadvertently builds his barn on Jones's land. Jones claims ownership of the barn, and the two end up arguing their positions in court. Let's say the court decides that Smith owns the barn that he built, and now also owns that small portion of land that the barn occupies. This is now the rule to be applied for those cases coming after Smith and Jones. From that moment forward, all landowners must be careful not to allow others to build permanent fixtures on their land. Otherwise, the rule now states they could lose ownership of that portion of their land. Scenarios like this created a gradual development of an extensive system of laws, even though these rules were mostly unwritten at that time.

The English Common Law

National Institutes of Health

The National Institutes of Health (NIH) is the principal federal biomedical research agency. It is responsible for conducting, supporting, and promoting biomedical research. The mission of the NIH is to seek fundamental knowledge about the nature and behavior of living systems and the application of that knowledge to enhance health, lengthen life, and reduce illness and disability. It is responsible for conducting, supporting, and promoting biomedical research. The goals of the agency are to: foster fundamental creative discoveries, innovative research strategies, and their applications as a basis for ultimately protecting and improving health; develop, maintain, and renew scientific human and physical resources that will ensure the Nation's capability to prevent disease; expand the knowledge base in medical and associated sciences in order to enhance the Nation's economic well-being and ensure a continued high return on the public investment in research; and exemplify and promote the highest level of scientific integrity, public accountability, and social responsibility in the conduct of science.[34]

Fraud Results in 45-Year Prison Sentence

The U.S. Supreme Court refused to hear Dr. Farid Fata's appeal of his conviction for running a scheme that involved billing the government for medically unnecessary cancer and blood treatments. As a result of his scheme to defraud the government and harm patients in the process he will spend the next 45 years in prison. -Social media is not exempt from criticism as to ongoing fraudulent illegal activities of some advertisers in their efforts to sell bogus drugs. In 2014 Amazon was pressed to make it more difficult for rogue Internet pharmacies to sell counterfeit medications and other illegal drugs. As noted in the following news clipping, Facebook is included in the fray. Although Google reached a settlement to pay $500 million to avoid prosecution for aiding illegal online pharmaceutical ads, some state prosecutors want to see more from Google in preventing ads from unlicensed pharmacies. "Google acknowledged in the settlement that it had improperly and knowingly assisted online pharmacy advertisers allegedly based in Canada to run advertisements for illicit pharmacy sales targeting U.S. customers."[39] Amazon is not alone in criticism, as Facebook has joined the ranks of those not doing enough to remove posts from sellers of illicit opioids.

Substance Abuse and Mental Health Services Administration

The agency's mission is to reduce the impact of substance abuse and mental illness on America's communities.

Arraignment

The arraignment is a formal reading of the accusatory instrument and includes the setting of bail. The accused can appear with counsel or have counsel appointed by the court if he or she cannot afford his or her own. After the charges are read, the defendant pleads guilty or not guilty. A not guilty plea is normally offered on a felony. On a plea of not guilty, the defense attorney and prosecutor make arguments regarding bail. After arraignment of the defendant, the judge sets a date for the defendant to return to court. Between the time of arraignment and the next court date, the defense attorney and the prosecutor confer about the charges and the evidence in the possession of the prosecutor. At that time, the defense will offer any mitigating circumstances that it believes will convince the prosecutor to lessen or drop the charges.

Sources of Law

The basic sources of law are: common law, which is derived from judicial decisions; statutory law, which emanates from the federal and state legislatures; and administrative law, prescribed by administrative agencies. In those instances in which written laws are silent, vague, or contradictory to other laws, the judicial system often is called on to resolve those disputes until such time as appropriate legislative action can be taken to clear up a particular legal issue. In the following sections, the sources of law that formed the foundation of our legal system are discussed.

Burden of Proof

The burden of proof requires that the plaintiff's attorney show that the defendant violated a legal duty by not following an acceptable standard of care and that the plaintiff suffered injury because of the defendant's breach. If the evidence presented does not support the allegations made, the case is dismissed. The burden of proof in a criminal case requires that evidence presented against the defendant must be proven beyond a reasonable doubt by the prosecuting attorney. Note the terminology: reasonable doubt—not "all" doubt. The burden of proof in a criminal case lies with the prosecution. The prosecution has the burden of proving each element of a crime beyond a reasonable doubt.[69] In a civil suit, the plaintiff has the burden of proving his case by a preponderance of the evidence. In other words, the evidence presented must demonstrate that, in a malpractice case, for example, it is more likely than not that the defendant(s) is (are) the cause of the patient's alleged injuries. The evidence presented by the plaintiff need only tip the scales of justice.

Bill of Rights

The conventions of a number of the states, at the time of adopting the U.S. Constitution, expressed a desire to prevent the abuse of its powers. As a result of this concern, Congress ratified amendments to the Constitution of the United States. The Bill of Rights, which includes the first 10 amendments to the Constitution, was added to protect the rights of citizens. The amendments included the rights to privacy, equal protection, and freedom of speech and religion.

Ignorance of the Law and Unintentional Wrongs

The defendant cannot use ignorance of the law to excuse his or her negligent actions; otherwise, pleading ignorance would reward an individual. Arguing that a negligent act is unintentional is no defense. If such a defense were acceptable, all defendants would use it. Because a defense of ignorance or "I didn't know what I was doing" is not an acceptable answer in a courtroom, you need to learn and understand the potential consequences of your actions in the healthcare setting. This text lays the foundation for understanding your legal and ethical rights and responsibilities.

Defense of One's Actions

The defendant's case is presented to discredit the plaintiff's cause of action and prevent recovery of damages. Principles of law that may relieve a defendant from liability include assumption of a risk, comparative negligence, contributory negligence, Good Samaritan laws, ignorance of fact, unintentional wrongs, the statute of limitations, and sovereign immunity.

Defense Counsel

The defense attorney generally sits in the proverbial hot seat, being perceived as the bad guy. Although everyone seems to understand the attorney's function in protecting the rights of those represented, a criminal defense attorney is frequently not the most admired individual in the courtroom setting.

Criminal vs civil

The distinct differences between criminal law and civil law are in the type of action against the defendant and the type of remedy sought. A civil case involves individuals in a dispute and generally ends in monetary reward. Criminal cases are considered crimes against society and usually end in jail or prison time.

Breeding Ground for Crime

The following news clippings illustrate how healthcare fraud has become a national breeding ground for criminals who prey on the sick and disabled for financial gain.

Elements of Negligence

The four elements that must be present for a plaintiff to recover damages caused by negligence are (1) duty to care, (2) breach of duty, (3) injury, and (4) causation. All four elements must be present in order for a plaintiff to recover damages suffered as a result of a negligent act.

U.S. Government Organization

The government of the United States is a national constitutional republic covering 50 states, the nation's capital, and its territories (e.g., Puerto Rico, Guam). The federal government is organized into three branches. The legislative, executive, and judicial branches of government are illustrated in FIGURE 5-1. The powers and duties of the three branches of government are described in the U.S. Constitution.

Infliction of Mental Distress

The intentional or reckless infliction of mental distress is characterized by conduct that is so outrageous that it goes beyond the bounds tolerated by a decent society. It is a civil wrong for which a tort-feasor can be held liable for damages. Mental distress includes mental suffering resulting from painful emotions such as grief, public humiliation, despair, shame, and wounded pride. Liability for the wrongful infliction of mental distress may be based on either intentional or negligent misconduct. A plaintiff may recover damages if he or she can show that the defendant intended to inflict mental distress and knew or should have known that his or her actions would give rise to it. Recovery generally is permitted even in the absence of physical harm.

Preparation of Witnesses

The manner in which a witness handles questioning at a deposition or trial is often as important as the facts of the case. Each witness should be well prepared before testifying. Preparation should include a review of all pertinent records. Helpful guidelines for witnesses undergoing examination in a trial or a court hearing include the following: Review the records (e.g., medical records and other business records) on which you might be questioned. Do not be antagonistic when answering the questions. The jury may already be somewhat sympathetic toward a particular party to the lawsuit; antagonism may serve only to reinforce such an impression. Be organized in your thinking and recollection of the facts regarding the incident. Answer only the questions asked. Explain your testimony in simple, succinct terminology. Do not overdramatize the facts you are relating. Do not allow yourself to become overpowered by the cross-examiner. Be polite, sincere, and courteous at all times. Dress appropriately and be neatly groomed. Pay close attention to any objections your attorney may have as to the line of questioning being conducted by the opposing counsel. Be sure to have reviewed any oral deposition in which you may have participated. Be straightforward with the examiner. Any answers designed to cover up or cloud an issue or fact will, if discovered, serve only to discredit any previous testimony that you may have given. Do not show any visible signs of displeasure regarding any testimony with which you are in disagreement. Be sure to have questions that you did not hear repeated and questions that you did not understand rephrased. If you are not sure of an answer, indicate that you are not sure or that you just do not know the answer. Remember that lawyers often get the answers they want by how they frame the questions they as

Agency for Toxic Substances and Disease Registry

The mission of the Agency for Toxic Substances and Disease Registry (ATSDR) is to prevent or mitigate harmful exposures and related disease by applying science, taking responsive action, and providing trustworthy health information.

An assault is defined as the deliberate threat, coupled with the apparent present ability to do physical harm to another. No actual contact or damages are necessary. It is the deliberate threat or attempt to injure another or the attempt by one to make bodily contact with another without his or her consent. To commit the tort of assault, the following two conditions must be proven:

The person attempting to touch another unlawfully must possess the apparent present ability to commit the battery. The person threatened must be aware of or have actual knowledge of an immediate threat of a battery and must fear it.

Pleadings

The pleadings of a case (e.g., summons and complaint), which include all the allegations of each party to a lawsuit, are filed with a court. The pleadings may raise questions of both law and fact. If only questions of law are at issue, the judge will decide the case based on the pleadings alone. If questions of fact are involved, the purpose of a trial is to determine those facts.

Executive Order

The primary function of the executive branch of government on the federal and state levels is to administer and enforce the law. The chief executive, either the president of the United States or the governor of a state, also has a role in the creation of law through the power to approve or veto legislative proposals. The U.S. Constitution provides that "the executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years ... together with the Vice President, chosen for the same Term."[24] The president serves as the administrative head of the executive branch of the federal government, which includes 15 executive departments, as well as a variety of agencies, both temporary and permanent. The Cabinet, a creation of custom and tradition dating back to George Washington's administration, functions at the pleasure of the president. Its purpose is to advise the president on any subject on which he requests information (pursuant to Article II, section 2, of the Constitution). The Cabinet is composed of the 15 executive departments.[25] Each department is responsible for a different area of public affairs, and each enforces the law within its area of responsibility. For example, the Department of Health and Human Services (DHHS) administers much of the federal health law enacted by Congress. Most state executive branches also are organized on a departmental basis. These departments administer and enforce state law concerning public affairs. On a state level, the governor serves as the chief executive officer. The responsibilities of a state governor are provided for in the state's constitution. The Massachusetts State Constitution, for example, describes the responsibilities of the governor as follows:[26] To present an annual budget to the state legislatu

The Jury

The right to a trial by jury is a constitutional right in certain cases. Not all cases entitle the parties to a jury trial as a matter of right. For example, in many jurisdictions, a case in equity (a case seeking a specific course of conduct rather than monetary damages) may not entitle the parties to a trial by a jury. An example of an equity case is one that seeks a declaration as to the title to real property. Members of a jury are selected from a jury list. They are summoned to court by a paper known as the jury process. Impartiality is a prerequisite of all jurors. The number of jurors who sit at trial is 12 in common law. If there are fewer than 12, the number must be established by statute. An individual may waive the right to a jury trial. If this right is waived, the judge acts as judge and jury, becomes the trier of facts, and decides issues of law. Counsel for both parties of a lawsuit may question each prospective jury member for impartiality, bias, and prejudicial thinking. This process is referred to as the voir dire, the examination of jurors. After members of the jury are selected, they are sworn in to try the case. The jury makes a determination of the facts that have occurred, evaluating whether the plaintiff's damages were caused by the defendant's negligence and whether the defendant exercised due care. The jury also makes a determination of the particular standard of conduct required in all cases in which the judgment of reasonable people might differ. The jury must pay close attention to the evidence presented by both sides of a suit in order to render a fair and impartial verdict. The jury also determines the extent of damages, if any, and the degree to which the plaintiff's conduct may have contributed to any injuries suffered.

Right to privacy

The right to privacy is implied in the Constitution. It is recognized as a right to be left alone—the right to be free from unwarranted publicity and exposure to public view, as well as the right to live one's life without having one's name, picture, or private affairs made public against one's will. Healthcare organizations and professionals may become liable for invasion of privacy if, for example, they divulge information from a patient's medical record to improper sources or if they commit unwarranted intrusions into a patient's personal affairs.

Public vs Private

The simple difference between public and private law is in those that each affects. Public law affects society as a whole, while private law affects individuals, families, business and small groups.

Statute of Limitations

The statute of limitations refers to legislatively imposed time constraints that restrict the period of time after an injury occurs during which a legal action must be commenced. Should a cause of action be initiated later than the period of time prescribed, the case cannot proceed. The statutory period begins when an injury occurs, although in some cases (usually involving foreign objects left in the body during surgery) the statutory period commences when the injured person discovers or should have discovered the injury. -Many technical rules are associated with statutes of limitations. Computation of the period when the statute begins to run in a particular state may be based on any of the following factors: The date that the physician terminated treatment The time of the wrongful act The time when the patient should have reasonably discovered the injury The date that the injury is discovered The date when the contract between the patient and the physician ended

Common Law

The term common law refers to the body of principles that have evolved and expanded from judicial decisions. Many of the legal principles and rules applied today by courts in the United States have their origins in English common law. Common law has its roots in "reason and justice" for all. -The judicial system is necessary because it is impossible to have a law that covers every potential human conflict that might occur in society. It not only serves as a mechanism for reviewing legal disputes that arise in the written law, but it also serves as an effective review mechanism for those issues on which the written law is silent or, in instances of a mixture of issues, involving both written law and common-law decisions. -Joseph Story wrote in an 1829 U.S. Supreme Court decision, "The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright. But they brought with them and adopted only that portion which was applicable to their situation."[7] -Cases are tried applying common-law principles unless a statute governs. Even though statutory law has affirmed many of the legal rules and principles initially established by the courts, new issues continue to arise, especially in private-law disputes that require decision making according to common-law principles. Common-law actions are initiated mainly to recover money damages and/or possession of real or personal property. -When a higher state court has enunciated a common-law principle, the lower courts within the state where the decision was rendered must follow that principle. A decision in a case that sets forth a new legal principle establishes a precedent. Trial courts or those on equal footing are not bound by the decisions of other trial courts. Also, a prin

Conflict of Laws

The various states and territories also have their own constitutions that must not be in conflict with the U.S. Constitution. When state and federal laws conflict, resolution can be sought in the appropriate federal court. The legal case Dorsten v. Lapeer County General Hospital [16] illustrates how federal and state laws can be in conflict. The plaintiff in this case brought an action against Lapeer County General Hospital and certain physicians on the medical board alleging wrongful denial of her application for medical staff privileges. The plaintiff asserted claims under the U.S. Code for sex discrimination, violations of the Sherman Antitrust Act, and the like. The plaintiff filed a motion to compel discovery of peer-review reports to support her case. The U.S. District Court held that the plaintiff was entitled to discovery of peer-review reports despite a Michigan state law purporting to establish an absolute privilege barring access to peer-review reports conducted by hospital review boards.

Good Samaritan Laws

The various states have enacted Good Samaritan laws that relieve healthcare professionals, and in some instances laypersons, from liability in certain emergency situations. Good Samaritan legislation encourages healthcare professionals to render assistance at the scene of emergencies. Good Samaritan statutes provide a standard of care that delineates the scope of immunity for those persons eligible under the law.

Theft

Theft is the illegal taking of another person's or organization's property. Healthcare organizations must be alert to the potential ongoing threat of theft by unscrupulous employees, physicians, patients, visitors, and trespassers. The theft of patient or resident valuables, supplies, drugs, and medical equipment is substantial and costs healthcare organizations millions of dollars each year. -The evidence presented in People v. Lancaster [55] was found to have provided a probable cause foundation for information charging felony theft of nursing home residents' money by the office manager. Evidence showed that on repeated occasions the residents' income checks were cashed or cash was otherwise received on behalf of residents; that the defendant, by virtue of her office, had sole responsibility for maintaining the residents' ledger accounts; and that cash receipts frequently were never posted to the residents' accounts. -In another case, Miller v. Dunn,[56] there was sufficient evidence to hold that a nurse assistant had misappropriated $15,000 from an 83-year-old nursing home resident. The record indicated that the funds were taken during those times when the resident made visits to the hospital for respiratory problems. The patient had been diagnosed with dementia, and the resident's confusion was increasing. The nursing assistant actively procured the check in question, filling in the date, amount, and her name as payee. As a result, the nursing assistant was placed on the Employee Disqualification List for misappropriating funds.

Starting a Lawsuit: Parties and beginning

There are two parties to a lawsuit: the plaintiff who initiates the lawsuit and the defendant who defends against the allegations waged against him. A lawsuit is a process that involves several steps beginning with the filing of a complaint to judge's or jury's decision.

Felony Crimes

There are two types of criminal acts: Felony acts Misdemeanor acts A felony is a serious crime that is punishable by serving time in prison for more than one year. In State of Florida v. Zimmerman, it is alleged that George Zimmerman committed second-degree murder. Zimmerman shot his victim during a routine patrol of his neighborhood. The murder was not premeditated, meaning Zimmerman did not plan on killing anyone that fateful evening. The shooting took place during a scuffle with what Zimmerman thought was an intruder, and he acted in self-defense. The state disagrees. This is a high-profile case of murder, and Zimmerman is being accused of committing a felony.

Trial Procedure and the Courtroom

This next section presents a brief review of the law as applied in the courtroom (FIGURE 6-7). Although many of the procedures leading up to and followed during a trial are discussed in this chapter, civil procedure and trial practice are governed by each state's statutory requirements. Federal statutes govern cases on the federal level.

Government organization

Three branches of government Legislative branch, composed of the House of Representatives and the Senate, both enacts laws that can amend or repeal existing legislation and creates new legislation. Judicial branch resolves disputes in accordance with the law. Executive branch administers and enforces the law. Separation of powers provides that no one branch of the government will be dominant over the other two. States and local jurisdictions can enact and enforce only those laws that do not conflict with federal laws. When state and federal laws conflict, resolution can be sought in an appropriate federal court.

Beginning Steps in a Lawsuit

To simplify the process, let's look at the steps that are taken to initiate a lawsuit: The plaintiff files a complaint with the court and a summons is delivered to the defendant The defendant answers the complaint and may counterclaim against the plaintiff Discovery of testimony through interrogatories and depositions take place A judge or jury hears the case and a judgment is made If either party is not satisfied with the outcome, an appeal may be filed with a higher court Let's add details to the process. Once a person believes they have been wronged and wants to sue, the first thing done is the filing of a complaint, a written statement containing claims of damages one suffered as a result of another person. This is the plaintiff. Each wrongful act is considered a separate cause of action in the complaint. And there can be several causes of action in only one complaint. These are the legal grounds and the facts of the case. The complaint serves to let the defendant know that impending legal action is coming his way. Once a complaint has been filed, the defendant is notified by way of a summons, or an official notice from the court that an action is being taken against the defendant. It also states where the defendant must appear. The defendant has 20-30 days to file an answer with the court. The answer contains the defendant's response to the claim against him. If the defendant neglects to answer to the claims against him, a default judgment will be granted in favor of the plaintiff. In other words, the plaintiff wins by default. Sometimes, the defendant may decide to file a counterclaim against the plaintiff. This is similar to the original complaint, but accuses the plaintiff of an action. To set this into motion, Jim was driving east on a dark road. He neglected to turn his headlights on. Dennis was driving west

Lesson summary private vs public

To simplify things, public law deals with issues that affect the general public or state - society as a whole. Some of the laws that its wide scope covers are: Administrative law - laws that govern government agencies, like the Department of Education and the Equal Employment Opportunity Commission Constitutional laws are laws that protect citizens' rights as afforded in the Constitution Criminal laws are laws that relate to crime Municipal laws are ordinances, regulations and by-laws that govern a city or town International laws are laws that oversee relations between nations Let's use Brown v. Board of Education, 347 U.S. 483 (1954) to better understand public law as it relates to an administrative agency. In Brown v. Board of Education, Linda Brown, the plaintiff (brought about by her father, Oliver) contended that his daughter was not being protected under the Constitution. Since Brown was suing the Board of Education, this falls under constitutional law but an administrative agency was sued for the violation. Linda had to walk several blocks to the school bus stop even though a closer whites-only school existed within a few blocks from her home. Brown's parents believed that Linda's 14 Amendment rights were violated when she was banned from a white school closer to home because of her race. The case was won because the U.S. Supreme Court declared segregation a violation of Brown's constitutional rights. This falls under public law because issues of segregation and discrimination affect society as a whole, not just this particular child. Private law is different. Private law help citizens resolve issues between themselves.

Private Law Explained

Public Law Explained

In Summary

To sum it up, there are a few key players in a courtroom trial: A plaintiff is the party who initiates a lawsuit or who yields allegations against another party A defendant is on the receiving end of the allegations A lawyer is a professional who represents a party in a court of law A judge is a professional who oversees and makes decisions in court cases To sum up each party's role, once wronged, the plaintiff files a complaint with the court. This complaint lists the causes of action, where and when the defendant must appear in court. The defendant will answer the complaint by admitting or denying the actions and may even counterclaim against the plaintiff by accusing him of contributing to the causes of action. If the defendant does not answer the complaint, the default judgment is given to the plaintiff for all damages. In other words, the plaintiff wins. Each party has the right to question the other about issues through either a written response to questions, or interrogatories, or oral statements in a deposition. The testimony along with other facts and evidence is presented to a judge or a jury depending on the type of trial preferred by the parties. A judgment, or decision is rendered, and stands. Of course, the parties have a right to appeal the decision, but this must be done in writing to a higher court.

Common Law

U.S. common law has as its roots in the English common-law system. The first English royal court was established in the year 1178. There were few written laws at the time, and a collection of principles evolved from the decisions of the court. These principles, known as common law, were used to decide subsequent cases. During the colonial period, the United States based its law on English common law, but states had the authority to modify their legal systems. Lower courts must follow common-law principles established in a higher state court. Trial courts or those otherwise on equal footing are not bound by the decisions of other trial courts. A principle of law set in one state does not set precedent for another state. Common-law principles can be modified, overturned, abrogated, or created by new court decisions.

State Courts and Precedent

Under the doctrine of stare decisis, courts are expected to follow their own previous rulings and also the rulings from higher courts within the same court system. This means that the Texas state appellate courts will follow their own precedent, and that of the Texas Supreme Court, and also that of the United States Supreme Court. But the district courts in Texas are not obligated to follow rulings from the appellate courts of South Carolina. All courts are obligated to follow the rulings of the United States Supreme Court, because this is the highest court in the nation, and it has the final say. If the case of Red v. Blue was decided by the U.S. Supreme Court, then the courts in Texas and the courts in South Carolina must follow that precedent. If the case of Red v. Blue was decided by the Texas Supreme Court, the South Carolina Supreme Court is under no obligation to follow it. However, South Carolina may look at the Texas rule for guidance when setting its own precedent. Think of it this way: When I make a rule in my house, I will try to make all future rules to be in keeping with that rule. For instance, if I decide my kids cannot watch TV after 6:00 P.M., then I will not make a follow-up rule that the kids must watch the news at 9:00 P.M. I am expected to keep my rules, and my kids are expected to follow my rules. But the Smith kids, who live across the street, do not have to follow my rules. Mrs. Smith might look at my rules and decide they are a good idea for her family, too, but that, of course, is her decision.

The U.S Supreme Court and Precedent

Law Defined

What is law? As students of the law, when we want to define a particular legal term there are a few sources we can legitimately look to. As with other subjects, let's start with the dictionary. When we want to define a legal term, we will look to Black's Law Dictionary. This is an important tool for attorneys and law students. This dictionary serves as the leading standard authority for defining legal terms and has been published since 1891. Black's defines law as 'that which is laid down, ordained, or established....' It's important to note that although Black's Law Dictionary is a helpful tool, it is not, itself, law. The United States Supreme Court plays the final controlling role in defining legal terms. Through the case of United States Fidelity and Guaranty Co. v. Guenther, the Supreme Court states that: 'Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.' This is a reliable and thorough definition of law, but there are many accepted definitions for what constitutes law. Generally speaking, laws are rules that the people in a society believe are important enough for the society to enforce. Law comes from an organized government, but our laws are designed so that they typically reflect what the majority of the people feel is just or right. People make law, and it is made to reflect how the people feel about certain actions or conduct, such as murder, stealing or cheating on taxes. There is a purposeful and strong connection between law and that society's morality. This is a theme you will see often in business law and also throughout all other areas of the law.

The Origin of Law

Trial Steps in a Lawsuit

When the case is ready for court, an important decision must be made. Should there be a jury trial or a bench trial? A jury trial simply means that evidence and testimony will be presented to the court and a jury of 12 members will decide the outcome. The party or parties may opt out of a jury trial. In this case, there will be a bench trial, where evidence and testimony is heard by a judge only. Either way, once a judgment or decision has been rendered, it stands. Well, at least for now. Either party has a right to appeal the decision by asking a higher court to review the decision of the case for any violations of law or constitutional rights. If an appeal is granted, the appeal process involves moving the case to a higher court. In appeals court, a panel of judges reviews only the decision and the applicable law for violations. No new evidence or testimony is allowed.

Elements of a Contract

Whether contracts are executed in writing or agreed to orally, they must contain the following elements to be enforceable: (1) offer/communication, (2) consideration, and (3) acceptance.

Good Smaritan

uGood Samaritan Laws uGood Samaritan Laws Encourage people to assist others in distress by granting them immunity against lawsuits. The protection is intended to encourage bystanders to help those who need it without fear of being sued. Good Samaritan laws vary from state to state, and they often depend on the relationship between the victim and the rescuer. uFlorida uGood Samaritan Laws Good Samaritan laws protect the rescuer: uacting during an emergency outside the health care setting. uacting in good faith with good intentions. uacting without compensation. unot guilty of malicious misconduct or gross negligence toward the victim. uGood Samaritan Laws Good Samaritan laws do not: uprotect first aiders who have caused further injury to a victim. uprotect those who have poorly given first aid. uprotect those who have exceeded the scope of training. u

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