Law Final

Professional negligence

(have to prove all 4) 1. Duty 2. Breach 3. Causation 4. Injury/Damage - Plaintiff has to provide an expert in field to provide opinion whether breach occurred (required b/c jury is ordinary citizen, and doesn't know professional duties) - Each proven to a particular degree of proof: "preponderance of evidence"

Define "Case of First Impression"

- A case that occurs when a novel set of circumstances or a legal issue not previously addressed by any case law in the given jurisdiction (state). - In these situations judges look for the most analogous precedent in making a decision, and often focus on basic principles rather than a narrow rule of law. - Judges may also take into account how judges in other jurisdictions have dealt with similar issues, although they would not be bound by such cases. - Again, shows how common law decisions both demonstrate stability (because they are based on precedent) and flexibility (because they acknowledge change sin society that necessitate changes in law). - EXAMPLES OF THIS: ????

Legal Precedent

- Established by Appellate Courts (impacts parties of case and then the population under that jurisdiction) - Based on interpreting/applying law (constitutional, statutory, regulatory or common law) -> once a decision is made, the decision rules for all the courts below them (i.e. binding precedent)

Standard of Review - Definition - Examples

- Guides legal analysis. Applied to reach a conclusion/judgment. In constitutional law= standard created and applied by court to determine whether governmental action is constitutional or unconstitutional. - ex. rational basis review and strict scrutiny review

Statutes vs. constitution

- If a statute violates the constitution, the courts can and must nullify them- but only if and when a case challenging the statute is brought to court - This is why it is possible to have unconstitutional laws on the books. - The only time a court may invalidate a statute is when it violates the constitution.

Components of valid consent to medical treatment

- Informed - Voluntary - Competent - Understanding

Institutional Liability

- Institutional negligence - Example can be inadequate staffing, faulty equipment.

Comparison between state and federal power for internal domestic activity

- States have police power: power to make and enforce laws that pertain to public health, public safety, public welfare and public morals as is reasonably necessary - Federal government only has spending power and commerce clause power (However, the federal government has greater geographical jurisdiction, and therefore, affects a greater amount of people than the laws of a single state could).

Common law vs. statutes - In conflict, which wins? - Conflicting characteristics

- Statutes always supersede common law. The legislature can change the common law by passing a statute. - Statutes are proactive (looking to address an issue before it necessarily becomes a legal issue), common law is retroactive (can only address an issue that happened in the past in which there is a conflict by two parties, and at least one of the parties brings it to court). - Usually more room for interpretation in common law than in statutory law. "This is because the reasons judges give for their decisions can be expressed in slightly different ways, whereas statutes always have the same exact text". - Common law is not codified, statutes are.

Federal v. State government

- The federal government has delegated powers, not sovereign or intrinsic powers. AKA the states have delegated some of their powers to the federal government. - States can exercise all powers except those that they gave exclusively to the federal government. The federal governments powers are those limited to the powers listed in the U.S. Constitution. These are called the "enumerate" powers listed in the U.S. Constitution.

Common Law Includes...

- Tort Law - Contract law (ex. coverage for health care through contract from employer or private business). - Property law - Criminal Law

Regulations - What are they? - Other information, including examples

- Rules promulgated by administrative agencies (promulgated means to put into law or effect by an official proclamation). - These rules have the full force and effect of law (they are not guidelines or suggestions). - The Federal government's regulations are codified in the Code of the Federal Regulations (and an example of a federal agency that makes regulations is the U.S. Department of Health and Human Services) - The states governments' regulations are codified as well, but the title varies by state (an example of a state agency that makes regulations is the Mass. Dept. of Public Health) - Administrative agencies are always created by legislation, which also specifies the agency's powers and authority (i.e. Congress giving the Federal Drug Administrative certain privileges and not others).

Relevance of ACA and Spending Clause

- Seven justices concluded that the new category of eligibility for Medicaid in the ACA could not be imposed on the states as a condition to receive federal Medicaid funds for existing state Medicaid programs. - This is because the Court found that this "penalty" of not receiving federal funds was coercive on part of the federal government (i.e. the federal government was more or less forcing the states to accept this).

Elements of negligence - Elements - Degree of proof

(have to prove all 4) 1. Duty 2. Breach 3. Causation 4. Injury/Damage - Each proven to a particular degree of proof: "preponderance of evidence"

Relationship between United States v. Alfonso Lopez to ACA

- ACA is considered to be closer to Wicker case. - However, Chief Justice John Roberts did not use the commerce Clause to state that the federal government had the authority to implement an individual mandate that would require individuals to purchase a product from private (healthcare) companies. - Instead, Chief Justice John Roberts saved the individual mandate by determining that it was a constitutional tax. Spending Clause - Most justices rejected the argument provided by the government that stated that the fact that virtually everyone is, or will at some point be in the healthcare market empowers Congress to regulate how they pay for their care. - Most justices thought that if the Commerce Clause allowed the federal government to regulate people who are not engaged in commerce, they worried that the federal government would have the same power to regulate individual behavior, because almost anything that anyone does or does not do can affect the national economy (Similar to United States v. Alfonso Lopez)

Statutory right to privacy in MA 1970s

- Any person physically located in MA has right against "unreasonable, substantial or serious interference with his privacy".

Appellate vs. trial courts

- Appellate courts establish law (common law is made in appellate court) - Trial courts apply law (including common law)

Torts

- Civil wrongs other than a breach of contract. - If individual is responsible for harm to someone they should be held accountable (term: liable, not guilty). - Remedied by an action in court for damages - Hold person at fault accountable: there can be harm but no one at fault.

Confidential relationships - Examples - Examples of relationships that are NOT confidential

- Confidential: lawyer/client, MD/pt - Relationships that are not confidential: researcher and person being researched on is not. Neither is teacher and student

Commerce Clause Power

- Congress can regulate: a. channels of interstate commerce b. instrumentalities of interstate commerce c. activities which "substantially impact" ISC - Congress has burden of proof - Established in U.S. v. Lopez

Spending power clause

- Congress' ability to collect taxes and use this money to provide for general welfare of the United States - Limited to General welfare, cannot be for a specific interest group - Congress can, and often does, attach requirements for states to receive this money (i.e. States can receive federal money for highway maintenance if they make the legal drinking age 21 years of age).

Difference between the constitution and common law

- Constitution governs the relationships between individuals and government - Common law governs the relationships between and among private individuals and entities - Constitutional law is embodied in the Constitution and the judicial decisions interpreting the Constitution. - Common law does not originate in any primary document, nor is it codified. Common law is only found in case law, and is part of state law, not federal law.

Privacy rights are found:

- Constitution- liberty in 14th amendment - Rights under common law - Rights created by statutes or regulations

Sources/Forms of Law

- Constitutions (Federal and state) - Statutes - Regulations - Common Law

Criminal v. Civil Law

- Criminal law is about the state regulating conduct to protect people and their property. - When one violates a criminal law, one commits an offense against the state, and the state will use its resources to capture, prosecute and punish the violator. If the criminal case is brought to trial, it is brought on behalf of the state (why the cases are called State v Jones). The attorney general or district attorney will act as the lawyer for the state to prosecute the defendant who is accused of a crime. If the defendant is found guilty, the defendant will be imprisoned and/or pay a monetary fine. The fine will be paid to the state, not the victim of the crime. Punishment, not compensation, is a key goal of the criminal law. The victim of the crime has no role in a criminal case, other than being a witness. - Purpose of civil law is not punishment but compensation. - "Liable" is for civil cases, "guilty" is only for criminal cases

Burdens of Proof

- Definition of Burden of Proof: The threshold that a party seeking to prove a fact in court must reach in order to have the fact legally established.

Jurisdiction - Definition - Types - Examples of the different types

- Definition: Authority of a law or court - Types: geographic jurisdiction, subject matter jurisdiction - In the U.S., people are almost always under the jurisdiction of the state and the federal government. People are also governed by city and/or county laws. - Example of subject matter jurisdiction- federal government can collect federal income taxes and prosecute people for failing to pay federal taxes, but the federal government cannot prosecute people for failing to pay state taxes under the state law. Criminal courts can hear criminal cases, but cannot hear civil cases.

Right to confidentiality

- Depends on recognition of "confidential relationship" - One person has duty to keep confidences, other has right (expectation that confidences will be kept, roles of duties and rights do not flip in confidential relationships). - Law provides a remedy for failure to maintain confidentiality (failure to maintain confidentiality is a breach of duty).

Wickard v. Filburn:

- Dramatically increased regulatory power in the US, the federal crop support program was determined constitutional, although the economic activity was only indirectly related to ISC. - Wickard was fined a penalty against the Secretary of Agriculture because he violated the Agricultural Adjustment Act of 1938 by harvesting 12 more acres of wheat than the Act permitted under an individual allotment The Act was designed to regulate the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and shortages, which could substantially change wheat prices. - Trying to find some stability in the market. - Much closer connection between wheat and marketplace, than between gun possession and interstate commerce (compare to US. v. Lopez.)

Challenges to fulfilling duty to disclose

- Duty to disclose needs to be in a language that is easy to understand, therefore language/cultural barriers may become a challenge - MA obligation re: cost, may influence patients' decision - Patients want information but the system is not set up so that doctors and patients have a lot of time together

Common Law - Definition - Important characteristics

- Law made by judicial decisions/judges (in the absence of statutes). Also referred to as "judge made law". - Today's common laws are made by appeal court judges or supreme court judges. - Only made as a result of two (or more) parties who submit dispute to a judge or court to resolve. Judges do not get to decide which problems they wish to solve. - Retroactive (looking at past event) not proactive. - These laws are not codified. - In making common law, judges state legal principles for ruling in their judicial decisions. This is important for the application of law in similar future situations. - Common law attempts to provide stability/predictability in the law, while also allowing flexibility to accommodate new or special circumstances. Common law makes slow, incremental, rather than abrupt changes. - Usually more room for interpretation in common law than in statutory law. "This is because the reasons judges give for their decisions can be expressed in slightly different ways, whereas statutes always have the same exact text"

Statutes - Definition - Important characteristics of statutes - Federal v. state

- Laws enacted by legislative bodies. - Statutes are created to prospectively address some problem that the legislature believes exists (can come from legislature's concerns or lobbying groups). Should exemplify the democratic ideal of representative government, political processes and political accountability. - Statutes are not passed to resolve a dispute between particular parties that are in conflict. - Statutes cannot apply retroactively (if you make a new statute saying the speed limit is 60 mph when b4 it was 90mph, you cannot say that those who previously drove above 60mph violated the law). - Statutes remains in the same wording unless there is a new law amending the statute or getting rid of it (repealing). - Statutes are often vague because they are worded in general terms to cover broad areas of behavior for a population or group of people. Will need to later be interpreted by the courts/judge. - The federal enacting body is the Congress, and the title of these codified statutes is called U.S. Code (USC) - The state enacting bodies are called state legislatures, and the title of these codified statutes varies by state

Structure of Federal Government

- Legislative Branch - Executive Branch - Judicial Branch

Outcome of a tort

- Most you can get is verdict of liability and compensation - Something to think about: Tort law is not enough to address treatment related injuries. How do we prevent harm? Medical errors are the 3rd highest cause of death.

Unintentional tort

- Neglect: pre-existing expectation/obligation to do something - Ex: accidentally hit student waiving harms enthusiastically. - Split into ordinary negligence vs. professional negligence.

Amendment V

- No one can be put on trial for a serious crime, unless a grand jury decide first that there is enough proof or evidence so that the trial is needed. This is not true for crimes against the armed forces, and/or when the state is in a time of war or public danger. - No double jeopardy - No one can be forced to testify against themselves ("pleading the fifth") - Guarantee of due process - Private property cannot be taken by the government for public use without just compensation

Common law vs. case law

- Not all case law is common law, but all common law is case law - Some case law can be based on statutes, etc.

Preamble of Constitution

- Opening statement - Explains why Framers of the Constitution made US government a constitution - Not law - Important parts: "we the people" "in order to form a more perfect union"- the previous government was based on the Articles of the Confederation, which were very limited. Thought they were making a new government that would be a better way to govern the country, "we the people... ordain and establish this constitution of the U.S.": people made this document, people give the country its power.

Plaintiff vs. defendant

- Plaintiff- person who brings the case to court - Defendant

Amendment X

- Powers not delegated to the federal government by the Constitution, are reserved to the states.

Questions of Facts vs. Questions of Law

- Question of fact is a dispute over what happened or who did what. The jury (not the judge) decides the facts. - Questions of Law: what did the law mean when it stated x? Issue of statutory interpretation . Questions of law must be decided by law-trained judge. If there are only questions of law in dispute, it would not be necessary to have a jury, because it is the judge who decides legal questions. - Courts of appeals and the supreme judges can only decide on legal issues- not factual issues.

Amendment IV

- Right of the people to be secure from unreasonable search and seizure. - If there is a probably cause, then one must provide a warrant from a judge.

Information that is material to the decision the patient is face with - 7 pieces of information

- Risk of dying or serious inherent risks of bodily harm - What are the alternatives? Other medical options, and their risks and benefits. - What's the recuperation rate? Benefits of surgery? - What happens if no surgery/medical treatment? - Complications after treatment - Anything else that reasonable professional would disclose

Exceptions to duty to disclose

- True emergency - Person unable to make decision (proxy) - Waive right to informed consent - If risks are well known, risks are rare, and severity of risks are low - Can selectively decide: MD privilege based on therapeutic privilege (i.e. the physician has objective evidence that this information would so upset the patient that the patient would be unable to make a rational decision. In this case, the physician must give information to another person designated by the patient. The burden of proof is on the physician to demonstrate that use of therapeutic privilege was necessary).

Legal Rights

- a legal right is an enforceable benefit or good. Enforceable means that you can go to court to try to win a lawsuit for the deprivation of a benefit to which you are entitled. - When one person has a right, another person (or private entity or gov. body) has a corresponding obligation. - All legal rights have sources in law: constitution, statutes, the common law, and regulation

Negligence case based on failure to disclose

1. Duty 2. Breach 3. Causation: jury needs to be convinced that reasonable people in this sutuation would have declined this procedure if they had this information. VERY difficult to prove 4. Injury/harm - Plaintiff has to provide an expert in field to provide opinion whether breach occurred (required b/c jury is ordinary citizen, and doesn't know professional duties) - Each proven to a particular degree of proof: "preponderance of evidence"

What are the different types of informed consent? - What did Grant state that informed consent was in Cobbs v. Grant? - What did Court state should be the principle of informed consent in Cobbs v. Grant?

1. Full and complete informed consent- NOT practical. (purpose of relationship is to serve best interest of patient, but this is not useful as it overwhelms patients with information). 2. What doctors in good standing would disclose: profession has control over it, patient has no control, problem w/ this paternalistic model 3. Information that is material to the decision the patient is faced with (patient centered standard) Grant: "what reasonable practitioners do, not set by law. Court: patient centered standard. Court cannot make decision about whether or not Grant conducted informed consent via patient-centered standard, therefore, now that scope of duty has been defined, case needs to go back to non-appellate trial.

Physician duties/patient rights

1. Physician has a duty to provide standard of care/patient has a right to standard care 2. Physician has a duty to provide information/patient has a right to information 3. Physician has a duty to maintain confidences/patient has a right of confidentiality

Exceptions to duty of confidentiality

1. common law exception: permitted (choice) to meet a serious danger to patient or to others 2. statutory exceptions vary state to state (ex. mandated reporter has legal duty to disclose)

Cobbs v. Grant

2 legal issues: 1. negligent in performance of surgery (skill) 2. didn't disclose information/risks prior to surgery B/c professional negligence, law requires plaintiff to bring in expert testimony, but plaintiff (Cobbs) did not call expert. Appealed by Surgeon Grant--> mistake of law: no expert testimony for plaintiff Defendant also appealed based on instructions given to jury- re: "technical battery"- intentional harm v. negligence. Apellete court-- not a technical battery, it's negligence

Hierarchy of Federal and State Courts (look at diagram)

3 tier system state route: first tried in state trial courts -->state appeals courts-->50 state supreme courts --> Supreme court (~65/session). Federal route: 94 Federal district courts--> Federal appeals court--> Supreme Court.

Alberts v. Devine (action 1973, decision 1985)

Alberts is minister seeking MH tx. Psychiatrist Devine disclosed Albert's MH status to superiors in church, and Albert lost job. Questions: 1) physician's duty not to disclose confidential information 2) whether cause of action for invasion of privacy existed? Holding 1) Physicians due owe the duty of confidentiality to their patients, unless faced with a serious danger to the patient or others 2)A civil action can be pursued against anyone who induces a violation of the physician's duty of confidentiality and thereby causes injury or loss to the patient.

ADA

Americans with disabilities act, statute protecting individuals with disabilities from discrimination Governs: Title I: employers, 2: public service, 3: public accommodations, services (including "the professional office of a healthcare provider"), 4: Telecommunication companies Definition of disability: A) 1- physical/mental impairment that 2- substantially limits one or more of the major life activities of such individual B) a record of such an impairment C) being regarded as having such an impairment ADA must provide: "substantive provisions": general prohibition of discrimination against individuals on the basis of disability. - discrimination includes failure to take steps necessary to ensure that no individual with disability is excluded or denied services - no requirement to permit participation where individual poses a "direct threat" to the safety of others (= safe harbor provision)

Commerce clause

Congress can intervene on matters of interstate commerce but there are limits. Congress can regulate: 1) channels of interstate commerce (ex. highways, railways, internet) 2) instrumentalities of interstate commerce (ex. salespeople, banks, drivers, etc.) 3) items that "substantially impact Interstate commerce"

US v. Lopez

Congress had made possession of a firearm in school zone a federal crime. Lopez brought gun to school, he was prosecuted and tried to violation of gun law, and his defense was rules were not a valid use of state power. Court said congresses argument was too attenuated to fall under the commerce clause, and the federal law was not a constitutional use of federal power.

Bragdon v. Abbott (1998)

Dentist refused to provide dental services to patient who was HIV+, offered to provide services in hospital (at pt's expense). 1. disability? physical/mental impairment: yes- look at biology of HIV substantially limit 1+ major life activity: yes, having a child defense focused on exception: dentist worried about transmission. 3rd party will determine whether meets exception (CDC, HHS, NIH)-- universal precautions.

Hierarchy of laws

Hierarchy of laws 1. US Constitution, 2. federal statutes & regulation 3. State constitution 4. state statutes and regulations

Clark v. St. Dominic-Jackson Memorial Hospital

Judge Clark: chest pain, catheterization, no op room, pt died. Threshold legal question: Does this hospital owe any duty of care to Mr. Clark- yes standard in industry can sometimes indicate what the standard is, but this does not determine the standard. Reasonability is the standard. Law requires us to act reasonably. Not reasonable under law to know risk, and not prepare for it. Case has to go back and go through a trial

Duties and rights go hand-in-hand

MD duty: standard of care, duty to disclose pt rights: right to standard of care, information.

HIPAA 1996

Mandated reporting is NOT HIPPA violation Provides pt right to call Department of Health and Human Services who will determine whether they should do an investigation, if there was a violation or suspected violation, if violation then the fine is imposed on the violator and the fine is paid to the Department of Health and Human Services.

What you need to pursue a privacy tort?

Plaintiff needs to prove that the 1) defendant knew of the relationship 2) the defendant attempted to induce disclosure 3) the defendant had no reason to believe that a disclosure would occur otherwise 4) the plaintiff needs to prove that he was harmed * Need to prove this to a preponderance of evidence

Constitutions

Purpose: - Establish the structure of government (of either the nation or the state) - Establish rights of individuals in relation to the government (does not protect people from private actions).

Bratt v. IBM

Whether disclosure of medical information concerning employee to employer violate employee's right of privacy. Decision: when medical information is necessary to reasonably serve the interest of employer it is not an invasion of privacy. Difference between Bratt and Alberts: Bratt no exception of confidentiality (different relationship tx relationship v. examination relationship).

Immunity or cap on damages

ex non-profits damages capped at $20,000

Intentional tort

ex: boping Sudeshna on the head vs. unintentional harm/neglect

Constitution Article 1, Section VIII

lists congress's power, mostly foreign relations/direct service powers. Domestic behaviors comes down to 2: 1) tax and spending power for general welfare (aka Spending Power clause) 2) commerce clause power