Legal and Ethics- Chap 6

Negligence

Commission or omission of an act that a reasonably prudent person would or would not do under given circumstances

Invasion of privacy

Right to: be left alone be free from unwarranted publicity be free from exposure to public view be free from unwarranted intrusions into a one's personal affairs personal privacy have records/kept confidential

defendant cannot be found liable

Without proof of harm or injury.

Tort

a civil wrong, other than a breach of contract, committed against a person or property for which a court provides a remedy, generally in the form of monetary damages

A tort is

a civil wrong—not including breach of contract—that is committed against a person or property for which a court provides a correction in the form of an action for damages.

Defamation of character is

a false oral or written communication to someone other than the individual defamed, subjecting that individual's reputation to scorn and ridicule.

A subpoena is

a legal order requiring that a person appear in court or that documents be presented to a court or administrative body./ Facts proved or disproved during a lawsuit constitute [evidence.

Felony

a much more serious crime (ie rape, murder) and is generally punishable by imprisonment in a state or federal penitentiary for more than a year.

A crime—

a social harm defined and made punishable by law—is generally either a misdemeanor or a felony.

Contracts

a special kind of agreement, either written or oral, that involves legally binding obligations between two or more parties

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.

A contract is

a written or oral agreement that involves legally binding obligations between two or more parties.

Injury/Actual damages

actual damages must be established without injury damages cannot be awarded

Standard of care

actual performance of an individual in a given situation will be measured against what a reasonably prudent person would or would not have done. what other people with a certain level of education/ experience are expected to do

Commission of an Act, examples

administering wrong medication or wrong dosage administering medication to wrong patient performing procedure without patient consent performing procedure on wrong patient removing the wrong body part failing ot assess a patient's nutritional needs

Intentional wrongdoing involves

an act that violates another person's interests.

When the issues to be resolved in a case are outside the understanding or experience of the average juror,

an expert witness is allowed to offer testimony to assist in explaining technical matters.

A misdemeanor is

an offense punishable by less than 1 year in jail and/or a fine.

Misdemeanor

an offense punishable by less than a year in jail and/or fine (ie petty larceny)

To be enforceable, contracts must contain

an offer or communication, consideration, and acceptance.

crime

any social harm defined and made punishable by law

Criminal procedure

arrest arraignment indictment conference with prosecutor and defense attorney criminal trial

Intentional torts

assault and battery false imprisonment defamation of character invasion of privacy infliction of mental distress

The infliction of mental distress is

characterized by conduct that is so outrageous that it goes beyond the bounds tolerated by a decent society.

infliction of mental distress

conduct that is so outrageous that it goes beyond bounds tolerated by decent society

Assault

deliberate threat, coupled with apparent ability to do physical harm to another. Actual contact not necessary.

To recover damages caused by negligence, four elements must be present:

duty to care, breach of duty, injury, and causation.

kinds of contracts

employment contracts exclusive contracts commercial ethics and non-competition agreements

Malfeasance

execution of an unlawful or improper act, for example: performing partial birth abortion with prohibited by law performing procedure without having appropriate credentials

Nonfeasance

failure to act when there is a duty to act, for example: failure to prescribe antibiotics when indicated failure to respond to emergency call

Omission of an act, examples

failure to administer medication(s) failure to order required diagnostic tests failure to follow up on abnormal test results failure to perform a "time-out" to ensure the correct surgical procedure is being conducged on the correct patient at the correct site

A felony is

generally punishable by imprisonment in a state or federal prison for a period of more than 1 year.

Misfeasance

improper performance of an act, for example: wrong-sided surgery leaving an instrument in the patient's body

Battery

intentional touching of another person in socially impermissible manner without person's consent

Defamation of character

involves communications to someone other than the person defamed that tends to hold that person' reputation up to scorn and ridicule

Test of foreseeability

is whether a person of ordinary prudence and intelligence should have anticipated danger to others caused by a negligent act

Duty to care

legal obligation of care imposed on one to safeguard rights of others

Two aspects of defamation of character are

libel, which results from the written word, and slander, which results from the spoken word.

purpose of criminal law

maintain public order and safety protect the individual use punishment as a deterrent to crime rehabilitate the criminal for return to society

Breach of duty

must be a deviation from recognized standard of care must be failure to adhere to an obligation

Causation

must be a reasonable, close and causal connection between the defendant's negligent conduct and resulting damages suffered. test of foreseeability

duty to hire competent staff

must check credentials of all staff and oversee that they are competent just because they have credentials, need to ensure that they are doing it right

Malpractice

negligence of a professional person, for example: surgery on wrong body part giving wrong medication and patient is injured

Damages can include

nominal damages, compensatory damages, and punitive damages.

elements of a contract

offer/communication consideration acceptance

Demonstrative evidence is

offered by objects themselves.

Exclusive contracts allow

organizations to contract with physicians and/or medical groups to provide specific services to the organization.

The objectives of tort law are:

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; Compensation-to indemnify the injured person(s) of wrongdoing.

The discovery process helps to

prevent surprises during trial. EBT is part of the discovery process that allows for witnesses to be examined before the trial. Before the trial, facts are investigated in this process.

Direct evidence is

proof that is offered via direct testimony.

The jury determines

the facts in a case and makes a determination of the particular standards of conduct required in all cases in which the judgment of reasonable people might differ.

Breach of duty is

the failure to meet a prevailing standard of care.

Causation refers to

the idea that the defendant's negligence must be a substantial factor in having caused an injury.

Assault is

the infringement on the mental security or tranquility of another person

Foreseeability is

the reasonable anticipation that harm or injury will result from an act or a failure to act. The test for foreseeability is whether or not one should have reasonably anticipated that the event in question or a similar event would occur.

Criminal negligence is

the reckless disregard for the safety of others and is the willful indifference to an injury that could result from an act. It differs from tort liability in that it provides for a more specific lack of care commonly characterized as "gross negligence" and "recklessness."

False imprisonment is

the unlawful restraint of an individual's personal liberty or the unlawful restraint or confinement of an individual.

battery is

the violation of another person's physical integrity.

Duty to care exists when

there is a legal obligation of care, performance, or observance imposed on one party to guard the rights of others.

The objectives of criminal law are

to maintain public order and safety, protect individuals, use punishment as a deterrent to crime, and rehabilitate criminals for return to society.

False imprisonment

unlawful restraint of individual's personal liberty or unlawful restraining or confining an individual

Documentary evidence is

written evidence capable of making a truthful statement.

Principles of law that may relieve a defendant from liability include, among others:

• Assumption of a risk • Comparative negligence • Contributory negligence • Good Samaritan laws • Statute of limitations • Sovereign immunity

Negligence has three basic forms. They are

• Malfeasance is the execution of an unlawful or improper act. • Misfeasance is the improper performance of an act that results in injury to another. • Nonfeasance is a failure to act when there is a duty to do so.

Tort of assult

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

4 elements of negligence

1. Duty to care 2. breach of Duty 3. Damages Injury/actual 4. Direct Causation

Forms of negligence

Malfeasance Misfeasance Nonfeasance

Objectives of Tort Law

Preservation of peace between individuals Fault-finding for wrongdoing Acts as a deterrence to wrongful acts Indemnify injured person(s) of wrongdoing