Public Health Law Map - Beta 5 - Medical and Public Health Law Site

With these exceptions, most litigation is brought directly in the state courts. Even in
medical malpractice cases brought in the federal courts, the federal court will apply
state law unless the case involves a specific federal statute or a constitutional right.
For example, if a Veterans Administration physician working in Maryland is sued for
medical malpractice, the case would be brought in federal court because the
physician is an employee of the government. The federal court would then apply
Maryland’s law to determine if the physician was negligent.
One of the difficulties in this book is that the laws vary greatly among the states. This
is most pronounced in laws that govern financial matters and tax, but it extends to
some of the laws that affect medical practice. For example, in some states,
hypodermic syringes are a prescription item. Possessing them without the requisite
prescription violates the state’s drug paraphernalia law. In other states, these same
syringes are legal to buy without a prescription and may be possessed without
violating the law.
D. The Common Law
A current debate in our society is whether judges make law, and, if they do, whether
that is their proper role. There is an underlying assumption that making law is a new
role for judges and reflects a liberal bias in the judiciary. Common law judges were
said to interpret law implicit in the statutes or precedent cases. In this sense, they found
law rather than made it. It was this process of interpretation that gave life to the
common law. Most critically, in the colonial period England had no equivalent to the
U.S. Supreme Court. Parliament and the king had final authority and could overrule the
courts. In the U.S. constitutional system, the Supreme Court can overrule both the
president and Congress. Judges in the United States today make law just as surely as
do legislators.
The difference between finding and making law may seem inconsequential, but it has
profound implications. The Constitution prohibits ex post facto laws—laws that punish
past conduct that was allowed at the time. This means that if a state passes a law
making it a criminal offense to prescribe amphetamines, that law cannot be applied to
allow the prosecution of physicians who wrote prescriptions for amphetamines before
the effective date of the law. However, if a judge finds a common law rule, such as an
obligation to obtain informed consent from patients, then, in theory, this is just a new
interpretation of the existing law. A physician who fails to obtain informed consent for
a surgery performed before the first court decision on informed consent in the state
could still be sued.
From the defendants’ perspective, there is little comfort in knowing that the judge did
not make the law that they are accused of violating. Since the criminal law demands
that the law be specific, most criminal law decisions are not retroactive. Some courts
apply this same principle in civil law by making the new standards prospective when
they dramatically increase a defendant’s legal duties. They warn potential defendants
of the new standard of conduct without allowing them to be sued for past conduct. This
poses a policy problem because it denies compensation to persons previously injured
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