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esolution. Br J Obstet Gynaecol. 1996;103:1236–1242. Delaney C. Alternative dispute resolution: mediate your way to a solution. Okla Nurse. 1996;41:4. Fraser JJ Jr. Medical malpractice arbitration: a primer for Texas physicians. Tex Med. 1997;93:76–80. Freudman L. Alternative dispute resolution (ADR) for dentists: a better way. Ont Dent. 1998;75:25–29. Graddy B. A sane alternative: Alternative dispute resolution offers way to bypass the traditional legal system. Tex Med. 1994;90:45–46. Grant A. Alternative dispute resolution. Can Nurse. 1995;91:53–54. Guenin LM. Alternative dispute resolution and research misconduct. Camb Q Healthc Ethics. 1997;6:72–77. Harvard Medical Practice Study. Patients, doctors, and lawyers: Medical injury, malpractice litigation, and patient compensation in New York: The report of the Harvard Medical Practice Study to the State of New York. Cambridge, MA: Harvard, 1990. Kinney ED. Malpractice reform in the 1990s: past disappointments, future success? J Health Polit Policy Law. 1995;20:99–135. Klein CA. Alternative dispute resolution in medical care. AORN J. 1996;63:457–459. Klein CA. Alternative dispute resolution—issues in medical care. Colo Nurse. 1995;95:19. Klein CA. Alternative dispute resolution—who cares?—you care! Colo Nurse. 1994;94:5. LeFevre TL. The use of nurses in alternative dispute resolution. Natl Med Leg J. 1997;8:4,7. Liang BA. Understanding and applying alternative dispute resolution methods in modern medical conflicts (In Process Citation). J Leg Med. 1998;19:397–430. Miller HD Jr. There is an alternative to litigation. J Miss State Med Assoc. 1995;36:71–72. Treacy W. Alternative dispute resolution of medical malpractice cases in Wisconsin. Wis Med J. 1993;92:144–147. White WF. Alternative dispute resolution for medical malpractice actions: an efficient approach to the law and medical care. Leg Med. 1995:227–239. Source: Reprinted with permission from E.P. Richards, Overview of U.S. Legal System, in A Practical Guide to Food and Drug Law and Regulation, K. Pina and W. Pines, eds., © 1998, FDLI. 19
III. Tort Claims against Private Parties HIGHLIGHTS Introduction Most medical care law is civil law. Civil cases can be brought by the government or by private citizens. Civil cases cannot be used to imprison. Defendants have fewer rights in civil cases than in criminal cases. Civil cases can result in huge damage awards. Medical care practitioners must understand the civil law standards for medical care to avoid medical malpractice litigation. The U.S. legal system uses three models for legal proceedings. In criminal law proceedings the government prosecutes individuals and corporations to punish them for previous actions. In administrative law proceedings the government seeks to compel individuals to comply with rules and regulations established by government agencies. Civil law proceedings, which are the focus for this section, are used to force compliance with either public laws or private contracts, and to establish the liability and amount of monetary compensation that must be paid to compensate for injuries. Civil law proceedings can be brought by private citizens, corporations, and the government. The key distinction between civil and criminal law is that civil law proceedings cannot result in imprisonment. Administrative law proceedings are either done in the agency or in special administrative law courts that follow different procedural rules. The civil law is concerned with the peaceable resolution of disputes between individuals. Physicians often ignore the importance of this peacekeeping function. Being sued for medical malpractice is an unpleasant experience, but it is much preferable to being gunned down in the hospital corridor by an irate patient. This is an extreme example, but it has occurred. The civil courts are an imperfect but essential safety valve. It has even been argued that the delays and rituals of the process, which decrease its economic efficiency, increase its ability to cool passions and prevent violence. A. Types of Claims Civil claims fall into several categories, depending on the nature of the alleged injury or the requested remedy. 1. Personal Injury Torts Medical malpractice litigation is the classic civil lawsuit in medical care and clinical public health. It is brought by the patient against medical health care practitioner or an institution providing medical care. The object of the lawsuit is to force the 20
Page 1 and 2: Public Health Law Map - Beta 5.7 I.
Page 3 and 4: 1942.] The English statutory and co
Page 5 and 6: health or individual health officer
Page 7 and 8: actions through the district attorn
Page 9 and 10: 3. The Judicial Branch The federal
Page 11 and 12: consumer protection, such as requir
Page 13 and 14: With these exceptions, most litigat
Page 15 and 16: the court in Los Angeles might allo
Page 17 and 18: subject matter and may also have in
Page 19: 2. Implementing ADR The major benef
Page 23 and 24: cannot be proved, but it is clear t
Page 25 and 26: uterus, triggering a miscarriage. T
Page 27 and 28: first were passed immediately after
Page 29 and 30: years. If the practitioner violates
Page 31 and 32: defendant’s conduct or (for the d
Page 33 and 34: proving a case against a physician
Page 35 and 36: e important for their adult medical
Page 37 and 38: emoving the plantar wart. This emph
Page 39 and 40: Blake BL. Sgt. Friday, Dr. Welby, a
Page 41 and 42: Walter C, Richards EP. Keeping junk
Page 43 and 44: earning capacity. b) Medical Expens
Page 45 and 46: simple as installing wheelchair ram
Page 47 and 48: cases do not give rise to injury-re
Page 49 and 50: medical costs from the lawsuit. Som
Page 51 and 52: compilation of legal principles. It
Page 53 and 54: traditional sense. Fetal heart moni
Page 55 and 56: oxygen saturation. When saturation
Page 57 and 58: 1993;56:12-14. King JY. Practice gu
Page 59 and 60: are handled through an administrati
Page 61 and 62: U.S.C. § 1491. As such, the Court
Page 63 and 64: waiving immunity provide the only m
Page 65 and 66: against the United States in federa
Page 67 and 68: A discretionary function is an act
Page 69 and 70: deviant sexual conduct by an Air Fo
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The government can be liable under
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decision of the hospital officials
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constitutional rights have been vio
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case basis. The critical element in
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allegedly defective product was a m
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that state law is displaced if it i
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adopted. Therefore, Congress may au
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alleged. The “color of state law
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Importantly, the DeShaney analysis
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In the context of public health, on
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Also, immunity from suit is preserv
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The mere fact a private corporation
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1. Absolute Immunity Absolute immun
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prisoners were infected with HIV an
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against physicians who sold prescri
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The key distinction between crimina
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it almost impossible for practition
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forced to give hair samples, blood
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medical care practitioner does not
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assume that a hospital has an incen
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fined not more than $25,000 or impr
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charitable, religious, or philanthr
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(2) The Everyone-Does-It Defense De
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automatically invoke attorney-clien
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The Federal government, and several
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e of no benefit to the community, t
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activities of the large professiona
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Some of these provisions, such as t
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not support the scheme to reduce ho
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(1) Sentencing Guideline Standards
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did not provide full information ab
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5. If an employee chooses not to re
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documents until the court had made
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Frech HE III, Danger KL. Exclusive
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1998;29:16-18. Stahl DA. Consolidat
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tampering. b) Search Warrants If th
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defense lawyers to fight claims tha
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a) Service of Process One distressi
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provide as little speculation from
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place for the deposition. Each part
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should include a signed release by
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juries will disregard scientific ev
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the jury may be out of the room for
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entered the patient’s description
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the information being presented is
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are situations where what is genera
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test so generously that it also gav
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defendant’s failure to render the
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fees may be construed as attempting
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Fish R, Rosen P. Physicians should
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$150,000 to fight a case that could
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case; rather, it encourages the att
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were below the acceptable standard
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A. Establishing Agencies For its fi
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local level because the employees a
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dispute before the court. The lawye
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c) The Goldberg Rights Persons whos
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the cost of butter. A public intere
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standards and who agree to complian
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a) Agency Interpretation of Law All
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Johnson JA. Court limits board of m
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persons—business law, constitutio
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5. Corporate Employers and Institut
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prohibited the attorney from asking
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supervising the work. A more fundam
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medical problems. Whether it is can
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for buying insurance is that it pay
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Lawyers working on a contingency do
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Review deposition summary: 30 Novem
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of an effective preventive law plan
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ibes were in the form of consulting
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detailed summaries of important doc
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A very important part of the invest
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cases. Houston Bar Assoc. 1996;34:2
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state civil rights laws and health
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must carry out these actions correc
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c) Informal Consultations One of th
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on relinquishing care and follow-up
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The manufacturers of emergency kits
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equire a consultation before certai
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any differences of opinion between
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to refer a patient to such an insti
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help the patient deal with the insu
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diagnostic interest to the physicia
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attendant duties. When they exercis
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physician must be notified at once.
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to find a specialist willing to see
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physicians, a recent U.S. Supreme C
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The law requires a physician to pro
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proper diagnosis. The physician los
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possible, the letter should be sent
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states than in others.) The best ra
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Medical licensing agencies and medi
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If there is a physician-patient rel
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(1) In general If any individual (w
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subject to a civil money penalty of
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condition described in paragraph (1
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(A) Placing the health of the indiv
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may not transfer the individual unl
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sent by certified mail, return rece
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Berlin L. Communication of the sign
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evaluation of distance medicine tec
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consent: reducing conflicts with pa
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) Children in the Emergency Room A
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such as cancer should be withheld f
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eing challenged over their good- fa
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would not require that the risk be
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usual in the community, and in othe
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consent to risks of the treatment b
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) Reasonable-Patient Standard This
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candidates for treatment if their u
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prospective reimbursement systems r
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The child’s legal status should b
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litigation. Most states allow a phy
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should be reported to the child pro
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mental suffering and injury. 5. No
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ensure that all other participants
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(1) The research involves no more t
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different dialects but with differe
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to consent to medical care. Convers
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person. The power of attorney may b
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eligious reasons. Parents may refus
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life-support technologies, patients
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use every possible avenue to prolon
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decision? The court found that Miss
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Cruzan really dead? Justice Rehnqui
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discussed in terms of the patient
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) Following the Patient’s Wishes
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Few termination of life-support cas
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than any element of human behaviora
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Law Policy. 1997;361. Brody, H. Com
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Furthermore, a physician who withdr
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Cunningham N. Fear and informed con
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Invest Radiol. 1996;31:109-113. Nic
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interests test. J Leg Med. 1991;12:
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esearch subjects: proposed guidelin
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1994;8:19-27. Silverman HJ. Ethical
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Insurance Portability and Accountab
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physician, just as the records of c
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and if the patient is the victim of
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Disabilities Act (ADA) limits an em
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that is part of routine medical car
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A description of each purpose of th
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services to the medical care provid
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Access to the records is subject to
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Use appropriate safeguards to preve
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when they were designing research s
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such as an antitrust or false claim
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contain, the potential for harm in
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identification of abnormal findings
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Anything that indicates special tre
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put in the chart to document that t
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keep personal notes, and often the
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night unless she has a serious conc
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difficult to authenticate, unless t
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225. Smith J. Good medical records
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The legal consequences of the corpo
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to set up their own practices or wo
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California. Independent Contractor:
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physician fail to obtain a proper i
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When a physician recommends unneces
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Because employers attempt to limit
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utilization review organization den
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to influence a treating doctor’s
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important if the employee injures a
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these rules vary greatly from state
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If, as frequently happens, the pati
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eviewed completely by the supervisi
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protocols become generic documentat
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the physician is directly supervisi
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a. Penicillin V potassium 250 mg q.
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they hospitalize or refer a patient
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patient’s right of privacy should
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Medical students are often enthusia
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unauthorized practice of medicine.
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staff knows that the orders are onl
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is injured by a fellow workers’ n
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limited due process restrictions on
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agreeing to reimburse the MCO for a
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collective action, a close reading
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Med Soc. 1996;148:341-343. Maurer W
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Fiesta J. Delegation, downsizing an
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XIV. Peer Review and Deselection HI
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the development of new legal theori
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juror’s perspective, peer review
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to deal fairly with citizens, these
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5. There is an overriding national
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a) Notice of a Right to a Hearing T
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equest, to the physician or practit
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subchapter. Information about malpr
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the standards set forth in the Act,
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2. The Problem of Bias Until recent
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from general disclosure, but it sho
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do cost-cutting that the physicians
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Med. 1997;18:521-538. Maguire D. Te
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Introduction All medical care pract
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we are due for another worldwide ep
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include nurses, dentists, veterinar
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marital disharmony. In the classic
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criticisms of the cost of contact t
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diseases such as the Marburg or Ebo
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organized, powerful political lobby
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homosexual activists and the religi
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eligion or conscience. Thus, he can
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high, amounting to several dollars
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1. Birth Certificates Normally the
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caused or contributed to by infecti
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D. Law Enforcement Reporting Every
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campus police. The campus police de
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the law enforcement authorities are
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when they are acting as officers of
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eporting practices. J Emerg Med. 19
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Starr P, Starr S. Reinventing vital
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October;51:132]. J Am Med Womens As
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laws governing air and water pollut
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the widespread occurrence of tooth
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within the power of the judiciary t
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[specify fluoridation measure at is
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Still other arguments center on all
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(Wash. 1955); Rogowski v. City of D
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adverse effects would occur was arb
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Kaul v. City of Chehalis, 277 P.2d
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Introduction There are special cons
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Under no circumstances should medic
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patients about high-risk behavior a
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arrier method that is only 70% effe
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injectable contraceptive that lasts
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that HIV is less of a threat than a
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for procedures affecting reproducti
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funded services to coerce a person
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The person who obtains the consent;
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The recognition of personal privacy
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medically necessary: On their face,
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Although abortion is still a surgic
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The presumption of legitimacy was a
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Unfitness is also narrowly defined
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consistent with public health and s
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constitutional protections or feder
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information in violation of confide
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Mary Sue’s ova were successfully
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But the rule does not contemplate t
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as not to violate this prohibition.
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committed before she knows the stre
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1. Adoption 2. Family Planning and
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Soderberg H, Andersson C, Janzon L,
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Hum Reprod. 1992;7:1029-1033. Snowd
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condition. This conflict can take t
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eaching a level of 1 per 11 births
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who has finally conceived after thr
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should be sure that she understands
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The treatment of infertility poses
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disorder should not be helped to co
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Choosing a sperm donor can be legal
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prevent the spread of disease, and
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problems before they cause accident
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Beyond a structured prenatal care s
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patient’s decisions. The patient
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covered in signs that ask women if
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decisions not to use medical interv
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lifesaving care. Many physicians ig
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profound differences in the underly
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midwife’s skills and judgment, as
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who might sue on her behalf or on t
Page 597 and 598:
contraception, but contraception ha
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One example has been the developmen
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Marshall BM. Ethical issues in assi
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1995;115:39-43. Greely HT. Genetic
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3. General Obstetrics Abrams FR. Co
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King NM. Informed consent and the p
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XIX. Occupational Medicine and Disa
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and balances inherent in having gen
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putative illness, requesting an exc
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compensation system. The company ma
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In some circumstances, the union ma
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ethical obligations concerning the
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Records concerning voluntary employ
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employee’s health status.” In t
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films shall be preserved in their o
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Employees may also have a financial
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available information on the proper
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lood tests that are medically neces
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hospital. Both the medical care pro
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Section 504 was a remedial statute
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or recurrent, that the key word was
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government officials investigating
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incorrect, so this area of the law
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is to ensure that patients have eno
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problems. The Court also reiterated
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the medical problems have affected
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normal eyes and kidneys and no peri
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not constitute a disability. The pa
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workplace, their legal status is no
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hepatitis A, the onset of the disea
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(2) The nature and severity of the
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Many diseases are spread by insects
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eporting duties that apply to the c
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9. Bloodborne Pathogens All workpla
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this includes all types of medical
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clinics or home health visits. An i
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Purtilo RB. Ethical issues in the h
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Disabilities Act: a decision analys
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occupational accidents and diseases
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1998;13:241-272. Pollack R. Update
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legislation, set minimum standards
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hearing seems to be rooted in the l
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ates among drug addicts. Beyond the
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Team physicians’ duties are to th
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first aid and training programs are
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equired by the school is not accept
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interfere with getting the child pr
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4. Handicapped Children Handicapped
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1996;35:237-242. Cheng TL, Savageau
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Med Sci Law. 1995;35:45-47. Mitten
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handling prisoners in a burns unit.
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legislation. The FDA, DHHS, HCFA, a
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of a lower court to a higher, appel
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assaulted will bring a legal action
Page 705 and 706:
anesthesiologists and nurses with i
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Negligence to consider the plaintif
Page 709 and 710:
declaratory judgments about the con
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Durable Power of Attorney ensurance
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fiduciary relationship, as is the r
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Hearsay Rule Testimony of what anot
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In Loco Parentis Literally, in the
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to dangerous products such as drugs
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filing of all official documents. I
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Perjury The willful act of giving f
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had that reasonable person been in
Page 727 and 728:
RICO The common abbreviation for st
Page 729 and 730:
person seeks damages or other legal
Page 731 and 732:
appropriateness. Vacate When a cour
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