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

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defendant to pay the plaintiff money to compensate the plaintiff for an injury cased by the defendant’s actions. When the claims against private defendant, there will be medical malpractice insurance which the cost of hiring an attorney to defend the claim and any settlement or verdict awarding the plaintiff damages. If the award is very large, it may exceed the limits of the insurance and the defendant will have to contribute from personal or corporate resources. If the medical care practitioner works for a governmental agency, the governmental entity will defend the claim and pay any damages. There are many other possible personal injury claims in medical care. Individuals can be injured by dangerous conditions that are unrelated to medical care delivery itself, such as slick floors or a malfunctioning elevator. There can also be intentional injuries, such as the rape of a patient by hospital employee or an assault by another patient. If the injury results from criminal activity, it may not be covered by insurance. The medical care practitioner or institution will have to pay for both the defense of the claim and any jury verdict or settlement. a) Negligence Most personal injury claims are based on negligence: that the defendant negligently injured the plaintiff. To prove a claim of negligence, the plaintiff must show four things, called the prima facie case for negligence: 1. Duty—a statement of the facts that establishes the legal relationship between the plaintiff and defendant. 2. Breach of the duty to the plaintiff—a statement of facts that illustrate that the defendant breached a legal duty owed the patient. In medical malpractice, this means that the defendant provided medical care that fell below the legally required standard. 3. Causation—that the breach of the defendant’s duty caused the plaintiff’s injuries. 4. Damages—the monetary value of the plaintiff’s injuries Upon the filing of these claims, the defendant may ask the judge to dismiss the plaintiff’s lawsuit for deficiencies in prima facie case. For the purpose of a motion to dismiss, the judge will assume that the facts presented by the plaintiff are correct. If, despite this assumption, the plaintiff’s prima facie case is incomplete or legally unfounded, it may be dismissed, or the plaintiff may be given an opportunity to amend it to satisfy the defense’s objections. During the pretrial phase of the lawsuit, the plaintiff must present legally sufficient evidence to support the allegations in the prima facie case. b) Res Ipsa Loquitur Res ipsa loquitur means, roughly, “the thing speaks for itself.” Courts developed the concept of res ipsa loquitur to deal with cases in which the actual negligent act 21
cannot be proved, but it is clear that the injury was caused by negligence. This doctrine was first recognized in the case of a man who was struck and severely injured by a barrel that rolled out of the second-story window of a warehouse. In the trial of the case, the defense attorney argued that the plaintiff did not know what events preceded the barrel rolling out of the window and thus could not prove that a warehouse employee was negligent. The plaintiff’s attorney countered that barrels do not normally roll out of warehouse windows. The mere fact that a barrel fell from the window was res ipsa loquitur; “it spoke for itself,” and it said that someone must have been negligent. Most law students learn about res ipsa loquitur by reading a case about an airplane that disappears without a trace. There is no evidence of negligence, but there is a strong presumption that airplanes do not disappear without some negligence. In medical negligence cases, res ipsa loquitur can be invoked only when: (1) the patient suffers an injury that is not an expected complication of medical care; (2) the injury does not normally occur unless someone has been negligent; and (3) the defendant was responsible for the patient’s well-being at the time of the injury. For example, assume that a portable X ray is ordered in an intensive care unit on a young, otherwise healthy patient recovering from peritonitis. After the technician leaves, it is found that the patient has a dislocated shoulder. This is not an expected complication of an X ray; there are no explanations for the injury other than mishandling or failing to restrain the patient properly, and the defendant was responsible for the patient’s well-being at the time the injury occurred. The strategic value of a res ipsa loquitur claim is that it does not require an expert to testify as to the proper standard of care. This has led plaintiffs to try to make res ipsa loquitur claims whenever they are unable to secure expert testimony to support their cases. Many states have limited the use of res ipsa loquitur in medical malpractice litigation, usually to claims such as a surgeon’s leaving a foreign body in the patient or operating on the wrong patient. In all other cases, the plaintiff must present expert testimony as to standard of care and its breach. c) Negligence Per Se Negligence per se lawsuits are brought by private plaintiffs but are based on the defendant’s violation of a law. In these cases the appropriate standard of care is defined by the law that was violated. For the court to accept a negligence per se claim, the plaintiff must show that a law was violated, that the law was intended to prevent the type of injury that occurred, and that the plaintiff was in the class of persons intended to be protected by the law. The plaintiff may claim negligence per se even if the defendant has not been convicted or administratively sanctioned under the law in question. In such cases, the plaintiff must prove that the defendant has violated the law. The plaintiff does not need to prove independently the violation if the defendant has been convicted or had pleaded guilty. (The plaintiff may not rely on a plea of nolo contendere; that is, not contesting the charges but not admitting guilt.) 22
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 and 20: 2. Implementing ADR The major benef
Page 21: III. Tort Claims against Private Pa
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
Page 71 and 72: The government can be liable under
Page 73 and 74:
decision of the hospital officials
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constitutional rights have been vio
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case basis. The critical element in
Page 79 and 80:
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
Page 89 and 90:
In the context of public health, on
Page 91 and 92:
Also, immunity from suit is preserv
Page 93 and 94:
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
Page 99 and 100:
against physicians who sold prescri
Page 101 and 102:
The key distinction between crimina
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it almost impossible for practition
Page 105 and 106:
forced to give hair samples, blood
Page 107 and 108:
medical care practitioner does not
Page 109 and 110:
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
Page 123 and 124:
activities of the large professiona
Page 125 and 126:
Some of these provisions, such as t
Page 127 and 128:
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
Page 135 and 136:
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
Page 143 and 144:
defense lawyers to fight claims tha
Page 145 and 146:
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
Page 167 and 168:
fees may be construed as attempting
Page 169 and 170:
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
Page 181 and 182:
dispute before the court. The lawye
Page 183 and 184:
c) The Goldberg Rights Persons whos
Page 185 and 186:
the cost of butter. A public intere
Page 187 and 188:
standards and who agree to complian
Page 189 and 190:
a) Agency Interpretation of Law All
Page 191 and 192:
Johnson JA. Court limits board of m
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persons—business law, constitutio
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5. Corporate Employers and Institut
Page 197 and 198:
prohibited the attorney from asking
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supervising the work. A more fundam
Page 201 and 202:
medical problems. Whether it is can
Page 203 and 204:
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
Page 215 and 216:
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
Page 231 and 232:
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
Page 241 and 242:
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
Page 251 and 252:
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
Page 261 and 262:
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
Page 271 and 272:
Berlin L. Communication of the sign
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evaluation of distance medicine tec
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consent: reducing conflicts with pa
Page 277 and 278:
) 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
Page 321 and 322:
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
Page 331 and 332:
Law Policy. 1997;361. Brody, H. Com
Page 333 and 334:
Furthermore, a physician who withdr
Page 335 and 336:
Cunningham N. Fear and informed con
Page 337 and 338:
Invest Radiol. 1996;31:109-113. Nic
Page 339 and 340:
interests test. J Leg Med. 1991;12:
Page 341 and 342:
esearch subjects: proposed guidelin
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1994;8:19-27. Silverman HJ. Ethical
Page 345 and 346:
Insurance Portability and Accountab
Page 347 and 348:
physician, just as the records of c
Page 349 and 350:
and if the patient is the victim of
Page 351 and 352:
Disabilities Act (ADA) limits an em
Page 353 and 354:
that is part of routine medical car
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A description of each purpose of th
Page 357 and 358:
services to the medical care provid
Page 359 and 360:
Access to the records is subject to
Page 361 and 362:
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
Page 369 and 370:
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
Page 379 and 380:
difficult to authenticate, unless t
Page 381 and 382:
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
Page 387 and 388:
California. Independent Contractor:
Page 389 and 390:
physician fail to obtain a proper i
Page 391 and 392:
When a physician recommends unneces
Page 393 and 394:
Because employers attempt to limit
Page 395 and 396:
utilization review organization den
Page 397 and 398:
to influence a treating doctor’s
Page 399 and 400:
important if the employee injures a
Page 401 and 402:
these rules vary greatly from state
Page 403 and 404:
If, as frequently happens, the pati
Page 405 and 406:
eviewed completely by the supervisi
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protocols become generic documentat
Page 409 and 410:
the physician is directly supervisi
Page 411 and 412:
a. Penicillin V potassium 250 mg q.
Page 413 and 414:
they hospitalize or refer a patient
Page 415 and 416:
patient’s right of privacy should
Page 417 and 418:
Medical students are often enthusia
Page 419 and 420:
unauthorized practice of medicine.
Page 421 and 422:
staff knows that the orders are onl
Page 423 and 424:
is injured by a fellow workers’ n
Page 425 and 426:
limited due process restrictions on
Page 427 and 428:
agreeing to reimburse the MCO for a
Page 429 and 430:
collective action, a close reading
Page 431 and 432:
Med Soc. 1996;148:341-343. Maurer W
Page 433 and 434:
Fiesta J. Delegation, downsizing an
Page 435 and 436:
XIV. Peer Review and Deselection HI
Page 437 and 438:
the development of new legal theori
Page 439 and 440:
juror’s perspective, peer review
Page 441 and 442:
to deal fairly with citizens, these
Page 443 and 444:
5. There is an overriding national
Page 445 and 446:
a) Notice of a Right to a Hearing T
Page 447 and 448:
equest, to the physician or practit
Page 449 and 450:
subchapter. Information about malpr
Page 451 and 452:
the standards set forth in the Act,
Page 453 and 454:
2. The Problem of Bias Until recent
Page 455 and 456:
from general disclosure, but it sho
Page 457 and 458:
do cost-cutting that the physicians
Page 459 and 460:
Med. 1997;18:521-538. Maguire D. Te
Page 461 and 462:
Introduction All medical care pract
Page 463 and 464:
we are due for another worldwide ep
Page 465 and 466:
include nurses, dentists, veterinar
Page 467 and 468:
marital disharmony. In the classic
Page 469 and 470:
criticisms of the cost of contact t
Page 471 and 472:
diseases such as the Marburg or Ebo
Page 473 and 474:
organized, powerful political lobby
Page 475 and 476:
homosexual activists and the religi
Page 477 and 478:
eligion or conscience. Thus, he can
Page 479 and 480:
high, amounting to several dollars
Page 481 and 482:
1. Birth Certificates Normally the
Page 483 and 484:
caused or contributed to by infecti
Page 485 and 486:
D. Law Enforcement Reporting Every
Page 487 and 488:
campus police. The campus police de
Page 489 and 490:
the law enforcement authorities are
Page 491 and 492:
when they are acting as officers of
Page 493 and 494:
eporting practices. J Emerg Med. 19
Page 495 and 496:
Starr P, Starr S. Reinventing vital
Page 497 and 498:
October;51:132]. J Am Med Womens As
Page 499 and 500:
laws governing air and water pollut
Page 501 and 502:
the widespread occurrence of tooth
Page 503 and 504:
within the power of the judiciary t
Page 505 and 506:
[specify fluoridation measure at is
Page 507 and 508:
Still other arguments center on all
Page 509 and 510:
(Wash. 1955); Rogowski v. City of D
Page 511 and 512:
adverse effects would occur was arb
Page 513 and 514:
Kaul v. City of Chehalis, 277 P.2d
Page 515 and 516:
Introduction There are special cons
Page 517 and 518:
Under no circumstances should medic
Page 519 and 520:
patients about high-risk behavior a
Page 521 and 522:
arrier method that is only 70% effe
Page 523 and 524:
injectable contraceptive that lasts
Page 525 and 526:
that HIV is less of a threat than a
Page 527 and 528:
for procedures affecting reproducti
Page 529 and 530:
funded services to coerce a person
Page 531 and 532:
The person who obtains the consent;
Page 533 and 534:
The recognition of personal privacy
Page 535 and 536:
medically necessary: On their face,
Page 537 and 538:
Although abortion is still a surgic
Page 539 and 540:
The presumption of legitimacy was a
Page 541 and 542:
Unfitness is also narrowly defined
Page 543 and 544:
consistent with public health and s
Page 545 and 546:
constitutional protections or feder
Page 547 and 548:
information in violation of confide
Page 549 and 550:
Mary Sue’s ova were successfully
Page 551 and 552:
But the rule does not contemplate t
Page 553 and 554:
as not to violate this prohibition.
Page 555 and 556:
committed before she knows the stre
Page 557 and 558:
1. Adoption 2. Family Planning and
Page 559 and 560:
Soderberg H, Andersson C, Janzon L,
Page 561 and 562:
Hum Reprod. 1992;7:1029-1033. Snowd
Page 563 and 564:
condition. This conflict can take t
Page 565 and 566:
eaching a level of 1 per 11 births
Page 567 and 568:
who has finally conceived after thr
Page 569 and 570:
should be sure that she understands
Page 571 and 572:
The treatment of infertility poses
Page 573 and 574:
disorder should not be helped to co
Page 575 and 576:
Choosing a sperm donor can be legal
Page 577 and 578:
prevent the spread of disease, and
Page 579 and 580:
problems before they cause accident
Page 581 and 582:
Beyond a structured prenatal care s
Page 583 and 584:
patient’s decisions. The patient
Page 585 and 586:
covered in signs that ask women if
Page 587 and 588:
decisions not to use medical interv
Page 589 and 590:
lifesaving care. Many physicians ig
Page 591 and 592:
profound differences in the underly
Page 593 and 594:
midwife’s skills and judgment, as
Page 595 and 596:
who might sue on her behalf or on t
Page 597 and 598:
contraception, but contraception ha
Page 599 and 600:
One example has been the developmen
Page 601 and 602:
Marshall BM. Ethical issues in assi
Page 603 and 604:
1995;115:39-43. Greely HT. Genetic
Page 605 and 606:
3. General Obstetrics Abrams FR. Co
Page 607 and 608:
King NM. Informed consent and the p
Page 609 and 610:
XIX. Occupational Medicine and Disa
Page 611 and 612:
and balances inherent in having gen
Page 613 and 614:
putative illness, requesting an exc
Page 615 and 616:
compensation system. The company ma
Page 617 and 618:
In some circumstances, the union ma
Page 619 and 620:
ethical obligations concerning the
Page 621 and 622:
Records concerning voluntary employ
Page 623 and 624:
employee’s health status.” In t
Page 625 and 626:
films shall be preserved in their o
Page 627 and 628:
Employees may also have a financial
Page 629 and 630:
available information on the proper
Page 631 and 632:
lood tests that are medically neces
Page 633 and 634:
hospital. Both the medical care pro
Page 635 and 636:
Section 504 was a remedial statute
Page 637 and 638:
or recurrent, that the key word was
Page 639 and 640:
government officials investigating
Page 641 and 642:
incorrect, so this area of the law
Page 643 and 644:
is to ensure that patients have eno
Page 645 and 646:
problems. The Court also reiterated
Page 647 and 648:
the medical problems have affected
Page 649 and 650:
normal eyes and kidneys and no peri
Page 651 and 652:
not constitute a disability. The pa
Page 653 and 654:
workplace, their legal status is no
Page 655 and 656:
hepatitis A, the onset of the disea
Page 657 and 658:
(2) The nature and severity of the
Page 659 and 660:
Many diseases are spread by insects
Page 661 and 662:
eporting duties that apply to the c
Page 663 and 664:
9. Bloodborne Pathogens All workpla
Page 665 and 666:
this includes all types of medical
Page 667 and 668:
clinics or home health visits. An i
Page 669 and 670:
Purtilo RB. Ethical issues in the h
Page 671 and 672:
Disabilities Act: a decision analys
Page 673 and 674:
occupational accidents and diseases
Page 675 and 676:
1998;13:241-272. Pollack R. Update
Page 677 and 678:
legislation, set minimum standards
Page 679 and 680:
hearing seems to be rooted in the l
Page 681 and 682:
ates among drug addicts. Beyond the
Page 683 and 684:
Team physicians’ duties are to th
Page 685 and 686:
first aid and training programs are
Page 687 and 688:
equired by the school is not accept
Page 689 and 690:
interfere with getting the child pr
Page 691 and 692:
4. Handicapped Children Handicapped
Page 693 and 694:
1996;35:237-242. Cheng TL, Savageau
Page 695 and 696:
Med Sci Law. 1995;35:45-47. Mitten
Page 697 and 698:
handling prisoners in a burns unit.
Page 699 and 700:
legislation. The FDA, DHHS, HCFA, a
Page 701 and 702:
of a lower court to a higher, appel
Page 703 and 704:
assaulted will bring a legal action
Page 705 and 706:
anesthesiologists and nurses with i
Page 707 and 708:
Negligence to consider the plaintif
Page 709 and 710:
declaratory judgments about the con
Page 711 and 712:
Durable Power of Attorney ensurance
Page 713 and 714:
fiduciary relationship, as is the r
Page 715 and 716:
Hearsay Rule Testimony of what anot
Page 717 and 718:
In Loco Parentis Literally, in the
Page 719 and 720:
to dangerous products such as drugs
Page 721 and 722:
filing of all official documents. I
Page 723 and 724:
Perjury The willful act of giving f
Page 725 and 726:
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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