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Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Medical Law and Ethics

Chapter 2

The Legal System

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Two Fundamental Processes

• Federal System: power divided between central (federal) government and smaller

(state) governments

• Checks and Balances: Designed so that no one single branch of government

could control the entire government. Also

means each branch of government is

scrutinized by the other branches

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

The Legal System U.S. Constitution

• Legislative Branch: lawmaking body (Senate and House of Representatives);

originates legislation

• Executive Branch: President, cabinet, and advisors; enforces the law

• Judicial Branch: judges and federal courts; interprets the law

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Figure 2.1 The Branches of the U. S. Government

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Sources of Law

• Constitutional Law: addresses relationship between individuals and their

government

• Statutory and Regulatory Law: passed by legislative bodies, either Congress or

state legislature

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Sources of Law

• Common or Case Law: established from court decisions. Based on

precedent. Old case decisions still

influence today’s healthcare

professionals

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Classification of Laws

• Public – Criminal

– Administrative

– Constitutional

– International

• Private or Civil – Tort

– Contract

– Property

– Inheritance

– Family

– Corporate

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Civil (Private) Law

• Concerns relationships between individuals or between individuals,

businesses, and government

• Awards monetary damages • Includes tort law and contract law

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Tort Law

• Civil injury, or wrongful act • Committed against another person or

property

• Results in harm • Compensated by monetary damages • Can be intentional or unintentional

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Intentional Torts

• Assault: threat of bodily harm • Battery: actual bodily harm • False imprisonment: violation of one’s

liberty

• Defamation of character (slander/libel) • Fraud (i.e., embezzlement): deceitful

practice

• Invasion of privacy: break in confidentiality

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Unintentional Tort

• Negligence: an unintentional action that occurs when a person either performs or

fails to perform an action that a

“reasonable person” would or would not

have committed in a similar situation

• Involves performing carelessly or failing to perform a task

• Not exercising ordinary standard of care

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Contract Law

• Addresses breach or neglect of legally binding agreement between two parties

• Contract: voluntary agreement between two parties with intent of benefiting each

other

– Something of value (consideration) is part of

agreement

– Both parties must be competent

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Contracts

• Expressed Contract: agreement entered into orally or in writing; all

components of contract must be clearly

stated

• Implied Contract: agreement shown through inference by signs, inaction, or

silence

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Contracts

• Abandonment: withdrawing medical care from a patient without providing

sufficient notice

• Breach of Contract: either party fails to comply with terms of the agreement

• Abandonment: withdrawing medical care from a patient without providing

sufficient notice (in writing)

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Class Action Lawsuit

• Filed by one or more people on behalf of a larger group of people

• The members of the group are all affected by the same situation

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Public/Criminal Law

• Protects public from harmful acts of others

• Defines socially intolerable conduct that is punishable by law

• Government prosecutes person or institute that violates law

• Penalties are fine, imprisonment, or both • May be felony or misdemeanor

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Administrative Law

• Regulations set by government agencies:

• Licensing and supervision of prescribing controlled substances

• Health department regulations • Regulations against homicide, infanticide,

euthanasia, assault and battery

• Regulations against fraud

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

The Court System

• Two court systems in the United States – State

– Federal

• Each has specific responsibilities – Exclusive

– Concurrent (both courts have power to hear

the case)

• Depends on type of offense committed

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Figure 2.2 Separation of Powers in the Federal Legal System

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Types of Courts

• Federal – District (municipal)

– Court of appeals (circuit court)

– U.S. Supreme Court

• State – District (municipal trial)

– State court of appeals

– State supreme court

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Figure 2.3 Federal Court Structure

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Figure 2.4 Components of Civil Law (Courtesy of Amy Wilson, BS, RT(R), RDMS, RVT)

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Figure 2.5 Felony Case Process (Adapted from “A Citizen’s Guide to Washington Courts,”

Washington State Office of Administrator for the Courts, 1997.)

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Figure 2.6 Misdemeanor Case Process (Adapted from “A Citizen’s Guide to Washington Courts,”

Washington State Office of Administrator for the Courts, 1997.)

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Trial Process

• Grand Jury consists of 12–23 private citizens

• Hears evidence about case • Determines if case merits court hearing • Serves as filter • Votes on whether to move indictment to

trial court

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

The Procedure

• Litigation: may result when two parties are unable to solve a dispute by

themselves

• Plaintiff: the person or institution who brings an action into litigation

• Defendant: the person or institution who is being sued

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

The Procedure

• Settling out of court: occurs when attorneys for both sides work out a

settlement

• Waive: both parties (defendant and plaintiff) give up their right to a jury trial

• Trial: begins with opening statements made by attorneys for each side of the

case

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

The Procedure

• Closing argument: attorneys for the plaintiff and the defendant make closing

speeches or summaries of their case

• Appeal: plaintiff or defendant may ask (appeal) a higher court to review the

decision

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Figure 2.7 The Procedure for a Civil Trial (Adapted from “A Citizen’s Guide to Washington Courts,”

Washington State Office of Administrator for the Courts, 1997.)

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Summary Judgment

• Request made by an attorney • Takes place in a civil trial • Asks the court judge to declare no need

for a trial

• Means neither plaintiff nor defendant entitled to win based on existing law

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Subpoena

• Discovery: process by which facts are discovered

• Deposition: oral testimony before an officer of the court

• Subpoena duces tecum: court order to appear in court and bring records

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Standards of Proof

• Several different levels of proof are required

• Civil case: court looks at “preponderance of evidence”

• Civil case places weight on evidence that is more credible and convincing

• Criminal case: needs proof “beyond a reasonable doubt”

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Expert Witness

• Professional who has special knowledge or experience

• Assists jury or judge in determining accuracy of facts in case

• Often testifies to what standard of care is • Generally paid a fee • Clarifies points of knowledge not readily

understood by the jury or judge

Medical Law and Ethics, Fourth Edition

Bonnie F. Fremgen

Upper Saddle River, New Jersey 07458

Testifying in Court

• Tell the truth • Be professional • Remain calm • Do not answer a question that you do not

understand

• Present only facts • Do not memorize testimony