Midterm Questions

Assignment 1

Marilyn Diaz

Florida National University

Healthcare Law – PLA4522

Professor Dr. George Ackerman

July 9th, 2020

In Chapter 1, I would like to go over the 2ndquestion on page 20 which requires I state how a corporation differ from a partnership (Kunz, 2019). Comment by Windows User: .. differs … Comment by Windows User: It is not necessary to say: “I would ….” You can just write: Chapter 1- Question # … and write the question. You can center the question and boldface it. Do this in all of the questions.

A corporation is an independent legal entity owned by shareholders who make all decisions and decide who manages. In the partnership, it’s the partners who normally share ownership and management of the partnership.

Formation of a corporation is more complex and expensive with complex tax, legal requirements and administrative fee needed. They need to file articles of incorporation and get local and state licenses and permits. Partnerships are much easier to form with partners required to register the business and obtain state or local business license and permits.

The partners are liable for the company’s debts and legal responsibilities in partnerships. Their assets may be taken to pay for the debt. Partners come up with a partnership agreement which states each partner’s exact share in the company. The corporation, on the other hand, is considered a separate legal entity for the purpose of a legal action. Corporation assumes all debts and legal fees keeping stakeholders out of risk.

Partnerships don’t have to pay taxes with losses and profit passing to individual general partners. Partners are required to file a tax return to the Internal Revenue Service reporting losses and profit. Corporations on the other hand are required to pay national taxes and state taxes. Shareholders further pay taxes on their dividends, bonuses and salaries.

Partnerships may come to an end in the event of death of one of the partners unless there’s a provision allowing the partnership to continue. Corporations on the other hand can last long after death of stakeholders, officers with ownership being passed on to their heirs. Can only be dissolved through a proper legal process. Comment by Windows User: Specify who???

In Chapter 2, I would like to answer the 2ndquestion on page 49 which asks which act I would reference if a coworker asked if she would be able to take time away from work for several weeks to care for her child. I would reference the Family and Medical Leave Act (FMLA) of 1993. It requires the employer of 50 or more people to provide up to 12 weeks of unpaid leave each year for the “serious health condition” of an employer or member of employee’s immediate family or for the birth or adoption of a child. The Family and Medical Leave Act covers: Comment by Windows User: You may need to separate the question from the answer. Do it on different lines. See comment on previous page. Comment by Windows User: This is not clear enough. You may need to reword this idea.

 All public employers.

 Employees that have been employed for at least 12 months and who have worked at least 1,230 hours in the preceding 12 months to the commencement of FMLA leave.

 Private employers having 50 or more employees in the payroll system sharing each of 20 or more calendar workweeks in either current or preceding calendar year. Comment by Windows User: APA does not use bullets. Write in in paragraph form.

The Department of Labor in 2010 clarified the definition of “son and daughter” with the aim of ensuring the employee who assumes the role of caring for the child gets parental rights to family leave regardless of biological or legal relationship. The Department of Labor issued a final rule in 2015 which amended regulatory definition of “spouse” in the FMLA. It clearly stipulates “eligible employees in legal or same-sex marriage are able to take FMLA leave in order to care for their spouse or family member regardless of the place where they reside. The goal of this provision was to ensure spouses in same-sex marriage were given same ability as all spouses in order to fully exercise their FMLA rights (last name of author, year of publication).

In Chapter 3, I would like to answer the 2ndquestion on page 71 which asks what the three levels of the judiciary are and what is the name of the highest court in the United States (Kadian-Baumeyer, 2003).

As a law student, I am taught that the judiciary interprets whether laws are constitutional. It reviews laws passed by the president and congress. Both federal and state system have judiciary branch with rules determining whether a suit belongs in the state or federal court. Lawsuits arising from federal rules are better served in the federal courts. If plaintiff and defendant in a suit live in different states, lawsuits are decided by federal courts. State courts decide lawsuits in which the plaintiff and the defendant live in the same state. There are three levels of courts: the trial court, the mid-level appellate court and the highest level appellate court. The Federal court system divides the country into circuits representing certain regions with each circuit having several Districts. The District Courts have jurisdiction over criminal and civil actions on violations of constitutional rights and violation of treaties. A case tried in the U.S. District Court for Southern Florida was brought to the U.S. District Court because the United States was part of then suit (United States v Jose Hernandez, 2016). The U.S. claimed thousands of dollars in unpaid educational loans requesting a motion for summary of judgment which is a summary version of the case based on a discrete fact or merit of case. Money was owed to the Department of Education and Federal Treasury following the defendant’s default. Motion was granted to the plaintiff requiring the defendant to repay monies borrowed with interest. The Circuit Courts listen to cases where parties are dissatisfied with judgment of any of the U.S. District Courts. The Trial Court is referred to as “District Court” in the federal system while mid-level appellate court is “Circuit Court” with the highest court in the land being the U.S. Supreme Court. The U.S. Supreme Court is located in Washington D.C (Last name of author, year of publication). Comment by Windows User: A new paragraph should start here.

In Chapter 4, I would like to answer the 1stquestion on page 107 which inquires whether murder is a crime and how it differs from euthanasia stating whether the courts treat the two differently. Comment by Windows User: Do as instructed.

Murder is a crime since the act is done with the intent to kill a person. As an attorney in a murder case, I would be required to prove the defendant’s guilt beyond reasonable doubt in a criminal case. If a nurse injects the patient with enough drugs to kill him/her, they can be tried for murder. Question is whether the nurse performed the operation with the intention to kill. With intent in mind, jury wouldn’t find the nurse guilty beyond reasonable doubt. In a conversation that took place in Morton Hospital in Massachusetts between a nursing supervisor and a nurse later accused of willfully and intentionally killing her patient by a nursing supervisor, she admitted to knowing that the dosage would be enough to kill an elephant. The question of whether a corporation can be tried for murder was first tested in a Milwaukee criminal case that involved two laboratory officers accused of misreading Pap smears of two women. An inquest jury reviewed the deaths of the two win which led to the suit in court. The lab itself, the lab technician and the physician in-charge of the lab were to face criminal charges on recommendation of the jury. They agreed to practice restrictions. This was the first time a medical lab was being tried for charged with crime for an error. In the past such were tried as malpractice cases. Comment by Windows User: What do you mean?

Euthanasia is treated as mercy killing. It’s the act or practice of painlessly putting to death a person suffering from a distressful and incurable disease as an act of mercy. It’s a criminal act to help someone end their own life in some states with exception of few, which allow for physician-assisted suicide or those that lack relevant statues. Penalties for euthanasia are more lenient compared to those of murder (Last name of author, year of publication). Comment by Windows User: .. his or her .. Comment by Windows User: … few, which …

In Chapter 5, I would like to answer the 2ndquestion on page 126 which asks for implied and express consent in a hospital emergency room situation.

Patients with breast cancer should be given an opportunity to have their own vulnerability to the illness exposed. 50% of patients with breast cancer refused to take the test; 47% of the remaining 50% refused to receive test results while the others did not wish to be informed. The physician may make judgment that a patient should not be informed of his or her condition.

When the physician has an impairment and has to make a decision on informing the patient. An example is several malpractice suits might have been brought against the physician for whatever reasons or the physician has an infectious disease. Comment by Windows User: Unclear idea.

Moral and ethical obligations arise especially when physicians request experimenting on patient with drug that is in the research phase. Research tend to indicate some patients don’t want to listen to bad news from the physicians. Patients often fail to remember the details of the risk of a procedure or medication when it’s being communicated to them by the physician. Some patients might selectively remember comments by the physician and selectively forget other vital statements. The accuracy for memory for details of pending treatment is less when a patient is sick while less educated patients have a problem to recall information.

Patients sign forms prepared by lawyers stating knowledge of any possible adverse consequence of a procedure even though most patients don’t understand these forms (last name, year of publication).

In Chapter 6, I would like to go over question 6 on page 145. The questions ask for a list of the elements of a medical malpractice cause of action. As an attorney representing my client who is filling a lawsuit against a medical professional for medical malpractice, I would look for the following elements in order to have a cause of action: Comment by Windows User: See first comment Comment by Windows User: Separate the question from the answer.

I would try to prove there was a physician-patient relationship between plaintiff and the defendant established by contract law. Physician offered services which the patient accepted; hereby consideration was implied.

I would try to prove the physician-patient relationship established duty by the physician to the patient. Physician should inform the patient on procedure to be performed, associated risks, alternative methods and the prognosis.

I would try prove the duty had been upheld at a professional standard of care.

I would try prove the physician breached the duty of care to the patient. Physician did not communicate to the patient the alternative methods of treatment thereby depriving the patient option of choosing suitable treatment.

I would provide medical evidence to show that the plaintiff got a resulting injury as a result of the medical malpractice.

I would try prove that the physician’s malpractice was the proximate cause of the patient’s injury.

The elements of a medical malpractice case are the same whether the defendant is the physician or a therapist, nurse, medical assistant, technician as in the preceding cases or other defendant. A preponderance of evidence is required to meet each element so as the plaintiff to win the suit. You can improve your writing by not repeating “I would.” so many times.

References

Kadian-Baumeyer, K. (2003). The 3 Levels of the Federal Court System: Structure and Organization. Study.com.

Kunz, M. (2019). 5 Major Differences Bewtween a Corporation and a Partnership. Chron .

United States v Jose Hernandez, 15-13806 (United States Court of Appeals, Eleventh Circuit July 21, 2016).