Medical Law and Ethics FIFTH EDITION The Legal

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Medical Law and Ethics FIFTH EDITION The Legal System CHAPTER 2 Journal Topic: Why

Medical Law and Ethics FIFTH EDITION The Legal System CHAPTER 2 Journal Topic: Why is an understanding of the legal profession necessary for the healthcare professional. Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Learning Objectives 1. Define the key terms. 2. Discuss why an understanding of the

Learning Objectives 1. Define the key terms. 2. Discuss why an understanding of the legal profession is necessary for the healthcare professional. 3. Describe the sources of law. 4. Describe the steps for a bill to become a law. continued on next slide Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Learning Objectives 5. Discuss the difference between civil law and criminal law, explaining the

Learning Objectives 5. Discuss the difference between civil law and criminal law, explaining the areas covered by each. 6. List six intentional torts and give examples of each. 7. List examples of criminal actions that relate to the healthcare worker. 8. Discuss the difference between a felony and a misdemeanor. continued on next slide Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Learning Objectives 9. Describe the types of courts in the legal system. 10. Explain

Learning Objectives 9. Describe the types of courts in the legal system. 10. Explain the trial process. 11. Discuss why an expert witness might be used during a lawsuit. Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Two Fundamental Processes • Federal System § Power divided between central (federal) government and

Two Fundamental Processes • Federal System § Power divided between central (federal) government and smaller (state) governments Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Two Fundamental Processes • Checks and Balances § Designed so that no one single

Two Fundamental Processes • 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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

The Legal System U. S. Constitution • Legislative Branch § Lawmaking body (Senate and

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Figure 2. 1 The Branches of the U. S. Government Medical Law and Ethics,

Figure 2. 1 The Branches of the U. S. Government Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Sources of Law • Constitutional Law § Addresses relationship between individuals and their government

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 continued on next slide Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Sources of Law • Common or Case Law § Established from court decisions. Based

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Classification of Laws • Public § § Criminal Administrative Constitutional International Medical Law and

Classification of Laws • Public § § Criminal Administrative Constitutional International Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen • Private or Civil § § § Tort Contract Property Inheritance Family Corporate Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Civil (Private) Law • Concerns relationships between individuals or between individuals, businesses, and government

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

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

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Intentional Torts • Assault § Threat of bodily harm • Battery § Actual bodily

Intentional Torts • Assault § Threat of bodily harm • Battery § Actual bodily harm • False imprisonment § Violation of one's liberty • Defamation of character (slander/libel) continued on next slide Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Intentional Torts • Fraud (i. e. , embezzlement) § Deceitful practice • Invasion of

Intentional Torts • Fraud (i. e. , embezzlement) § Deceitful practice • Invasion of privacy § Break in confidentiality Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Unintentional Tort • Negligence § An unintentional action that occurs when a person either

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 continued on next slide Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Unintentional Tort • Involves performing carelessly or failing to perform a task • Not

Unintentional Tort • Involves performing carelessly or failing to perform a task • Not exercising ordinary standard of care Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

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

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Contracts • Expressed Contract § Agreement entered into orally or in writing; all components

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 continued on next slide Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Contracts • Abandonment § Withdrawing medical care from a patient without providing sufficient notice

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 continued on next slide Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Contracts • Abandonment § Withdrawing medical care from a patient without providing sufficient notice

Contracts • Abandonment § Withdrawing medical care from a patient without providing sufficient notice (in writing) Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Class Action Lawsuit • Filed by one or more people on behalf of a

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Public/Criminal Law • Protects public from harmful acts of others • Defines socially intolerable

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Administrative Law • Regulations set by government agencies include: § Licensing and supervision of

Administrative Law • Regulations set by government agencies include: § 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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

The Court System • Two court systems in the United States § State §

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Figure 2. 2 Separation of Powers in the Federal Legal System Medical Law and

Figure 2. 2 Separation of Powers in the Federal Legal System Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Types of Courts • Federal § District (municipal) § Court of appeals (circuit court)

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Figure 2. 3 Federal Court Structure Medical Law and Ethics, Fifth Edition Bonnie F.

Figure 2. 3 Federal Court Structure Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Figure 2. 4 Components of Civil Law Medical Law and Ethics, Fifth Edition Bonnie

Figure 2. 4 Components of Civil Law Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Figure 2. 5 Felony Case Process Medical Law and Ethics, Fifth Edition Bonnie F.

Figure 2. 5 Felony Case Process Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Figure 2. 6 Misdemeanor Case Process Medical Law and Ethics, Fifth Edition Bonnie F.

Figure 2. 6 Misdemeanor Case Process Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Trial Process • Grand Jury consists of 12– 23 private citizens • Hears evidence

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

The Procedure • Litigation § May result when two parties are unable to solve

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 continued on next slide Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

The Procedure • Settling out of court § Occurs when attorneys for both sides

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 continued on next slide Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

The Procedure • Closing argument § Attorneys for the plaintiff and the defendant make

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Figure 2. 7 The Procedure for a Civil Trial Medical Law and Ethics, Fifth

Figure 2. 7 The Procedure for a Civil Trial Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Summary Judgment • Request made by an attorney • Takes place in a civil

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Subpoena • Discovery § Process by which facts are discovered • Deposition § Oral

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Standards of Proof • Several different levels of proof are required • Civil case:

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Expert Witness • Professional who has special knowledge or experience • Assists jury or

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, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved

Testifying in Court Tell the truth Be professional Remain calm Do not answer a

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 • • Medical Law and Ethics, Fifth Edition Bonnie F. Fremgen Copyright © 2016, 2012, 2009 by Pearson Education, Inc. All Rights Reserved