1. What are the two parts of the U.S. Constitution? The main body and the amendments

2. The U.S. Constitution is a grant of power from? The states to the federal government

3. The first ten amendments are known as? The Bill of Rights

4. Is the right to privacy included in the bill of rights? No (read into the 4, 5, 9, 14th amendments

5. Is separation of church & state in the constitution? No, it’s read into the constitution. (What IS in the constitution = there can be no state religion)

6. Is health care a constitutional right? No

7. What did the 14 th amendment do in 1870? Made the Bill of Rights applicable to the states

8. What are the three branches of the government? Legislative (makes the laws), Executive (administers the laws), Judicial (interprets laws – supposedly don’t make law but it does)

9. In the federal system, what courts are below Courts of Appeal? District Courts (Original Jurisdiction Trial Courts)

10. What court is above the Courts of Appeal? The U.S. Supreme Court

11. In the military system, what court is below the U.S. Supreme Court? The U.S. Court of Appeals for the Armed Services

12. What court is below the U.S. Court of Appeals for the Armed Services? Court of Criminal Military Appeals for each branch of the military

13. From the lowest to the highest, name the courts in a typical state system. Limited Jurisdiction Inferior Courts (small claims, traffic court)  General Jurisdiction Trial Courts  First Level Appellate Courts  State Supreme Court

14. If there is no federal question, what is the highest a case can go? State Supreme Court

15. What are the two appellate levels in the federal system? The Court of Appeals and the Supreme Court

16. How many appellate levels are in the military system? What are they? Three – Service specific Court of Military Criminal Appeals, U.S. Court of Appeals for the Armed Services, U.S. S.Ct.

17. What kind of courts is equal to trial courts in each of the branches the military system? S ervice specific Courts-martial

18. Which four courts can send cases directly to the Supreme Court? The Court of Claims and other Special Courts, Courts of Appeals, and State Supreme Courts

19. Define law A system of rules that defines socially acceptable behavior and sets punishments for violations

20. Statutory – enacted by legislation

21. Common – case/judge made law (unwritten law of Old England)

22. Administrative – rules/regulations

23. Public – relationship of individual to government

24. Private – people to people (between individuals)

25. Substantive – “guts” of the law

26. Procedural – lawyers use to guide cases

27. Criminal – crimes and punishment

28. Civil – everything else

29. What is another name for Common Law? Judge made law

30. The three most common types of law are? Statutory, Common, and Administrative

31. An Act (e.g., Tucker Act) is what type of law? Statutory

32. What is the one exception to the rule that an act is statutory law? UCMJ (Uniform Code of Military Justice)

33. Administrative laws are rules and regulations of governmental agencies pursuant to? Statutory authority

34. What is the Common Rule and what type of law is it? Rule covering human subject research Administrative

35. List three other types of administrative law DoD Regulations, OSHA Regulations, Army/Air Force/Navy/Marine Corps Regulations

36. Ferris v. United States is what type of law? Common Law (judge made)

37. What is the Uniform Anatomical Gift Act? Right to make gift while you are alive of a body part when you are dead

38. Is the Uniform Code of Military Justice administrative or criminal law? Criminal

39. What right does the Patient Self- Determination Act give the patient? Right to information and self-directives

40. What is the statute of limitations for torts? 1 to 2 ½ years

41. What is the statute of limitations for contracts? 4 – 6 years

42. Is clear and convincing evidence or preponderance of evidence required in civil or criminal court? Civil court (Beyond a reasonable doubt for criminal)

43. Is trial by jury guaranteed in a criminal or civil court? Criminal

44. Who is harmed in a criminal case and who is harmed in a civil case? Society is harmed in a criminal case; an individual is harmed in a civil case

45. To what extent must someone be convicted in criminal court? Beyond a reasonable doubt

46. Who decides to proceed with prosecuting a case in a rape case? District attorney or prosecutor

47. What is “self help” and in what type of law is it applicable? Decision to pursue is the individual’s – Civil

48. Is Tort Law criminal or civil? Civil

49. List three other types of civil law Contract Law, Domestic Relations, Probate Law

50. List four types of law that have implications for both criminal and civil law Environmental Law, Tax Law, Conflict of Laws, Juvenile Law

51. What are two types of criminal law? General Criminal Law and Military Law

52. What is “Conflict of Laws”? Deals with questions arising out of jurisdiction (What law should be applied, what court has jurisdiction, or how laws of different jurisdictions shall be reconciled)

53. Define a tort A non-contractual, civil wrong, committed against a person or his/her property for which a court may award a remedy in damages

54. Describe the anatomy of a civil lawsuit in order. Briefly describe each component. Complaint - the plaintiff’s first pleading in a civil suit

55. Describe the anatomy of a civil lawsuit in order (Cont.) Answer - the legal pleading through which a defendant responds to the allegations of the plaintiff

56. Describe the anatomy of a civil lawsuit in order (Cont.) Discovery – the fact-finding stage in a lawsuit where the parties find out about each other’s case

57. Describe the anatomy of a civil lawsuit in order (Cont.) Trial - pre-trial motions, opening statements, evidence presented, closing, verdict/judgment, post-trial motions

58. Describe the anatomy of a civil lawsuit in order (Cont.) Appeal - complaint to superior court, which alleges an error committed or injustice wrought by inferior court

59. What is a deposition and when is it taken during a lawsuit? A discovery tool, whereby one’s oral testimony is taken under oath in response to examination and cross-examination by the parties’ attorneys Depositions are taken during discovery

60. What are interrogatories? A discovery tool in a civil lawsuit (question sets)

61. What should a health care administrator do if asked to provide medical records during the motion to produce documents? Never give the medical record; give a certified copy.

62. What is being argued at the appellate level? Law only – not the facts of the case

63. What is the citation for the U.S. Courts of Appeal? F.

64. What are the two citations for the Supreme Court? U.S. or S.Ct.

65. How many Courts of Appeal are in the federal system? 13

66. What is the citation for U.S. District Courts? F.Supp

67. What is the citation for U.S. Courts of Appeal for Armed Services? M.J.

68. Explain the following citation: 649 So.3d. 636 Volume 639, Southern region, 3 rd series, page 636

69. Explain the following citation: 272 F. Supp. 409 Volume 272, Federal District Court, page 409

70. Explain the following citation: 499 U.S. 160 Volume 499, U.S. Supreme Court, page 160

71. Which is the more recent citation? 1 F.3d. 14 or 11 F. 2d. 480 1 F.3d. 14

72. What does “Ann” mean in a citation? Annotated

73. What does “CFR” stand for? Code of Federal Regulations

74. What are two examples of Special Courts in the federal system? U.S. Court of Appeals for Armed Services and U.S. Court of Patents

75. 17. citation: USC U.S. Code

76. Which federal court cases are published? All

77. In most states, which cases are published? Only Intermediate (Appellate) Court and State Supreme Court cases – trial court cases are not published.

78. Describe the following: (a) 71 SE 769 (a) Volume 71, Southeastern Reporter, page 769 (State Appellate Court)

79. (b) 10 USCA 980 (b) Title 10, U.S. Code Annotated, Section 980

80. (c) 56 F. 774 (c) Volume 56, Federal Court of Appeals, page 774

81. (d) 46 CFR 1388 (d) Part 46, Code of Federal Regulations, Section 1388

82. (e) Ross v. CIGNA (e) Case law

83. (f) 14 M.J. 337 (f) Volume 14, Military Justice, page 337

84. (g) 12 F.Supp.310 (g) Volume 12, Federal District Court, page 310

85. (h) 16 S.Ct. 954 (h) Volume 16, Supreme Court, page 954

86. Fl. Stat. Ann Florida State Code Annotated

87. Much of contract law is a matter of common law, with the exception of? Government contracts

88. What is the administrative law behind government contracts? Federal Acquisition Regulations (FAR)

89. Government contracts favor? Small business, organized labor, veterans, and depressed areas

90. What was government law originally called? Procurement laws

91. Government contracts are a matter of administrative law but are enabled by _____ laws. Statutory

92. What are the elements of a contract? Competent parties Legal subject matter Offer Acceptance Consideration Mutual agreement Required form

93. What is required to be a competent party to enter a contract? Sufficient present mental ability and legal age

94. Very seldom, if ever, does an advertisement qualify as a contract. The advertisement is merely? An invitation to deal

95. What is consideration? The inducement for entering in a contract (given for something of value)

96. In the military system, what court is below the U.S. Supreme Court? The U.S. Court of Appeals for the Armed Services

97. What court is below the U.S. Court of Appeals for the Armed Services? Court of Criminal Military Appeals for each branch of the military

98. From the lowest to the highest, name the courts in a typical state system. Limited Jurisdiction Inferior Courts (small claims, traffic court)  General Jurisdiction Trial Courts  First Level Appellate Courts  State Supreme Court

99. What is the Common Rule and what type of law is it? Rule covering human subject research Administrative

100. List three other types of administrative law DoD Regulations, OSHA Regulations, Army/Air Force/Navy/Marine Corps Regulations

101. What is the Uniform Anatomical Gift Act? Right to make gift while you are alive of a body part when you are dead

102. List three other types of civil law Contract Law, Domestic Relations, Probate Law

103. What are two types of criminal law? General Criminal Law and Military Law

104. What is “Conflict of Laws”? Deals with questions arising out of jurisdiction (What law should be applied, what court has jurisdiction, or how laws of different jurisdictions shall be reconciled)

105. Define a tort A non-contractual, civil wrong, committed against a person or his/her property for which a court may award a remedy in damages

106. What is being argued at the appellate level? Law only – not the facts of the case

107. Much of contract law is a matter of common law, with the exception of? Government contracts

108. What was government law originally called? Procurement laws

109. Very seldom, if ever, does an advertisement qualify as a contract. The advertisement is merely? An invitation to deal

110. What is consideration? The inducement for entering in a contract (given for something of value)

111. What does mutual agreement mean? The parties must be talking about the exact same thing for consideration (i.e. meeting of the minds as to the subject matter)

112. What is meant by “required form”? What form is required for a contract – i.e. Is it required to be written or can it be an oral (spoken) contract?

113. What question is answered by The Objective Theory of Contracts? If the intent is not clear in a contract, the judge will determine intent of the contract, in effect, by asking, “What would a reasonable person have intended?”

114. What are the methods of classification of contracts? By means of formation By stage of performance By enforceability

115. What are the ways in which contracts can be classified by means of formation? Unilateral or bilateral Express or Implied Formal or Informal

116. What is the difference between unilateral and bilateral? Unilateral – acceptance requires performance Bilateral – acceptance requires only a promise

117. What is the difference between expressed or implied contracts? Expressed – one in which all terms are clearly stated Implied – not every term or element was expressed; at least one term is inferred from the conduct of the parties

118. What are the types of implied contracts? Implied-In-fact (all terms are clearly written out) Implied-In-law (at least on term is not clearly expressed in contract, however is implied in law)

119. What is the basis for the obligation in an Implied-In-Fact contract? Based on conduct rather than an expressed agreement

120. Describe the situation when the Implied- In-Fact contract is based on conduct rather than on expressed agreement The plaintiff furnished a service or property, the plaintiff reasonably expected to be paid; the defendant knew or should have known, t he defendant had a chance to reject receipt of service or property and did not

121. What is another name of an Implied-In- Law contract? Quasi-contract

122. List three things that describe an Implied-In-Law or Quasi-Contract. A legal fiction (there is no contract at all) No mutual agreement Quantum meruit – “as much as he deserves”

123. What are the underlying premises of quasi-contracts? One should not be unjustly enriched at the expense of another One should be recompensed what he deserves (quantum meruit)

124. What is the difference in a formal and informal contract? Formal – Complies with stated requirements, such as to be in writing Informal – Has no stated requirements

125. What are two examples of a formal contract law? Statute of Frauds – Requires that certain types of contracts be in writing to be enforceable (each state has one) Uniform Commercial Code – merchant’s contract of sale of good has to be greater than $500

126. What must be determined in classification of contracts by stage of performance? Has the contract been executed (completed) or not?

127. What are the three types of contracts in classification by enforceability? What are they? Valid contract – one containing all of the required elements Void contract – no contract at all Voidable contract – a valid contract which one or both parties can get out of under certain circumstances

128. What is another name of an Implied-In- Law contract? Quasi-contract

129. What is the difference in a formal and informal contract? Formal – Complies with stated requirements, such as to be in writing Informal – Has no stated requirements

130. What must be determined in classification of contracts by stage of performance? Has the contract been executed (completed) or not?

131. What are the three types of contracts in classification by enforceability? What are they? Valid contract – one containing all of the required elements Void contract – no contract at all Voidable contract – a valid contract which one or both parties can get out of under certain circumstances

132. What is an example of a void contract? A person judged to be incompetent can’t sign a contract. If he does, the contract is void.

133. What is an example of a voidable contract? A minor can get out of a contract if he says he wants out or he can ratify when he reaches legal age.

134. What is a “legal excuse” for not complying with a contract? Defense

135. What is the Plain Meaning Rule? A rule of interpretation = the meaning of a contract’s words are to be given their ordinary meaning.

136. How does the Plain Meaning rule affect enforcement of the contract? The contract will be enforced without interpretation.

137. What is the Common Meaning Rule? Apply the common meaning of terms unless it is obvious to the average person that a special technical meaning applies (Is a bridge a structure over water or is it dental work?)

138. In the Rule of Conflicting Provisions, what governs? The specific will govern over the general The handwritten will govern over the typed/printed (almost obsolete)

139. What is the Rule against Ambiguities? Ambiguities will be construed against the author

140. What is the Parole Evidence Rule? Nothing outside the contract may be used to change its terms if the parties intended it to be the final and complete expression of their agreement.

141. Are there any exceptions to the Parole Evidence Rule? Yes (Examples: contract is incomplete, obvious mistake, terms are ambiguous, subsequent modifications, etc.)

142. What are the remedies to a contract? Briefly describe them. Damages – monetary compensation or indemnification which may be recovered through a court

143. What are the remedies to a contract? (Cont) Rescission – terminates contract; returns parties to the positions they occupied prior to making the contact

144. What are the remedies to a contract? (Cont) Restitution - compensation placing an plaintiff in the same position as if the original legal decision had not been enforced

145. What are the remedies to a contract? (Cont) Specific Performance – performance required under a contract (doing what you’re supposed to do in the first place)

146. What are the remedies to a contract? (Cont) Reformation – court orders correction of contract to reflect the parties’ original intent; rewriting the contract (court “fixes it” by reforming the contract usually for mutual mistake)

147. What are the remedies to a contract? (Cont) Quasi-contract (Implied-In-Law) – not really a contract at all, rather it is an obligation created by a court to prevent the unjust enrichment of one party at the expense (typically, a significant expense) of another

148. How does restitution apply to a situation where one party had begun to perform work before a breach of contact occurred? He could receive restitution for the part of the contract completed (i.e. return him to his original position)

149. What are the two most commonly sought after remedies? Damages = most common Specific performance

150. What are the defenses to a contract? Briefly describe them. Elemental – one or more of the elements of the contract is missing or unclear at its inception

151. What are the defenses to a contract? (Cont) Performance/Satisfaction – defendant asserts he did what he was supposed to

152. What are the defenses to a contract? (Cont) Impossibility – contract absolutely cannot be completed through no fault of the defendant (i.e., an act of God has occurred that prevents it)

153. What are the defenses to a contract? (Cont) Sovereign Immunity – a sovereign cannot be sued without it own consent

154. What are the defenses to a contract? (Cont) Frustration of Performance – defendant asserts plaintiff’s conduct prohibited him from carrying out his obligation (didn’t let him do the work he wanted to do)

155. What are the defenses to a contract? (Cont) Frustration of Purpose – defendant asserts he is excused from obligation because purpose of contract was frustrated

156. What are the defenses to a contract? (Cont) Statute of Limitations – the time period in which actions may be brought has run out (4–6 years in contracts)

157. What are the defenses to a contract? (Cont) Release – a surrender of a cause of action gratuitously or for consideration the plaintiff believes to be inadequate; also the document evincing this release or satisfaction

158. What are the defenses to a contract? (Cont) Res judicata – Latin for “the matter is adjudicated” (the thing has been decided); the rule that final judgement on the merits by a court of competent jurisdiction may not be heard again

159. If a person takes legal action in a contract dispute and loses, can he attempt to resolve it through torts? Why or why not? No, he has one “shot” in each court system (civil or criminal). He cannot pursue his case in torts after losing in contracts because both are in the civil system.

160. What is the purpose of damages in contracts? To put the wronged individual in the position that he would have been in had the contract been fully performed.

161. Who is the recipient of the damage awards? Plaintiff

162. Name and describe four types of damages generally awarded in contracts. Liquidated – contractual provision written in the contract specifying a certain amount to be paid in the event of a future breach (“If you breach this contract, you will have to pay this amount”)

163. Name and describe four types of damages generally awarded in contracts. (Con) Nominal – a very small amount awarded due to a technical breach but there is little or no actual damage

164. Name and describe four types of damages generally awarded in contracts. (Con) Compensatory –those damages intended to compensate a person – damages sought and/or awarded for injuries actually sustained and which arose directly from the breach of contract

165. Name and describe four types of damages generally awarded in contracts. (Con) Consequential –those damages caused by special circumstances beyond the contract itself, but resulting from the failure to properly carry out the bargain – they flow from the consequences of failure to carry out the bargain

166. Who are the offeree and the offeror? Offeree – the person to whom an offer is made Offerror – the person making an offer

167. What is the Mirror Image Rule? The acceptance in a contract must meet the offer exactly.

168. What is a Counter-offer? Response of an offeree wherein he rejects the offer, but makes a new offer by changing the terms of the offer

169. Consideration is “something of value for something of value”. What are 4 examples of “something of value”? A promise (this is an enforceable considerable) Money A service Or detrimental reliance

170. What is detrimental reliance? When I rely on you, I do so at my detriment.

171. Consideration is sufficient when ….? Detrimental to him who gives/promises it Beneficial to him who receives/is promised it

172. Consideration is insufficient when ….? Preexisting duty Moral obligation only Promised thing has occurred

173. If there is a requirement for a contract to be in writing, is an unwritten contract enforceable? No

174. What is a third party beneficiary contract? A contract is entered into by two parties for the benefit of a third. The non-party to the contract who is intended to receive the benefit is the third party beneficiary.

175. What is the General Rule in contracts? The rights and duties arising from a contract affect only those party to it.

176. What are the exceptions to the General Rule? Third party beneficiary contracts Assignments of rights Delegations of duties

177. What are the types of third party beneficiaries? Intended beneficiaries Incidental beneficiaries (unintended)

178. In a third party beneficiary contract, what is the difference between a creditor and a donee? Creditor – Person making the contract owes something to beneficiary and it is intended that he pay back the beneficiary Donee – Person making the contract does not owe beneficiary anything

179. In the U.S., incidental beneficiaries can sue in almost all instances. (T/F) False, incidental beneficiaries usually cannot sue; intended beneficiaries usually can sue.

180. Public beneficiaries of government contracts are treated as beneficiaries, unless the contract provides otherwise. Incidental

181. The transfer of rights to a third person is known as? An assignment

182. After assignment, what happens with regard to the assignor’s rights and duties? The assignor’s rights are extinguished, but the duties remain.

183. Does assignment of rights relieve a person of the potential for liability? Why or why not? No, because the duty remains (Example: sublet apartment and the person “bails” – you are still liable for the rent)

184. Who assigns the right and who receives the right? Assignor = person who assigns (the “doer”) Assignee = person who receives

185. You ________ a right and _________ a duty. Assign a right and delegate a duty

186. If a hospital delegates duties to a subcontractor, is the hospital normally relieved of liability if the subcontractor fails to perform? No

187. Rights cannot be assigned or duties cannot be delegated that are ________? Uniquely personal

188. Duties cannot be delegated when? Performance depends on personal skill or talent of obligor Special trust has been placed in the obligor

189. Name & describe three contractual conditions Condition precedent – a condition that must be fulfilled before a party’s performance under a contract can be required Condition subsequent - a condition, the occurrence of which, terminates an obligation to perform under a contract Concurrent condition - the parties are to perform their duties simultaneously

190. What is an expressed condition in a contract? Condition stated in the agreement (If, when, provided that)

191. What is an implied condition in a contract? Condition not in the agreement but read into it

192. What is the difference in an implied-in-fact and implied-in-law condition in contracts? Implied-in-fact are understood by the parties, but not part of the agreement Implied-in-law are imposed by law in the interest of fairness

193. Covenants not to compete or restrictive covenants are frowned upon but are judged based upon their _____? Reasonableness (in regards to time and distance)

194. What is breach of contract? Nonperformance of duty

195. Name & describe three breaches of contract. Minor - performance is “close” so performance is at least substantial Anticipatory - when a party announces refusal to perform in advance of obligation to do so Material – when performance is less than substantial

196. What can happen in each of those breaches of contract? Minor – Nonbreaching party IS NOT discharged but may sue Anticipatory – Nonbreaching party can sue immediately Material – Nonbreaching party MAY be discharged and may sue

197. What is the difference in meaning between the words “damage” and “damages”? Damage (singular) – what the person suffered Damages (plural) – monetary compensation which can be recovered through courts

198. What type of damages is not generally awarded in contracts? Explain what they are? Punitive damages - Those intended to punish the wrong rather than to recompense the wronged

199. What are the two purposes of punitive damages? Punish the wrongdoer Deter others

200. Rescission is an action to undo a contract because of? Fraud, mistake, duress, undue influence, misrepresentation, or lack of capacity

201. Only when the dollars would not be an adequate remedy When is specific performance granted as a remedy?

202. What is the definition of a tort? A non-contractual, civil wrong committed against a person or his property for which a court may award a remedy in damages

203. What are the types of torts? What is the main premise of each? Torts of strict liability – Liability imposed apart from any theory that the defendant was negligent (unleashed a dangerous instrumentality & it hurt someone --- doesn’t matter if it was negligent.)

204. What are the types of torts? (Cont) Intentional torts – The person intended the action but did not intend harm

205. What are the types of torts? (Cont) Negligent torts – The person failed to exercise care to a degree that a reasonable and prudent person would typically exercise under similar circumstances

206. Name and describe some intentional torts? Assault – Intentional, unconsented to threat or action which puts an individual in fear of harm

207. Name and describe some intentional torts? (Cont) Battery – An intentional, unconsented to touching

208. Name and describe some intentional torts? (Cont) False imprisonment – Wrongfully restricting a person’s freedom of movement

209. Name and describe some intentional torts? (Cont) Violation of the right of privacy – Wrongful release of confidential information

210. Name and describe some intentional torts? (Cont) Abandonment – Wrongfully terminating the doctor-patient relationship (leaving patient while care is still needed)

211. Name and describe some intentional torts? (Cont) Defamation (libel/slander) – Intentional tort involving injury to the character of another by false and malicious statements

212. Name and describe some intentional torts? (Cont) Intentional infliction of emotional distress – intentional act which causes mental distress and which may or may not be accompanied by physical harm

213. Name and describe some intentional torts? (Cont) Outrage – a very bad instance of intentional infliction of emotional distress (In jurisdictions which distinguish between intentional infliction of emotional distress & outrage, outrage is the more egregious)

214. Distinguish between the two types of defamation. Libel – written & more permanent Slander - oral & more transient

215. What are the four elements of legally actionable negligence? Duty Negligent breach of duty Injury Causation

216. Explain what is meant by causation Injury was due to the act but it can be more subtle causation. “But for the fact” - But for the negligent act of the person who commits the tort, the unfortunate secondary harm would never have occurred.

217. What is the primary cause of negligent medical torts and what are some examples? Failure to fulfill any duty Failure to consult Failure to refer Failure to obtain informed consent Abandonment Breach of confidentiality

218. Name & describe the defenses to tort actions Elemental – required element is missing

219. Name & describe the defenses to tort actions (Cont) Good Samaritan – a person who in good faith renders emergency care shall not be held liable for any civil damages unless the act is willfully or wantonly negligent

220. Name & describe the defenses to tort actions (Cont) Res judicata – the thing has been decided = only 1 bite out of the system

221. Name & describe the defenses to tort actions (Cont) Truth – defense to defamation

222. Name & describe the defenses to tort actions (Cont) Release – a surrender of the cause of action, which might be gratuitous or given for an inadequate consideration (for something less than the person is entitled to)

223. Name & describe the defenses to tort actions (Cont) Satisfaction – a surrender of cause of action because full compensation has been paid

224. Name & describe the defenses to tort actions (Cont) Charitable Immunity –a defense against liability in a tort action due to status as a charity (rather old & outdated defense)

225. Name & describe the defenses to tort actions (Cont) Sovereign Immunity – the sovereign cannot be sued without its consent

226. Name & describe the defenses to tort actions (Cont) Assumption of the Risk – the plaintiff was award of a given risk to which he now attributes his injury, was at least substantially aware of gravity of its risk, accepted it, and acted to his own peril

227. Name & describe the defenses to tort actions (Cont) Contributory Negligence – prohibits recovery in tort by a plaintiff whose own negligence has contributed to the injury

228. Name & describe the defenses to tort actions (Cont) Comparative Negligence – assigns responsibility for damages in proportion to a party’s fault in causing them

229. Name & describe the defenses to tort actions (Cont) Statute of Limitations –the time period by which actions can be brought in torts is 1 -2 years (if the time has exceeded that limit, recovery is barred)

230. Truth is a defense to which tort? Defamation

231. In which tort is there a legitimate third party involved? Defamation (3 rd party is the “hearer”)

232. What defenses do torts and contracts have in common? Elemental Res judicata Release Satisfaction (wasn’t included on last year’s but I think Performance/Satisfaction in contracts = satisfaction in torts) Sovereign Immunity Statute of Limitation

233. Describe the key points of res judicata. There has been a final judgment The individuals are the same The cause of action/issue is the same The legal system is the same

234. Compare and contrast the defense of release and the defense of satisfaction. In both defenses, there is a surrender of a cause of action. Satisfaction requires full compensation paid for the injury Release is given without compensation or less than the injured person was entitled

235. If the plaintiff in a tort is 55% at fault for the injury, how much can he recover? Zero (The general rule in contributory negligence is, if the plaintiff is 50% or greater at fault for the injury, no recovery can be made)

236. What is the difference between contributory negligence, comparative negligence, modified negligence? Contributory negligence - if the plaintiff negligence has contributed to the injury alleged, he can’t recover anything. Comparative negligence - if the plaintiff is partially to blame, his award is reduced (think of the person who is DUI killing someone who was not wearing a seatbelt). Modified comparative negligence – If the plaintiff is 50% or more at fault, recovery is barred.

237. What is the American theory of damages? An amount of money is necessary to make the injured party whole (dollars don’t really do this but there are “accepted” dollars for various injuries)

238. What is the basis for determining personal injury damages? The plaintiff’s condition immediately prior to the negligent event

239. What is the key issue to consider in aggravation? What would have been the result had everything went well except for the negligence? (i.e. what about the care aggravated the situation?)

240. Name four damages in tort. Briefly describe each. Special damages – those damages awarded in tort for economic loss. There is an objective basis to determine them. (lost wages) General damages – those damages award in tort for non- economic loss. These are very subjective (loss of pleasures of life). Nominal damages – awarded for a technical wrong & very little money recovered (rarely seen) Punitive damages – damages awarded to punish the defendant for willful, wanton, or grossly irresponsible activity and to deter similar situations

241. What are some examples of special damages? medical expenses lost wages cost of repairs impairment of earning services in the home child care if required modifications to the house

242. What are some examples of general damages? Pain & suffering Permanency of the injury Effect of injury on 3rd parties Physical impairment Loss of use Visible scarring Loss of enjoyment of life

243. T or F Punitive damages are seen frequently in medical malpractice cases. False, they are rare.

244. What are hedonic damages? An amount awarded to some tort actions to compensate the plaintiff for loss of life’s pleasures. (General damage)

245. Can general damages be recovered for pain and suffering when the injured is in a persistent vegetative state? What about hedonic damages? Pain and suffering - no recovery for as he is not aware Hedonic – can recover as you can argue for loss of life’s pleasures

246. Remittur – Reduction in the award by the judge due to excessive damages awarded or as a matter of law or with the plaintiff’s agreement, made as a condition of a judge’s denial for a motion for a new trial

247. Additur – A trial judge’s increase in damages by a jury, made with the consent of the defendant, and as a condition of denying the plaintiff’s motion for a new trail when the judge believes the amount is inadequate

248. What is joint and several liability? That liability existing when, one or more of the parties is sued separately or all of together as their actions either occurred in concert or, if separate, resulted in a single injury

249. What is the Medical Standard of Care? To act as a reasonable and prudent _____________ would act under the same or similar conditions. (compares 1 OB nurse to another, 1 cardiologist to another, etc.)

250. How is the medical standard of care determined? Determined using national or professional standards (expert witness testimony, standards in the profession, JCAHO standards, peer review journals, etc.)

251. What is the locality rule as related to medical standard of care? An almost obsolete rule applied to the determination of standard of care in medical malpractice; it measures the provider against other providers in the same locality or community

252. What two cases are important to remember with regard to the application of the standard of care? Which rule or standard did each establish? Small v. Howard - The locality rule or standard Brune v. Belinkoff - National or professional rule or standard

253. What are the four elements of legally actionable negligence? o Duty o Negligent breach of duty o Injury o Causation

254. What is the duty as an element of legally actionable medical negligence? To meet the medical standard of care (minimum that is acceptable)

255. What are the 2 types of negligence? Personal (individual) and corporate

256. What must be present for individual negligence? Duty (MUST be first) Negligent breach of duty Injury Causation

257. What must be present for corporate negligence? Duty (MUST be first) Negligent breach of duty Injury Causation

258. List some examples of individual negligent medical torts (failure to fulfill any duty). Failure to consult Failure to refer Failure to obtain informed consent Abandonment Breach of confidentiality

259. How do you identify corporate negligence? Look for the duty. If corporate duty is breached, then there is corporate liability based on corporate negligence.

260. Describe respondeat superior and its significance to corporate liability? “Let the master answer” The employer/principal can be held liable for the negligent in-scope torts of his agents/employees. It makes the employer liable for employees’ in-scope tort (corporate liability based on individual negligence) It is a societal risk-spreading device The corporation is not negligent, but it is liable

261. What is an agent? A person acting for the principal at the principal’s request.

262. Give a health care example of an agent. Contract physician the E.R

263. What is an ostensible agent? Someone who hasn’t explicitly made your agent but is still acting as your agent.

264. What is the FTCA? Federal Tort Claims Act

265. T/F The FTCA does not apply the principle of respondeat superior. False, the FTCA applies the principle of respondeat superior.

266. How is expert medical testimony used in a medical malpractice case? To establish the Medical Standard of Care

267. Expert medical testimony is needed and not needed in what types of situations? Needed in those situations beyond the ken (understanding) of the average laymen Probably not needed in those involving infection, slight scarring, or when “the thing speaks for itself”

268. What term is used for “the thing speaks for itself”? What does it mean? Res ipsa loquitur – means a layperson would understand

269. What are the 3 conditions for res ipsa loquitur? The event would not ordinarily occur absent negligence Apparent/presumptive cause was within exclusive control of defendant No negligence on the part of the plaintiff

270. List some medical examples of res ipsa loquitur? Wrong patient Wrong limb/body part Foreign body left in patient Explosion or fire

271. What partially abrogates (does away with) the defense of sovereign immunity with regard to torts? The Federal Tort Claims Act (FTCA) of 1946

272. What doctrine is applied by the FTCA? Respondeat Superior (“Let the master beware”)

273. Who is held responsible for liability and who is protected under the FTCA? Makes the government liable Protects negligent, in-scope employees from personal liability

274. What are the FTCA rules? In-scope torts of agents and employees (Must be within the scope of one’s employment – what the employee is generally supposed to be doing) Must have occurred in the U.S. (NOT overseas) Applying state law Two-year statute of limitations (from the point of discovery) Trial by judge alone (NO jury) Trial is held in U.S. District Court (NOT state court – always F.Supp) No limit on damages No punitive damages may be awarded

275. What are the FTCA exceptions? Intentional torts, except of law enforcement officers (and, IAW the Gonzalez Act, of DoD healthcare providers) In foreign countries Involving combatant activities

276. What is important to remember about the Feres case? The government is not liable under the FTCA for injuries to service-members when those injuries arose out of, or were in the course of, activities incident to service.

277. What questions should be asked in determining if a wrong was done by an agent of the U.S. government per the Feres doctrine? Was he an agent or employee of the U.S. government? Was the person on active duty? Was he doing what he was supposed to be doing in the course of his service? Was he exercising military privilege? You must determine the status of injured, NOT the person filing the suit. After determining this, you must determine if it was incident to duty

278. Can the civilian spouse of an active duty serviceman recover damages if the serviceman is injured pursuant to his duties? No

279. Are leave and pass considered military privileges per the Feres doctrine? No

280. Is government liable for injuries to a retiree under Feres? Yes, he is considered a civilian for purposes of the Feres doctrine

281. What is the first step when pursuing an action against the government? Filing a claim (signed and with a $ figure on it)

282. If a claim is denied, the claimant can sue, and must sue, if at all, within what time frame? Six months

283. How much time can elapse before a claim is filed and the statute of limitations runs out? 2 years

284. What is the Feres rationale? A system of compensation exists Necessary to maintain military discipline Necessary to prevent applicability of state law

285. What law operates overseas much the same as the FTCA operates in the U.S? The Military Claims Act

286. Informed Consent is a two sided coin and includes: Informed Consent Informed Refusal A process of informed decision-making

287. What are the elements of consent? Decision making capacity (sufficient mental ability & age) Information Voluntariness Agreement/Request

288. Can you require informed consent? No, but information and explanation should be provided to the pt

289. T or F Assent is used to mean consent sufficient to be legally binding. False Consent = the term used to mean sufficient to be legally binding, sometimes called “informed consent” Assent = sometimes used to mean acquiescence or agreement that is not legally sufficient

290. Decision making capacity includes? Legal age Ability to take in information Ability to process information Ability to communicate information (Last three constitute sufficient mental ability)

291. What ethical principle is addressed as a legal issue in Schloendorff? Autonomy or respect for autonomy

292. Information provided for Informed Consent must include: The procedure The risks (reasonably anticipated) The benefits The alternatives to the procedure – including the likely effect of no medical intervention

293. What are 2 important considerations related to voluntariness? Refusal cannot be coerced and be voluntary Refusal can be influenced and still be voluntary

294. Which case provides the basic, underlying rule for informed consent? Schloendorff

295. What is the leading case in the U.S. on informed consent? Canterbury v. Spence

296. What is the purpose of an institutional review board? To review human research and research protocols

297. T or F Use of a family member as a translator gaining informed consent works well since the family has to be involved anyway. False (family has built-in biases)

298. T or F Asking a child if it is ok to do a procedure is an acceptable method of gaining consent. No, that is assent (does not meet the test of informed consent)

299. What is the basis for surrogate decision- making? And what is meant by each? Patient’s best interests What surrogate thinks would be in the patient’s best interests Surrogate’s substituted judgment Surrogate decides based on what he thinks the patient would have wanted

300. Examples of substituted consent (judgment) identified by state statutes Spouse Adult child with consent of others Majority of children Parents Designated individuals Closest other relative Member of the clergy

301. When is consent not required? Emergency (and can’t be reasonably obtained) Therapeutic privilege Treatment ordered by a court – “judicial permission” Treatment required by law Nonconsensual treatment permitted by law – military

302. What is meant by therapeutic privilege? When a physician does not give all of the information necessary for the patient to make a decision because the risk of telling the patient is greater than or equal to the risk of the procedure or treatment.

303. How is the disclosure standard set? The amount of information to be disclosed is to be a reasonable patient centered standard rather than a physician centered standard. It should be based on what a patient would think is important – not what a physician would

304. When is substituted consent needed? Minors Other incompetents

305. T or F A patient has right to refuse care during an emergency. True

306. T or F If the patient did not give consent prior to a procedure, the provider should ask the patient to sign an informed consent later to protect the hospital False

307. What are the elements for refusal of care? Decision making capacity Information Voluntariness Declination/Refusal Notice that this is the same as the elements for consent EXCEPT the last one.

308. When is substituted refusal used? For minors For other incompetents

309. What is ghost surgery? What are the repercussions? Occurs when a patient consents to surgery from 1 physician and the surgery is done by another physician. Pt. can sue for battery. It’s condemned by all major medical professional associations.

310. What are the states 4important interests in cases involving medical treatment decisions? Preservation of life Prevention of suicide Protection of innocent third parties Maintenance of the ethical integrity of the health care professions

311. What is an Advance Directive? A document by which a competent individual provides for the making of medical decisions during periods of his/her incompetence

312. What are the three types of advance directives? DNR orders Living Will Durable Powers-of-Attorney Note: If only asked for two, then give durable powers-of-attorney and living wills.

313. When does a power-of-attorney become effective? When does it become ineffective? Becomes effective on the date stated Becomes ineffective upon the grantor’s incapacity

314. What are two requirements for a power- of- attorney? The person giving the power-of-attorney must have legal competence The attorney-in-fact must have legal competence

315. Is a general power-of-attorney a creature of common law or statue? Common

316. Is a durable power-of-attorney a creature of common law or statute? Statute

317. When does a durable Power-of-Attorney become effective? Upon signed execution (when signed) or the grantor’s loss of decision-making capacity (“springing” power of attorney = springs into effect when person becomes incompetent and when person recovers, it becomes dormant)

318. When does a common power-of-attorney lose effect? With loss of competence

319. What is a type of advance directive that is executed by an individual, while competent, directing health care providers to use, or not to use, or to withdraw certain life-sustaining modalities from him should he become incompetent and be in a terminal condition? Living Will

320. What are three conditions of a living will? Terminal condition exists (requires physician certification) Takes effect when a stated medical problem occurs Relies on health care providers to implement

321. What is a type of advance directive by which a competent adult retains, or attempts to retain, control over his own medical care during periods of incapacity through prior designation of an individual to make health care decisions on his behalf? Durable power-of-attorney

322. What are three elements of a durable power-of-attorney? Takes effect upon loss of decision-making capacity Employs a named agent Grants decision-making power for any medical situation

323. The Patient Self-Determination Act is applicable to what types of organizations? Hospitals, nursing facilities, home health care organizations, hospices, HMOs if receiving Medicare or Medicaid

324. The Patient Self-Determination Act pertains to information about? Right to refuse care Right to execute an advance directive The institutions policies regarding such rights (how, when, etc.)

325. Under the Patient Self-Determination Act, covered organizations must: Comply with state law about advance directives Not condition care on execution or failure to execute an advance directive Educate staff and community about advance directives

326. T or F Health care facilities who do not receive Medicare or Medicaid do not have to follow the Patient Self-Determination Act False – JCAHO standards closely track the Patient Self-Determination Act

327. The Right to Die is founded in: Schloendorff (1914): “Every human being of adult years and sound mind has the right to determine what shall be done with his own body.”

328. Death is defined as: The act or process of dying; that which ends life.

329. What is the Harvard definition for brain dead? A human body with irreversible cessation of total brain function as determined according to usual and customary standards of medicine.

330. What is the Harvard criteria for brain dead? Unreceptivity and unresponsivity No movements or breathing No reflexes A flat EEG, which shows that there is nor discernible electrical activity in the cerebral cortex.

331. Upon which time after declaring someone dead are organs to be harvested? Upon declaration of “death.” The body should not be treated as a living entity.

332. According to the Harvard criteria brain dead is dead. Is a persistant vegetative state considered dead? PVS is not dead because there is still brain activity.

333. What is the criteria for brain dead? A person who is brain dead is dead. Dead, legally, is dead. Dead, medically, is dead. Health care providers treat the living not the dead. Patients are alive, and not to be associated with dead.

334. What are the two state laws for organ and tissue donation? Uniform Anatomical Gift Act Coroner Unconsented Anatomical Donations

335. Can organ donation be willed or contracted? Why? No. Because it follows the act of death and doesn’t lend itself to organ harvesting.

336. What law governs the gift of a person’s body parts after death? The Uniform Anatomical Gift Act

337. What is DoD policy on organ donation of dead servicemembers? IAW DoD Policy Directive 6465.3, a dead service member’s body (to include all organs) will be released to the next of kin upon completion of investigation.

338. Should parents of an encephalic be allowed to permit organ harvesting? Why? No. Deemed unethical by the AMA.

339. When are autopsies conducted? Predominantly for education purposes. When death is under suspicious circumstances.

340. When are autopsies consensual? When agreed upon by next of kin.

341. When are autopsies non-consensual? Due to cultural or religious considerations.

342. What is the military autopsy authority? And what does it say? 10 USC 1471 (1999) Authorized by state law – state authority and jurisdiction is waived to the military. As granted by the next-of-kin.

343. What should be considered in military autopsies? Authority is limited. Must have concurrent jurisdiction (state and federal) or exclusive military jurisdiction. Cultural or religious considerations need to be accomodated. Must consider status of the person.

344. Circumstances body parts may not be returned? Tell the truth about where located….? Held for examination or testing. Held as evidence pending outcome of investigation or verdict in trial.

345. When may it be necessary to exhume a dead body? Occasionally necessary for legal purposes.

346. Is a tort involving the dead body of an individual who died while on active duty barred by Feres? Why? No. Feres applies to individuals or servicemen on active duty and does not apply upon a servicemember’s death.

347. What was the ruling in Roe v. Wade (1974)? “The right of personal privacy includes the abortion decision, but the right is not unqualified and must be considered against important state interests in regulation.”

348. What are the two important state interests in Roe v. Wade? The woman’s health Protecting the potentiality of human life

349. What are the 3 periods and 3 rules in Roe v. Wade? 1 st trimester Decision up to the woman & her physician End of 1 st trimester to viability State may regulate abortion to protect the woman’s health Viability to birth State may regulate abortion to protect the potentiality of human life (except if adverse effect on woman’s health or life)

350. According to Planned Parenthood v. Danforth (1976), can the written consent of the woman be required for abortion? Yes

351. According to Planned Parenthood v. Danforth (1976), can the written consent of the spouse be required for abortion? No

352. According to Planned Parenthood v. Casey (1992), can the notification of the spouse be required for abortion? No

353. According to Planned Parenthood v. Danforth (1976), can the written consent of a parent be required? No

354. According to Belotti v. Baird (1979), can parental consent or judicial authorization be required? Yes

355. What is meant by judicial bypass as related to a minor and abortion ? The child can bypass parents by going to a judge

356. According to Webster v. Reproductive Services (1989), can viability testing be required? Yes

357. According to Planned Parenthood v. Casey (1992), can a 24 hour waiting period be required except in an emergency? Yes

358. According to Planned Parenthood v. Casey (1992), can collection of data and record keeping be required? Yes

359. Must a state fund 1 st trimester abortions that are not medically necessary? Cite the case. No; Maher v. Roe (1997)

360. According to Harris v. McRae (1980), does Title XIX require a state to fund medically necessary abortions for which federal reimbursement is unavailable? No

361. May a state prohibit the use of its facilities/personnel to perform abortions? Cite the case. Yes; Maher v. Roe

362. According to Rust v. Sullivan (1991), may counseling about, referral for, and advocacy of, abortion be banned within Title X (Family Planning Services) projects? Yes

363. What did is the best lesson learned from the cases on sterilization of incompetents (Buck v. Bell and Guardianship of Hayes)? This is a mine field. Seek legal guidance

364. In the area of sterilization of incompetent minors, how has the law changed over time? From an era of Buck v. Bell where sterilization was common to an era where it is difficult to get a minor sterilized

365. T or F Funds available to DoD and medical treatment facilities may not be used to perform abortions under any circumstances. False - Funds available to DoD and medical treatment facilities may not be used to perform abortions EXCEPT where the life of the mother would be endangered if the fetus were carried to term

366. T or F According to the Surgeon General of the Army, a “morning-after” contraceptive is not considered an abortion. True

367. What does the Church Amendment permit? Allows denominational hospitals to refuse to perform sterilizations

368. What are the differences between wrongful life and wrongful birth? Wrongful life Child’s action Alleging: Because of birth defects, I should not have been born Child has mental/physical problems Wrongful birth Parent’s action Alleging: Tortfeasor’s negligent action or omission resulted in the birth of a child they would not have chosen to have Child may have mental/physical problems or may be healthy

369. T or F In cases of artificial insemination, if the husband’s sperm is used, the husband is the father. True

370. T or F In cases of artificial insemination, if donated sperm is used, the husband is the father. True

371. Medical Records Ownership? Owned by hospital, MCO etc. (however maintains the record) Patient has a privacy right (ensures the owner maintains it) Patient has a property right (may exercise or waive this right)

372. Medical Records are: Charts Fetal heart tapes X-ray Photos Computerized data

373. Four Privacy Interests Physical and mental solitude Personal information Freedom from false publicity Name or likeness

374. 4 infringements on privacy Intrusion upon physical or mental solitude or seclusion Public disclosure of private facts “False light” publicity Appropriation of name or likeness for financial benefit or other gain

375. FOIA Freedom of Information Act (FOIA) –To make governmental information available

376. FOIA Pertains to ANY federal record (not state) Exemption (there are many, i.e.… -for personnel and medical files) Reasonable fees Local release Denied by IDA (Initial Denial Authority) Appeal process Fines

377. 3 Purposes of Privacy Act To let individuals know what info the gov’t maintains on them To allow them to correct erroneous info To keep the info from those whom it does not pertain

378. Privacy Act Pertains only to info maintained in: –A SYSTEM OF RECORDS Exemptions exist for personal info Generally no fee Local release or amendment Appeal process Fines

379. Privacy Act Who can deny a request for information –Access and Amendment Refusal Authority AARA

380. Quote from Tarasoff(1976) “The protective privilege ends where the public peril begins”

381. What are the codes that provide international guidance on human research? Nurnberg Code Declaration of Helsinki CIOMS/WHO guidelines The Common Rule

382. What are some of the basic principles of Nurnberg code? Scientific Merit Animal experimentation Reasonable risk-benefit ratio Qualified researchers Informed consent of the subject

383. The Declaration of Helsinki includes the same principals as the Nurnberg code. Additionally, it permits (5): Substituted consent permitted Committee review of all protocols Subject’s right to privacy Accurate reporting of results Distinction between clinical and non-clinical research

384. The Belmont Report incorporates what 3 ethical principles? Respect for persons, Autonomy Beneficence Justice

385. True or false: A shortcoming of the Belmont Report is that it does not distinguish research from medical practice False: Belmont Report DOES distinguish research from medical practice

386. True or false: The Belmont Report addresses the need for simple language True

387. Give the 4 classic principals of medical ethics Autonomy Beneficence Justice Nonmaleficence

388. Primum non nocere means_____________. “First, do no harm; above all, do no harm”

389. The Common Rule applies to what type of research? It applies to all research involving human subjects conducted, supported, or otherwise subject to regulation by the federal government

390. What is the purpose of an IRB as set forth by the Common Rule? To review and approve research IAW the Common Rule

391. What are the “protected classes” according to the Common Rule? Incompetents Pregnant women Prisoners

392. A IRB expedited review is for research activities that_____________. Research activities involving no more than minimal risk and in which only involvement of human subjects is limited to certain categories of research as defined by the Common Rule

393. Under 10 USC 980 (as originally written), use of DoD funds for human experiments may not be used for research involving a human being unless___________. Informed consent is obtained in advance; or In the case of research intended to be of beneficial to the subject, the informed consent of the subject or a legal representative of the subject is obtained in advance

394. What changes did the 2001 amendment to 10 USC 980 bring? Placebos were authorized for use

395. True or false: The Common Rule applies to human research conducted in foreign countries under the control of the U.S. federal government True

396. T/F The learned professions are subject to the Sherman Act? TRUE.

397. Which Act was not intended to restrain state action or official action directed by a state? Sherman Act. (Parker vs. Brown)

398. What is the purpose of Section 1 of the Sherman Act? How do you prove it? Prohibit restraints on trade. Demonstrate restraints on trade thru contract or conspiracy, or both.

399. What is the purpose of Section 2 of the Sherman Act? How do you prove it? Prohibit monopolies. Possession of monopoly power with willful acquisition above normal growth.

400. Which test should be used to determine if state action should be shielded from anti- trust laws? Parker test.

401. What are the two prongs of the Parker test? State has to have clearly expressed policy. And have active supervision of that policy

402. T/F The right to practice is absolute? False However, there are some guarantees

403. What are examples of problem areas in managed care? Contracts Torts Vicarious liability Human resource management

404. What are examples of problem areas in contracts in managed care? Wording of contracts Personal vs. non-personal services FAR & fiscal system in federal system

405. What are possible problem areas in torts in managed care? Interlocking relationships (multiple players) Vicarious liability

406. What are two types of corporate liability? Corporate negligence (Corporation had duty, breached it, and injury resulted) Vicarious liability (Read as Agent)

407. What does vicarious liability mean? Corporation is liable for the individual’s negligence

408. What are possible problem areas in human resources? Interpretation of law

409. Explain the highlights of the cases on the following slides.

410. Scholendorff v. Society of the City of New York Hospitial 1914 Judge Cardozo “Every human being of adult years and sound mind has the right to determine what shall be done to his own body.” Emphasized autonomy Basis of informed consent

411. FEDERAL TORTS CLAIM ACT (FTCA) (1946)  Allows Federal government to be sued, partially doing away with sovereign immunity.  Applied to negligent in-scope torts of agents and employees. We consider Red Cross volunteers agents. Typically employees are paid whereas agency can be authorize volunteers.  Statute of limitations is 2 years  Must file claim before filing lawsuit  No jury trial  No punitive damages  No limitation on damages  Does includes application of substantive state law  US only  Not negligence as a result of war or combatant activity.

412. Feres Doctrine (1950) Military member can not sue the government for negligence when the injury arises during: –The course or duty or –Exercising a military benefit Is an exception to th Federal Tort Claims Act (FTCA)

413. Canterbury v. Spence (1972) Informed consent case. Not required for: –Therapeutic privilege. –Emergency. –Treatment ordered by court. –Treatment required by court.

414. Matter of Fosmire v. Nicholeau (1989) Right to die case. 4 state interests: –Preservation of life. –Prevention of suicide. –Protection of innocent third parties. –Preservation of the ethical integrity of the medical profession.

415. Matter of Quinlan (1976) Right to die, right to terminate. Persistent Vegetative State (PVS) introduced. Used preponderance of evidence to determine matter. First to suggest ethics committees.

416. Cruzan v. Director, Missouri Department of Health (1990) Right to die, right to terminate care, also states rights. One of the few modern states rights cases (Missouri). Used clear and convincing evidence to determine matter. State has right to have stricter evidence rule.

417. Vacco v. Quill Right to die and physician assisted suicide. There is no right to physician assisted suicide in the U.S. Constitution, however states are not precluded from having laws to allow it. Oregon allows physician assisted suicide.

418. Washington v. Glucksburg Right to die. Physician can not intentionally write a prescription for medicine to allow a patient to commit suicide.

419. Roe v. Wade Legalized abortion. Established 3 stages and 3 rules for abortion.

420. What are the 3 stages of Roe v. Wade? Stage 1 – from conception to the end of the 1 st trimester. Stage 2 – end of 1 st trimester to fetal viability. Stage 3 – viability of birth.

421. What are the 3 rules of Roe v. Wade? Rule 1 – decision is up to woman and her physician. Rule 2 – state may regulate abortion to protect the mother’s health. Rule 3 – state may regulate except when necessary for the woman’s health or life.

422. Maher v. Roe Dealt with abortion. Specifically dealt with states paying for 1 st trimester abortions. States have the right to determine how it will spend its money (whether from federal or state). State is not legally compelled to use public funds to offer 1 st term abortions. States MAY do so if they desire.

423. U.S. v. Karl Brandt Nurenburg doctors’ trial or medical trial. Nurenberg code for ethics. Established the modern rules of medical treatment. 10 points made of significance for experiment. (next question)

424. 10 Points of U.S. v. Karl Brandt 1. Voluntary, informed consent of subjects 2. Scientific merit for good of society which can’t be gained by other method(s). 3. Based on results of animal experimentation, knowledge of disease/problem under study, anticipated results justify the experiment. 4. Avoidance of physical and mental suffering during conduct. 5. No experiment if possibility of death or disablement. 6. Reasonable risk – benefit ratio 7. Proper preparation and adequate facilities to prevent even remote possibilities of injury, disability, or death 8. Qualified researchers 9. Experimentee may terminate at his/her discretion 10. Experimenter must be prepared to terminate if reason to belive continuation result in injury, disability, or death

425. Moore v. Regents University of California Research – conversion case Profiting from patient without consent

426. Tarasoff v. Regents University of California (1976) “Protective privilege ends where public peril begins” Psychiatrist has duty to inform threatened person or authorities if patient states intent to harm an identifiable individual. Threat to the public must be: 1. Believable 2. Plausible 3. Identifiable Not true in state of Texas

427. Goldfarb v. Virginia State Bar (1975 Antitrust – price fixing Supreme Court ruled the learned professions (e.g., law, medicine, theology) are not exempt from the requirements of antitrust and restraint of trade laws and are therefore subject to the Sherman Act.

428. Parker v. Brown “The Sherman Act was not intended to restrain state action or official action directed by a state.” Private party can act in violation of anti-trust law if it meets both parts of Parker test: 1. Clearly expressed policy – private entity’s actions must be execution clearly expressed state policy 2. Active regulation – state must be actively supervising private entity’s execution. (active supervision hardest to prove)

429. PLANNED PARENTHOOD v. CASEY (1992) A. Supreme Court ruled that a state (Pennsylvania) could regulate abortion during any stage of pregnancy, as long as the regulation did not place an “undue burden” on the women’s ability to obtain an abortion. 1. An undue burden exists if the purpose or effect of a law is to place a substantial obstacle in the path of a woman seeking an abortion before viability. 2. Specifically, the court found that Pennsylvania’s requirement for a woman to notify a spouse of the abortion before it occurs was an undue burden. B. Note: the court allows requirements for parental consent for minors, only if the state allows for a judicial bypass option allowing a minor to get a court ruling stating parental consent is not required

430. GONZALEZ ACT (1976) Written in conjunction with FTCA to protect DOD health care providers by immunizing them from liability for in- scope personal negligent torts. Provided for transfer of cases to Federal court and substitution of the U.S. government as the defendant. Hole in Gonzalez Act...what about military physicians overseas or physicians in civilian residencies? Gonzalez Act did not clearly include these groups...thus those people needed to get their own coverage. The SMITH case plugged the loophole. Ultimately superseded by the Westfall Amendment. Made FTCA exclusive remedy for those seeking damages for allegedly improper medical treatment by military HC providers