© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 1 Chapter 1: Workings of the American Legal System

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 2 Introduction Management of health information requires an understanding of the law The health care field is impacted by: –Government regulation –Lawsuits affecting health care providers This chapter is a review of the types and sources of law

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 3 What is Law? System of tools for dealing with disputes and problems Sets forth a society’s: –Standards for behavior –Mechanisms to resolve conflict and enforce behavior Two general categories: –Public law –Private law

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 4 Private Law Sometimes called civil law Does not include criminal law Involves lawsuits between private parties and –Individuals –Corporations –Government Made up of contract law and tort law

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 5 Private Law: Contract Law Contracts are agreements between parties –Written or oral agreements may be legally enforceable Elements of a contract are: –Offer –Acceptance –Consideration (a bargained for exchange of value) A breach is a failure to fulfill the contract terms Parties may sue to enforce terms

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 6 Private Law: Tort Law Civil laws not involving contracts Deals with disputes about rights and duties Suits that claim wrongful conduct caused harm –Negligence law including medical malpractice –Defamation –Invasion of privacy

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 7 Public Law Concerns the relationship between government and –Private citizens –Private organizations –Other government agencies Categories include: –Criminal law –Constitutional law –Government regulations (e.g., CMS, IRS, etc.)

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 8 Public Law: Criminal Law Declares that certain conduct is unacceptable to public order and safety Defines such conduct Sets forth punishment for offenders Substantive criminal law defines felony and misdemeanor offenses Procedural criminal law: mandatory steps to be followed to prosecute offenders

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 9 Public Law: Laws affecting Government Rules for how government is to behave These rules flow from –Constitutional provisions –State and federal statutes –State and federal regulations Goal is to ensure compliance with rule of law

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 10 Sources of Law Laws originate from different sources: –Constitution –Statute (written law) –Administrative decisions and regulations –Common law (judge made law) Health care is impacted by laws created by each source

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 11 Source of Law: Constitution Fundamental law of a nation or state Establishes –Principles, functions, and limits on government –Structure and powers of government U.S. Constitution –Principles: life, liberty, and pursuit of happiness –Three branches of government –Bill of Rights

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 12 Source of Law: U.S. Constitution Establishes how federal government is organized Defines powers and duties of each branch –Legislative: enacts law –Executive: enforces and administers law –Judicial: interprets law Bill of Rights: provides for individual rights, freedoms, and protections: –Of religion, speech, the press, and to assemble –From unreasonable search and seizure

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 13 Source of Law: Statutes State and federal legislatures write laws These laws are called statutes –Become effective when approved by executive branch Federal statutes focus on national concerns State statutes focus on state interests

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 14 Source of Law: Statutes Conflicts of law may arise –State law may differ from federal law on same issue –State laws may differ from other state laws Disputes about which law to follow: –Resolved by court –To avoid dispute, contracts written specifying whose law applies

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 15 Source of Law: Administrative Regulations Health care is regulated by federal and state government agencies Each specialized agency –Is part of a department of the executive branch –Acts to carry out legislative policies Legislature assigns power to agencies to –Create rules and regulations –Make decisions about failures to comply with rules

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 16 Source of Law: Administrative Agencies Examples of federal regulators: –Department of Health and Human Services Center for Medicare Services (CMS) Center for Disease Control (CDC) Federal Drug Administration –Department of the Treasury Internal Revenue Service (IRS) Examples of state regulators: –Professional licensing boards –Departments of Health

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 17 Source of Law: Administrative Agencies Legislature delegates its authority to create law to an agency –Delegated powers limited to special subject matter Acts of agency must follow certain procedures: –Advance notice –Affected party may be present to challenge action –Public record must be created

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 18 Source of Law: Administrative Agencies Quasi-judicial powers –Granted by legislature –Authority to Make decisions about agency related matters Provide hearings for parties who dispute decisions Establish appeals processes Dissatisfied party may seek judicial review

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 19 Source of Law: Judicial Decisions Judge made law is called common law Courts hear disputes and render a decision To decide a case the judge considers: –Previous court decisions –Relevant constitutional provisions –Statutes and regulations

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 20 Source of Law: Judicial Decisions Courts are bound by precedent –Doctrine is called Stare Decisis –Decide case based on principles established in prior cases –Prior cases will be of same or similar facts –Courts are bound to the decisions of higher courts Trial courts must follow decisions of appeals court Appeals courts/district courts follow Supreme Court decisions

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 21 Source of Law: Judicial Decisions Doctrine of res judicata –Means a thing or matter is decided/settled –Comes into play after all appeals exhausted –Once a court renders a final decision, the parties cannot bring another action on the same claim –Applies only to the parties and issues in a lawsuit –Stare decisis applies to future decisions and different parties with similar issues

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 22 Branches of Government In United States, powers of government are described in the Constitution Three branches: –Legislative –Executive –Judicial Separation of powers –Division of powers divided to ensure balance

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 23 Legislative Branch Bicameral legislature: –Consists of two houses –Upper house: Senate –Lower house: House of Representatives or (for some states) Assembly –Federal legislature collectively known as Congress

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 24 Legislative Branch Enacts laws –Proposed laws are called bills –Legislative committees introduce, consider, and refine –Hearings may be held –If bills emerge from committee, they are sent to one house for approval –Bills must be approved by both houses to proceed –If approved, bills sent to president or governor for signature or veto –If signed, bill becomes a law

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 25 Executive Branch Functions to enforce and administer laws Chief executive –President at the federal level –Governor at the state level Organized by departments –Departments are subdivided into agencies Chief executive role –Approve or veto bills from legislature –Issue orders

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 26 Judicial Branch Functions to interpret law Adjudicates disputes –When parties cannot resolve their disputes, lawsuit is brought to court for judge to decide Courts consider statutes, constitution, and administrative laws –Applies these to facts of case –Follows doctrines of stare decisis and res judicata

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 27 Quasi-Legal Requirements Health care organizations must also comply with the expectations of private entities –Professional associations Standards of practice Rules of ethics –Accreditation The Joint Commission or American Osteopathic Association, for example –Hospital Policies and Procedures Medical staff by-laws and rules