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Behavioral Science

Jurisprudence (Post-Midterm)

Question	Answer
What is ‘Blackletter Law’?	Law that is ‘written in stone’, basically legal precedent that has been solidified over time and doesn’t change much
What is ‘Contingency Fee & Costs’?	Lawyer takes case they think is winnable with no upfront fees, b/c payment will be made after the case is won. It is essentially a bet that the lawyer will win the case and get a percentage of the payout and if the case is lost, the client pays nothing.
What does the term ‘reasonable man’ relate to?	It is a theoretical standard that everyone is held to that relates to a forseeable or predictable event (ffor example, if you do not maintain your porch, someone may get hurt when walking on it). It is not an uncontrollable ‘act of God’.
What does the term ‘Cause of Action’ mean?	You’ve done something that gives someone else the right to sue you
What does the term ‘Tort’ mean?	It is a specific type of cause of action – an action in which something negligent occurs where duty to others has been violated.
What type of cause of action do nearly all medical malpractice cases fall under?	Tort
What does the term ‘battery’ mean?	Any unauthorized touching. This creates a cause of action. If touching occurs with consent, it is not considered battery. Consent must be informed.
Describe how a criminal case varies from a civil case.	Criminal = crime committed so state attempts to punish, jail time is possible with verdict of ‘guilty’. Civil = No crime has been committed, two parties attempt to settle a disagreement, no fail time is possible. Verdicts include liable vs. not liable.
Which type of government handles physician discipline?	State government
Which type of government handles criminal law?	State government
What are the ‘4 D’s’ of Tort Liability?	1) Duty, 2) Dereliction, 3) Damages ($), and 4) Direct Cause (toughest area for lawyers to prove in medical malpractice cases)
What charges do reckless and death bring about?	Manslaughter or Murder
Describe the difference in burden of proof between civil and criminal cases.	Only 51% in civil cases, where it must be beyond a shadow of a doubt (101%) in criminal cases.
Are defendants required to testify in civil cases?	Yes, but not for criminal cases (one can please the 5th amendment and not take the stand in criminal cases)
What does the term ‘privileged’ mean?	Information or communication that is not admissible in court, privileged communication occurs between a husband and wife, a patient and doctor, a lawyer and client, or a person and their spiritual advisor.
What is a legal system?	An operating system for a society
What are the 2 major legal systems used in the Western world?	Common Law and Civil Law
Where is Civil Law practiced?	Most of Europe, Latin America, Quebec, and Louisiana
Where is Common Law practiced?	England, Canada (except Quebec), United States (except Louisiana), and in many former British colonies including South Africa, Grenada, and parts of India.
What ancient legal system is the Civil Law system based upon?	Rome
What legal system is the Common Law system based upon?	British/English
What is the main difference between Civil and Common Law legal systems?	Civil Law = laws are made only by the legislature, Common Law = Courts are given the power to interpret laws and therefore set legal precedence in laws, in addition the laws made by legislature.
What is ‘Stare Decisis’?	Latin for ‘Stand on Decision’ which means courts will often uphold precedence set by other, previous cases.
If a doctor treats a patient without informed consent, are they subject to civil, criminal, or both types of law?	Both types of law
Give an example of an ancient code of law that was written in stone (literally).	Code of Hammurabi (1772 BC)
What is the state (California) legislature called?	Assembly
What is the federal (USA) legislature called?	Congress
Who is the Executive in state (California) government?	Governor
Who is the Executive in federal (USA) government?	President
What is the trial court in state (California) government?	Superior Court
What is the trial court in federal (USA) government?	US District Court
What does the 10th amendment state?	Powers not delegated to the USA by the constitution, nor prohibited to the state, are reserved to the states respectively, or to the people.
What does the Commerce clause (article 1 section 8) state?	Congress has the power to regulate commerce within foreign nations, among states, and with Indian tribes.
What is the highest court in state government?	Supreme Court of the State
Does the Supreme Court of a State try cases or hear witnesses and what is the function of this court?	No – The Supreme Court of a State reviews cases brought in lower courts for error. IT has the final legal authority on issues of state law.
Can a decision of the Supreme Court of a State be appealed to the US Supreme Court if there is no issue of federal law?	No, federal law must be involved
How many Courts of Appeal does the state of California have?	6
What is the function of the Court of Appeals of a state?	Review records of the lower courts for errors of law, similar to a state’s supreme court. It is very seldom that an appellate court will set aside the factual determinations of a trial court.
How many superior courts of a state are there in California?	One for every county in the state.
What is the function of state superior courts in California?	Conduction of trials, evidence introduction, and hearing of witnesses.
Where are most medical malpractice cases heard in the state of California?	In a trial (superior) court in the state where the case is filed.
Where are most medical malpractice cases heard in states other than California?	In the state’s court of general jurisdiction (In the state of Florida, this court is called the ‘circuit court’ while in New York, this court is (confusingly) called the supreme court)
Where are most medical malpractice cases heard in Canada?	Various provincial courts of general jurisdiction known as superior court, court of queen’s bench, or even (like NY) supreme court
Where are most medical malpractice cases heard in England?	In England, the trial court of general jurisdiction is the High Court, Queen’s Bench division.
What does being a ‘court of general jurisdiction’ mean and how does this differ from a court of limited jurisdiction?	If an issue is justiciable at all, it can be heard at a court of general jurisdiction. A court of limited jurisdiction can only decide cases assigned to it by law.
Give an example of a court of limited jurisdiction.	Traffic court (ie- you cannot be sued for medical malpractice in traffic court or tried and sentenced to murder in traffic court, etc.)
What is the jurisdiction of the US supreme court limited too?	Federal issues arising under the constitution and the laws of the USA
If a state supreme court has ruled on an issue, is its decision final (cannot be appealed to US Supreme Court)?	Yes, unless a federal issue is involved in which case the can be appealed to the US supreme court
How many Circuit Courts of Appeal are there for the Federal (US) circuit?	11
What is the jurisdiction of the US Federal Circuit Court of Appeals?	They primarily review cases decided in US district courts which are principal trial courts in the federal system. The federal Court of Appeals served as a buffer between US trial courts and the US supreme court.
If a case is decided in one of the federal appellate courts, is it likely that the US Supreme Court will accept it for review?	No, unless it is a very important issue, for example – Obamacare (or if different US courts of appeal have reached different conclusions on the same issue and the contradictory cases need to be reconciled)
Do US federal courts of appeal hold trials?	No, they review the record established in the trial courts
How many US judicial districts (US district courts) are there?	94, every state has at least 1 US district court and many have more than 1.
Which level of court are federal trials held in?	US district courts (It is in these courts that cases are filed, juries are empanelled, evidence is introduced, and witnesses are heard)
Are United States Courts those of limited jurisdiction?	Yes, they can only hear cases allowed to them by law. Usually, a complaint filed in a US district court to begin a legal action leading to a trial will include a clause explaining why the court has the jurisdiction (authority) to hear the issue.
US District courts hear cases based mostly on what type of law?	Federal law
Does a US district court have the authority (jurisdiction) to try medical malpractice cases?	No, b/c most malpractice laws = state law. Exception = ‘diversity jurisdiction’ = plaintiff and the defendant live in different states, then the US district court can provide a forum for the lawsuit though based on laws in the state where the issue arose.
What is the supreme law of the land?	Federal law as laid out by the US Constitution
Order, from most supreme to least supreme, sources of laws in the US.	Constitution (most powerful) -> Acts/Laws passed by Congress -> Regulations adopted by agencies like the FDA or HHS (lesser power) For example, HIPAA is an act passed by Congress, but HIPAA’s Privacy rule is a regulation adopted by the US Dept of HHS
If an administrative regulation contradicts or is not supported by an act of Congress, is in enforceable?	No
Describe the US government in terms of its range of power.	The US federal government is a limited government with only those powers allowed to it by the US Constitution. The federal government does not have a general police power permitting it to legislate on purely local matters.
Is state law supreme within that state?	Yes, unless there is a federal law to the contrary
Describe how state governments and federal government vary.	Unlike the federal government, state governments are general governments and can exercise the police and regulatory power on all matters within the state. Sometime, the federal and state governments have police power over the same matter.
Is physician discipline a federal matter?	No, because physicians are licensed, regulated, and disciplined under state law.
What happens when it is unclear whether an issue is a matter of state jurisdiction or federal jurisdiction?	Conflicts occur – and this has happened more and more in recent years as the federal government tries to extend its reach into states.
Give some examples of conflicts between state and federal government.	1) Firearm ammunition (Montana), 2) Public lands (Western states), 3) Incandescent light bulbs (Texas and South Carolina), 4) Medical Marijuana (16 states), 5) Physician assisted suiced (Oregon), and Obamacare (multiple states)
Which clause in the US Constitution has been offered for the legal justification for much of the federal intrusion in what others argue are areas left to the states?	The commerce clause (for example, the ‘individual mandate’ clause in the Patient Protection and Affordable Care Act (Obamacare) is claimed to be authorized by the commerce clause in the Constitution.
What is the principal obligation assumed by a physician who accepts a patient?	To render medical treatment within the standard of care
What is ‘standard of care’?	Standard of care requires physicians to render medical care with the degree of care, skill, and learning that would be expected of a reasonably prudent physician.
Which 3 terms describe the physician-patient relationship?	Therapeutic, Contractual, and Fiduciary
Describe the ‘therapeutic’ aspect of the patient-physician relationship.	The intention of the physician-patient relationship is to deliver medical care to the patient
Describe the ‘fiduciary’ aspect of the patient-physician relationship.	It is primarily for the benefit of the patient and the patient is entitled to a matter of law to place his trust in the physician with the confidence that the physician will not take personal advantage of the relationship.
Describe the ‘contractual’ aspect of the patient-physician relationship.	The contract between patient and doctor is create and begins at the moment the physician accepts the patient for treatment.
Describe how a doctor examining a patient for employment or insurance varies from that of the normal physician-patient relationship.	MD hasnt accepted examinee as a pt for medical care and has not entered a contractual physician-patient relationship. Therefore, this doctor is not held to the same set of duties that are imposed on a doctor in a true physician-patient relationship.
What is the ‘standard of care’ based on?	Standards recognized and accepted within the medical community.
How is the opinion of the medical community expressed in court?	Through the testimony of expert witnesses
What is a ‘statute of limitations’?	A period of time in which a lawsuit must be filed to be considered valid
What are ‘jury instructions’?	When a jury deliberates on a medical malpractice case it doesnt get the law from books w/ statutes, cases, or rules, rather its given to the jury by the judge in the form of jury instructions, many of which are standardized and become the law of the case.
How do jury instructions state the law?	Simply and clearly, as the jury sees it.
What is ‘fault’ according to Arizona Jury Instruction for medical malpractice?	Medical negligence that was a cause of injury to the plaintiff. Before being found guilty, one must prove the doctor’s negligence was a cause of injury.
When does negligence cause injury?	Negligence causes an injury if it helps produce injury and if the injury would not have occurred without the negligence. In other words, there must be damage(s) and a direct cause.
When claiming physician negligence, the plaintiff has the burden of proving which 3 thing?	1) The doctor was negligent, 2) the defendant’s negligence was a cause of injury to the patient, and 3) the patient’s damages.
Are doctor’s basically required to be perfect?	No, the California Jury Instructions have a ‘Success not Required’ clause which states the physician is not necessarily negligent just because their efforts aren’t successful or they make an error that was reasonable under the circumstance.
Describe and expert witness.	A physician who has some specialized (expert) knowledge of the type of medicine and standard of care at issue. A qualified expert may testify as to his or her expert opinion.
Can an ordinary witness offer their opinion on an issue being tried in court?	No, an ordinary lay person may testify only to facts of which they have personal knowledge. They may not offer their opinion
Are physician expert witnesses paid for their expertise on the stand?	Yes, but his payment cannot be contingent upon the outcome of the lawsuit.
What happens to a physician expert witness who intentionally misstates the standard of care or falsifies their testimony?	They may be subject to professional discipline, suspension, or loss of medical licensure.
What does the AMA Code of Medical Ethics Opinion9.07 Medical testimony state?	Medical experts should have recent/substantive experience in area they testify for and should limit their testimony to their medical expertise. They should also be prepared and honest. Also, it’s unethical to receive compensation based on case outcome.
What does Federal Rules of Evidence Rule 702 “Testimony by Experts” state?	If scientific, technical, specialized knowledge assists jury in understanding evidence, a qualified expert witness may testify their opinion with testimony based on 1) sufficient facts/data, 2) reliable principles/methods, 3) application to the case.
What happens if expert witness testimony is found to be negligent, dishonest, or incompetent?	Punishment by the board of medicine of the doctor’s licensing state
What does the Latin phrase ‘Res Ipsa Loquitur’ mean?	“The thing (injury) speaks for itself”
How is the doctrine of ‘Res Ipsa Loquitur” applied in court?	It may be used when there is no direct evidence of negligence on the part of someone but the injury/damage could not have happened unless the party in control of the mechanism that caused the injury had been negligent.
What 5 factors are required to claim ‘Res Ipsa Loquitur”.	1) evidence of injury cause isn’t obtainable, 2) injury doesn’t happen without negligence, 3) plaintiff didn't cause own injury, 4) Defendant had sole control of instrumentality that caused injury, and 5) injury couldn’t have been caused by anything else
In general, describe the duration of the physician-patient relationship.	Having once accepted a patient for treatment, the contract continues and the physician must provide until the relationship is ended properly.
When does the physician-patient relationship end?	1) When pt no longer requires treatment, 2) When pt unilaterally ends the relationship, 3) When pt and MD mutually agree to end relationship, or 4) when MD unilaterally ends relationship, giving proper notice and time for patient to seek another doctor
What is failure to properly terminate the physician-patient relationship called?	Abandonment
Is abandonment by a physician punishable by law?	Yes, abandonment is a tort for which a physician can be sued
What does the AMA Code of Medical Ethics Opinion 8.115 state about termination of the physician patient relationship?	MDs have obligation to continually care for pts. MDs have the right to terminate said relationship but only after giving notice to the patient, relatives, or responsible friends sufficiently long in advance of withdrawal to allow another MD to be secured.
What is the State of California Jury Instruction on Physician Abandonment?	Plaintiff must prove 1) MD withdrew from pt’s care and treatment, 2) MD did not provide sufficient notice for pt to obtain another MD. MD is not negligent if they prove that patient consented to the withdrawal or declined further treatment.
Describe the proper legal steps taken by a physician to unilaterally dismiss a patient in order to avoid the tort of abandonment.	1) Return receipt mail pt, 2) provid reason, 3) Offer care while pt finds other MD, 4) give date of end, 5) give info to find other MD, 6) Transfer records on authorization, 7) offer to treat for emergency after end, 8) inform of risks of no tx, 9) chart
Does going on vacation and failing to inform patients of where they can receive care in the mean time constitute abandonment?	Yes
Does failing to answer an on-call page for care constitute abandonment?	Yes
Does leaving an emergency room prior to stabilizing an emergency situation (even though it’s the end of one’s shift) constitute abandonment?	Yes
Are confidentiality, privacy, and privilege the same thing?	No, though they are sometimes used interchangeably, they relate to different concepts.
Describe the right to confidentiality.	This typically arises in a physician-patient relationship and applies to the information a patient has disclosed to a person in a position of trust with the expectation that the information will not be released without consent.
When does confidentiality between a physician and patient begin?	When a physician obtains information from a patient or perspective patient, he/she is immediately under a duty of confidentiality with respect to the disclosed information.
What is a physician’s duty to the patient, in regards to patient-disclosed information?	Physician has a clear legal duty to protect patient information and keep it confidential. A breach of this duty is considered a tort for which a physician may be sued.
Describe the right to privacy.	Privacy is a right that every person has and that right, accordingly, imposes a duty on others to respect an individuals. The right exists on its own and does not require a physician-patient relationship to exist.
What does the right to privacy derived from?	The general right for a person to be left alone
Can invasion of privacy be punished by law?	Yes, invasion of privacy is a tort for which one can be sued.
Describe ‘privilege’.	Privilege is an evidentiary protection accorded to certain types of communication or information. It relates to evidentiary protection, a legal right to avoid disclosure.
Can a court compel the disclosure of privileged information?	No
Is privilege ‘stronger’ than confidentiality and privacy?	Yes, privilege overrides confidentiality because a court can compel the disclosure of private or even confidential information, but not privileged information.
What does the AMA Principles of Medical Ethics (III) state about physician’s duty to safeguard confidences?	A physician shall safeguard patient confidences within the limits of the law.
Describe some exceptions to laws protecting privacy, confidentiality, and privilege.	Exceptions include 1) Child or elder abuse, 2) gunshot and knife wounds, 3) communicable and certain other diseases, and 4) Imminent danger to others
Which court case ruled that even privileged communications may be revealed in certain circumstances?	Tarasoff v. Regents of the University of California case (California Supreme Court). This was an important case because it demonstrates the creation of a court-made exception to the rule that a therapist must preserve confidences of his/her patients.
Is confidentiality and privilege for the benefit of the patient or the physician?	The benefit of the patient
Describe the grey area that is represented by confidentiality and minors.	When mature minor needs medical care for a STD or birth control, without a state law to the contrary, the minor’s right to preserve the confidentiality of medical records should be respected even if requested by the minor’s parents.
What court case was basically the opposite outcome of Tarasoff?	Brenda Tedrick v. Community Resource Center, Inc. In this case, the Supreme Court of Illinois found that a psychiatrist did not have a duty to prevent a mentally ill man who had been treated, from killing his wife.
Which case set a precedent that is most likely to be followed in other states, regarding patient confidence in psychiatrists?	Tarasoff (However, it is important for a physician to be aware of the law of the state in which they are practicing, including case law as well as statutory and regulatory law)
Name a court case that illustrates the duty to respect privacy and the precedent that came from this case.	Berthiaume’s Estate v. Pratt, MD = The obligation to respect an individual’s right to privacy is a duty that exists for all of us and is not limited exclusively to physicians acting in a physician-patient relationship.
Describe the Tarasoff case.	Student fell in love w/ girl who wasn’t interested, told therapist he was going to kill her so therapist warned police, but did nothing and the girl died. Court decided therapist was not at fault because he contacted police in effort to ‘protect’ her.
Describe the Tedrick case.	Crazy man thought wife was trying to poison him, told therapist he was going to kill her. Therapist did nothing and wife died. Court held that therapist was not liable because he was upholding confidentiality and had no duty to warn the wife.
Describe the Berthiuame case.	Terminally ill man on his death bed w/ wife at side, surgeon asked to take pictures. Patient declined but surgeon took pictures anyways, even moved patient’s head. Court decided surgeon was in violation of patient’s right to privacy and committed battery.
If someone is receiving pre-employment examination, are they a patient of that doctor?	No, they are not in a physician-patient relationship with the doctor. Despite this, improper disclosure of the person’s private info is considered a violation of privacy for which the doctor can be held liable.
Why is the distinction between breach of confidence and violation of privacy important?	1) the statute of limitations may be longer for lawsuits based on invasion of privacy and 2) a physician’s malpractice insurance policy may not cover a suit based on invasion of privacy
Which 4 violations of privacy were noted in the Berthiaume case?	1) Intrusion on the pt’s physical/mental solitude/seclusion, 2) public disclosure of private facts, 3) publicity that puts pt in a false light in public eye, 4) appropriation for the defendant’s benefit or advantage of the plaintiff’s name or likeness.
What is the most common cause of invasion of privacy suits against physicians?	Unauthorized use of patient photographs
Where did the right to privacy primarily evolve?	In the state legal systems (though federal government has added to the architecture)
What was determined by the controversial Griswold v. Connecticut court case?	It invalidated CT law restricting access to contraceptives b/c CT law infringed on right to privacy, stating the right to privacy is protected by US Constitution (government inference in private life can be so intrusive it = violation of that right.
In what other court case was the right to privacy asserted again?	Roe v. Wade, which limited the power of the individual state to interfere with a woman’s right to obtain an abortion
What major legislation includes privacy standards that apply to ‘covered entities?	Health Insurance Portability and Accountability Act (HIPAA)
Does HIPAA create a cause of action (right to sue) for a patient whose medical information has been released by a physician in violation of the privacy rule?	No (though a patient may still have a right to sue under state confidentiality or privacy laws)
Does HIPAA create a risk of fines?	Yes
Does HIPAA create risk of criminal prosecution?	Yes
Is HIPAA a very clear cut and easy to interpret act of legislation?	No, it's created a complex and often confusing bureaucratic tangle. For example, a covered entity must have ‘Reasonable Safeguard’ that protect against use/disclosure of information not permitted by the privacy rule which has led to much confusion.
Can a doctor release a patient’s records to that patient’s new physician without express consent signed by the patient?	Yes (ONLY when that physician will be treating the patient or is a consult for treatment)
Does a patient whose doctor is in violation of the privacy rule in the HIPAA act file a civil action against that physician to bring about a penalty?	No, the patient would file a complaint with the Office of Civil Rights (OCR) which may then assess a penalty against the physician.
Is a penalty assessed for a physician who has broken the privacy rule of HIPAA awarded to the patient who filed the complaint?	No, it is paid to the government rather than to the patient.
Can health records be emailed to a patient provided appropriate safeguards are in place in ensure confidentiality, integrity, and availability?	Yes
Can an MD disclose a patient’s medical information that is directly relevant to a family member/relative, close personal friend, or any other person identified by the patient involved in the patient’s care or payment issues related to the patient’s care?	Yes, according to HIPAA (though this has been a grey area of interpretation)
Who is responsible for enforcing the Privacy Rule stated in the HIPAA act?	The Office of Civil Right (OCR) within the US department of Health and Human Services (HHS)
Is HIPAA violation a federal crime?	Yes
Under HIPAA, what level of crime is a ‘knowing violation’ of the privacy rule considered?	Federal misdemeanor
Under HIPAA, what level of crime is a ‘knowing violation which involves false pretenses’ (such as misrepresentation of identity) considered?	A 5-year federal felony
Under HIPAA, what level of crime is a ‘knowing violation which involves intent to transfer or use protected health information for gain or to cause harm’ considered?	A 10-year federal felony
What does the AMA Code of Medical Ethics Opinion 8.08 state about the duty to obtain informed consent from a patient prior to treatment?	The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an intelligent choice.
What aspect of informed consent was examined in the Bang v. Charles T. Miller Hospital case?	Infringement on the right to informed consent or lack of its acquisition can make a physician liable for battery.
What aspect of informed consent was examined in the Canterbury v. Spence case?	Infringement on the right to informed consent or lack of its acquisition means a physician is failing to practice within the standard of care
Depending on the nature of the illness or proposed procedure, what should a patient be told in terms that he understands to meet informed consent criteria?	1) Diagnosis, 2) Procedure or Treatment, 3) Risks and Consequences, 4) Feasible Treatment Alternatives, 5) Outcome probabilities both with and without treatment (but absolutely no definite treatment outcome, because this can never be guaranteed)
What are some exceptions in which a health care professional can treat a patient without informed consent?	1) Emergencies, 2) Incapacitated or Unconscious patient, 3) Patient waiver has been obtained, 4) Therapeutic privilege (though this has largely been ended by the Canterbury case)
What do the California jury instructions state about Informed Consent?	A pt gives informed consent only after MD fully explains proposed tx/procedure, explaining the likelihood of success/death/complications/risks in a language the pt can understand including any risk that a reasonable person would consider important.
According to California jury instructions, are MDs required to explain minor risks that are not likely occur in order to obtain informed consent?	No
Can minors generally make decisions/sign off that they give ‘informed consent’ for medical procedures?	No, a minors medical decisions are generally made by a parent or guardian
What are ‘natural guardians’?	Parents of a minor seeking medical treatment
What is an adulating acting ‘in loco parentis’?	A guardian (usually family friend, relative, or teacher) that, in the extended absence of parents, can make medical decisions for a minor
What is a ‘guardian ad litem’?	A court-appointed temporary guardian appointed for an express purpose who can give consent to a medical procedure for a minor (may be appointed when parents refuse consent to a necessary/life-saving medical procedure)
Are ‘emancipated minors’ legally competent to make decisions involving medical procedures/informed consent?	Yes, minors who are emancipated from parental control because they are married, in the military, or living independently are not required to obtain parent/guardian consent to medical procedures.
Are ‘mature minors’ legally competent to make decisions involving medical procedures/informed consent?	Sometimes, typically this is acceptable in cases where an older minor is requesting confidential treatment of STDs, birth control, or for similar personal issues.
What is a ‘statutory’ exception?	Some states have adopted express statutes that allow minors seeking birth control, abortions, or STD treatment to grant consent for said treatments without parental consent.
In an emergency situation, where immediate care is required to protect a minor and parents cannot be reached, is parental consent still required for medical treatment?	No
Describe a ‘Duty to Warn’.	MDs must warn current/former patients or non-patients getting employment physical, of medically dangerous conditions such as cancer/recalled medical devices/prescription medication. If contact can’t be made, reasonable effort to do so must be charted.
Describe ‘Duty to Disclose’ as per the AMA Code of Medical Ethics opinion 8.12.	It’s a fundamental requirement that MDs should at all times deal honestly and openly with pts, as pts have a right to know their past/present medical status and to be free of mistaken beliefs concerning their conditions.
Is it an ethical, legal, or both obligation to disclose significant medical complications which may have occurred via MD mistake or judgment?	Both ethical and legal, because the physician-client relationship is fiduciary and protected under ‘duty to disclose’.
What is ‘Duty to Prevent Loss of Chance’?	There is a duty to prevent loss of chance at a successful outcome, failure to meet this obligation could arise can create a cause of action.
Give some examples of situations in which ‘Duty to Prevent Loss of Chance’ may be violated.	1) managed care org unreasonably delays approval of necessary medical tx, 2) MD fails to order standard diagnostic tests or report test results to a patient/schedule follow up visit in a timely manner, 3) MD use of CAM methods instead of allopathic tx.
Describe the ‘Duty to Control Pain’.	Standard of care in most jurisdictions requires that MDs adequately treat pain, inadequate treatment of pain, in elders for example, may be regarded as elder abuse and may expose an MD to liabilities that do not normally arise in a malpractice suit.
Describe the ‘Duty to Refer’.	Standard of care req's MDs to refer pts to specialists if the intervention is beyond the knowledge/skills of the MD. However, in CA, jury instruction states that if an MD acts w/ as much skill and care as a reasonable specialist, they are not negligent.
Describe ‘Failure to Diagnose’.	If an MD fails to diagnose a condition b/c his tx has fallen below recognized standard of care, MD is liable for malpractice. This typically occurs if an MD fails to order a diagnostic test indicated by the pt’s condition or interpret it correctly.
Can a ‘failure to diagnose’ suit arise if an MD simply misinterprets signs and symptoms that a physician acting within standard of care would have correctly interpreted?	Yes
What is the most common way in which MDs are negligent?	Failing to treat a medical condition when they dismiss presenting symptoms as temporary, minor, or otherwise not worthy of treatment which may exacerbate the underlying condition/injury, causing further harm or injury.
Describe the ‘Duty to Supervise’.	An MD has a duty to adequately supervise those working under his direction. Harm caused by an individual supervised by a physician may lead to vicarious liability (a tort) on the part of the MD (which can lead to action against the physician’s license)
What are the 5 categories of vicarious liability?	1) Respondeat Superior, 2) Borrowed Servant, 3) Captain of the Ship, 4) Ostensible Agency, and 5) Ostensible Parternship
Describe ‘Respondeat Superior’ vicarious liability.	Literally means ‘let the master answer’, this relates to liability from an act committed by an employee of the MD
Describe ‘Borrowed Servant’ vicarious liability.	Relates to situations in which an MD temporarily supervises someone else’s employee (ie – a surgeon temporarily supervises a hospital employee during surgery)
Describe ‘Captain of the Ship’ vicarious liability.	In some jurisdictions, a sugeon may be legally regarded as being in charge of everything and everyone in a surgical arena and hence, liable for any errors or omissions that take place.
Describe ‘Ostensible Agency’ vicarious liability.	May be liable for acts of another if that other is permitted to operate w/ the appearance of an agent. Hospital may be liable for errors of ER physicians working on contract if the public is given the impression that they are employees of the hospital.
Describe ‘Ostensible Partnership’ vicarious liability.	Physicians sharing office space or staff but are not in partnership may be liable for wrongs as if they were actual partners if their patients are given the impression that they are partners.
Describe the ‘Duty to Maintain Proper Records’.	Standard of care requires a physician to maintain adequate records of the tx given to a patient. In some jurisdictions, the duty to maintain proper records has been required by statute and made a cause for disciplinary proceedings
What are some important things to remember about patient treatment records.	1) Records = MD property, but accessible by pt/attorneys, 2) Document/justify tx plan/changes, 3) chart legibly/don’t erase, 4) chart informed consent, missed appts, and non-compliance, 5) chart communication w/ pt’s other MDs, 6) fully document discharge
What should be avoided in charting patient records?	1) Inflammatory and potentially incorrect expressions (ie – patient fell vs. patient found at foot of bed), 2) self-congratulatory remarks, and 3) criticism of other professionals
If a managed care organization denies coverage of tx, should a doctor discuss these refusals with the patient and let them know the doctor disagrees with the refusal?	Yes (and chart this)
If a doctor considers ordering a medical test, then rules it out, what should be done?	This should be charted along with reasoning behind not giving test.
Which should be charted, ‘patient in apparent good health’ or ‘patient denies any complaints’?	Either is sufficient
Should the rationale for diagnosis be charted?	Yes (because juries can be remarkably forgiving of honest mistakes as long as an MD demonstrates they were alert and attentive)
Is there ever any reason for an MD to alter records?	Never
Describe the special care that need be taken with electronic records.	1) prevent inadvertent release or disclose of confidential/private info, 2) Prepare to notify a pt if records are accidentally released, 3) prevent destruction of electronic records when litigation has begun, 4) Email can be a part of pt’s or MD’s record
Can electronic records be searched electronically for metadata?	Yes
Should patient health records be separate from business records?	Yes
Describe the ‘Duty regarding Equipment’.	Equpiment used by physicians to provide care can sometimes cause injury, sometimes this is the fault of the MD sometimes it is the fault of the manufacturer.
How can a physician protect himself from issues of ‘duty regarding equipment’?	1) MD should select right equipment for a task, 2) all staff must be educated in proper use of the equipment and document such training, 3) repair equipment when necessary, documenting proper repairs, and 4) maintain equipment to manufacturer’s guidelines
Can a manufacturer of medical devices that received pre-market approval from the FDA be sued under state law?	No, due to the Medical Device Amendments Act of 1976 which preempts causes of action brought under state law.
What are 3 major factors that can help a physician avoid being sued?	1) Communicate with patients in a dignified way, 2) Maintain standard of care by remaining current in your area of practice being aware of medical/legal trends that may change that standard., and 3) Risk management (ID areas in practice that are weak)
Should physicians apologize for error?	No, studies show MDs who apologize are more likely to be sued for malpractice
What should a doctor do when they are being sued?	1) Notify malpractice insurance carrier, 2) Protect patient records, 3) Prepare memorandum of events to best of your knowledge, addressed “To my attorney for use in litigation – privileged memorandum”
Can privileged memorandum be obtained by opposing council using ‘discovery’?	No
What should a doctor not do when being sued?	1) Destroy/Alter records, 2) Assume alteration of electronic records cant be detected, 3) Attempt to influence co-worker’s opinions (conversations are discoverable)
What is a ‘prima facie’?	When a plaintiff fails to make a basically adequate case against a defendant (judge may grant a dismissal of the case)
How is ‘discovery’ attained?	According to federal rules of civil procedure, rule 26(a)(5), discovery can be obtained by: 1) Oral examination, 2) written interogation, 3) Documents, 4) Entry upon land/property for inspection, 5) physical and mental exams, and 6) requests for admission
What is ‘discovery’?	Acquisition of any material, not privileged, that is relevant to the claim or defense of any party
Describe the statute of limitations for a ‘foreign object’.	Often times the statute of limitations for medical malpractice case filings is one year, but if malpractice is based on a foreign object being left in a patient’s body, the time may not begin until the item is discovered, rather than when it was left.
Describe the statute of limitations if a patient is a minor.	The clock on the statute of limitations may not begin to run until the patient becomes an adult, 18 years old in most jurisdictions.
Does the nature of the statute of limitations vary depending upon the nature of the injury and the identity of the claimant?	Yes
What is a ‘judgment’?	The final decision of the court regarding the dispute, which determines the rights and obligations of the parties involved.
Can a money judgment be collected by judicially enforced levy (seizure) and sale of the physician’s property?	Yes, though it is preferable that a judgement be paid by the physician’s malpractice insurer.
What are ‘compensatory damages’?	Damages intended to compensate a pt for loss suffered as a consequence of the wrongful acts of the defendant, which can be either economic (calculable financial loss, like medical bills and lost wages) or non-economic (non-calculable pain and suffering)
What does California’s Medical Injury Compensation Reform Act of 1975 (MICRA) state?	The limit of non-economic compensatory damages is $250,000 in cases regarding medical negligence.
What are ‘non-compensatory damages’?	Awards that are not intended to compensate for a recognized loss. Most often these are ‘punitive’ damages which are awarded to the plaintiff to penalize the defendant for outrageous, intentional, reckless, or malicious conduct.
Can both Compensatory and Non-Compensatory damages be assessed within one case ruling?	Yes
Do medical malpractice insurance policies generally cover both Compnesatory and Non-Compensatory damages?	No, they typically only cover Compensatory, but not punitive (Non-Compensatory) damages.
Name the 4 types of Medical Malpractice Insurance.	1) Occurrence based, 2) Claims-made, 3) Tail coverage, and 4) Nose coverage
Describe Occurrence-based medical malpractice insurance.	Policies that protect the insured physician from claims made for acts of malpractice occurring during the time the policy was in effect even if the claim is made after the policy expires.
Describe Claims-made medical malpractice insurance.	Policies that protect MD for acts of malpractice occurring during time the policy is in effect but only if claim is made while the policy is in effect. Claims filed after the policy is expired, but occurred while the policy was valid will not be covered.
Describe Tail-coverage medical malpractice insurance.	Intended to protect the insured physician for a period of time after a claims-based policy expires. It is expensive, but if not purchased within the time offered, it may not be available again. It is similar to COBRA health insurance.
What is another name for Tail-coverage medical malpractice insurance?	Extended reporting endorsement
What is Nose-coverage medical malpractice insurance?	Insurance available to physicians for alleged acts of malpractice that occurred before a new malpractice policy takes effect.
What is Statutory law?	Laws enacted by legislative authority
What is Constitutional law?	Laws set forth by the federal of state constitutions
What is Case-Law/Common-Law?	This type of law includes ‘precedents’ sets by previous court rulings
What is Administrative law?	Rules and regulations adopted by administrative agencies that have been created to oversee and regulate important and often complex elements of society. Examples of these agencies include the FDA and the CMS (Centers for Medicare and Medicaid Services)
What is a ‘quasi-judicial’ trial?	An element of administrative law. They're proceedings held before an administrative law judge/hearing examiner (not a true judicial judge, but rather one that is an employee of the agency). Here, rules of evidence are less stringent than formal court.
Disciplinary proceedings brought against a physician by the state medical board have the character of what type of hearing?	Administrative hearing (because cases are decided by one or more members of the board of medicine rather than an independent judiciary.
What are the 4 main sources of medical liability?	1) Tort, 2) Contract, 3) Statutory liability, and 4) Fiduciary liability
When is an MD liable for tort?	When the MD causes injury either accidentally or deliberately and the area of law involved lawsuits for medical malpractice for physician errors.
When is an MD liable for contract?	When one of the parties in the contract (a legally enforceable agreement) breaches or violates the terms of that agreement. For example, an MD may be held liable for violating a non-competition agreement in his employment contract
When is an MD liable for Statutory liability?	When an MD violates the terms of a statute. For example, an MD who fails to adequately treat the pain in an elderly person may be liable for violating the statute prohibiting elder abuse.
When is an MD liable for Fiduciary liability?	If MD does something that's in their benefit, not pt’s, they may be held fiduciarily liable. Breach may occur if the MD withholds information from the pt. Ie- selling over-priced vitamins to patients or not telling them about alternative availability.
What type of damage awards are typical in actions for medical malpractice?	Compensatory damages
What is another term for economic (compensatory) damages?	Special damages (hospital bills, lawyers bills, etc) = easily calculable
What is another term for non-economic (compensatory) damages?	General damages (pain and suffering) = not easily calculable.
Which type of damages are typically thought to be the principal reason for the exorbinantly high malpractice judgments that juries sometimes award?	Non-economic damages
Who are ALL types of damages awarded to?	Plaintiff
What is the difference between punitive damages and punitive penalties?	Punitive penalties are fines awarded to the state while punitive damages are fines awarded to the plaintiff
What is the ‘Good Samaritan’ law?	A law which protects someone from gratuitously rendering emergency aid away from regular medical facilities from suits based on negligence.
For an agreement/contract to be enforceable, what 4 conditions must be met?	1) Both parties must have legal capacity, 2) The agreement must be for a legal purpose, 3) The contract must not violate public policy, and 4) There must be consideration (an exchange must be indicated)
Are minors and adult incompetents able to execute/enter into legally enforceable agreements?	No
Describe a non-competition clause that is typical of most physician contracts with employers.	The physician agree that on employment end, he will not compete with said group within a certain distance and time frame.
Are non-competition contracts enforceable/recognized in California and Tennessee?	No
Can a non-competition contract state that an MD cannot compete within unreasonable distances (ie – 100 miles) or for unreasonable amounts of time (15 years)?	They can state these things, but even if signed, they're often unenforceable b/c of unreasonableness. Distance of 15 miles and time frame of 1 year is often considered reasonable and enforceable by law in states that recognize non-competition contracts.
How many remedies does a typical non-competition clause contain?	Two or more. Typically one is an injunction (court order), prohibiting competition lest the MD be held in contempt of court. The other is typically provision for a payment of liquidated damages previously agreed on in the non-competition contract.
What is the ‘False Claims Act’.	An act that states an MD be fined large sums of money for fraudulent claims to Medicare or Medicaid and may also be responsible for treble damages and attorney fees.
Must the government prove an ‘intent to defraud’ for a physician to lose a False Claims case?	No, the government need only demonstrate that the MD was deliberately ignorant of the falsity of a submitted claim or acted in reckless disregard of the truth.
What is the Federal Enforcement Recovery Act (FERA)?	Act that imposes an obligation on physicians to report overpayments received from Medicare or Medicaid, or any other federally funded program. If you report, you can still be fined via FTC, but if you fail to report, you face even more damages under FERA.
What is a ‘Qui Tam’ suit?	A private individual can sue you on behalf of the federal government for FTC violations and share in part of the damages recovered from you.
Give an example of a Qui Tam suit.	A former business clerk who knows of erroneous bills going out from your practice without your knowledge can sue you for this, and share in the damages won in the suit
If 50% of erroneous medicare billing is for less than the appropriate amount, and 50% of erroneous bills are for more than the appropriate amount, do the lesser bills offset the overage bills?	No, there is no allowance for offset and you can still be sued under FERA or in a Qui Tam law suit
What are some of the dangers of suits against physicians that are based on legal theory other than medical malpractice?	1) statute of limitations = longer, 2) malpractice insurance may not cover, 3) judgments not covered by malpractice tort reform, 4) Damages differ (pain/suffering for elder abuse awarded even if elder is dead), and 5) judgments may include attorney fees.
Give 5 examples of suing for something other than damages.	1) Declaratory judgment, 2) TRO and injunction, 3) Habeas Corpus, 4) Guardianship, 5) Civil Commitment
What is a declaratory judgment?	It’s a judgment sought to have the court declare law on a certain issue rather than seeking monetary damages
What is TRO and injunction?	Temporary restraining Order = short, emergency injunction that orders a party to stop a particular action until the issue can be heard more fully and the court can decide whether or not to issue, barring action indefinitely with a permanent injunction.
What is Habeas Corpus?	A remedy for challenging the legality of involuntary confinement of an individual. For example, if you think you are wrongly being held in a mental institution, you means of challenging your detention is to bring a habeas corpus action.
Describe Guardianship.	Proceedings are for purpose of appointing a competent guardian to look after the affairs of one who is deemed legally incompetent, such as an infant without parents or an elder whose senility has rendered him capable of looking after his own affairs.
Describe Civil Commitment.	These proceedings are for the purpose of legally detaining someone against his or her will in a non-criminal action. For example, a person who has become a danger to himself or others maybe committed to a mental institution against his will.
What is the definition of complementary and alternative medicine as per the National Center for CAM?	Those treatments and health care practices not taught widely in medical schools, not generally used in hospitals, and not reimbursed by medical insurance companies.
What happens if a patient sues an allopathic physician for damages arising from a CAM therapy in which the physician played a role?	The MD’s medical malpractice insurance carrier may see this as an opportunity to assert a policy defense and leave the physician bare, that is, unprotected such that if the plaintiff is awarded judgment, it will have to come out of the physicians pocket.
Is a physician being unaware of a patient’s use of CAM which results in harm because of the interaction of incompatible allopathic therapy something a physician can be sued for?	Yes, though this is less egregious than actually participating in CAM, because it is likely to be covered by a medical malpractice insurance policy.
Should an allopathic doctor ever recommend CAM?	No, because a patient may be able to allege that you encouraged CAM as a part of your treatment plan.
If a physician is aware of actual risks that the patient faces when they chooses a particular form of CAM, is it the duty of the physician to warn the patient of those risks?	Yes (Though if the patient is electing to use a less risky form of CAM in conjunction with treatment, the physician must document the patient’s risk of assumption in continuing the CAM)
How can a physician decrease his risks in relation to patient-used CAM therapies?	Communication, in a non-judgmental, non-disparaging way, with patients. The physician must be careful though, not to endorse CAM.
Which is better in terms of warning patients about the risks of CAM, assumption of risk or informed consent.	Assumption of risk is a better because it includes recognition that some risks and consequences may not yet be known and that the patient is willing to assume both known and unknown risks and is going ahead with treatment without the MDs recommendation.
Describe how the standard of proof varies between criminal and civil cases.	Criminal cases must be proven beyond a reasonable doubt while civil cases must simply show a preponderance of evidence
What are the 4 most common crimes physicians are charged with?	1) Reckless behavior, 2) medicare fraud, 3) insurance fraud, or 4) narcotics abuse
Describe ‘reckless behavior’ by physicians which results in criminal charges.	This can occur when negligence on the part of the physician is so grave that it amounts to recklessness
Describe Medicare Fraud and Insurance fraud.	These are crimes that physicians commit, occurs when MDs fraudulently make Medicare and Insurance company claims
Describe the crime of narcotics abuse as pertains to physicians.	This can mean two things: 1) An MD can be prosecuted both for personal misuse of narcotics and 2) for unlawful use of their prescribing authority to distribute narcotics
Under which two distinct government powers can a person be involuntarily detained for civil rather than criminal (punitive) purposes?	1) Parens Patriae and 2) Police Power
Describe Parens Patriae.	This state power is asserted when a patient is a danger to himself due to the patient’s mental state deteriorating to the point of ‘decisional incompetence’ and is in the best interest of the individual.
Describe Police Power.	This government power is asserted when a patient is a danger to others including both mental deterioration and communicable disease. This is done for the protection of public health, safety, and morals.
What is ‘due process’?	The right to a ‘commitment hearing’ which is like a trial, before an impartial tribunal for those who are under Parens Patriae or Police Power
What is the standard of proof for a civil commitment?	“Clear and convincing evidence (which is more exacting than ‘preponderance of evidence’ used in civil (medical malpractice) cases but less exacting than ‘beyond a reasonable doubt’ used in criminal cases)
Describe when confinement is and isn’t a punishment for a crime.	When a person is incarcerated after being convicted of a crime their imprisonment is part of their punishment. When a person is committed against his or her will because of mental problems, this is not punishment.
Describe the case known as ‘State of Kansas v. Leroy Hendricks.	Hendricks was a convicted sexual predictor and perpetually molested children. After a bout in jail for one these crimes, he was immediately given a civil commitment which was appealed to the US Supreme Court which ruled in favor of the state of Kansas.
Are ‘insanity’ and ‘incompetency’ legal standards or psychiatric standards?	Legal standards, because their provenance is ‘the courtroom, not the couch.’In making a legal determination of insanity or incompetence, a court may use psychiatric testimony but the ultimate issue rests with the court.
What does ‘insanity’ mean in legal terms?	You will not be held morally or criminally responsible for your acts.
What is the oldest test for insanity?	M’Naghten Rule = a person can be found insane if at the time of the act the party was laboring under such a defect of reason he could not know the nature and quality of the act he was doing, or if he did know it was wrong.
If a person is found to be insane, can they be found guilty of a crime?	No
Describe a ‘guilty but mentall ill’ or ‘guilty but insane’ verdict.	May be appropriate when criminal is suffering from mental illness but its doubtful as to whether the illness is so severe that is would rise to the M’Naghten Rule. In such case, the convict may be sentenced to both punishment and mental health treatment.
What does ‘incompetency’ mean in legal terms?	The law will not give validity to certain aspects of your legal acts. Occurs when elder reaches severe senility so guardian must be appointed to make decisions (different from mature minor whose competent to make medical decisions but not legal ones.
Are foster parents considered in loco parentis?	Yes but the ultimate guardian for the child is the state or court (sometimes referred to as a ‘ward to the state’ or ‘ward to the court’ which is also true of an elderly senile person who has an appointed guardian)
What is a ‘ward’?	A person who has a guardian to care for them
Is an incompetent person also insane?	No, though the person may not have the ability to manage his financial or health concerns, he may understand the difference between right and wrong. What are the 6 sources of psychiatric liability?
What does the AMA Code of Medical Ethics, Opinion 8.14 state about Sexual Misconduct in the practice of medicine?	“Sexual contact that occurs concurrent with the physician-patient relationship constitutes sexual misconduct”
What is ‘wrongful discharge’?	Liability has been imposed on psychiatrists who have negligently released mental patients who pose a danger to others.
How can ‘suicide’ be considered a liability?	Liability has been imposed oh psychiatrists whose patients committed suicide because psychiatric therapy was deemed to be below the standard of care.
How can medication prescribed by a psychiatrist be grounds for liability?	Liability may be imposed because of inappropriate medication for the patient
What is ‘Third Party’ liability?	A psychiatrist can be held liable for medication negligence when a patient harms another person
What is the ‘right to self-determination’?	Right for all competent adults to determine what can be done w/ their own body. Canterbury case gave this as root premise underlying right to informed consent. Corollary = a competent adult patient also has the right to refuse medical treatment.
What issue was challenged in the ‘Cruzan’ case?	The right to refuse medical treatment, including the right to refuse artificial nutrition/hydration.
What is substituted judgment?	When a health care proxy or physician know something of the patient’s preferences, they may use this in decision making for a patient
Which states approved Physician-assisted suicide by legislation?	Oregon and Washington
Which state approved Physician-assisted suicide by court preceding (Case law/Common law)?	Montana
Is it permissible to treat pain of a dying patient aggressively even if the medications used to treat the pain suppress consciousness and respress respiration to the point that the patient’s death occurs as a side effect of the pain treatment?	Yes, in most jurisdictions (in these cases, it is important for pain medication administration to be charted as such, and most certainly not physician-assisted suicide).
What charge is brought against a physician for deliberately killing a patient without the patient’s consent and participation?	Murder
Is Physician-Assisted suicide legal in Canada?	Not right now, but it is currently being challenged by 5 terminally ill patients
Define ‘assisted suicide’.	Giving the patient the means to end their own life
Define ‘active euthanasia’.	Killing a patient
Define ‘passive euthanasia’.	Ending the life of a patient by withholding medical care
Define ‘Doctor-assisted death’.	Physician assisted suicide or euthanasia
Define Advance Directive.	An instrument by which an individual provides instructions for his medical care in the event he is incapacitated.
Define Amicus Curae.	“a friend of the court”, one whose not an actual party to the suit but is permitted to submit a legal brief arguing a particular point. For example, church may file a legal brief on an assisted suicide case even though the organization isn’t in the suit.
Define Appellant.	The person who is appealing a case
Define Appellee.	The person against whom an appeal has been filed (aka – the respondent)
Define Arbitration.	The reference of a dispute to an impartial third party chosen by the parties to dispute who agree in advance to abide by the arbitrators award issue after a hearing at which both parties have an opportunity to be heard.
Define Certiorari.	A writ issued by an appellate court to review issues presented in lower court. One may appeal by asking the appellate court to issue a writ of certiorari, and if granted, the appellate court will instruct the lower court to submit the case for review.
Define Code of Federal Regulations (CFR).	CFR contains codified regulations of most of the departments of the US government.
Define Code.	When legislature passes law it may bundle together a number of different provisions in a single ‘act’. When a set of laws has been reorganized for easier access, they are said to have been codified.
Define Conservator.	A Guardian
Define Directed Verdict.	When the court/judge decide that a plaintiff’s case is so lacking in merit that it should not be evaluated by the jury (failure to make a ‘prima facie’ case) the judge may direct a verdict in favor of the defendant.
Define Diversity Jurisdiction.	A trial on a matter of State law (such as a malpractice trial) may be held in US district court if the plaintiff and defendant are residents of different states
Define Durable Power of Attorney.	A type of advance directive
Define Equity.	Equity law is administered according to standards of fairness rather than the strict rule of the law. It allows a judge to exercise somewhat arbitrary power to prevent an injustice that would occur if the letter of the law were strictly followed.
Define ERISA.	Employee Retirement and Income Security Act = federal act that provides certain employee benefit plans with protection from suits under state law. Managed care organizations have been using it to shield themselves from malpractice actions.
Define Fiduciary (noun).	An individual who is placed in a position of trust and who will be held to higher legal standards than normally obtained by other individuals. Examples = Court appointed guardian, a trustee of a trust, an attorney, and a physician.
Define HCFA.	Health Care Financing Administration = former name for the federal agency that oversees the Medicare system. It is now known as the CMS (Centers for Medicare/Medicaid Administration)
Define Health Care Proxy.	A form of advanced directive
Define Hippocratic Oath.	The traditional physician’s oath (that states do no harm, etc)
Define Injunction.	A court order compelling or preventing a particular course of action (a short term, emergency injunction = TRO)
Define Judgment.	The final decision of the court resolving the issues presented in the case before it.
Define Lien.	Legal burden on property to secure or satisfy debt. A mortgage or security interest on personal property = a lien. A money judgment creates a lien on the debtor’s property permitting the court to sell the property to recover money to pay judgment.
Define Living Will.	A form of advance directive.
Define Liquidated Assests.	Liquidated damages are those damages agreed upon as to amount in advance of a contract.
Define National Practitioner Data Bank.	A data bank established pursuant to federal law to track malpractice and other actions against physicians.
Define Nominal damages.	A damaged award that is so trivial that it essentially amounts to damages in name only. For example, a damage judgment for $1.00.
Define Prima Facie Case.	A case that ‘on the face of it’ is sufficiently strong for a jury to be legally justified in finding for the plaintiff if the defense elects not to introduce any evidence. Failure to present Prima Facie is a cause to dismiss a case.
Define Service of Process.	The formal act of delivering a summons and complaint to the defendant for the purpose of bringing him under the jurisdiction of the court.
Define Specific Performance.	A contract remedy that requires a contract be enforced exactly according to its terms rather than with a monetary judgment for breach of contract. Normally, this only applies to a contract which relates to a unique object that has no substitute.
Define Statute.	A law created by the legislative body of the State is known as an Act or Statute.
Define Subpoena.	A written command to appear in person. Failure to appear may result in a finding of contempt of court.
Define Subpoena duces tecum.	A demand for the production of documents or records in the possession of the witness on whom it is served.
Define Summary Judgment.	A motion for judgment without going through an entire trial.
Define Voir Dire.	Literally, ‘to speak the truth’ but is French for the process of questioning jurors to discover bias or other disqualifications that may render a jury illegible to sit on a trial.

Created by: stephprater

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