Questions and Answers of Legal Aspects

Precedent is a common law principle or rule established in a prior legal case that is either binding or persuasive when deciding subsequent cases with similar fact patterns or issues.
The evolution of the hospital traveled a long, tortuous road, struggling along a hazardous path from India and Egypt to Greece and Rome, to the Islamic countries, to England, France, Germany, Spain,
Religion played an important role in the development of hospitals.■ Faith healing was practiced in India and Egypt thousands of years ago. Aesculapia (hospital temples) were numerous in ancient
The development of the hospital has not been a smooth and easy advance.■ Centuries of experiments, scientific discoveries, and public enlightenment were necessary to break down the barriers of
The primary function of the hospital is to care for the sick and injured.■ The scope of services offered by hospitals continues to expand.a. Treating the sick and injuredb. Preventing illnessc.
The goal of the ACA is to ensure that more Americans have access to affordable healthcare insurance. The costs associated with national health insurance will require more collaboration among
Describe how social media can have a negative or positive impact on caregivers and healthcare facilities.
A law is a general rule of conduct that is enforced by the government. When a law is violated, the government imposes a penalty.■ Public laws deal with the relationships between individuals and the
Common law is derived from judicial decisions. During the colonial period, the United States based its law on English common law, but states had the authority to modify their legal systems. As a
Res judicata (the thing is decided) is a common law principle that prevents further litigation between two parties of a case that has been previously acted on or decided by the courts.
Stare decisis (let the decision stand) is a common law principle that provides that when a decision is rendered in a lawsuit involving a particular set of facts, another lawsuit involving an
Original jurisdiction is the authority of a court to first conduct a trial.a. Appellate jurisdiction is the authority of a court to hear appeals from trial court decisions.
Explain why the Department of Health and Human Services was created.
Statutory law is written law that emanates from legislative bodies.■ A statute can abolish any rule of common law.■ The U.S. Constitution is the highest level of enacted law; it takes precedence
What is meant by political malpractice? Provide an example how it might apply in the healthcare setting.
Administrative law is public law issued by administrative agencies to administer the enacted laws of the federal and state governments.■ Administrative agencies implement and administer the
Separation of powers provides that no one branch of the government—legislative, executive, or judicial—will be clearly dominant over the other two.■ The legislative branch enacts, amends,
The U.S. Department of Health and Human Services (DHHS) develops and implements administrative regulations for carrying out national health and human services policy objectives through various
Ethics and the law are not mutually exclusive—they are intertwined.
Government ethics committees include the following:■ Executive branch: Office of Government Ethics■ U.S. House of Representatives: Committee on Ethics■ Senate: Select Committee on Ethics■
Political malpractice is negligent conduct by an elected or appointed political official.
A tort is a civil wrong that is committed against a person or property for which a court provides a remedy in the form of an action for damages.
Negligence is a tort. It is a civil or personal wrong that is the unintentional commission or omission of an act that a reasonably prudent person would or would not do under the same or similar
Forms of negligence■■ Malfeasance: The execution of an unlawful or improper act.■■ Misfeasance: The improper performance of an act that results in injury to another.■■ Nonfeasance: A
Degrees of negligence■■ Ordinary negligence: The failure to do what a reasonably prudent person would do or doing what a reasonably prudent person would not do under the circumstances of the act
Elements of negligence■■ Duty to care: The legal obligation or obligatory conduct owed by one person to another.The standard of care is the conduct expected of an individual in a given
Explain the importance as to how foreseeability applies in a malpractice case.
Intentional wrongdoing involves a willful act that violates another person’s interests. Not only must the action be intentional, but the perpetrator must realize that the action will result in
Theories for a product liability lawsuit include:■ Negligence■ Failure to warn■ Breach of warranty■ Express warranty■ Implied warranty■ Strict liability
Describe the defenses often used in a products liability case.
Products liability defenses include:■■ Assumption of a risk■■ Intervening cause■■ Contributory negligence■■ Comparative fault■■ Disclaimers
Mediation is the process wherein a third party attempts to bring about a settlement between parties. Arbitration is a process wherein parties agree to submit their differences to the judgment of an
Describe various tort reform programs designed to lower the cost of malpractice insurance. Should there be limits placed on malpractice awards? Support your opinion.
Structured awards are those placed in a trust set up to provide compensation over a plaintiff’s lifetime.
Discuss what a structured award is and how it might reduce the costs associated with largesum malpractice awards.
Pretrial screening panels are used to encourage outof-court settlements. The panels give an opinion on provider liability and, in some cases, damages.
Which of the tools for tort reform discussed in this chapter do you think would be most effective in addressing the malpractice insurance crisis?
The collateral source rule is a common law principle that prohibits a court or jury, when setting an award, from taking into account that part of the plaintiff ’s damages that would be covered by
Describe how risk management, performance improvement, and peer review can be helpful in improving patient care and reducing the number of malpractice claims.
A contingency fee is payment for an attorney’s services predicated on the favorable outcome of a case.Many believe that a limitation on such fees would limit the windfall profits of attorneys, thus
Some healthcare providers have filed countersuits after being named in what they believe to be frivolous claims. The threat of such suits, however, has not proven to be helpful in reducing the number
The concept of joint and several liability holds that a person who caused an injury concurrently with another person can be held equally liable for the full judgment awarded by a court. Some states
Some states are attempting to limit the rising costs of malpractice awards by setting malpractice caps.
Proponents of a no-fault approach to reducing the costs associated with exorbitant malpractice awards cite as its advantages swifter and less expensive resolution of claims and more equitable
Statutes of limitations specify the timeframe within which a lawsuit must be commenced.
Reducing the risks of malpractice can be accomplished by implementation of best practices, risk management, performance improvement activities, and peer review.
The objectives of criminal law are to:■■ Maintain public order and safety.■■ Protect individuals.■■ Use punishment as a deterrent to crime.■■ Rehabilitate criminals for return to
A crime—a social harm defined and made punishable by law—is generally either a misdemeanor or a felony.■■ A misdemeanor is an offense generally punishable by less than 1 year in jail and/or a
Criminal procedure involves:■■ Arrest■■ Arraignment■■ Indictment■■ Conference■■ Criminal trial
Why did Congress incorporate HIPAA provisions mandating the adoption of federal privacy protections for individually identifiable health information?
Criminal trials involving healthcare professionals and organizations include: healthcare fraud, kickbacks, false claims, tampering with drugs, Internet pharmacy, falsification of records, patient
A contract is a written or oral agreement that involves legally binding obligations between two or more parties. The purpose of a contract is to provide legal recourse should one or more of the
Various types of contracts include:■■ Express contracts are those in which the parties have an oral agreement or have reduced agreements to writing. Written contracts are always the most
To be enforceable, contracts must contain:■■ An offer or communication■■ Consideration■■ Acceptance
In a contract lawsuit, the following elements must be established:■■ A valid executed contract■■ Plaintiff performed as specified in the contract■■ Defendant failed to perform as
Independent contractors agree to perform work without being under the direct control or direction of another party. An employer is liable for the torts or negligence of an independent contractor in
Defenses for not performing under a contract include:■■ Fraud■■ Mistake of fact or law■■ Duress■■ Impossibility to perform the contract■■ Expiration of the statute of limitations
Legal redress for breach of contract includes:■■ Specified performance of the duties set forth in the contract■■ Monetary (or compensatory) damages■■ General or consequential damages.
The right of an employer to terminate an employee can be limited through:■■ Employment contract■■ Collective bargaining agreement
Employee handbooks and medical staff bylaws can be binding contracts between employer and employee, unless such documents provide legally acceptable disclaimers.
Exclusive contracts allow organizations to contract with physicians and medical groups to provide specific services to the organization.
The Federal Trade Commission is a federal an agency that monitors the marketplace and enforces federal antitrust laws with the goal of maintaining free enterprise in a competitive marketplace.
A transfer agreement is a written document that sets forth terms and conditions under which a patient may be transferred to an alternate facility for care.
About an insurance contract:■■ The insurer must indemnify the insured for losses caused by specified events.■■ In return, the insured must pay a fixed premium during the policy period.■■
The pleadings of a case are the written statements of fact and law filed with a court by the parties to a lawsuit. Pleadings generally include such papers as a complaint, demurrer, answer, and bill
Once a defendant receives a copy of the complaint, the defendant can file a preliminary objection before submitting an answer, or response, to the complaint. A formal objection to the lawsuit is
Before the trial, facts are investigated in a process called discovery. The discovery process helps to prevent surprises during trial.■■ Examination before trial is part of the discovery process
A motion to dismiss a case can be made before, during, or after the trial.■■ The motion alleges that the plaintiff’s complaint does not set forth a claim or cause of action that is recognized
The case is heard in the court that has jurisdiction over the subject in controversy.■■ The judge presides over court proceedings and decides questions of law.■■ The jury reviews the facts of
A subpoena is a legal order requiring a person to appear in court.
There are multiple types of evidence that can be presented at trial.■■ Direct evidence■■ Demonstrative evidence■■ Documentary evidence■■ Hearsay evidence
Res ipsa loquitur (“the thing speaks for itself” or “the circumstances speak for themselves”) is the legal doctrine that shifts the burden of proof in a negligence case from the plaintiff to
The judicial notice rule prescribes that wellknown facts need not be proven (e.g., fractures require prompt attention).
When the issues to be resolved in the case are outside the understanding or experience of the average juror, an expert witness is allowed to offer testimony to assist in the explanation of technical
Types of defenses offered by the defendant(s):■■ Ignorance of fact and unintentional wrongs■■ Assumption of the risk■■ Contributory negligence■■ Comparative negligence■■ Good
Damages, which are usually determined by the jury, come in four forms:■■ Nominal damages■■ Compensatory damages■■ Hedonic damages■■ Punitive damages
The governing body of a healthcare corporation:■■ Is incorporated under state law.■■ Has specific duties that include holding meetings, establishing policies, being financially scrupulous,
Authority of corporations■■ Express corporate authority is delegated by statute.■■ Implied corporate authority is invoked in cases in which authority not specifically granted in the articles
Corporate committee structure■■ The executive committee has the authority to act on behalf of the full board.■■ The bylaws committee reviews and recommends bylaws to the governing body.■■
Organizational ethics describes the ethics of an organization and how it responds to internal or external circumstances affecting the organization’s mission.■■ The Sarbanes–Oxley Act of 2002
Corporate negligence■■ A corporation itself owes duties to the general public and to its patients.■■ Duties arise from statutes, regulations, principles of law developed by the courts, and
Respondeat superior (vicarious liability)■■ An employer can be held responsible for the acts of its employees.■■ Joint liability means that all joint or concurrent tortfeasors are
Responsibilities of the governing body include selection of a CEO; medical staff appointments and privileging; being financially scrupulous; requiring competitive bidding; avoiding conflicts of
Corporate reorganization■■ The need to obtain income and meet competition has caused hospitals to consider establishing business enterprises.■■ Restructuring of a single nonprofit, taxexempt
A healthcare organization’s bylaws set forth, among other things, the responsibilities of the medical staff. The committees of the staff review and analyze their responsibilities, clinical
In cases where a medical staff member’s credentials are not screened properly, the healthcare organization can be held liable for injuries to patients as a result of the lack of investigation.
The application process includes an evaluation of the applicant’s physical and mental status, the applicant’s release of information from third parties, the applicant’s provision of a
The medical staff must determine what procedures a physician is authorized to perform. This determination, known as delineation of privileges, is based on set criteria for credentials required to
To commence a court action for issues such as initial denial of medical staff privileges, grievances, and disciplinary actions, a physician must first exhaust all remedies set forth in the
Physician monitoring is most effectively practiced through peer review. The governing body of a hospital has a duty to create a means through which the medical staff can evaluate, counsel, and, when
A physician is not liable for exercising his best judgment in following a course of treatment that is supported by a reputable and respected body of medical experts. However, a physician is at risk
Common medical errors include patient assessment, diagnosis, treatment, discharge, and follow-up care.
Infection control concerns include the failure to effectively manage infections and substandard infection control techniques.
Behavioral health risks include:■■ Commitment issues■■ Untimely discharge■■ Electroshock therapy■■ Duty to warn• If a therapist determines or should reasonably determine that a
The scope of nursing practice is defined in state nurse practice acts, which describe the actions, duties, and limits of nurses in their particular roles.
Nurse practice acts■■ Although states have similar definitions of nursing, each state has its own individual nurse practice act.■■ These acts define the practice of nursing and outline a
A variety of nursing careers exist, including registered nurse (RN), traveling nurse, licensed practical nurse (LPN), nurse manager, certified nursing assistant (CNA), float nurse, agency nurse,
Nurse licensure varies slightly from state to state, but each state requires that an applicant receive formal professional training and pass a written examination. The basic methods by which boards
Advanced practice nurses, who have undergone the requisite training and certification, can enjoy expanded roles, including the following:■■ Nurse practitioner: An RN who has completed the
Common legal risks for nurses include the dilemma of two standards of care; patient misidentification;patient monitoring and observation;delay in reporting a patient’s condition;delay in treatment;

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