Exam Review Flashcards
(290 cards)
1
Q
Unwritten law that is based on custom and general principles
A
common law
2
Q
federalism?
A
tension between the state and federal government
3
Q
The difference between liability in
Contracts and Torts ?
A
_____________Tort Liability_______Contract Liability
Pt’s covered ______All___________only in contract
Timing _________All future______fut pt not guaranteed
Physicians ________All___________only in contract
Both are categories under Civil Law
4
Q
The difference between
Government and Non-Government Contracts
?
A
Enabling statutes – gives Government a lot of flexibility
Administrative law - Federal Acquisition Regulation System (FAR)
Prescriptive statutes: Favoring
- Small business
-Veterans
-Depressed areas
Much of contract law is a matter of common law; this is not as true in the area of government contracts.
Commerical Contracts (non-government)
- Governed by State Law
- Applies local version of Uniform Commercial Code (UCC)
- FAR does not apply
- Contract changes must be unanimously approved
- No termination for convenience
5
Q
Set forth general propositions of law that courts apply to specific situations
A
Statute
6
Q
Used to forbid a certain act, direct a certain act, make a declaration, or set forth governmental mechanisms to aid society
A
Statute
7
Q
Used to forbid a certain act, direct a certain act, make a declaration, or set forth governmental mechanisms to aid society
A
Statute
8
Q
Ethics in Government Act Federal Tort Claims Act Military Claims Act Foreign Claims Act Gonzalez Act Uniform Code of Military Justice Patient Self-Determination Act Statutes of Limitation
A
Examples of Statutory Law
9
Q
Unwritten law that is based on custom and general principles
A
Common Law
10
Q
Embodied in case law
A
Common Law
11
Q
Serves as precedent for similar situations
A
Common Law
12
Q
Is applied to situations not covered by statute
A
Common Law
13
Q
Developed by judges and courts
A
Common Law
14
Q
Developed by judges and courts
A
Common Law
15
Q
Feres v. United States Roe v. Wade Maher v. Roe United States v. Karl Brandt Moore v. Regents Univ. of California Parker v. Brown
A
Examples of Common Law
Case Law
16
Q
Feres v. United States Roe v. Wade Maher v. Roe United States v. Karl Brandt Moore v. Regents Univ. of California Parker v. Brown
A
Examples of Common Law
Case Law
17
Q
The body of law concerning with the establishment and operation of government agencies
A
Administrative Law
18
Q
Defines the duties, rules, and powers of government administrative agencies
A
Administrative Law
19
Q
Establishes the legal relationships between agencies, other government bodies, and the public at large
A
Administrative Law
20
Q
Establishes the legal relationships between agencies, other government bodies, and the public at large
A
Administrative Law
21
Q
Occupational Safety and Health
Administration (OSHA) regulations
Food and Drug Administration (FDA) regulations
Department of Defense (DoD) regulations
Air Force/Army/Coast Guard/Marine/ Navy regulations
A
Examples of Administrative Law
Executive Agencies
22
Q
Contracts
Torts
Family, Property, Bankruptcy, IP, etc.
A
Civil Law
23
Q
Society harmed No self-help Restriction on liberty Beyond a reasonable doubt Trial by jury guaranteed
A
Criminal
24
Q
Beyond a reasonable doubt
A
Criminal
25
Trial by jury guaranteed
Criminal
26
```
Individual harmed
Self-help permitted
Damages
By a preponderance of the evidence
Limited right to trial by jury
```
Civil
27
By a preponderance of the evidence
Civil
28
Limited right to trial by jury
Civil
29
A legally binding agreement
Contract
30
```
Competent parties
Legal subject matter
Offer
Acceptance
Consideration
Mutual agreement
```
Elements of a Contract
31
Three most potentially important elements of a contract?
Offer
Acceptance
Consideration
32
Written or Oral
Express or Implied
Types of Contracts
33
Remedies Sought in Contract
Specific performance
Damages: $$$$
34
What are the three sources of law?
Statutes
Common Law
Administrative Law
35
What is the purpose of the Judicial Branch?
settle disputes
Supreme Court and all of the courts undernearth
36
What is Federalism?
tension between state and federal powers
37
What is the difference between Criminal Law and Civil Law
```
CRIMINAL:
Society harmed
No self-help
Restriction on liberty
Beyond a reasonable doubt
Trial by jury guaranteed
```
```
CIVIL:
Individual harmed
Self-help permitted
Damages
By a preponderance of the evidence
Limited right to trial by jury
```
38
What are the elements of a contract?
Competent Parties
Legal Subject Matter
OFFER
ACCEPTANCE
CONSIDERATION
Mutual Agreement
39
What is specific performance?
Not necessarily monetary, but asking court to require the other party to do what they agreed to in the contract
- an equitable remedy calling for the performance of the act promised in the contract
- the strongest legal or equitable remedy
- courts prefer legal remedies
- equitable remedies are needed in the interest of fairness, protection of a person's reliance and to avoid injustice and due to the difficulty in measuring legal damages monetarily
40
What is the primary purpose of damages in a breach of contract action?
Failing to meet the standard.
At this step, the focus on actions, not the outcome.
PURPOSES OF DAMAGE ACTIONS IN TORT
To give compensation, indemnity or restitution for harm
To determine rights
To punish wrongdoers and deter wrongful conduct
To vindicate parties and deter retaliation or violent and unlawful self-help
41
meeting of the minds means the parties must agree to all the specifics of the contract
mutual agreement
42
meeting of the minds means the parties must agree to all the specifics of the contract
mutual agreement
43
one party makes a promise to do or refrain from doing some specified action
offer
44
the offer was accepted unambiguously
acceptance
45
something of value is promised in exchange for the specified action
consideration
46
Understand the three types of Tort Liability
Types of Tort:
Torts of strict liability
Intentional torts
Negligent torts
47
Distinguish between
| Intentional Torts and Negligent Torts
Intentional Torts
Civil Law: Deliberate acts resulting in injury to another
Crimes (Criminal Law): Violations of federal or state criminal law
One act may be both a crime against society and a tort against an individual!!
Example: Surgery Without Informed Consent = Medical Malpractice AND Criminal Act!!
```
Intentional Tort Elements:
Assault
Assault Consummated By Battery (Battery)
False imprisonment
Violation of the right of privacy
Abandonment
Defamation
Intentional infliction of emotional distress
Outrage
```
Negligent Torts:
A breach of duty, other than a contractual duty, which gives rise to a cuase of action for damages
Elements of Negligent Torts:
- Duty
- Negligent Breach
- Causation
- Injury
- Damages
48
Distinguish between
| Damages in Tort and Damages in Contracts
DAMAGES IN TORT v. CONTRACT
TORT:
Calculated to place plaintiff in the same position, had the tort not been committed
The court determines what losses the plaintiff would have avoided had the incident not happened.
CONTRACT:
Calculated to place the plaintiff in the position they would be in had the contract been performed
The court considers the benefits the plaintiff would have gained had the contract been completed
49
Describe the elements of legally actionable negligence
Negligence - failure to exercise a degree of care that would be taken by another reasonable person in the same circumstances
Individual Negligence Elements
- Duty
- Negligent breach of duty
- Injury
- Causation
Corporate Negligence Elements
- Durty
- Negligent breach of duty
- Injury
- Causation
50
Apply the defenses in Tort Liability
```
Elemental
Good Samaritan
Res judicata
Truth
Charitable Immunity
Sovereign Immunity
Assumption of the risk
Statute of limitations
```
51
Understand the Doctrine of Vicarious Liability
A hospital or doctor can be held vicariously liable for a claim based on the acts of one of its employees
52
Distinguish between:
Corporate Liability and Corporate Negligence
Liability can fall on the individual or corporation. Corporate liability is either corporate negligence or vicarious liablity
Corporate Negligence:
Failure of a corporation to meet its legal obligations to its clients.
Vicarious Liability:
Sometimes referred to as “imputed liability”
Assigns liability to an individual who did not actually cause the harm, but who has a specific superior legal relationship to the person who did cause the harm
53
Distinguish between:
Individual Negligence and Corporate Negligence
Individual Negligence:
Failure to exercise the degree of care expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation.
A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances
Failure of a corporation to meet its legal obligations to its clients.
Doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient
-Ensure the patient’s safety and well-being while at the hospital
-Responsibilities include the monitoring and supervision of the competence of medical and nursing personnel within the facility; investigating physicians' credentials, negligent hiring of health care professionals
54
Distinguish between:
Comparative and Contributory Negligence
(Both Tort Defenses)
Contributory negligence – if negligent conduct on the part of the plaintiff/injured party contributes to the negligence of the defendant in causing the injury or damage, the plaintiff is barred from recovery
Comparative negligence - a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed to cause the injury.
55
TYPES OF DAMAGES IN TORT:
Compensatory Damages - Intended to restore what a plaintiff has lost as a result of a defendant's wrongful conduct
Punitive Damages are intended to punish the defendant for their misconduct
56
- Intended to restore what a plaintiff has lost as a result of a defendant's wrongful conduct
TYPES OF DAMAGES IN TORT:
Compensatory Damages
57
In a pure comparative negligence state, what would the dollar amount of the verdict be if a plaintiff were shown to be 15% negligent and his damages were $450,000? ? What if using a modified comparative negligence rule? A contributory negligence rule?
TEST QUESTION FOR SURE!!!
KNOW HOW TO CALCULATE!!!
Pure Comparative Negligence: $382,500
Modified Comparative Negligence: $382,500
Contributory Negligence? $00.00
58
Tort Defense Review
In a modified comparative negligence state, where the bar to recovery is 50% negligence, what would the dollar amount of the verdict be if a plaintiff were shown to be 51% negligent and damages were $130,000? What if using a pure comparative negligence rule? A contributory negligence rule?
TEST QUESTION FOR SURE!!!
KNOW HOW TO CALCULATE!!!
Pure Comparative Negligence: $63,700
Modified Comparative Negligence: $00.00
Contributory Negligence? $00.00
59
are intended to punish the defendant for their misconduct
TYPES OF DAMAGES IN TORT:
Punitive Damages
60
the result of harm incurred due to the actions of another, with no finding of fault by the defendent
Strict Liability Torts
61
the causing of harm by intentional act, such as intentionally conning someone out of money
Intentional Tort
62
the causing of harm through some negligent act, such as causing a car accident by running a red light
Negligent Tort
63
1) _____ the result of harm incurred due to the actions of another, with no finding of fault by the defendent
2) _____ the causing of harm by intentional act, such as intentionally conning someone out of money
3) ______ the causing of harm through some negligent act, such as causing a car accident by running a red light
1) Strict Liability Torts
2) Intentional Tort
3) Negligent Tort
64
the causing of harm through some negligent act, such as causing a car accident by running a red light
Negligent Tort
65
1) _____ the result of harm incurred due to the actions of another, with no finding of fault by the defendent
2) _____ the causing of harm by intentional act, such as intentionally conning someone out of money
3) ______ the causing of harm through some negligent act, such as causing a car accident by running a red light
Type of Tort:
1) Strict Liability Torts
2) Intentional Tort
3) Negligent Tort
66
Tort Defenses:
_______ missing an element such as no duty or no negligent breach
Elemental
67
Tort Defenses:
which type of tort defense is the following?
Legal protection to people who give reasonable assistance to those who are, or who they believe to be, injured, ill, in peril, or otherwise incapacitated
Law that prevents lawsuits against medical personnel attending to emergency
Good Samaritan
68
Tort Defenses:
_______ a matter that has been adjudicated by a competent court and may not be pursued further by the same parties
Res judicata
69
Tort Defenses:
______ If the statement made is true, there can be no claim for libel or slander. In many courts, a "reasonable belief" that the statement is true will also be a successful defense, though other courts will require higher degrees of care
Truth
70
Tort Defenses:
- is a legal doctrine which holds that a charitable organization is not liable under tort law.
Charitable Immunity
71
Tort Defenses:
- legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution.
Sovereign Immunity
72
Tort Defenses:
________ if negligent conduct on the part of the plaintiff/injured party contributes to the negligence of the defendant in causing the injury or damage, the plaintiff is barred from recovery
Contributory negligence
73
Tort Defenses:
__________ - a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed to cause the injury.
Comparative negligence
74
Tort Defenses:
_______ - once a person has knowingly and voluntarily engaged in the risky activity, he cannot sue the host for injuries or damages incurred
Assumption of the risk
75
Tort Defenses:
________-- - law which sets the maximum time that parties have to initiate legal proceedings from the date of an alleged offense or injury
Statute of limitations
76
Individual vs Corporate Negligence differences
Individual:
A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances
Corporate:
Failure of a corporation to meet its legal obligations to its clients.
Doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient
77
Understand how the Medical Standard of Care applies in Federal Healthcare Settings
Medical Malpractice in the Military Health System; Malpractice System Goals:
Improve Patient care through deterrence
Compensate meritorious claims by injured patients
A potentially compensable event (PCE) is an adverse event that occurs in the delivery of healthcare or services with resulting injury to the patient. It includes any adverse event or outcome, with or without legal fault, in which the patient experiences any unintended or unexpected negative result.
A significantly involved provider (SIP) is an individual who (based on medical record entries) actively delivered care in primary or consultative roles during the episode(s) of care that gave risk to the allegation(s) of malpractice, regardless of the SOC determination.
.... do know that under sovereignty the federal gov't cannot be sued
78
Understand the definition of Medical Malpractice
Medical Malpractice refers to negligence by an act, or failure to act, by a doctor or other healthcare provider.
When a medical professional’s treatment fails to meet the accepted standard within the medical community, and it causes injury to, or death of, the patient, it is considered to be malpractice.
79
– “let the master answer”
Respondeat Superior
80
Understand the requirement for expert medical testimony in Tort cases.
Res ipsa loquitur - expert NOT required
Rule 702 - Testimony by Expert Witnesses
the patient might have a physician offer Expert Testimony regarding the medication that reasonably prudent physician would have prescribed
81
– a person who is called upon to testify during a trial due to his knowledge or skills in a field that is relevant to the case
Expert Witness
82
– “let the master answer”
Legal doctrine in which an employer may be held responsible for the actions of his employees, when the actions are performed “in the course of employment.”
Respondeat Superior
83
Legally Actionable Negligence
| Negligent Torts
Duty
Negligent breach of duty
Injury
Causation
84
The legal term: “the reasonably prudent person under the circumstances (RPPUTC)”
Not the highest degree of known professional skill, but that which is reasonable or ordinary...
Standard of Care
85
The legal term: “the reasonably prudent person under the circumstances (RPPUTC)”
Not the highest degree of known professional skill, but that which is reasonable or ordinary...
Standard of Care
86
The legal term: “the reasonably prudent person under the circumstances (RPPUTC)”
Not the highest degree of known professional skill, but that which is reasonable or ordinary...
Standard of Care
87
Examples of Negligent Medical Torts
Failure to meet the standard of care:
```
Failure to consult
Failure to refer
Failure to obtain informed consent
Abandonment
Breach of confidentiality
```
88
Application of the Standard of Care
_______ - the standard of care to be applied to the professional's conduct is the reasonable care exercised by similar professionals in the same vicinity and professional community.
________ - requires a doctor to use the degree of skill and care of a reasonably competent practitioner in his field under same or similar circumstances
Locality Rule
National or Professional Rule
89
The plaintiff's injury must be of a type that does not ordinarily occur unless someone has been negligent.
Means - - " The Thing Speaks for Itself "
Laymen would understand
Expert testimony is not required
Res ipsa loquitur
90
Res ipsa loquitur Examples?
Wrong limb or body part
Wrong patient
Explosion or fire
Foreign body left in patient
91
Why are employers responsible for their employee conduct?
Respondeat Superior
The Latin term respondeat superior, which means “let the master answer”
Legal doctrine in which an employer may be held responsible for the actions of his employees, when the actions are performed “in the course of employment.”
Vicarious Liability – A hospital or doctor can be held vicariously liable for a claim based on the acts of one of its employees.
92
How is the standard of care measured in negligence cases?
The legal term: “the reasonably prudent person under the circumstances (RPPUTC)”
Not the highest degree of known professional skill, but that which is reasonable or ordinary...
93
What is National Standard of Care?
National or Professional Rule - requires a doctor to use the degree of skill and care of a reasonably competent practitioner in his field under same or similar circumstances
Locality Rule - the standard of care to be applied to the professional's conduct is the reasonable care exercised by similar professionals in the same vicinity and professional community.
National or Professional Rule - requires a doctor to use the degree of skill and care of a reasonably competent practitioner in his field under same or similar circumstances
Failure to meet the standard of care:
```
Failure to consult
Failure to refer
Failure to obtain informed consent
Abandonment
Breach of confidentiality
```
94
Name and define the types of damages awardable in Tort cases (two)
Compensatory Damages - Intended to restore what a plaintiff has lost as a result of a defendant's wrongful conduct (can be compensatory or general)
Punitive Damages are intended to punish the defendant for their misconduct
95
To give compensation, indemnity or restitution for harm
To determine rights
To punish wrongdoers and deter wrongful conduct
To vindicate parties and deter retaliation or violent and unlawful self-help
PURPOSES OF DAMAGE ACTIONS IN TORT
96
Describe the two types of compensatory damages:
Special Damages - financial losses directly caused by the defendant’s actions
General Damages – money awarded for things for which the value is more difficult to determine.
97
Describe the two types of compensatory damages:
Special Damages - financial losses directly caused by the defendant’s actions
General Damages – money awarded for things for which the value is more difficult to determine.
98
Name the type of damage that cannot be awarded against the United States
punitive damage
99
SPECIAL DAMAGES (objective factors) ?
| financial losses directly caused by the defendant’s actions
Cost of repairs
Loss of earnings
Impairment of earning capacity
Medical expenses
Services in the home
Cost to repair or replace property
100
Cost of repairs
Loss of earnings
Impairment of earning capacity
Medical expenses
Services in the home
Cost to repair or replace property
SPECIAL DAMAGES (objective factors)
101
SPECIAL DAMAGES (objective factors) ?
| financial losses directly caused by the defendant’s actions
Cost of repairs
Loss of earnings
Impairment of earning capacity
Medical expenses
Services in the home
Cost to repair or replace property
102
GENERAL DAMAGES (subjective factors)
| money awarded for things for which the value is more difficult to determine.
```
Pain and Suffering
Physical impairment
Loss of use
Visible scarring
Loss of enjoyment of life (Hedonic)
Mental Anguish
```
103
```
Pain and Suffering
Physical impairment
Loss of use
Visible scarring
Loss of enjoyment of life (Hedonic)
Mental Anguish
```
GENERAL DAMAGES (subjective factors)
104
```
Pain and Suffering
Physical impairment
Loss of use
Visible scarring
Loss of enjoyment of life (Hedonic)
Mental Anguish
```
GENERAL DAMAGES (subjective factors)
105
can punitive damages be awarded against the US?
NOT A CHANCE!!
106
______ are damages awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
PUNITIVE DAMAGES
107
________ = the defendant's evil motive or his reckless indifference to the rights of others.
Outrageous conduct
108
Character of defendant’s conduct
Extent and nature of the harm (actual and intended)
the wealth of the defendant.
Considerations for what?
PUNITIVE DAMAGES
109
Waiver of Sovereign Immunity to permit individuals to sue the U.S. for negligent acts of U.S. government personnel acting within the scope of employment.
Sole Remedy for negligent acts of military health care providers acting within SOLE -- suit must be against the U.S., not the individual
Federal Tort Claims Act
APPLIES IN THE FOLLOWING: In-scope negligent torts of agents and employees
In the United States
110
When the FTCA Applies?
Federal Tort Claims Act
In-scope negligent torts of agents and employees
In the United States
111
When the FTCA Applies?
Federal Tort Claims Act
In-scope negligent torts of agents and employees
In the United States
112
Federal Malpractice Claims Process:
Begins with an Administrative Claim
Must state a sum certain
Proper Claimant - public, family members
U.S. Government has 6 months to process claim
If no response or not satisfied with final decision claimant can file suit in Federal
District Court
May only be filed pursuant to the FTCA
If filed against the health care provider – U.S. Government will be substituted (not automatic)
113
Federal Malpractice Claims Process:
Begins with an Administrative Claim
Must state a sum certain
Proper Claimant - public, family members
U.S. Government has 6 months to process claim
If no response or not satisfied with final decision claimant can file suit in Federal
District Court
May only be filed pursuant to the FTCA
If filed against the health care provider – U.S. Government will be substituted (not automatic)
114
FTCA RULE S
```
Two year Statute of Limitations
Trial by judge alone
Trial in U.S. District Court
No limit on damages
No punitive damages
```
115
```
Two year Statute of Limitations
Trial by judge alone
Trial in U.S. District Court
No limit on damages
No punitive damages
```
FTCA RULE S
116
FTCA KEY TERMS
what is a proper claimant?
Civilians
Dependents
Retirees
117
FTCA RULES
```
Two year Statute of Limitations
Trial by judge alone
Trial in U.S. District Court
No limit on damages
No punitive damages
```
118
```
Two year Statute of Limitations
Trial by judge alone
Trial in U.S. District Court
No limit on damages
No punitive damages
```
FTCA RULES
119
FTCA KEY TERMS
what is a proper claimant?
Civilians
Dependents
Retirees
120
Operates overseas as the FTCA operates in the United States; except it is administrative only
Protects governmental agents and employees from personal liability for harm resulting from their negligent in-scope torts
MILITARY CLAIMS ACT
121
Operates overseas as the FTCA operates in the United States; except it is administrative only
Protects governmental agents and employees from personal liability for harm resulting from their negligent in-scope torts
MILITARY CLAIMS ACT
122
Two year Statute of Limitations
SoL extended during war or armed conflict
Administrative Claim Only
No right to a Trial
Damages in excess of $100,000 must be forwarded to the Comptroller General
No punitive damages
MILITARY CLAIMS ACT RULES
123
FOREIGN CLAIMS ACT RULES
Two year Statute of Limitations
Administrative Claim Only
No right to a Trial
Damages in excess of $100,000 must be forwarded to the Comptroller General
No punitive damages
Claimant must accept as full satisfaction
124
Two year Statute of Limitations
Administrative Claim Only
No right to a Trial
Damages in excess of $100,000 must be forwarded to the Comptroller General
No punitive damages
Claimant must accept as full satisfaction
FOREIGN CLAIMS ACT RULES
125
The government is not liable under the FTCA for injuries to service-members when those injuries arose out of, or were in the course of, activities incident to service
Also applies to Military Claims Act
Feres Doctrine
126
Feres Doctrine
The government is not liable under the FTCA for injuries to service-members when those injuries arose out of, or were in the course of, activities incident to service
Also applies to Military Claims Act
127
Will allow suit against the U.S. for injuries and deaths of a Soldier caused by improper medical care/other purposes.
A claim relating to the personal injury or death of a Soldier arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions provided at a covered military medical treatment facility
Treatment must be provided by a person acting within the scope of the office or employment of that person by or at the direction of the Government of the U.S.
Statute of limitations is 3 years
Military Medical Accountability Act of 2019
128
Military Medical Accountability Act of 2019
Will allow suit against the U.S. for injuries and deaths of a Soldier caused by improper medical care/other purposes.
A claim relating to the personal injury or death of a Soldier arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions provided at a covered military medical treatment facility
Treatment must be provided by a person acting within the scope of the office or employment of that person by or at the direction of the Government of the U.S.
Statute of limitations is 3 years
129
Define the Feres Doctrine.
Soldiers injured “incident to service” may not sue U.S. Government. “Incident to Service” is interpreted very broadly. Family members may not submit claims on behalf of Soldier.
The government is not liable under the FTCA for injuries to service-members when those injuries arose out of, or were in the course of, activities incident to service
Also applies to Military Claims Act
130
Who is protected under the FTCA?
In-scope negligent torts of agents and employees
In the United States
131
What is the significance of filing an administrative claim?
Under the FTCA, a plaintiff must first submit an administrative claim to the responsible federal agency prior to the initiation of a lawsuit.
132
What is the statue of limitations of the FTCA?
```
2 year statue of limiations
trial by judge alone
trial in US district court
No limit on damages
No punitive damages
```
133
What is the statute of limitations for the Military Claims Act?
```
Two year Statute of Limitations
Administrative Claim Only
No right to a trial
Damages in excess of $100K must be forwarded to comptroller general
No punitive damages
```
Claim Filed (Statue of Limitations extended for war and armed conflict)
134
- Must be Competent and Legal Age (State/Federal Law)
- Determined by physician
- Able to take in information
- Able to process information/reason and communicate
- Must be Voluntary Act
Capacity to Consent
135
- Oral (liability considerations, witnesses)
- Written (consent forms, POAs, living wills)
- Implied (emergency)
Forms of Informed consent
136
- Oral (liability considerations, witnesses)
- Written (consent forms, POAs, living wills)
- Implied (emergency)
Forms of Informed consent
137
Informed Consent
General Rule—
The patient must posses certain information prior to giving consent. A physician has a duty to disclose:
Diagnosis of the patient’s condition
Nature and purpose of recommended treatment or procedure
Risks and complications associated with the recommended treatment or procedure
Prognosis if the treatment is performed
Prognosis if the treatment is not performed
Alternative treatments
138
Informed Consent
Think “PARQ”:
Procedure
Alternatives
Risks and Benefits
Questions
139
Elements of Informed
| Decision - Making
Decision Making Capacity
Information
Voluntariness
Agreement / Request
Declination / Refusal
140
Legal age (determined by state law)
Ability to take in information
Ability to process information
Ability to communicate information
Decision – Making Capacity
141
Remember:
- A patient has the right to refuse medical treatment.
- Not an absolute right
- Scope of Refusal
Advance Directives
142
Three types of Advance Directives—
Do Not Resuscitate (DNR) Orders
Durable Medical Power of Attorney
Living Will
143
A written document in which one person appoints another person to act as an agent on their behalf
Can be general or special
Grant requires legal capacity
Attorney-in-fact must have legal capacity
Effective on the date stated
Terminates when the grantor dies or becomes incompetent
Power of Attorney
144
A written document in which one person appoints another person to act as an agent on their behalf
Can be general or special
Grant requires legal capacity
Attorney-in-fact must have legal capacity
Effective on the date (immediate or “springing”)
Continues beyond incapacity and death of the grantor
Most often used for health care issues
Durable Power of Attorney
145
Generally used for terminal illnesses
Takes effect when a stated medical problem occurs
Provides instructions to health care providers
Used to outline a full range of treatment preferences including rejecting certain treatment
Allows you to make decisions concerning future treatment
Living Will
146
Living Will Vs. Durable POA for Medical Care
Living Will:
Requires a terminal condition
Takes effect when a stated medical problem occurs
Relies on health- care providers
Durable POA for Medical Care
- Takes effect upon execution or loss of decision - making capacity
- Employs a named agent
- Grants decision - making power for any medical situation
147
Passive Death vs. Proactive Death
The Right to Refuse Treatment has been recognized U.S. for many years
Requesting that someone else assist or speed up the dying process is a different matter, both ethically and legally.
If the patient requires the assistance of another person, they must reside in a state with supportive laws.
Right to Die
148
What are the elements of Informed Decision-Making?
| What information is required?
Decision making capacity (legal age, ability to take in information/process information/communicate information)
Information
Voluntariness
Agreement/request or declination/refusal
149
State the purpose of the Privacy Act and the Freedom of Information Act
Privacy Act:Balance the government’s need to maintain information about individuals with individuals’ privacy rights. Ensure no “secret files” are kept
Restricts the disclosure of personal information maintained by agencies.
FOIA: keeps citizens in the know about their government. provides that when processing requests, agencies should withhold information only if they reasonably foresee that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law
150
What is the purpose of the Privacy Act?
Balance the government’s need to maintain information about individuals with individuals’ privacy rights
Ensure no “secret files” are kept
Restricts the disclosure of personal information maintained by agencies
151
What does the Patient Self-Determination Act require?
Hospitals must allow the patient to fill out an advanced directive
152
What type of Advance Directive can you use in case you become incompetent?
Durable Medical Power of Attorney
Living Will
153
How do we measure whether the informed consent was was sufficient?
Reasonable Physician Standard
-What a reasonable physician would disclose under the same or similar circumstances.
Reasonable Patient Standard
-What information the reasonable patient would consider “material” before making a decision.
Objective Materiality
-Objective balancing of probability that the risk will occur with the severity of the outcome if that risk does occur.
154
What is the difference between Durable POA and Living Will?
Living will = Normally used for a terminal condition
Takes effect when a stated medical problem occurs
Relies on health- care providers
---------
Durable PoA = Takes effect upon execution or loss of decision - making capacity
Employs a named agent
Grants decision - making power for any medical situation
155
What are the two Decision-Making Modalities for surrogates?
Patient's best interest: to attempt to act in the incompetent patient's best interest.
Surrogate's substituted judgment: to base the decision on what it is believed the incompetent patient would want
156
What are the three types of Advance Directives?
Do Not Resuscitate (DNR) Orders
Durable Medical Power of Attorney
Living Will
157
What is the difference between capacity and competence?
Capacity – Medical Determination
Individual abilities of the patient
The requirements of the task at hand
The consequences of the decision
Competence – Legal Determination
Adjudged by the court
Recognized as incompeten
158
Compare and Contrast the purposes of HIPAA and the Privacy Act
Privacy Act of 1974
Decades of protecting patient information
Applies to Federal Government only
HIPAA of 1996
Applies to entire US Healthcare Community INCLUDING the Military Health System (MHS)
Furthermore: HIPAA does not supersede the PA
Covered entities must also comply with DoD Privacy Act Program
The two rules protect PHI, but generally, the stricter rule is followed
PA systems notices reviewed and modified to incorporate HIPAA
Note: No private right of action under HIPAA
159
Describe the legislative objectives of HIPAA
To improve portability and continuity of health insurance coverage in the group and individual markets.
To combat waste, fraud, and abuse in health insurance and health care delivery.
To reduce costs and the administrative burdens of health care by improving efficiency of the health care system by standardizing the interchange of electronic data for specified administrative and financial transactions.
To ensure the privacy of Americans’ personal health records by protecting the security and confidentiality of health care information.
160
Apply the authorized exceptions that allow disclosure - focus on the Military Exception
Armed forces personnel: CE may use/disclose PHI of soldiers for activities deemed necessary by the appropriate military command authorities to assure execution of mission.
The Privacy Rule is permissive so a civilian covered entity (hospital or clinic) or Military Treatment Facility (MTF) is not required to disclose a Soldier's PHI.
DoD policy is to support a Commander's need for health information to support his mission.
Commanders are not authorized unfettered access to a Soldier's PHI. They are only authorized medical information that limits the Soldier's ability to perform his or her duty.
161
What is the purpose of the Freedom of Information Act?
has provided the public the right to request access to records from any federal agency.
The law that keeps citizens in the know about their government.
162
When does the Privacy Act apply? (three requirements)
Record – personal information about an individual
Individuals – Citizen or lawfully admitted alien
System of Records – group of records in which information is retrieved by the subject’s name or some personal identifier (e.g., social security number)
163
What should you do before submitting a FOIA request?
First check to see if the information you are interested in is already publicly available.
Search the agency’s website.
Search for information posted on the FOIA.gov website
If the information is not publicly available, FOIA request must be submitted to the Agency that has control of the records
The request must be in writing and reasonably describe the records.
Most federal agencies accept FOIA requests electronically
164
Name two FOIA exemptions?
Properly classified as secret in the interest of national defense or foreign policy.
Related solely to internal personnel rules and practices.
Specifically exempted by other statutes.
Concerning trade secrets and commercial or financial information obtained from a person that is privileged or confidential.
Privileged interagency or intra-agency memoranda or letters, except under certain circumstances.
165
Name two Privacy Act Obligations?
Access & Amendment Rights
Account for Disclosures
Accurate
Safeguard Information
Public Notice Before Records are Kept
No Records on 1st Amendment Exercise
Informed Collection: (Privacy Act Statement)
Keep Only Necessary and Relevant Information
Collect From 1st Party if Possible
No Disclosure to 3rd Party Without Consent
166
What is the purpose of HIPAA?
A major goal of HIPAA is to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and to promote high quality health care.
HIPAA strikes a balance that permits important uses of information, while protecting the privacy of people who seek health care.
167
What is covered under HIPAA?
Protected Health Information (PHI):
- Individually identifiable health information including demographics, in electronic, paper or oral medium
- Held by covered entities or their business associates
- Relates to the past, present, or future
- MTF’s responsibility is to protect & safeguard a patient’s PHI
168
Name two Covered Entities under HIPAA?
HIPAA applies only to Covered Entities (CEs):
- Military Treatment Facilities (MTFs)
- Health Plans, e.g., TRICARE
- Health care clearinghouses, e.g., companies that perform electronic billing on behalf of MTFs
- Health care providers who transmit health information in (standard) electronic transactions, e.g., Military Health System (MHS)
169
What are the legislative objectives of HIPAA?
To improve portability and continuity of health insurance coverage in the group and individual markets.
To combat waste, fraud, and abuse in health insurance and health care delivery.
To reduce costs and the administrative burdens of health care by improving efficiency of the health care system by standardizing the interchange of electronic data for specified administrative and financial transactions.
To ensure the privacy of Americans’ personal health records by protecting the security and confidentiality of health care information.
170
Name two authorized exceptions that allow disclosure HIPAA?
- As required by law
- Avert serious threats to health or safety
- Specialized government functions
- Judicial and administrative proceedings
- Law enforcement purposes
- Victims of abuse, neglect or domestic violence-
- Health oversight activities
- Workers’ compensation
- Research (minimal risk)
- Public health activities
- About decedents
- Cadaver organ, eye or tissue donation purposes
171
What is the goal of the Military Exception?
What information is releasable under the Military Exception?
"Fitness for mission"
Commander must exercise authority over Soldier or another person designated by a Commander to receive PHI to carry out an activity under the authority of the Commander.
Purposely very broad in nature.
Does not apply to civilians, retirees, or family members
172
– A hospital or doctor can be held vicariously liable for a claim based on the acts of one of its employees.
Vicarious Liability
173
when is consent required?
consent is always required, but who can give consent: an adult must provide consent that is mentally capable
174
elements of a contract
1) Competent Parties
2) Legal Subject Matter
3) Mutual Agreement
Competent parties – both parties must have the legal capacity to understand the terms of the agreement
Legal subject matter – in order for the contract to be legally binding the subject matter must be legal
Mutual agreement – meeting of the minds means the parties must agree to all the specifics of the contract
175
– both parties must have the legal capacity to understand the terms of the agreement
Competent parties
176
– in order for the contract to be legally binding the subject matter must be legal
Legal subject matter
177
– meeting of the minds means the parties must agree to all the specifics of the contract
Mutual agreement
178
The body of law concerning the establishment and operation of government agencies
Defines the duties, rules, and powers of government administrative agencies
Establishes the legal relationships between agencies, other government bodies, and the public at large
Administrative Law
179
TYPES OF DAMAGES IN TORT
Compensatory Damages - Intended to restore what a plaintiff has lost as a result of a defendant's wrongful conduct
Punitive Damages are intended to punish the defendant for their misconduct
180
Doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient
- ----Ensure the patient’s safety and well-being while at the hospital
- ----Responsibilities include the monitoring and supervision of the competence of medical and nursing personnel within the facility; investigating physicians' credentials, negligent hiring of health care professionals
Corporate negligence
181
imputed liability
vicarious liability
182
liability is imposed because of a special relationship
vicarious liability
183
the corporation is criminally liable for the actions of an agent or employee during the scope of employment
corporate liability
184
the employer is criminally liable for the actions of an employee during the scope of employment
employer-employee liability
185
– A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
Civil Lawsuit
186
– Responsibility for payment of damages, or for other court-imposed penalties in a civil lawsuit.
Civil Liability
187
– Failure to exercise a degree of care that would be taken by another reasonable person in the same circumstances.
Negligence
188
– A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
Plaintiff
189
– A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
Defendant
190
Tort defenses?
```
Elemental
Good Samaritan
Res judicata
Truth
Charitable Immunity
Sovereign Immunity
Assumption of the risk
Statute of limitations
```
191
```
Elemental
Performance / Satisfaction
Impossibility
Sovereign Immunity
Frustration of performance
Statute of limitations
Res judicata
Violates law/public policy
```
Contract Defenses
192
An element is missing required for contract formation (lack of consideration/meeting of the minds/capacity)
Elemental (Contract Defense)
193
The parties have accepted the contract performance, or a substitution for the performance, as adequate
Performance / Satisfaction (Contract Defense)
194
Something happens after contract formation that makes performance impossible or impracticable.
Impossibility (Contract Defense)
195
the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution
Sovereign Immunity (Contract Defense)
196
events occur or circumstances arise which substantially frustrate a party’s purpose in entering the contract.
Frustration of performance (Contract Defense)
197
set the maximum time after an event when legal proceedings may be initiated
Statute of limitations (Contract Defense)
198
a case in which there has been a final judgment and is no longer subject to appeal; meant to bar continued litigation of a case on same issues between the same parties
Res judicata (Contract Defense)
199
What is the United States Constitution?
Supreme law of the land:
provides framework of the US Gov
Establishes branches of Gov
Provides checks and balances
200
What is a law?
A system of rules that define socially acceptable behavior and sets punishments for violations
201
What is the difference between Criminal and Civil Law?
Criminal - restriction on liberty and beyond a reasonable doubt
Civil - damages and preponderance of the evidence
202
What are the elements of a contract?
```
Competent parties
Legal subject matter
Offer
Acceptance
Consideration
Mutual agreement
```
203
What is a specific performance?
Requiring the individual to do what they said they would do
Applied in breach of contract actions where monetary damages are inadequate
204
What is the primary purpose of damages in a breach of contract?
Place the injured party in the position they would have been in if the contact would've been performed
205
What is the difference between Civil Law and Criminal Law?
Civil law - by a preponderance of the evidence (money)
Criminal - beyond a reasonable doubt (jail time)
206
What are the two types of contracts?
Written or oral
Express or implied
Express contract can be oral or written or both… exchange of promises
All elements specifically stated … Ex: Lease
- --Implied contract is based on the actions of the people involved
- --Contractual obligation is assumed…. Pattern of behavior or status quo
207
What is a tort?
A non-contractual, civil wrong against a person (real or corporate) or against a person’s property for which a court may award a remedy in damages
208
What are the types of torts?
Torts of strict liability
Intentional torts
Negligence torts
209
What is a strict liability tort?
Activities so dangerous that an individual engaged in those activities is liable regardless of intent or negligence resulting in harm
Elements
- Tort Occurred
- Defendant is Responsible
210
What are the elements of legally actionable negligence?
What is the example of negligent tort?
```
Duty
Negligent Breach
Causation
Injury
Damages
```
Auto accidents
Slip and Falls
Product Defects
211
What are the elements of negligent tort?
Duty
Breach
Injury
Causation
212
- a system of rules that defines socially acceptable behavior and sets punishments for violations
Law
213
– a written law passed by a legislature of the state or federal government
Statute
214
– unwritten law that is developed by judges and courts
Common Law
215
– the body of law concerned with the establishment and operation of government agencies.
Administrative Law
216
– a legally binding agreement
contract
217
– a non-contractual, civil wrong against a person or person’s property for which a court can award a remedy in damages 2.
Tort
218
- activities so dangerous that an individual engaging in those activities is liable regardless of intent or negligence resulting in harm
3.
Strict Liability Tort
219
- deliberate acts resulting in injury to another
| 4.
Intentional Tort
220
- a breach of a duty, other than a contractual duty, which gives rise to a cause of action for damages 5.
Negligent Tort
221
- a matter that has been adjudicated by a competent court and may not be pursued further by the same parties 6.
Res judicata
222
- assigns liability to an individual who did not actually cause the harm, but who has a specific superior legal relationship to the person who did cause the harm
Vicarious Liability
223
- negligence by an act, or failure to act, by a doctor or other healthcare provider 2.
Medical Malpractice
224
- the standard of care to be applied to the professional's conduct is the reasonable care exercised by similar professionals in the same vicinity and professional community
3.
Locality Rule
225
- requires a doctor to use the degree of skill and care of a reasonably competent practitioner in his field under same or similar circumstances
4.
National or Professional Rule
226
- the plaintiff's injury must be of a type that does not ordinarily occur unless someone has been negligent. Means - - " The Thing Speaks for Itself " 5.
Res ipsa loquitur
227
- means “let the master answer” Legal doctrine in which an employer may be held responsible for the actions of his employees, when the actions are performed “in the course of employment.” 6.
Respoondeat Superior
228
- Experts provide testimony about their particular knowledge or skills in a field that relates to the issues disputed in the case
Expert Witness
229
– The Gov’t is immune from tort liability unless it consents to being sued. 2.
Sovereign Immunity
230
- means “let the master answer” Legal doctrine in which an employer may be held responsible for the actions of his employees, when the actions are performed “in the course of employment.”
3.
Respondeat Superior
231
– “the thing speaks for itself”; negligence is self-evident; don’t have to prove duty and breach elements of negligence 4.
Res Ipsa Loquitur
232
- waiver of Sovereign Immunity to permit individuals to sue the U.S. for negligent acts of U.S. government personnel acting within the scope of employment 5.
Federal Tort Claims Act
233
- applies to claims for personal injury that are caused by the negligence of a federal government employee who is acting within the scope of his or her employment, under circumstances where a private person would be liable under state law 6.
Scope of Employment
234
- judgment in an action under the FTCA shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim 7.
Judgment as a Bar
235
- Soldiers injured “incident to service” may not sue U.S. Government. “Incident to Service” is interpreted very broadly. Family members may not submit claims on behalf of Soldier 8.
The Feres Doctrine
236
- will allow suit against the U.S. for injuries and deaths of a Soldier caused by improper medical care/other purposes.
Military Medical Accountability Act of 2019
237
– what information a reasonable physician would disclose under the same or similar circumstances 2.
Reasonable Physician Standard
238
- what information the reasonable patient would consider “material” before making a decision 3.
Reasonable Patient Standard
239
– (Medical Determination) individual abilities of the patient; the requirements of the task at hand. The consequences of the decision 4.
Capacity
240
– (Legal Determination) adjudged by the court Recognized as incompetent 5.
Competence
241
– a written document in which one person appoints another person to act as an agent on their behalf
Power of Attorney
242
- written document in which one person appoints another person to act as an agent on their behalf. Continues beyond incapacity and death of the grantor
Durable Power of Attorney
243
- generally used for terminal illnesses; takes effect when a stated medical problem occurs; provides instructions to health care providers
Living Will
244
- provides the public the right to request access to records from any federal agency
Freedom of Information Act (FOIA)
245
- balance the government’s need to maintain information about individuals with individuals’ privacy rights. Restricts the disclosure of personal information maintained by agencies
Privacy Act
246
- provided the first nationally-recognized regulations for the use/disclosure of an individual's health information.
The Health Insurance Portability and Accountability Act (HIPAA)
247
– internal use or sharing of individually identifiable health information within the covered entity that maintains the information 5.
Use
248
– external release, transfer, provision of access to, or divulging in any manner, PHI outside the entity that maintains the information
6.
Disclosure
249
TPO – Treatment, Payment and Healthcare Operations
Treatment?
Payment?
Healthcare Ops?
a. Treatment - provision, coordination, consultation and referral
b. Payment - billing, reimbursement, eligibility, utilization review
c. Healthcare Operations – Quality Assurance, credentialing, legal, medical review, auditing, and regular business and management
250
Name and define tort defenses?
Think
CCT CAS REGS
Look at your notes or the google doc #23
251
What is the difference between individual negligence and corporate negligence?
Individual
- Failure to exercise the degree of care expected of a person of ordinary prudence in like circumstances in protecting others from a foreseeable and unreasonable risk of harm in a particular situation
- Person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances
Corporate
- Failure of a corporation to meet its legal obligations to its clients
- Doctrine under which the hospital is liable if it fails to uphold the proper standard of care
- ----Responsible for supervision and behavior of its employees
252
What is the doctrine of vicarious liability?
A hospital or doctor can be held vicariously liable for a claim based on acts of its employees
253
Why are employers responsible for their employees conduct?
Respondeat Superior
---Legal doctrine that allows employers to be held responsible for the actions of their employees in the “course of employment”.
254
What is the national standard of care?
Requires a doctor to use the degree of skill and care of a reasonably competent practitioner in his field under the same or similar circumstances
255
What are the elements of medical malpractice?
```
Failure to consult
Failure to refer
Failure to obtain informed consent
Abandonment
Breach of confidentiality
```
256
What does res ipsa loquitur mean?
Injury must be a type that does not ordinarily occur unless someone has been negligent
“Let things speak for itself”
Laymen understands
Expert testimony not required
Examples: wrong limb, wrong patient, fire, foreign body left in patient
257
Normally used for a terminal condition
Takes effect when a stated medical problem occurs
Relies on health- care providers
living will
258
Takes effect upon execution or loss of decision - making capacity
Employs a named agent
Grants decision - making power for any medical situation
durable PoA (for medical care)
259
Token damages awarded to redress a violation of a legal right that the law deems necessary to protect, even if there has been no actual harm or monetary loss.
By granting nominal damages, the court affirms that a legal right has been violated.
EX?
NOMINAL DAMAGES
T-swift $1 for butt touches
260
Awarded to compensate a plaintiff for suffering intangible injuries or damages.
The damage award is for aggravation of the injury by the defendant’s misconduct.
Intangible Injuries include: mental distress, pain, anguish, grief, anxiety, humiliation, indignation, or damaged self-confidence.
AGGRAVATED DAMAGES
261
are damages awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
Outrageous conduct = the defendant's evil motive or his reckless indifference to the rights of others.
Considerations:
Character of defendant’s conduct
Extent and nature of the harm (actual and intended)
the wealth of the defendant.
Punitive damages
262
DAMAGES IN TORT v. CONTRACT?
TORT
Calculated to place plaintiff in the same position, had the tort not been committed
The court determines what losses the plaintiff would have avoided had the incident not happened.
CONTRACT
Calculated to place the plaintiff in the position they would be in had the contract been performed
The court considers the benefits the plaintiff would have gained had the contract been completed
263
physicians held liable by parents for the cost of raising an impaired child and related damages for failing to advise parents of birth defects
Wrongful birth:
264
action brought by or on behalf of a child by normal but unwanted children or planned, but abnormal children. Premise is that the child’s existence is a harm and but for the physician’s negligence the child would not have been born.
Wrongful life:
265
What are the two decision-making modalities for surrogates?
Patient’s best interest
To attempt to act in the incompetent patient’s best interest
Surrogate’s substituted judgement
To base the decision on what is believed the incompetent patient would want
266
To attempt to act in the incompetent patient’s best interest
Patient’s best interest
267
To base the decision on what is believed the incompetent patient would want
Surrogate’s substituted judgement
268
Preservation of life
Prevention of suicide
Protection of innocent third parties
Protection of the ethical integrity of healthcare professionals
states’ interests THAT are normally involved
269
What states’ interests are normally involved?
Preservation of life
Prevention of suicide
Protection of innocent third parties
Protection of the ethical integrity of healthcare professionals
270
What is the difference between capacity and competence?
Capacity: medically determined
Individual abilities of the patient
The requirements of the task at hand
The consequences of the decision
Competence: court determined
Adjudged by the court
Recognized as incompetent
271
Capacity: medically determined
Individual abilities of the patient
The requirements of the task at hand
The consequences of the decision
272
Competence: court determined
Adjudged by the court
| Recognized as incompetent
273
What is the therapeutic privilege?
An exception to the general rule of informed consent, and only applies when disclosure of the information itself could pose serious and immediate harm to the patient, such as prompting suicide
274
What are the elements of informed decision making?
```
Decision Making Capacity
Information
Voluntariness
Agreement/Request OR
Declination/Refus
```
275
What are the elements of decision making capacity?
```
Legal age (determined by state law)
Ability to take in information
Ability to process information
Ability to communicate information
Capacity (medical determination)
Competence (legal determination)
```
276
What is the purpose of the privacy act?
Balance the government’s need to maintain information about individuals with individuals’ privacy rights
Ensure no “secret files” are kept
Restricts the disclosure of personal information maintained by agencies.
277
What is the purpose of the freedom of information act?
Allows access to information
The law that keeps citizens in the know about their government.
Provides that when processing requests, agencies should withhold information only if they reasonably foresee that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law.
278
When does the privacy act apply?
Applies to Federal Government only
279
Name the FOIA exemptions?
Properly classified as secret in the interest of national defense or foreign policy
Related solely to internal personnel rules and practices
Specifically exempted by other statutes
Concerning trade secrets and commercial or financial information obtained from a person that is privileged or confidential
Privileged interagency or intra-agency memoranda or letters, except under certain circumstances
Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy
Investigatory records compiled for law enforcement purposes
Contained in or related to certain examination, operating, or condition reports concerning financial institutions
Geological and geophysical information and data, including maps, concerning wells
280
Name two privacy act obligations?
Access and amendment rights
Account for disclosures
Accurate
Safeguard information
Public notice before records are kept
No records on first amendment exercise
Information collection: privacy act statement
Keep only necessary and relevant information
Collect from first part of possibly
No disclosure to 3rd party without consent
281
What is the purpose of HIPAA?
A major goal is to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care
Strikes a balance that permits important uses of information, while protecting the privacy of people who seek health care
First nationally recognized act to protect health information
282
What is covered under HIPAA?
Protected Health Information
Individually identifiable health information including demographics, in electronic, paper, or oral medium
Held by covered entities or their business associates
Related to the past, present, or future
- -Physical or mental health of an individual
- -Provisions of health care to an individual
- -Payments for health care
- -Can be used to identify the individual or there is a reasonable basis to believe it could be used to identify the individual
MTF’s responsibility is to protect and safeguard a patient’s PHI
283
Name two covered entities under HIPAA?
Military treatment facilities (MTFs)
Health plans (eg TRICARE)
Health care clearinghouses, like companies that perform electronic billing on behalf of MTFs
Health care providers who transmit health information in (standard) electronic transactions, like the military health system
Business associates
---A person or entity that is not a member of the covered entity’s workforce, that performs a function or activity for the covered entity using PHI (eg independent medical transcriptionist, Garrison legal office, DOJ, managed care support contractors)
BA Agreement
- --A BA may not use or further disclose such information in violation of statute/regulation
- --Not needed if individual/office covered by the DoD regulation
284
What are the legislative objectives of HIPAA?
Improve portability and continuity of health insurance coverage in the group and individual markets
Combat, waste, fraud, and abuse in health insurance and health care delivery
Reduce cost and the administrative burdens of healthcare by improving efficiency of health care system by standardizing the interchange of electronic data for specified administrative and financial transactions
To ensure the privacy of americans’ personal health records by protecting the security and confidentiality of healthcare information
And quality
285
Name two authorized exceptions that allow disclosure HIPAA?
"Required by law”
- --Disclosures of PHI are permitted when required by other laws, whether federal, tribal, state, or local
- --Includes any mandate contained in a DoD regulation that requires a covered entity to make a use or disclosure and is enforceable in a court of law
- ------“DoD regulation” includes any DoD directive, instruction or publication OR any Military Department regulation or similar issuance
Disclosures to avert a serious threat to health or safety
Disclosures for law enforcement purposes
Disclosures for judicial and administrative proceedings
AR 15-6 investigations
Disclosures for healthcare operations
Disclosures for specialized government functions
Disclosure to command authorities
The military exception
Fitness for mission
Disclosure of directory information
286
What is the goal of the military exception?
To accomplish mission through:
To determine the soldier’s fitness to perform and particular mission, assignment, order, or duty including compliance with actions required as a precondition to performance of such mission, assignment, order, or duty.
Does not apply to civilians, retirees, or family members
287
What information is releasable under the military exception?
Only authorized medical information that limits the Soldier’s ability to perform his or her duty.
Minimum amount of information necessary
288
wrongful life vs wrongful birth?
Wrongful birth suits are used when the child has serious impairments, resulting in extraordinary medical and other expenses for the parents, who seek damages for these expenses, as well as emotional harm. Wrongful life suits, by contrast, are brought on behalf of the infant plaintiff.
289
wrongful life vs wrongful birth: who are the damages for in each case
Wrongful life - for infant plaintiff
Wrongful birth - expenses for parents who are plaintiffs
290
when does the Federal Acquisition Regulation System (FAR) system apply?
government contracts
