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Medical Law Review Flashcards

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1
Q

a wrongful act, damage or injury - not involving a contractual obligation is an example of?

A

tortious conduct

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2
Q

what are “forms” of “informed consent”

A

oral (liability considerations, witnesses)
written (consent forms, POAs, living wills)
implied (emergency)

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3
Q

the FTCA is the ____ _______ for negligent acts of military healthcare providers acting within SOE

A

sole remedy

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4
Q

types of contracts

A
  • express (written/oral) or implied
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5
Q

what are examples to meet the “standard of care” (F(CRO)AB)

A

failure to: consult / refer / obtain informed consent / abandonment / breach of confidentiality

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6
Q

what is the general rule of informed consent

A

it must be obtained before providing medical care

if not, battery or invasion of privacy tort

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7
Q

examples of administrative law

A

OSHA, FDA, DoD regs, Army Regs

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8
Q

what are the 3 types of advanced directives

A

DNR Orders, Durable Medical Power of Attorney, Living Will

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9
Q

What is the FOIA

A

1967 - provides public the right to request records from any federal agency

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10
Q

What are tort defenses? EGRT CSC CAS

A

Elemental / Good Samaritan / Res Judicata / Truth / Charitable Immunity / Sovereign Immunity / Contributory negligence / Comparative Negligence / Assumption of risk / Statute of limitations

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11
Q

what is federalism?

A

tension between states and national govt.

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12
Q

what are the 3 types of TORT?

A

Strict Liability / Intentional / Negligent

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13
Q

Summarize “FTCA Rule S”

A 
two year statute of limitations
trial by judge alone
trial in US district court
no limit on damages (>$100k must go to comptroller general)
NO Punitive damages
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14
Q

summarize the Feres doctrine

A

the govt is not liable for injuries to service members when injuries arose out of, or were in the course of, activities/incidence to service
(also applies to military claims act)

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15
Q

what is “standard of care”

A

reasonably prudent person under the circumstances…

not the highest degree but certainly not the lowest

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16
Q

summary of individual negligence

A

failure to exercise reasonable prudence in specific circumstances (“what would the average Joe do?”) OR changes conduct that is expected

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17
Q

What are the elements of an intentional tort? (AAFVAD)

A

Assault - act intended to cause harm/fear
Assault cons. by battery - intent to touch
False imprisonment - unlawful restraint
Violation of privacy - wrongful intrusion into personal life
Abandonment - ending patient relationship at unreasonable time
Defamation - Libel / Slander - untrue statement purported as fact

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18
Q

what is the intent for the privacy law

A

balance the govt’s need to maintain information about individuals with individual’s privacy rights; ensure no “secret files” are kept; restrict the disclosure of personal information maintained by agencies

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19
Q

what are the two types of damages in tort

A

compensatory damages - intended to restore what a plaintiff has lost as a result of a defendants wrongful conduct

punitive damages - intended to punish the defendant for their misconduct (sets precedence)

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20
Q

summary of corporate negligence

A

failure of corporation to meet legal obligation to its clients; failure to uphold proper standard of care; responsibility to monitory and supervise the competence of medical personnel / credentialing / negligent hiring

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21
Q

In short, what is “pure comparative negligence”?

“modified comparative negligence”

“contributory negligence”

A

“pure comparative negligence”- entitlement of a percent of damages that is minus the amount found liable (100k found 50% liable = 50k take home)

“modified comparative negligence” - entitlement of damages IF found to be less than 49% responsible for the negligence of the case

“contributory negligence” - if contributed even 1% - you’re shit out of luck - no money for you

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22
Q

What are two types of intentional torts?

A

civil law - deliberate acts of injuring another person
crimes - violations of federal or state criminal law
* a single act can be BOTH

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23
Q

differences in criminal vs. civil

A

criminal - society is harmed, no self-help, restriction on liberty, BEYOND A REASONABLE DOUBT, trial by jury GUARANTEED

civil: individual harmed, self-help permitted, damages, BY PREPONDERANCE OF EVIDENCE, limited right to trial by jury

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24
Q

if the FTCA is used to bring suit in regard to a military healthcare provider, the suit must be against whom?

A

the US-not the individual

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25
foreign claims act rule s states:
two year SoL (ext. during war/armed conflict) administrative claim only NO RIGHT TO TRIAL damages >$100k go to comptroller general NO PUNITIVE DAMAGES CLAIMANT must accept as FULL SATISFACTION
26
with regard to the patient's injury, what embodies "res ipsa loquitur"
injury must be of a type that does not ordinarily occur unless someone has been negligent
27
is a MTF/civilian hospital or clinic required to disclose a Soldier's PHI?
no
28
summarize punitive damages
damages awarded to punish for egregious conduct and to deter others from similar conduct considerations: character of conduct / extent and nature of harm / wealth
29
DoD policy supports what? (regarding PHI)
the Commander's need for health information to support his mission
30
Federal agencies are required to disclose any information requested under FOIA unless it falls under one of how many exemptions?
nine (i.e. personal privacy / national security / law enforcement, etc.)
31
where does the military claims act operate? | what is it limited to?
operates overseas since FTCA is US only | it is limited to administrative only
32
what is a statute
written law set by legislature sets forth general propositions of law that courts apply forbids/directs an act, declares something, sets forth govt mechanisms to aid society
33
what is administrative law
- deals with establishment/operation of govt agencies - duties, rules, powers of govt admin agencies - legal relationships between agencies, govt bodies, and the public
34
examples of statutes
Things with "Act" in them UCMJ Statutes of Limitation
35
what is a living will
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 rejection of certain treatments; allows you to make decisions regarding future treatments
36
what is the primary purpose of a breach of contract action?
place injured party in the position they would be in if the contract had not been performed
37
summarize the military medical accountability act of 2019
- allow suit against the US for injuries/deaths from improper medical care/other purposes - claim relating to personal injury or death of a Soldier arising out of negligence/wrong doing or omission in performance of medical, dental, health care related functions at an MTF - treatment must be provided by a persona acting within scope/direction of govt of US - SoL of 3 years
38
what two "rules" exist within the application of standards of care
locality rule: reasonable care exercised by similar professionals in same vicinity / community national/professional rule: doctor to use the degree of skill and care of reasonably competent practitioner in same field or similar circumstances
39
what type of law seeks to punish or reform the offender and protect society?
criminal law
40
in the FTCA claim, what must first be submitted to the responsible federal agency prior to the initiation of the lawsuit
administrative claim
41
what are the four legally actionable torts (DNIC)
duty / negligent breach of duty / injury / causation
42
What is the summary of a strict liability tort?
the defendant is solely responsible and liable regardless of intent or negligence resulting in harm (i.e. dangerous activities)
43
summarize Protected Health Information (PHI)
individually identifiable health information including demographics, in electronic, paper or oral medium
44
elements of a contract (6)
``` CLOACM Competent parties Legal subject Offer Acceptance Consideration Mutual agreement ```
45
Civil law can be broken into two subsets
contracts and torts
46
what is the waiver of sovereign immunity to permit individuals to sue the US for negligent acts of US government personnel acting within the scope of employment
federal tort claims act (FTCA)
47
what does "PARQ" stand for in "informed consent"
procedure / alternatives / risks and benefits / questions
48
what is res ipsa loquitur
"let it speak for itself" - doctrine which applies when the negligence is so apparent a presumption of breach of duty leading to the action or occurrence can be made by the court
49
what is the American Theory of Damages
amount of money necessary to make the injured party whole
50
what are FOIA exemptions?
classified as secret or above (national security / foreign policy) - related solely to internal personnel rules and practices - specifically exempted by other statutes - concerning trade secrets/commercial/financial information obtained from a person that is privileged/confidential - privileged interagency / intra-agency memoranda or letters - except under certain circumstances - personal and medical files - investigatory records compiled for law enforcement purposes - contained in/related to certain examination, operating, condition reports concerning financial institutions - geographical and geophysical information and data, (i.e. maps/concerning wells)
51
What are the two types of liability
individual and corporate (corporate negligence / vicarious liability)
52
when is specific performance applied?
applied in breach of contract actions where monetary damages are inadequate
53
military claims act rule s states:
``` two year SoL (ext. during war/armed conflict) administrative claim only NO RIGHT TO TRIAL damages >$100k go to comptroller general NO PUNITIVE DAMAGES ```
54
what is the purpose of "damages" in Tort cases
- give compensation, indemnity, or restitution for the harm - determine rights, punish wrongdoers, deter wrongful conducts, vindicate parties and deter retaliation or violent and unlawful "self-help"
55
when does the FTCA apply
in-scope negligent torts of agents and employees IN THE UNITED STATES
56
Name and define three TORT Defenses
- Charitable Immunity: charities cannot be held liable to tort law - Res Judicata - matter already adjudicated by competent court that cannot be pursued further (laid to rest) - Good Samaritan - protects medical personnel that provide reasonable assistance to those who are injured, ill, or in peril
57
examples of res ipsa loquitur
wrong limb, wrong person, explosion/fire, foreign body left in patient
58
when was the privacy law enacted
1974
59
what is the intent for HIPAA
provides the first nationally-recognized regulations regarding use/disclosure of health information
60
what does the military claims act protect against?
protects govt agents and employees from personal liability for harm resulting from their negligent in-scope torts
61
what is the capacity to consent in "informed consent"
must be competent and legal age, determined by physician, able to take in information, process and reason/communicate, must be a voluntary act
62
the HIPAA Privacy Rule requires covered entities to take reasonable steps to limit the use/disclosure of and requests for PHI to whom?
the minimum necessary to accomplish the intended purpose
63
what are the elements of informed decision making
capacity / information / voluntariness / agreement (request) / declination (refusal) or ``` legal age (state/feds) ability to "take in information, process, and communicate information" ```
64
what is respondeat superior
"let the master respond"
65
what are the main differences between a living will and a D.PoA?
living will: REQUIRES TERMINAL CONDITION; takes effect when stated medical problem occurs; relies on healthcare providers D.PoA: takes effect upon execution or loss of decision making capacity; employs a named agent; grants decision making power for ANY medical situation
66
what can be brought forth by a "tortious act"?
a civil suit
67
Three sources of law
statute, common law, administrative law
68
what amount of information is the commander authorized?
only authorized medical information that LIMITS THE SOLDIER'S ABILITY TO PERFORM HIS/HER DUTY
69
when was HIPAA enacted
1996
70
purpose of judicial branch?
interpret the law and presidential action
71
who decides to prosecute a criminal case?
government
72
what is an expert witness
person who is called upon to testify due to knowledge or skills in a field relevant to the case (SME)
73
what is a power of attorney
written document - person appoints another person to act on their behalf; can be general/special; attorney-in-fact must have legal capacity; grant requires legal capacity; effective on date stated; terminates when grantor dies or becomes incompetent
74
what is a durable power of attorney
same as PoA but continues beyond incapacity and death of grantor (most used in health care issues)
75
what are the two subsets of compensatory damages
special damages (objective) - financial losses directly caused by defendants actions (i.e. cost of repairs, loss of earnings, impairment of earning capacity, medical expenses, services in the home, cost to repair/replace property) general damages - money awarded for things for which the value is more difficult to determine (i.e. - pain/suffering, physical impairment, loss of use, visible scarring, loss of enjoyment of life (HEDONIC), mental anguish
76
Who is covered by HIPAA?
MTFs, health plans, health care clearing houses, health care providers
77
punitive damages cannot be awarded against who?
the US
78
what is common law
- unwritten law based on customs/principles - embodied in case law - sets precedences - applied in situations that aren't covered in statutes - developed by judges and courts
79
examples of common law (case law)
various cases of (john vs. james)
80
what is vicarious liability
hospital or doctor can be held vicariously liable for a claim based on acts of one of its employees
81
what is the "right to die"
- passive death vs. proactive death - right to refuse treatment is recognized in US - requesting that someone assist/speed up dying process is different (ethically/legally) - if assistance is required, state laws must be supportive
82
what are remedies sought in contracts?
specific performance / damages (monetary)

Medical Law (1 decks)

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