Midterm

Question 1

Administrative Law

Answer 1

Subset of statues; regulatory; government agency will administer (ex: DRROA, CO Department Health); Administrative agencies 1- pass rules 2- ajudicatory process (enforce violations of rules)

Question 2

Due Process of Law

Answer 2

Fundamental principle in fairness of legal matters, particularly in courts (civil and criminal); 1- Notice 2- Opportunity to be heard 3- Impartial Tribunal

Question 3

Dred Scott Decision, 1857

Answer 3

Congress does not have the right to pass anti-slavery statues

Question 4

Henry II

Answer 4

Consolidated ecclesiastical law, set up King’s courts, Court of Equity with deeds, set up Lord Chancellor of England; merged with court of law in England; merged early 1800s in US courts

Question 5

Jurisdiction

Answer 5

Area over which they preside

Question 6

Starry Decisis

Answer 6

Let it stand; established precedent

Question 7

In rein vs personenum

Answer 7

jurisdiction over individuals; jurisdiction over the thing/property in their area

Question 8

Subject matter jurisdiction

Answer 8

Arises from statutes; state vs federal

Question 9

Court Rules

Answer 9

Rules of procedure; rules for discovery (facts/evidence; deposition0 exam under oath; issue requests for admission

Question 10

Spoliation of evidence

Answer 10

if you destroy evidenced in pending case before disclosing to other side, you will be sanctioned (ex: email)

Question 11

Alternative dispute resolutions for contracted, binding agreements

Answer 11

Arbitration (quicker), mediation (not binding, someone facilitates)

Question 12

Affordable Care Act and the Supreme Court

Answer 12

SC ruled that Obamacare went too far regarding the commerce clause with the individual mandate; The commerce clause prohibits, but can it mandate/force?

Question 13

MLR under ACA

Answer 13

MLR must be at least 80%; for Medicare, 97% MLR

Question 14

ACA Goals: Obama & Pelosi

Answer 14

1- Slow growth rate of health care expenses; 2- improve quality and access to care (by expanding coverage, including young and healthies); this act expanded Medicaid payments; eliminated coverage denials 2/2 pre-existing conditions and gender/sex differences; expanded coverage of parents’ plan til age 26; strengthened HC fraud provisions; encouraged ACOs; passsed “individual mandate (controversial)- everyone must obtain insurance; employee mandate- if 50+ employees, required to purchase HC (44% US population)

Question 15

ACA criticisms Case 1

Answer 15

1 National Federation of Independent Businesses vs Sebelius (HHS Secretary); does the individual mandate exceed the reach of the commerce clause? Ruled that is was too far, can prohibit but not mandate; Necessary & Proper Clause- in Constitution- Congress can doe whatever necessary and proper to enhance other powers of Congress/Constitution- mandate is necessary and proper; Roberts majority opinion of Republican court- individual mandate NOT supported by commerce clause, but supported by taxation; pay alternative to insurance requirement statue constitutional under tax, upheld the individual mandate

Question 16

ACA Criticisms Case 2

Answer 16

Opponents found ACA clause suggesting only state-wide exchanges; SC didn’t answer, but said Act supports expantion of state & federal exchange

Question 17

ACA Criticisms Case 3

Answer 17

11th Circuit (deep South) sued to reduce individual mandate to $0 by Republican legislation; so the act says you have to opt in, but you weren’t penalized if you didn’t do it; conflicts with in-good-conscious healthcare purchase undue burden. TX vs US Azar case- sued HHS self- Supreme Court says you can’t create a standing to sue creating counter, challenge thrown out- self-inflicted injuries cannot establish standing to sue; ACA still stands without individual mandate

Question 18

Social Security Act of 1965

Answer 18

Lyndon Johnson; Established Medicaid for poor and Medicare for elderly; diability; baseline illegal alien coverage

Question 19

HMO Act of 1973

Answer 19

organizations compensated based on capitation per head; ex: Kaiser; benefit financially if people stay healthy

Question 20

PPO Preferred Provider Org

Answer 20

physician group similar to HMO with capitation per head, goals of keeping people healthy

Question 21

Medicaid Parts A, B, C, D

Answer 21

A: hospitalization/inpatient coverage 65+, B: Self-funded insurance (social security) outpatient/medical coverage; C: Medicare Advantage: Private insurance services funded by Medicare; D Prescription coverage

Question 22

Employee Retirement Income Security Act 1993 (ERISA)

Answer 22

Use ERISA to sue government funded insurance that fails to provide sufficient coverage (NOT private employer-funded insurance, which usually holds up better in court); will only reimburse coverage amount

Question 23

Health Planning & Resource Development Act of 1974

Answer 23

Established “certificate of need” at state level to review/approve new technologies in attempt to control costs; widely unpopular, including in CO; bureaucratic, expensive, conflict of interests/politics; no longer federally mandated, but present in 34 states

Question 24

TEFRA Tax Equity & Financial Responsibility Act of 1984

Answer 24

Introduced DRGs, standardized costs for diagnosis instead of costs

Question 25

COBRA Consolidate Omnibus Budget Reconciliation Act 1985

Answer 25

Used 10% of people; health insurance from employer still available for set period of time at same price

Question 26

EMTALA Emergency Medical Treatment Act & Active Labor Act of 1985

Answer 26

Anti-dumping statue; hospitals with an ED can't dump patients/send elsewhere (e.g., community hospital) for care; 1 must be examined 2 must be stabilized (regardless of ability to pay)

Question 27

Health Care Quality Improvement Act of 1986 HCQIA

Answer 27

offers broad immunity against damages for health care entities & individuals conducting peer review activities; national practitioner databank in MD- receives complaints/info re: physicians w/ malpractice complaints, suspended privileges over 30 days- must recertify every 2 years; POC, women, foreign or MDs not involved in political structure most likely to have complaints

Question 28

HCQIA 1986 HC Quality Improvement Act Immunity for reporting if (x4)

Answer 28

1 act in reasonable belief for quality of patient care; 2 reasonable effort to obtain facts; 3 adequate notice of procedures provided to practitioner; 4 action warranted by reasonable belief given facts (*in practice, limited due process of law and easy to report)

Question 29

STARK Statute 1988

Answer 29

prohibits self-referrals; covers most medical procedures EXCEPT kidney-failure tx; huge penalties if violated, consideration when setting up physician hospital contracts

Question 30

HIPPA Health Insurance Portability & Accountability Act 1996

Answer 30

Protects PHI; nondisclosure provisions with government sanctions; increases patient access to medical records and patients can disagree (medical records as basis for liability claims)

Question 31

Patient Self-Determination Act of 1990

Answer 31

Mandates advanced healthcare directives upon admission (e.g., living will)

Question 32

CHIPS Children's Health Insurance Program 1997

Answer 32

Provides increased healthcare funding for children living in poverty

Question 33

HITECH Act 2009 Health Information Technology for Economic & Clinical Health Act

Answer 33

Provides some funding and standards/guidelines for EHR

Question 34

Colorado Reve Stat 8-2-113

Answer 34

Non-compete; can't intimidate people from working elsewhere before they start employment

Question 35

Emmanuel Kant system for ethics (process to approach ethical problem)

Answer 35

1 ID & clarify the problem; 2 Gather info 3 Evaluate evidence 4 consider evidence 5 choose and implement best alternative

Question 36

Emmanuel Kant System for Ethics based upon

Answer 36

1 autonomy 2 beneficence 3 non-malefice 4 justice (5 confidentiality 6 role fidelity 7 veracity)

Question 37

Types of business organizations (4)

Answer 37

1 sole proprietor (1 person doing business on their own) 2 Partnerships (2+ people doing business- share profits/risks and operate together; mutual agents for each other; only taxed once); 3 LLC- members are their own managers, state level LL act; 4 corporations- legally a person but not an individual or citizen; has 1st amendment right (for campaign donations) but not 5th amendment rights (corporations CAN incriminate themselves); could be C corp (taxed separately from owners, go public), S corp (smaller, 100 shareholders max, only taxes on profits received)

Question 38

Fiduciary relationship/duty

Answer 38

top execs, employees, shareholders OWED fiduciary duties by board members, bankers, lawyers; to work in interests of your clients/organization loyalty, responsibility, reasonable care; obligation to act in good faith and not be diverted by outside interests

Question 39

Business judgement rule

Answer 39

If decision made in good faith with reasonable evidence in best interest of organization, can't be sued by shareholders (protects Board of Directors from complaints)

Question 40

A trust

Answer 40

Controls other corporations; amasses more power

Question 41

Corporations

Answer 41

created for liability purposes (e.g., not personal liability); longevity- exist externally as entity; Can double taxation (corporate & shareholders); Separates management (Board of Directors) from people who own the business

Question 42

Major hospitals as corporations (x3)

Answer 42

1 general shareholders; 2 c-corp- tax benefit flows to individual members, less than 100, operation as a partnership; non-profit/501c3- tax exemption/revenue code for charitable purposes; profits back to operations, not to shareholders

Question 43

inurement

Answer 43

"benefit" can't overpay reasonable/market value, espeically in 501c3

Question 44

estoppel

Answer 44

principle of law; party estopped from asserting something that contradicts what they previously established or did

Question 45

Independent contractor

Answer 45

Assigned actions/duties; can perform in their own way

Question 46

Employees

Answer 46

Services at direction/whim of employer

Question 47

Corporate Practice of Medicine

Answer 47

Prohibits private ownership of clinics; active in CO, many states; outsiders/nonprofessionals cannot have corporate ownership of clinicians; so hospitals (eg. not a doctor) hire MDs as IC as a result; MSO as corporate owner

Question 48

Respondeat superior

Answer 48

employer is responsible for actions of employees; principle (employer) is liable; if employee commits crime, employer can still be liable if they knew or reasonably should have known (EXCEPT in CO- Captain of the Ship- MD as IC controlling their unit team, taking on liability)

Question 49

How to terminate agency (of employee?)

Answer 49

fire them; frustration of purpose for which hired; impossibility performance (e.g., unprecedented/impossible circumstances); material breach contract

Question 50

Uniform Partnership Act 1997

Answer 50

Establishes partnership as a separate legal entity, no aggregate of individual partners

Question 51

Limited partnership

Answer 51

(LL, not corporation), can trade fairly easily; no management, just investment; if someone dies, no rights to assets but get comparable economic value

Question 52

Joint Venture

Answer 52

Ancillary jv- part of org; 2 orgs open 3rd org; to raise money, increase range, expand business interests

Question 53

1864 Civil Rights Acts

Answer 53

Protects from discrimination based on race, gender, color, sex; becomes ? ofintent

Question 54

Spoliation of evidence

Answer 54

deleting emails prior to upcoming court case

Question 55

Employees (at-will)

Answer 55

at-will: can be fired w/out reason UNLESS it's discrimination

Question 56

Public employees

Answer 56

Protected by due process principles; 5th and 14th amendment (can't take my property, eg. my job/livlihood, without due process)

Question 57

Joint Employess

Answer 57

agency RN; employed by company/agency AND current facility

Question 58

Contract employees

Answer 58

professional/higher management; salary, benefits, duration, non-disclosures and termination providisions defined in contract; often termed immediately if change in power dynamics

Question 59

Non-compete

Answer 59

Usually for set amount of time/region; not favored in the law due to decreasing competition; "liquidated damages"/draconian consequences and don't represent actual damages, so often hard to enforce *common for MDs

Question 60

Revenue 8215 Statue in CO

Answer 60

2022; restricts non-compete to $100k salary threshold and gives prohibition against stealing employees when you go

Question 61

Statutory non-employees

Answer 61

Personal care aides in HHC, real estate agents; not employees by statue

Question 62

Americans with Disabilities Act of 1990 ADA

Answer 62

Must provide reasonable accommodations for completing job duties

Question 63

Civil Rights Acts USC 1983

Answer 63

Prohibits discrimination based on race, creed, color

Question 64

Color of state law

Answer 64

can't deprive somebody of liberty or constitutional rights; state employees/police often tried under this

Question 65

Age Discrimination Act of 1967

Answer 65

if you have 20+ employees, can't discriminate over ages 40+ UNLESS safety risk/unreasonable for this age; execs 65+ CAN be discriminated against and you CAN reduce benefits based on age to equal cost of full benefits to younger workers

Question 66

Equal Pay & Compensation Act 1963

Answer 66

Fair labor standards act; equal pay for equal work UNLESS 1 seniority 2 merit 3 earnings by quantity or quality of production 4 any other factor (besides sex)

Question 67

Can't discriminate based on

Answer 67

Quality of Life (e.g., disabled children and failed abortions), genetic info

Question 68

PHEW Whistleblower Act Co Statue

Answer 68

If person raises concern with solid evidence and public health is protected, whistleblower protected

Question 69

FMLA

Answer 69

if 5+ employees, this applies to employees

Question 70

Fair Labor Standards Act

Answer 70

Established minimum wage, over time pay, no child labor

Question 71

Union/union activity/collective bargaining

Answer 71

Collective bargaining rights- groups can bargain for insurance, bonuses, ect; supervisors are management, NOT part of these groups

Question 72

Wagoner Act- Taft Hartley Bill 1947

Answer 72

rolled back collective bargaining activities; employees had right to refrain from participating in union activities ; no secondary boycotts; no featherbedding (paid to do nothing), no excessive initial union dues; no causing employer to discriminate against employees based on union activity; no coercion of employees into union participation

Question 73

When to break patient confidentiality?

Answer 73

hard to prove/poor evidence of prediction of violence; If direct threat to individual by name, duty to warn that individual and the police if you have time

Question 74

Contract

Answer 74

"a meeting of the minds;" agreement between competent parties after offer and negotiation of terms; offer must be detailed enough to convey expectation and be enforceable; acceptance must exactly match offer, if not, counter-offer

Question 75

Competency and contracts

Answer 75

Minors and incompetent people can center contracts, but their conservator or guardian can overturn

Question 76

Advertisements

Answer 76

Not contracts

Question 77

"Quasi contract"

Answer 77

Still enforceable based on mutual understanding

Question 78

Silence as contract acceptance

Answer 78

Can be if terms stated and then actions not stopped; if they proceed as if there's a deal and you don't stop them, that can be acceptance

Question 79

Implied covenant of good faith and fair deal

Answer 79

implied within contract; parties will deal with each other honestly, fairly and with good faith; will not interfere with reasonable completion of the contract

Question 80

Promissory estoppel

Answer 80

1. clear promise 2. reliance by the party to whom the promise is made 3. reliance reasonable and foreseeable 4. party asserting the estoppel must be injured by his reliance

Question 81

To resist liability for promissory estoppel, say

Answer 81

1 there was no promise; 2 there was no consideration; 3 interpretation- we didn't agree to what you think we agreed; 4 excuse/defense provision- force major, I'm excused (act of God/COVID); 5 I promised a remedy, but here's an easier/better solution

Question 82

"Cover" damages for sale of goods

Answer 82

If you bought goods and didn't get them and act reasonably, purchase from elsewhere- the difference between 2nd price and original agreed upon price is the "cover" damages

Question 83

Uniform COmmercial COde

Answer 83

Buyer's choice; if you receive goods that are not to contract standard, can accept, reject, or obtain cover

Question 84

Accordant satisfaction

Answer 84

buy-out of obligation; release from further obligation

Question 85

Novation in contract

Answer 85

New contract that changes terms or parties significantly

Question 86

Rescission in contract

Answer 86

Contract rendered null & void, no longer legally binding

Question 87

Is a promise to provide charitable donation an enforceable contract?

Answer 87

Yes

Question 88

Is a family agreement an enforceable contract?

Answer 88

No

Question 89

Bailment

Answer 89

leaving property to someone else for a set period of time (e.g., lease a car)

Question 90

Contractual obligations under bankruptcy?

Answer 90

Divvy among creditors UNLESS they promise "I'll take care of you specifically anyway"- enforceable contract

Question 91

Statue of Frauds

Answer 91

State specific; defines what contracts must be in writing to be enforceable, *BUT if partial performance, can be enforced verbally (written required for: sale of real estate/lease if performance takes over a year, sale of goods over $500, assume someone else's debt, marriage/prenup)

Question 92

Parole evidence rule

Answer 92

If there's a written contract, that supersedes ambiguity/unwritten but allegedly verbal terms

Question 93

3rd party beneficiary of contract

Answer 93

Can enforce the contract, even though they weren't within original parties

Question 94

Assigning terms of agreement (contract)

Answer 94

Rights of contract can be transferred to someone else, UNLESS a personal services agreement

Question 95

Warranty types (2)

Answer 95

1 express- based on model, product description; 2 implied (universal commercial code)- 1 merchantability- goods are of normal quality and 2- particular purpose- designed to meet specific needs (if it doesn't then that's a breach of contract)

Question 96

Anticipatory breach of contract

Answer 96

if aware that they're going to be unable to meet needs of contract you can void this agreement, because they're likely to breach anyway (e.g., specific machine broke); prospective inability to perform

Question 97

What voids a contract?

Answer 97

mutual mistake (e.g., contract made based on fact that was untrue); 1 party under duress or "undue influence"; contract of adhesion- great difference in bargaining power; contract induced by fraud

Question 98

Fraud

Answer 98

1 misrepresentation of material fact made knowingly with intent to defraud 2 that causes injury 3 could reasonably rely on the statement

Question 99

Tort

Answer 99

Civil wrong resulting in potential recovery of damages based on 1 intentional acts that harm an individual, result in damages and 2 negligence

Question 100

Assault

Answer 100

Threat to commit violence; intentional act of harm that creates a fear of harm with immediate capability of doing it

Question 101

battery

Answer 101

causes harm and unwanted touching/contact (e.g., procedure without consent)

Question 102

(Medical) consent

Answer 102

Consent goes to individual physicians for specific procedure, but "good samaritan" applies

Question 103

Defamation: a tort (2 types)

Answer 103

1 libel (written) or 2 slander (oral); both can be per se- false, defamatory statement published to 3rd parties or per quode- requires special knowledge to understand the defamatory statement; have to prove that they proceeded with actual malice' "reckless disregard of the truth"

Question 104

Immunity from defamation

Answer 104

qualified immunity: immune if presented in good faith to protect the public (e.g., MD reports that patient shouldn't drive to the DMV); if statement presented in court; satire; "we're expressing this opinion based on known facts"

Question 105

False imprisonment

Answer 105

intentional tort; for state-mandated psych hold- must relase within 72-hours and hearing w/out participatn/patient

Question 106

Confidentiality and invasion of privacy

Answer 106

Potential tort

Question 107

Listening devices/recordings

Answer 107

State dependent- in CO, if one party consents, it's okay to record

Question 108

Commercial appropriation

Answer 108

If you present someone in a "false light"

Question 109

Intentional tort

Answer 109

Outrageous conduct/beyond unreasonable to inflict emotional harm

Question 110

Diversion

Answer 110

Civil component of theft (e.g., property missing in SNF)

Question 111

Economic loss rule

Answer 111

Arises in some tort cases; cannot get punitive damages for tort/contract actions; arises in cases of 1 breach of fiduciary duty, 2 interference with someone else's contract 3 induce someone to breach their contract

Question 112

Negligence (definition)

Answer 112

1 forseeable 2 breach 3 duty/obligation (e.g., standard of care) that 3 causes 4 injury

Question 113

Standard of Care (in court)

Answer 113

What a reasonable person would do in that situation; 1 by learned treatise, 2 by admission (if MD states after surgery) 3 widespread standard of care

Question 114

Negligence (types)

Answer 114

1 respondiat superior- liability of employer for acts/omissions by employees in day to day acts of business; 2 negligence per se- violation of statute/ordinance that's designed to protect public from injury (e.g., speeding); 3 res ipsa loqutur- the thing speaks for itself- some mistake that would need someone to do it (e.g., sponge left in a lady); 4 strict liability- negligence presumed by nature of dangerous product (ex: radioactive drugs)

Question 115

approximate cause

Answer 115

but for that action, injury would not have occured

Question 116

types of negligence cases

Answer 116

1 contributory negligence- other party contributed to negligence by any %; comparative negligence- many parties sued, comparitively, for contributing to danger/cause- who, by how much

Question 117

medical malpractice case objectives

Answer 117

1 out of pocket costs 2 pain and suffering (damage caps tied to actual damage rates)

Question 118

Joint & Severable liability

Answer 118

if one party released, all released (versus covenant not to sue- only protects that party)

Question 119

CO Certificate of review

Answer 119

Need certificate of review by another MD within 60 days before can bring a claim for lawsuit- reason to bring claim

Question 120

Sovereign immunity & Government Immunity Act

Answer 120

the state; can only sue for tort within 182 days- file notice with attorney general to 1 prompt investigation 2 repair problem and 3 quick amicable settlements

Question 121

Corporate liability

Answer 121

hospital providing community service, responsible for all that happens within it b/c of apparent authority

Question 122

To establish negligent credentialing

Answer 122

show that hospital failed to reference national practitioner databank with 1 hospital complaints (30+ days suspension of privileges, then due process of law) and 2 malpractice accusations; if facility A calls facility B to get info and facility B fails to report, facility B can be liable because foreseeable problem/duty to report correctly

Question 123

Can MDs make insurances pay malpractice fines?

Answer 123

No; rarely in they have great policy/control

Question 124

Qui Tam Cases aka "Mr Lincoln's Law"

Answer 124

most dangerous type of potential liability cases for government contractors; makes plaintiff a private attorney general for cases involving any defrauding of government (Medicare, Medicaid); ANYONE with knowledge can bring this case and receive up to 35% of the award; notify government, sue hospital, and government can take over case, whistleblower shares proceeds

Question 125

Types of Due Process Cases against State Actors (2)

Answer 125

1 substantive due process- liberty offended/obstructed by action of the state actor with injury, harm to reputation (often police) 2 procedural due process- 14th amendment violation, the state took away my rights w/out using due process

Question 126

FSMD Federation State Medical Boards

Answer 126

List of states that waive in-state liscensure for telemedicine

Question 127

Apology statute

Answer 127

if MD or hospital apologizes to patient, they don't incur liability (tends to increase the number of cases but decrease the sixe of settlements)