Personal Injury, Workers Comp, ADA, Child Custody And Neglect

Question 1

Christie Bros v Turnage

1928

Answer 1

You can recover damages from mental suffering, humiliation, or embarrassment (considered personal injury)

ANY unlawful touching of a person’s body

Question 2

Dillon v Legg

1968

Answer 2

Suffering emotional injury only (with no physical injury) can permit suing for negligence

Legg hit a child of Dillon, Dillon sued for emotional damages
Initial case was thrown out because Dillon herself was not in the “zone of danger,” however the CA SC reversed noting you don’t need to be within a “zone”

Closed enough to the scene, shock was a direct result of observing the accident, closely related to the direct victim

Question 3

Tort

Answer 3

The event or events that give rise to a lawsuit

A “civil wrong” - requires a breach of duty

Question 4

Three types of relief sought in civil lawsuits

Answer 4

Monetary damages for harm suffered

Injunction (prevents the defendant from doing something)

Specific performance (getting the defendant to do something they were supposed to do)

Question 5

Cause of action

Answer 5

The elements for one of the various torts that are necessary for the legal theory of the lawsuit

Must prima facie (on its face) demonstrate wrongdoing
- One must prove liability to receive damages

Question 6

Canterbury v Spence

1972

Answer 6

Plaintiff is responsible for all harm caused conduct, no matter how disproportionate it may seem

“Take the victim as he finds him”

Question 7

Types of torts

Answer 7

Intentional torts - volitional act, tortfeasors goal was to cause harm, conduct caused the injury
Defamation - false utterance, must be about the plaintiff, transmitted to a third person, results in damage to plaintiffs reputation
Privacy torts
Strict liability - liability without fault
Negligence - no intention but a failure to act
Vicarious liability

Question 8

Requirements for intentional torts

Answer 8

Defendant engaged in a volitional act

Intent - tortfeasors goal was to cause harm

Cause - conduct caused the injury

Question 9

Elements of a defamation tort

Answer 9

(Libel is written defamation, slander is spoken defamation)

False, defamatory utterance

About the plaintiff

Transmitted in some form to a third person

Resulting in damage to the plaintiff’s reputation

Question 10

Types of privacy torts

Answer 10

Appropriation - unauthorized use of image for commercial advantage

Intrusion - intrusion into plaintiffs private life

False light - misattribution of the plaintiffs values

Public disclosure of private facts

Question 11

Strict liability

Answer 11

Liability without any kind of fault

Defendant engaged in an act so inherently dangerous that they do so at their own risk and accept any damages that result

Question 12

Negligence

Answer 12

Duty

Breach

Damage

Question 13

Nominal damages

Answer 13

Plaintiff proved liability but has suffered no harm

Receives a small amount of money

Question 14

Compensatory damages

Answer 14

Most common type of damages sought

An amount to pay the plaintiff for actual losses suffered as a result of the injury (and nothing more) - could look like covering medical or mental health expenses, lost earnings, etc.

Question 15

Loss of consortium

Answer 15

The loss of benefits of the relationship that one person is entitled to receive another (companionship, cooperation, sexual relations)

Question 16

Punitive damages

Answer 16

Intended to punish the defendant for their blameworthy conduct, or to set an example to deter future behavior

Question 17

The evaluation model for personal injury cases

Answer 17

Determine the presence of sxs in four areas:
Cognitive, affective, physiological, and interpersonal

And how they impact functioning in four ways:
ADLs, relationships, workplace, and hedonics (quality of life)

Question 18

Five distinct time intervals for evaluating personal injury

Answer 18

Time before the tort occurred

Time during which the tort occurred

Time since the tort up until the evaluation

The evaluation

Projecting into the future

Question 19

Legal test for workers compensation

Answer 19

Whether there is a connection between work activities and the injury

Question 20

Burden of proof for workers comp cases

Answer 20

Preponderance

Question 21

Three major types of workers comp

Answer 21

Total disability - paid out over lifetime or large number of weeks

Permanent partial disability - percentage of total impairment

Temporary total/partial disability - paid weekly for the duration of the disability

Question 22

What a beneficiary must demonstrate for workers compensation

Answer 22

Injury or disability

Arose out of employment (during normal work hours doing normal duties)

Is accidental/unanticipated

Question 23

Three kinds of emotional damages cases

Workers compensation

Answer 23

Physical trauma causing mental injury

Mental stimulus causing physical injury (protracted stress leading to heart issue)

Mental stimulus causing mental injury (seen as less legitimate)

Question 24

Commonality between tort law and workers compensation

Answer 24

Both require proximate cause

Aka. Recent cause, straw that broke the camels back

Question 25

Most important kind of testing to workers compensation cases

Answer 25

Response bias and impression management

Question 26

Impact of diagnosis on workers compensation cases

Answer 26

Compensation does not hinge on diagnosis alone, you can have no formal diagnosis (ex. Experience headaches, irritability) and still be entitled to compensation

Question 27

How to establish proximate cause

Answer 27

Have some knowledge of the alleged event (accident) Know what research suggests may be common sequelae The fact finder ultimately decides if there is proximate cause

Question 28

Prognosis in tort and workers compensation cases

Answer 28

Tort prognosis - related to the damage award the plaintiff will receive WC prognosis - used to determine the likely duration of the impairment caused by the injury

Question 29

How disability is defined in tort and workers compensation cases

Answer 29

Tort - disability is defined by case law (Can win a LOT of money…wild wild west) Workers compensation - disability is defined by statute in your jurisdiction (Pay out amounts are fixed)

Question 30

Four main ways to obtain benefits when your ability to work is compromised

Answer 30

Private disability insurance - privately purchased, commonly seen in self-employed arena Employer-paid disability insurance - provided as part of employer-provided health benefits Workers Compensation - illness or injury MUST be related to the work Social security disability - eligibility is contingent on work history and contributions to the social security system

Question 31

Leading causes of disability in the US

Answer 31

For those between ages 15-44 Depression

Question 32

Four domains of consideration for sx exaggeration in disability claims

Answer 32

Motivation and incentives Atypical, exaggerated, incongruent symptoms Discrepancies in interviewer presentation/noncompliance Activity outside the interview (noncompliance with tx)

Question 33

Doctor-patient duty case law

Answer 33

Ryans v Lowell - no malpractice if no relationship Ervin v American Guardian Life Insurance Co - no relationship if a doctor conducts a file review for an insurance company

Question 34

Case law for disability as it pertains to loss of job

Answer 34

Damascus v Provident Life and Accident Insurance Co - if negligence is the reason for your loss of license, companies can refuse to pay out Massachusetts Mutual v Ouellette - inability to work because of a criminal conviction isn’t compensable

Question 35

Meritor Savings Bank v Vinson | 1986

Answer 35

Hostile work environment sexual harassment is a form of sex discrimination that is actionable under Title 7 of the Civil Rights Act

Question 36

Olmstead v L.C. ex rel Zimring | 1999

Answer 36

Financial constraints cannot entirely determine whether states comply with the 1990 ADA guidelines concerning placement in community treatment for the mentally disabled

Question 37

Americans with Disabilities Act

Answer 37

Those with disabilities must be treated (like?) other people unless it could be demonstrated that a persons disability creates substantial barriers to their employment or other things

Question 38

Who ADA is designed to protect

Answer 38

A QUALIFIED individual with a DISABILITY who, with or without REASONABLE ACCOMMODATION, can perform essential functions of the employment position that such individual holds or desires (Qualified individual, disability, reasonable accommodation)

Question 39

“Qualified individual” | Per ADA

Answer 39

Must meet necessary job prerequisites (training and experience) Must be able to perform essential functions of the job (To keep people from claiming disability based on being unqualified) - You can meet the “disability” standard and not be a qualified individual

Question 40

“Disability” | Per ADA

Answer 40

Physical or mental disability that “substantially limits” a “major life activity” Treatable disabilities are still disabilities Not included: drug use, sexual orientation disorders, criminal pathology Included: walking, speaking, learning, sitting/standing, interpersonal skills, cognitive processing… 3 prongs (only need to have one): limits major life activities, record of impairment exists, being regarded as having such impairment (???)

Question 41

“Reasonable accommodation” | Per ADA

Answer 41

Includes modifications or adjustments to the job application process, work environment, or other changes that allow the employee to enjoy equal benefits and privileges of employment as they are enjoyed by others Employers are only required to accommodate KNOWN disabilities Reasonable doesn’t have to mean best possible Cannot cause the employer undue hardship

Question 42

How the ADA limits rather hiring process

Answer 42

The types of questions an employer can ask an applicant The types of tests that can be administered before and after a job offer Rules for the administration of the tests

Question 43

Fair Housing Amendments Act

Answer 43

Prohibits discrimination in the sale or rental of housing on the basis of handicap Goal is to integrate those with disabilities into American life, allowing them to live where they want to Must be “qualified for tenancy” // cannot pose “a direct threat”

Question 44

SSI vs SSDI

Answer 44

SSI - available to anyone meeting eligibility criteria, regardless of work history of proof whether they’ve paid taxes SSDI - functions as an insurance program, providing benefits to those who have worked and paid into social security fund in 20 of the last 40 calendar quarters

Question 45

Determining eligibility for SSI or SSDI

Answer 45

Whether the person has a disability - an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of no less than 12 months (Can’t engage in substantial gainful activity, physical or mental impairment, could result in death or impairment for at least 12mo)

Question 46

Domains for potential impairment for social security

Answer 46

``` Acquiring or using new information Attending to and completing tasks Interacting and relating with others Moving about and manipulating objects Caring for self Health and physical well-being ```

Question 47

What to use for a social security eval

Answer 47

Psychiatric review technique form Residual functional capacity assessment form And a clinical interview, testing if appropriate, etc.

Question 48

Reasons an immigrant can petition for relief (not be deported)

Answer 48

``` Asylum Hardship (if a caregiver to someone already here legally) Risk for torture Domestic violence Abused, neglected, abandoned children ```

Question 49

If you’re doing an ADA evaluation for safety (risk)

Answer 49

Consider the duration of the risk, nature and severity of the potential harm, likelihood that potential harm would occur, and the imminence of the potential harm

Question 50

What do employers need to do for an ADA risk eval

Answer 50

Specifically identify the behaviors of concern that constitute a threat (The mere presence of a psychiatric diagnosis is not sufficient)

Question 51

Major question in return-to-work evaluations

Answer 51

Has the worker regained a level of functioning so that he or she would qualify as a “qualified individual with a disability?”

Question 52

Four opportunities for evaluations in litigation-based ADA claims

Answer 52

Allegations the employer failed to provide reasonable accommodation Disparate treatment and disparate impact (when a similarly situated employee without disability would have received better treatment) Reprisal for protected conduct (employee files EEOC claim and is retaliated against) Disability harassment or hostile work environment

Question 53

Individuals with Disabilities Education Act

Answer 53

Children with disabilities are entitled to the same education as their nondisabled peers Provides “free and appropriate” public education in the “least restrictive environment” for all disabled kids Places the burden on the school to prove removing a student from a mainstream class is the least restrictive option

Question 54

Case law for IDEA

Answer 54

Brown v BOE - no “separate but equal” race discrimination, personalized instruction with sufficient support services to allow the child to benefit from the education P.A.R.C. v Commonwealth of PA - schools can’t deny admission based on disability Mills v BOE - PARC extends to emotional disability, school can’t use “lack of funds” as an excuse

Question 55

Who does IDEA cover

Answer 55

Guarantees those up to age 22, who have a disability, free and appropriate public education and related services in a least restrictive environment

Question 56

IEPs

Answer 56

Evaluations occurs once per year Evaluation goals every year must be “measurable” Must include standardized assessments In addition to describing the disability, accommodations, etc.

Question 57

Individualized family service plan

Answer 57

Similar to an IEP abut the focus is on the whole family, and the plan is geared towards children under the age of 6 who are at risk for developmental delays

Question 58

“Difference dilemma”

Answer 58

You need to identify special needs of children under IDEA, but do so in a way that is not stigmatizing nor highlights differences

Question 59

What does it mean to consider a students “ecology” when doing IDEA evals?

Answer 59

Take into account the various systems within which the particular child may interact

Question 60

Tender years presumption

Answer 60

From birth to 7yo, the best interest of the child was to be with the mother Freudian principles, largely ignored dad 19th century

Question 61

BIOC

Answer 61

Late 1960s Tender years became BIOC, researchers started paying attention to the role of dad

Question 62

In re Bort

Answer 62

First spoke of BIOC in 1881 (children aren’t chattel) (In addition to Chapsky v Wood, 1881) BIOC was later solidified in Findlay v Findlay (1925)

Question 63

Uniform Parentage Act

Answer 63

1970s Eliminated measures that discriminated against illegitimate children (Also gave notice to dads who wanted full custody, race issues, etc.)

Question 64

What factors constitute BIOC

Answer 64

No idea, it varies based on jurisdiction and some states don’t even try to define it

Question 65

Approximation rule

Answer 65

2002 Custodial responsibilities should be approximate to the amount of time and caretaking each parent did with the child prior to separation

Question 66

Parenting Plans

Answer 66

Can range from informal agreements to written and court sanctioned documents Address issues of legal custody and physical custody

Question 67

Legal custody v physical custody

Answer 67

Legal custody - care, control, maintenance of the child…which parent has control over the child (schooling, medical, etc.) Physical custody - where the child resides and who is responsible for day to day care, where the child will go for certain holidays

Question 68

Three prongs of child custody evaluations

Answer 68

Parenting attributes Child’s developmental needs Fit

Question 69

Impact of Griggs v Duke Power Co (1971)

Answer 69

Unrelated to child custody Assessments must be demonstrably reasonable measures of job performance You can’t give measures to parents that measure attributes unrelated to parenting (e.g., psychopathy)

Question 70

Otto and Edens three-part model to assessing functional abilities in child custody evaluations

Answer 70

Parents characteristics and abilities to care for children Assessment of the caretakers knowledge, understanding, beliefs, values, attitudes, etc. pertaining to parenting the child Goodness of fit - specific functional abilities each parent has or needs to meet the unique developmental needs of each up child

Question 71

What is gatekeeping | Child custody

Answer 71

One parent attempting to block or limit access to the other parent

Question 72

Relocation analysis

Answer 72

Investigate the advantages and disadvantages the proposed move would have on the child’s QOL The genuineness of the move and motives for and against it Whether there can exist a realistic and substitute visitation arrangement that will adequately foster an ongoing relationship between the child and the noncustodial parent

Question 73

Uniform Marriage and Divorce Act

Answer 73

Tries to define BIOC… Wishes of parents Wishes of child Interaction of the child with parents, siblings, etc. Adjustment to the home, school, and community Mental and physical health of all involved

Question 74

Uniform Deployed Parents Custody and Visitation Act

Answer 74

Bars consideration of deployment and relocation from being considered in custody disputes

Question 75

Painter v Bannister | 1966

Answer 75

BIOC case Kid had stronger relationship with his grandparents, dad was a hippie

Question 76

Santosky v Kramer | 1982

Answer 76

Child custody For legal termination of parental rights, courts must use the clear and convincing standard

Question 77

Juvenile Justice Standards of child maltreatment

Answer 77

Defines if a child has suffered, or is at substantial risk of suffering non-accidental physical harm Designed to prevent broken bones, burns, internal injuries…not small bruises, small black and blues, etc. More or less requires a finding of serious physical harm before a child can be said to have been neglected

Question 78

Two questions often included in abuse and neglect INVESTIGATIONS (and evaluations)

Answer 78

What happened? What can we do about it?

Question 79

Maryland v Craig

Answer 79

Must give special consideration to the child in determining if they need to be required to testify in child abuse and neglect cases

Question 80

Things to consider in parental termination evaluations

Answer 80

If the child was abandoned If the child had been previously removed because of maltreatment If another child in the family has been abused, requiring treatment for the parents

Question 81

Incorrect assumptions about IPV

Answer 81

Men abusive towards their wives will be abusive towards their children Relationships with (abusive) fathers is always important Women in abusive relationships are always preoccupied with their own safety to care adequately for their children

Question 82

Kinship evaluations

Answer 82

Placing children with family or in families that they know/trust instead of in foster care Appears preferable for the kiddos, reduces trauma, reinforces esteem and culture, continuity of community support… However, there are often far fewer resources for kinship “parents” than there are foster parents

Question 83

Parental traits that could lead to maltreatment and abuse

Answer 83

Unrealistic expectations Harshness Rigidity

Question 84

Attachment theory and child neglect/abuse

Answer 84

Bowlby and Ainsworth Physically abusive and neglectful parents will display less positive and responsive behavior towards their children Disorganized attachment styles put children at risk for psychopathology

Question 85

Parenting style and child neglect/abuse

Answer 85

Baumrind Parenting on dimensions of demandingness and responsiveness… Physical abuses and neglect through to arise from those parenting in the extremes of authoritarian and uninvolved parenting styles

Question 86

Ecological systems theory and child abuse

Answer 86

Bronfenbrenner and Belsky Children develop in a multilevel system of relationships - there are many pathways to abuse and therefore many pathways to treatment and intervention Treatments aimed at single factors are likely to be unsuccessful

Question 87

Child abuse and parenting measures for evaluations

Answer 87

Child abuse potential inventory (CAPI) Parenting stress index (PSI)

Question 88

Things to consider when performing “bonding assessments” | Who a child has bonded to most

Answer 88

How removal from the foster family may impact the child Caregiving strengths and limitations of the original parent(s) Positive and negative factors associated with returning the child back to the parents

Question 89

Landerlos v Flood | 1976

Answer 89

A physician who fails to diagnose battered child syndrome can be found liable for subsequent injuries to the child

Question 90

Chapsky v Wood | 1881

Answer 90

Tender years case - children do best by being with their mother

Question 91

Three main perspectives for child abuse and neglect reporting

Answer 91

Child savers - err on the side of ensuring protection of the children (can be destructive to the families) Juvenile justice standards - limits involvement to situations where the child HAS suffered Goldstein et al - even higher than JJS…if you cross this bar parental rights are being terminated