© 2010 delmar, cengage learning. all rights reserved. chapter 1 introduction to law jahangir moini,...

© 2010 Delmar, Cengage Learning. ALL RIGHTS RESERVED.

Chapter 1

Introduction to Law

Jahangir Moini, MD, MPH, CPhT


Role of Law

• Law includes statutes, rules, and regulations that govern:– People– Behaviors– Relationships– Interactions with society and state and federal

governments


Role of Law

• Provides order for resolution of conflicts without violence

• Protects individual citizens

• Evolves to meet changes and challenges of society


Sources of Law

• U.S. Constitution and Bill of Rights – Constitutional law – Most important source– No form of law may contradict Constitution

• Legislative branch– Statutory law


Sources of Law

• Executive branch– Administrative law

• Judicial branch – Common or case law (derived from England)


Constitutional Law

• Constitution grants certain powers to federal government

• Protects health, safety, and welfare of each state’s citizens

• Bill of Rights guarantees fundamental rights to privacy, freedom of speech, religion, and equal protection


Statutory or Legislative Law

• Rules (laws) enacted by federal and state legislative bodies

• Developed and interpreted by judicial branch (system)

• Earlier decisions considered precedent and are binding on all lower courts


Statutory or Legislative Law

• Statutes are laws enacted by legislatures• Start as bills (at federal or state levels)• May be passed or repealed (revoked), revised

(modified), amended (changed), or superseded (replaced) by legislatures

• Municipal ordinances are laws passed by city governments


Administrative Law

• Proposed or vetoed by executive branch

• Congress, President, or individual state legislatures may create administrative agencies

• Agencies can enact rules and regulations that become administrative law


Common Law

• Common law (case law) was developed by judges in Europe over many centuries

• Each state’s courts have decided various common law cases

• Law based on legal precedent

• Can only be changed by court that first decided the case or higher court


Divisions of Law

• Criminal law

• Civil law

• Administrative law


Criminal Law

• Enforced by representatives of the state against persons or corporations

• Violations against society based upon criminal statues and codes

• State and federal governments impose penalties


Criminal Law

• Misdemeanors– Lesser crimes usually punishable by fines

and/or imprisonment of less than 1 year– Examples: traffic violations, thefts under a

specified dollar amount, attempted burglary


Criminal Law

• Felonies– Punishable by much larger fines and

imprisonment of more than 1 year or death– Examples: rape, murder, domestic violence,

child abuse


Criminal Law

• Certain felony convictions are grounds in many states for revoking licenses to practice in health care field

• Practicing without a license, falsifying information, failing to provide life support for terminally ill, and patient abuse may result in criminal prosecutions


Civil Law

• Civil wrongs are often called torts

• Injury to a person by another person

• Plaintiff (injured party) may bring suit against alleged defendant (wrongdoer)

• Penalties usually in the form of fines


Civil Law

• Intentional torts– Committed willfully– Examples: assault, battery, false imprisonment,

fraud, libel, slander, trespassing, invasion of privacy


Civil Law

• Unintentional torts– Are committed accidentally– Examples: failure to verify accurate

information, providing patient with medication that is less effective than intended


Civil Law

• Most civil law cases against health care workers are for malpractice or negligence– Negligence (failure to exercise reasonable care)– Malpractice (professional misconduct or

negligence)


Contract Law

• Pertains to agreements between two or more parties

• Concerned parties agree to do, or not do, certain things

• Legally binding exchanges of promises


The U.S. Court System

• Local courts– Civil and criminal cases that do not exceed

certain punitive sums

• Courts with general jurisdiction, including major trial courts– Cases of negligence, malpractice, elder abuse,

and other major crimes



• State supreme court – Top court of the state

• U.S. Supreme Court– Decisions binding on all state and federal courts



• A court must have jurisdiction over any case it tries, whether in personam (over the person) or in rem (over the thing or property)

• Major trial courts’ jurisdiction based on county lines or similar divisions and people within those divisions



• When a trial is completed or a case is final in a court of general jurisdiction or one of the specific courts, it may be appealed to a higher court (usually called appeals court)

• Appeals may only raise issues of law and facts for review in consideration for overturning the previous ruling


• Neither federal nor state courts completely independent of each other

• Many of their laws interact

Differences between Federal and State Law


Differences between Federal and State Law

• Federal courts handle crimes under statutes enacted by Congress

• Both types handle crimes punishable under federal or state law, class action cases, and environmental regulation cases


Statute of Limitations

• Period of time established by state law during which lawsuit or criminal proceeding may be filed

• Varies by state

• Apply to: collections, retention of medical records, damages for child sexual abuse, wrongful death claims, medical malpractice



• In professional negligence suits, statute of limitations is generally from 1 to 6 years, (2 years most common)

• Patients cannot file negligence lawsuits against physicians if designated length of time has expired



• Most common occurrences for marking beginning of statutory period are:– On the day the negligence was allegedly

committed



– When the injury was actually discovered, or should have been discovered by a reasonably alert patient

– The day the patient/physician relationship ended, or the day of last medical treatment in a series


Negligence

• Negligence is the term used when an individual performs an act that a reasonable and prudent health-care professional would not perform, or when they fail to perform an act that a reasonable and prudent health-care professional would perform

• Most common liability in medicine


• Any deviation from accepted medical standard of care that causes patient injury

• Classifications of negligence:– Malfeasance – performance of a totally wrongful

and unlawful act– Misfeasance – performance of a lawful act in an

illegal or improper manner– Nonfeasance – failure to act when one should act

Negligence


• Four elements must be proven to be convicted of negligence: – Duty – health care professional owed a duty of

care to accuser– Derelict – health care professional breached

duty of care to patient

Negligence


– Direct cause – breach of care was a direct cause of patient’s injury

– Damages – legally recognizable patient injury, with burden of proof on plaintiff

Negligence


Malpractice

• When a patient is treated in an improper or negligent manner, pharmacist or pharmacy technician may be sued

• Whether behavior results in injury, damage, loss, or death, malpractice is used to describe actions


Malpractice

• Malpractice lawsuits have increased dramatically

• Have resulted in skyrocketing malpractice insurance prices

• Malpractice insurance covers: doctors, nurses, pharmacists, pharmacy technicians, other health care providers


Malpractice

• Professional liability insurance protects against malpractice lawsuits

• Amounts of coverage vary, but plans are available that pay $1 million per claim up to 3 claims per year

• Can cover property loss or damage, personal injury, death, and even legal costs

© 2010 delmar, cengage learning. all rights reserved. chapter 1 introduction to law jahangir moini,...

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