Download File - Marie Hoffman

What are the two parts of the U.S.
Constitution?
The main body and the amendments
The U.S. Constitution is a grant of power
from?
The states to the federal government
The first ten amendments are known as?
The Bill of Rights
Is the right to privacy included in the bill of
rights?
No (read into the 4, 5, 9, 14th
amendments
Is separation of church & state in the
constitution?
No, it’s read into the constitution. (What
IS in the constitution = there can be no
state religion)
Is health care a constitutional right?
No
What did the 14th amendment do in
1870?
Made the Bill of Rights applicable to the
states
What are the three branches of the
government?
Legislative (makes the laws),
Executive (administers the laws),
Judicial (interprets laws – supposedly
don’t make law but it does)
In the federal system, what courts are
below Courts of Appeal?
District Courts (Original Jurisdiction Trial
Courts)
What court is above the Courts of
Appeal?
The U.S. Supreme Court
In the military system, what court is
below the U.S. Supreme Court?
The U.S. Court of Appeals for the Armed
Services
What court is below the U.S. Court of
Appeals for the Armed Services?
Court of Criminal Military Appeals for each
branch of the military
From the lowest to the highest, name the
courts in a typical state system.
Limited Jurisdiction Inferior Courts (small
claims, traffic court) 
General Jurisdiction Trial Courts 
First Level Appellate Courts 
State Supreme Court
How many appellate levels are in the
military system? What are they?
Three –
Service specific Court of Military Criminal
Appeals,
U.S. Court of Appeals for the Armed
Services,
U.S. S.Ct.
What kind of courts is equal to trial
courts in each of the branches the
military system?
Service specific Courts-martial
Which four courts can send cases directly
to the Supreme Court?
The Court of Claims and
other Special Courts,
Courts of Appeals, and
State Supreme Courts
Define law
A system of rules that defines socially
acceptable behavior and sets
punishments for violations
Statutory –
enacted by legislation
Common –
case/judge made law (unwritten law of
Old England)
Administrative –
rules/regulations
Public –
relationship of individual to government
Private –
people to people (between individuals)
Substantive –
“guts” of the law
Procedural –
lawyers use to guide cases
Criminal –
crimes and punishment
Civil –
everything else
What is another name for Common Law?
Judge made law
What is the Common Rule and what type
of law is it?
Rule covering human subject research
Administrative
List three other types of administrative
law
DoD Regulations,
OSHA Regulations,
Army/Air Force/Navy/Marine Corps
Regulations
Ferris v. United States is what type of
law?
Common Law (judge made)
What is the Uniform Anatomical Gift Act?
Right to make gift while you are alive of a
body part when you are dead
Is the Uniform Code of Military Justice
administrative or criminal law?
Criminal
What right does the Patient SelfDetermination Act give the patient?
Right to information and self-directives
What is the statute of limitations for
torts?
1 to 2 ½ years
What is the statute of limitations for
contracts?
4 – 6 years
Is clear and convincing evidence or
preponderance of evidence required in
civil or criminal court?
Civil court
(Beyond a reasonable doubt for criminal)
Is trial by jury guaranteed in a criminal
or civil court?
Criminal
Who is harmed in a criminal case and
who is harmed in a civil case?
Society is harmed in a criminal case;
an individual is harmed in a civil case
To what extent must someone be
convicted in criminal court?
Beyond a reasonable doubt
Who decides to proceed with prosecuting
a case in a rape case?
District attorney or prosecutor
What is “self help” and in what type of
law is it applicable?
Decision to pursue is the individual’s –
Civil
Is Tort Law criminal or civil?
Civil
List three other types of civil law
Contract Law,
Domestic Relations,
Probate Law
What are two types of criminal law?
General Criminal Law and Military Law
What is “Conflict of Laws”?
Deals with questions arising out of
jurisdiction (What law should be applied,
what court has jurisdiction, or how laws
of different jurisdictions shall be
reconciled)
Define a tort
A non-contractual, civil wrong, committed
against a person or his/her property for
which a court may award a remedy in
damages
Describe the anatomy of a civil lawsuit in
order. Briefly describe each component.
Complaint - the plaintiff’s first pleading
in a civil suit
Describe the anatomy of a civil lawsuit in
order (Cont.)
Answer - the legal pleading through
which a defendant responds to the
allegations of the plaintiff
Describe the anatomy of a civil lawsuit in
order (Cont.)
Discovery – the fact-finding stage in a
lawsuit where the parties find out about
each other’s case
Describe the anatomy of a civil lawsuit in
order (Cont.)
Trial - pre-trial motions, opening
statements, evidence presented, closing,
verdict/judgment, post-trial motions
Describe the anatomy of a civil lawsuit in
order (Cont.)
Appeal - complaint to superior court,
which alleges an error committed or
injustice wrought by inferior court
What is a deposition and when is it taken
during a lawsuit?
A discovery tool, whereby one’s oral
testimony is taken under oath in response
to examination and cross-examination by
the parties’ attorneys
Depositions are taken during discovery
What are interrogatories?
A discovery tool in a civil lawsuit
(question sets)
What should a health care administrator
do if asked to provide medical records
during the motion to produce
documents?
Never give the medical record; give a
certified copy.
What is being argued at the appellate
level?
Law only – not the facts of the case
What is the citation for the U.S. Courts of
Appeal?
F.
What are the two citations for the
Supreme Court?
U.S. or S.Ct.
How many Courts of Appeal are in the
federal system?
13
What is the citation for U.S. District
Courts?
F.Supp
What is the citation for U.S. Courts of
Appeal for Armed Services?
M.J.
Explain the following citation: 649 So.3d.
636
Volume 639, Southern region, 3rd series,
page 636
Explain the following citation: 272 F.
Supp. 409
Volume 272, Federal District Court, page
409
Explain the following citation: 499 U.S.
160
Volume 499, U.S. Supreme Court, page
160
Which is the more recent citation?
1 F.3d. 14 or 11 F. 2d. 480
1 F.3d. 14
What does “Ann” mean in a citation?
Annotated
What does “CFR” stand for?
Code of Federal Regulations
What are two examples of Special Courts
in the federal system?
U.S. Court of Appeals for Armed Services
and
U.S. Court of Patents
17. citation: USC
U.S. Code
Which federal court cases are published?
All
In most states, which cases are
published?
Only Intermediate (Appellate) Court and
State Supreme Court cases – trial court
cases are not published.
Describe the following:
(a) 71 SE 769
(a) Volume 71, Southeastern Reporter,
page 769 (State Appellate Court)
(b) 10 USCA 980
(b) Title 10, U.S. Code Annotated,
Section 980
(c) 56 F. 774
(c) Volume 56, Federal Court of Appeals,
page 774
(d) 46 CFR 1388
(d) Part 46, Code of Federal Regulations,
Section 1388
(e) Ross v. CIGNA
(e) Case law
(f) 14 M.J. 337
(f) Volume 14, Military Justice, page 337
(g) 12 F.Supp.
310
(g) Volume 12, Federal District Court,
page 310
(h) 16 S.Ct. 954
(h) Volume 16, Supreme Court, page 954
Fl. Stat. Ann
Florida State Code Annotated
Much of contract law is a matter of
common law, with the exception of?
Government contracts
What is the administrative law behind
government contracts?
Federal Acquisition Regulations (FAR)
Government contracts favor?
Small business, organized labor, veterans,
and depressed areas
What was government law originally
called?
Procurement laws
Government contracts are a matter of
administrative law but are enabled by
_____ laws.
Statutory
What are the elements of a
contract?
Competent parties
Legal subject matter
Offer
Acceptance
Consideration
Mutual agreement
Required form
What is required to be a competent party
to enter a contract?
Sufficient present mental ability and legal
age
Very seldom, if ever, does an
advertisement qualify as a contract. The
advertisement is merely?
An invitation to deal
What is consideration?
The inducement for entering in a contract
(given for something of value)
In the military system, what court is
below the U.S. Supreme Court?
The U.S. Court of Appeals for the Armed
Services
What court is below the U.S. Court of
Appeals for the Armed Services?
Court of Criminal Military Appeals for each
branch of the military
From the lowest to the highest, name the
courts in a typical state system.
Limited Jurisdiction Inferior Courts (small
claims, traffic court) 
General Jurisdiction Trial Courts 
First Level Appellate Courts 
State Supreme Court
What is the Common Rule and what type
of law is it?
Rule covering human subject research
Administrative
List three other types of administrative
law
DoD Regulations,
OSHA Regulations,
Army/Air Force/Navy/Marine Corps
Regulations
What is the Uniform Anatomical Gift Act?
Right to make gift while you are alive of a
body part when you are dead
List three other types of civil law
Contract Law,
Domestic Relations,
Probate Law
What are two types of criminal law?
General Criminal Law and Military Law
What is “Conflict of Laws”?
Deals with questions arising out of
jurisdiction (What law should be applied,
what court has jurisdiction, or how laws
of different jurisdictions shall be
reconciled)
Define a tort
A non-contractual, civil wrong, committed
against a person or his/her property for
which a court may award a remedy in
damages
What is being argued at the appellate
level?
Law only – not the facts of the case
Much of contract law is a matter of
common law, with the exception of?
Government contracts
What was government law originally
called?
Procurement laws
Very seldom, if ever, does an
advertisement qualify as a contract. The
advertisement is merely?
An invitation to deal
What is consideration?
The inducement for entering in a contract
(given for something of value)
What does mutual agreement mean?
The parties must be talking about the
exact same thing for consideration (i.e.
meeting of the minds as to the subject
matter)
What is meant by “required form”?
What form is required for a contract – i.e.
Is it required to be written or can it be an
oral (spoken) contract?
What question is answered by The
Objective Theory of Contracts?
If the intent is not clear in a contract, the
judge will determine intent of the
contract, in effect, by asking, “What
would a reasonable person have
intended?”
What are the methods of classification of
contracts?
By means of formation
By stage of performance
By enforceability
What are the ways in which contracts
can be classified by means of formation?
Unilateral or bilateral
Express or Implied
Formal or Informal
What is the difference between unilateral
and bilateral?
Unilateral – acceptance requires performance
Bilateral – acceptance requires only a promise
What is the difference between
expressed or implied contracts?
Expressed – one in which all terms are clearly stated
Implied – not every term or element was expressed;
at least one term is inferred from the conduct of the
parties
What are the types of implied contracts?
Implied-In-fact (all terms are clearly written
out)
Implied-In-law (at least on term is not clearly
expressed in contract, however is implied in
law)
What is the basis for the obligation in an
Implied-In-Fact contract?
Based on conduct rather than an
expressed agreement
Describe the situation when the ImpliedIn-Fact contract is based on conduct
rather than on expressed agreement
The plaintiff furnished a service or property, the
plaintiff reasonably expected to be paid; the
defendant knew or should have known, the
defendant had a chance to reject receipt of
service or property and did not
What is another name of an Implied-InLaw contract?
Quasi-contract
List three things that describe an
Implied-In-Law or Quasi-Contract.
A legal fiction (there is no contract at all)
No mutual agreement
Quantum meruit – “as much as he deserves”
What are the underlying premises of
quasi-contracts?
One should not be unjustly enriched at the
expense of another
One should be recompensed what he deserves
(quantum meruit)
What is the difference in a formal and
informal contract?
Formal – Complies with stated
requirements, such as to be in writing
Informal – Has no stated requirements
What are two examples of a formal
contract law?
Statute of Frauds – Requires that certain types
of contracts be in writing to be enforceable
(each state has one)
Uniform Commercial Code – merchant’s
contract of sale of good has to be greater than
$500
What must be determined in
classification of contracts by stage of
performance?
Has the contract been executed
(completed) or not?
What are the three types of contracts in
classification by enforceability? What are
they?
Valid contract – one containing all of the
required elements
Void contract – no contract at all
Voidable contract – a valid contract which
one or both parties can get out of under
certain circumstances
What is another name of an Implied-InLaw contract?
Quasi-contract
What is the difference in a formal and
informal contract?
Formal – Complies with stated
requirements, such as to be in writing
Informal – Has no stated requirements
What must be determined in
classification of contracts by stage of
performance?
Has the contract been executed
(completed) or not?
What are the three types of contracts in
classification by enforceability? What are
they?
Valid contract – one containing all of the
required elements
Void contract – no contract at all
Voidable contract – a valid contract which
one or both parties can get out of under
certain circumstances
What is an example of a void contract?
A person judged to be incompetent can’t
sign a contract. If he does, the contract is
void.
What is an example of a voidable
contract?
A minor can get out of a contract if he
says he wants out or he can ratify when
he reaches legal age.
What is a “legal excuse” for not
complying with a contract?
Defense
What is the Plain Meaning Rule?
A rule of interpretation = the meaning of
a contract’s words are to be given their
ordinary meaning.
How does the Plain Meaning rule affect
enforcement of the contract?
The contract will be enforced without
interpretation.
What is the Common Meaning Rule?
Apply the common meaning of terms unless it is
obvious to the average person that a special technical
meaning applies (Is a bridge a structure over water or
is it dental work?)
In the Rule of Conflicting Provisions,
what governs?
The specific will govern over the general
The handwritten will govern over the
typed/printed (almost obsolete)
What is the Mirror Image Rule?
The acceptance in a contract must meet
the offer exactly.
Consideration is “something of value for something of
value”. What are 4 examples of “something of value”?
A promise (this is an enforceable considerable)
Money
A service
Or detrimental reliance
Consideration is insufficient when ….?
Preexisting duty
Moral obligation only
Promised thing has occurred
What is the General Rule in contracts?
The rights and duties arising from a
contract affect only those party to it.
What are the exceptions to the General
Rule?
Third party beneficiary contracts
Assignments of rights
Delegations of duties
After assignment, what happens with regard to
the assignor’s rights and duties?
The assignor’s rights are extinguished, but the
duties remain.
What is an expressed condition in a contract?
Condition stated in the agreement (If, when,
provided that)
Covenants not to compete or restrictive covenants are
frowned upon but are judged based upon their _____?
Reasonableness (in regards to time and
distance)
Name & describe three breaches of contract.
Minor - performance is “close” so performance is at least
substantial
Anticipatory - when a party announces refusal to perform in
advance of obligation to do so
Material – when performance is less than substantial
Rescission is an action to undo a contract
because of?
Fraud, mistake, duress, undue influence,
misrepresentation, or lack of capacity
What is the definition of a tort?
A non-contractual, civil wrong committed
against a person or his property for which a
court may award a remedy in damages
What are the types of torts? What is the
main premise of each?
Torts of strict liability – Liability imposed
apart from any theory that the defendant was
negligent (unleashed a dangerous
instrumentality & it hurt someone --- doesn’t
matter if it was negligent.)
What are the types of torts? (Cont)
Intentional torts – The person intended
the action but did not intend harm
What are the types of torts? (Cont)
Negligent torts – The person failed to
exercise care to a degree that a reasonable and
prudent person would typically exercise under
similar circumstances
What are the four elements of legally actionable
negligence?
Duty
Negligent breach of duty
Injury
Causation
What is the difference between contributory
negligence, comparative negligence, modified
negligence?
Contributory negligence - if the plaintiff negligence
has contributed to the injury alleged, he can’t recover
anything.
Comparative negligence - if the plaintiff is partially
to blame, his award is reduced (think of the person who
is DUI killing someone who was not wearing a seatbelt).
Modified comparative negligence – If the plaintiff is
50% or more at fault, recovery is barred.
What is the basis for determining
personal injury damages?
The plaintiff’s condition immediately prior
to the negligent event
What is the key issue to consider in
aggravation?
What would have been the result had
everything went well except for the negligence?
(i.e. what about the care aggravated the
situation?)
Name four damages in tort. Briefly describe
each.
Special damages – those damages awarded in tort for economic
loss. There is an objective basis to determine them. (lost wages)
General damages – those damages award in tort for noneconomic loss. These are very subjective (loss of pleasures of life).
Nominal damages – awarded for a technical wrong & very little
money recovered (rarely seen)
Punitive damages – damages awarded to punish the defendant
for willful, wanton, or grossly irresponsible activity and to deter
similar situations
What is the Medical Standard of Care?
To act as a reasonable and prudent
_____________ would act under the same or
similar conditions.
(compares 1 OB nurse to another, 1 cardiologist
to another, etc.)
What two cases are important to remember with
regard to the application of the standard of care?
Which rule or standard did each establish?
Small v. Howard - The locality rule or standard
Brune v. Belinkoff - National or professional rule
or standard
What are the four elements of legally
actionable negligence?
o
o
o
o
Duty
Negligent breach of duty
Injury
Causation
What are the 2 types of negligence?
Personal (individual) and corporate
How do you identify corporate negligence?
Look for the duty. If corporate duty is breached, then
there is corporate liability based on corporate
negligence.
What is an ostensible agent?
Someone who hasn’t explicitly made your agent
but is still acting as your agent.
How is expert medical testimony used in
a medical malpractice case?
To establish the Medical Standard of Care
What are the 3 conditions for res ipsa loquitur?
The event would not ordinarily occur absent negligence
Apparent/presumptive cause was within exclusive
control of defendant
No negligence on the part of the plaintiff
What doctrine is applied by the FTCA?
Respondeat Superior (“Let the master
beware”)
What are the FTCA rules?
In-scope torts of agents and employees (Must be
within the scope of one’s employment – what the
employee is generally supposed to be doing)
Must have occurred in the U.S. (NOT overseas)
Applying state law
Two-year statute of limitations (from the point of
discovery)
Trial by judge alone (NO jury)
Trial is held in U.S. District Court (NOT state court
– always F.Supp)
No limit on damages
No punitive damages may be awarded
What are the FTCA exceptions?
Intentional torts, except of law
enforcement officers (and, IAW the
Gonzalez Act, of DoD healthcare
providers)
In foreign countries
Involving combatant activities
What is important to remember about the
Feres case?
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.
How much time can elapse before a claim is
filed and the statute of limitations runs out?
2 years
What is the Feres rationale?
A system of compensation exists
Necessary to maintain military discipline
Necessary to prevent applicability of state law
Informed Consent is a two sided coin and
includes:
Informed Consent
Informed Refusal
A process of informed decision-making
T or F Assent is used to mean consent
sufficient to be legally binding.
False
Consent = the term used to mean
sufficient to be legally binding, sometimes
called “informed consent”
Assent = sometimes used to mean
acquiescence or agreement that is not
legally sufficient
What is the basis for surrogate decisionmaking? And what is meant by each?
Patient’s best interests
What surrogate thinks would be in the
patient’s best interests
Surrogate’s substituted judgment
Surrogate decides based on what he
thinks the patient would have wanted
Examples of substituted consent
(judgment) identified by state statutes
Spouse
Adult child with consent of others
Majority of children
Parents
Designated individuals
Closest other relative
Member of the clergy
When is consent not required?
Emergency (and can’t be reasonably
obtained)
Therapeutic privilege
Treatment ordered by a court – “judicial
permission”
Treatment required by law
Nonconsensual treatment permitted by
law – military
How is the disclosure standard set?
The amount of information to be
disclosed is to be a reasonable patient
centered standard rather than a physician
centered standard. It should be based on
what a patient would think is important –
not what a physician would
What are the three types of advance
directives?
DNR orders
Living Will
Durable Powers-of-Attorney
Note: If only asked for two, then give
durable powers-of-attorney and living
wills.
What is a type of advance directive by
which a competent adult retains, or
attempts to retain, control over his own
medical care during periods of incapacity
through prior designation of an
individual to make health care decisions
on his behalf?
Durable power-of-attorney
What are three elements of a durable
power-of-attorney?
Takes effect upon loss of decision-making
capacity
Employs a named agent
Grants decision-making power for any
medical situation
The Patient Self-Determination Act
pertains to information about?
Right to refuse care
Right to execute an advance directive
The institutions policies regarding such
rights (how, when, etc.)
Under the Patient Self-Determination
Act, covered organizations must:
Comply with state law about advance
directives
Not condition care on execution or failure
to execute an advance directive
Educate staff and community about
advance directives
According to the Harvard criteria brain dead
is dead. Is a persistant vegetative state
considered dead?
PVS is not dead because there is still
brain activity.
What are the two state laws for organ and
tissue donation?
Uniform Anatomical Gift Act
Coroner Unconsented Anatomical
Donations
What law governs the gift of a person’s
body parts after death?
The Uniform Anatomical Gift Act
Four Privacy Interests
Physical and mental solitude
Personal information
Freedom from false publicity
Name or likeness
4 infringements on privacy
Intrusion upon physical or mental solitude or
seclusion
Public disclosure of private facts
“False light” publicity
Appropriation of name or likeness for financial
benefit or other gain
3 Purposes of Privacy Act
To let individuals know what info the gov’t
maintains on them
To allow them to correct erroneous info
To keep the info from those whom it does not
pertain
Privacy Act
Who can deny a request for information
– Access and Amendment Refusal Authority
• AARA
What are the codes that provide
international guidance on human research?
Nurnberg Code
Declaration of Helsinki
CIOMS/WHO guidelines
The Common Rule
The Declaration of Helsinki includes the
same principals as the Nurnberg code.
Additionally, it permits (5):
Substituted consent permitted
Committee review of all protocols
Subject’s right to privacy
Accurate reporting of results
Distinction between clinical and non-clinical
research
The Common Rule applies to what type of
research?
It applies to all research involving human
subjects conducted, supported, or otherwise
subject to regulation by the federal government
What is the purpose of an IRB as set forth
by the Common Rule?
To review and approve research IAW the
Common Rule
What are the “protected classes” according
to the Common Rule?
Incompetents
Pregnant women
Prisoners
A IRB expedited review is for research
activities that_____________.
Research activities involving no more
than minimal risk and in which only
involvement of human subjects is limited
to certain categories of research as
defined by the Common Rule
Under 10 USC 980 (as originally written), use of
DoD funds for human experiments may not be
used for research involving a human being
unless___________.
Informed consent is obtained in advance; or
In the case of research intended to be of
beneficial to the subject, the informed consent
of the subject or a legal representative of the
subject is obtained in advance
What changes did the 2001 amendment to
10 USC 980 bring?
Placebos were authorized for use
Which Act was not intended to restrain
state action or official action directed by a
state?
Sherman Act.
(Parker vs. Brown)
What is the purpose of Section 1 of the
Sherman Act? How do you prove it?
Prohibit restraints on trade.
Demonstrate restraints on trade thru contract or
conspiracy, or both.
What is the purpose of Section 2 of the
Sherman Act? How do you prove it?
Prohibit monopolies.
Possession of monopoly power with willful
acquisition above normal growth.
What are examples of problem areas in
managed care?
Contracts
Torts
Vicarious liability
Human resource management
What are examples of problem areas in
contracts in managed care?
Wording of contracts
Personal vs. non-personal services
FAR & fiscal system in federal system
What are possible problem areas in torts
in managed care?
Interlocking relationships (multiple
players)
Vicarious liability
What are two types of corporate liability?
Corporate negligence (Corporation had
duty, breached it, and injury resulted)
Vicarious liability (Read as Agent)
Scholendorff v. Society of the City of New
York Hospitial 1914
Judge Cardozo
“Every human being of adult years and
sound mind has the right to determine
what shall be done to his own body.”
Emphasized autonomy
Basis of informed consent
FEDERAL TORTS CLAIM ACT (FTCA)
(1946)
 Allows Federal government to be sued, partially doing away with
sovereign immunity.
 Applied to negligent in-scope torts of agents and employees. We
consider Red Cross volunteers agents. Typically employees are
paid whereas agency can be authorize volunteers.
 Statute of limitations is 2 years
 Must file claim before filing lawsuit
 No jury trial
 No punitive damages
 No limitation on damages
 Does includes application of substantive state law
 US only
 Not negligence as a result of war or combatant activity.
Feres Doctrine (1950)
Military member can not sue the government
for negligence when the injury arises during:
– The course or duty or
– Exercising a military benefit
Is an exception to th Federal Tort Claims Act
(FTCA)
Canterbury v. Spence (1972)
Informed consent case.
Not required for:
– Therapeutic privilege.
– Emergency.
– Treatment ordered by court.
– Treatment required by court.
Matter of Fosmire v. Nicholeau (1989)
Right to die case.
4 state interests:
– Preservation of life.
– Prevention of suicide.
– Protection of innocent third parties.
– Preservation of the ethical integrity of the
medical profession.
Matter of Quinlan (1976)
Right to die, right to terminate.
Persistent Vegetative State (PVS) introduced.
Used preponderance of evidence to determine
matter.
First to suggest ethics committees.
Cruzan v. Director, Missouri Department
of Health (1990)
Right to die, right to terminate care, also
states rights.
One of the few modern states rights
cases (Missouri).
Used clear and convincing evidence to
determine matter.
State has right to have stricter evidence
rule.
Vacco v. Quill
Right to die and physician assisted suicide.
There is no right to physician assisted suicide
in the U.S. Constitution, however states are
not precluded from having laws to allow it.
Oregon allows physician assisted suicide.
Washington v. Glucksburg
Right to die.
Physician can not intentionally write a
prescription for medicine to allow a patient to
commit suicide.
Roe v. Wade
Legalized abortion.
Established 3 stages and 3 rules for abortion.
What are the 3 stages of Roe v. Wade?
Stage 1 – from conception to the end
of the 1st trimester.
Stage 2 – end of 1st trimester to fetal
viability.
Stage 3 – viability of birth.
What are the 3 rules of Roe v. Wade?
Rule 1 – decision is up to woman and her physician.
Rule 2 – state may regulate abortion to protect the
mother’s health.
Rule 3 – state may regulate except when necessary for
the woman’s health or life.
Maher v. Roe
Dealt with abortion.
Specifically dealt with states paying for 1st trimester
abortions.
States have the right to determine how it will spend its
money (whether from federal or state).
State is not legally compelled to use public funds to
offer 1st term abortions.
States MAY do so if they desire.
U.S. v. Karl Brandt
Nurenburg doctors’ trial or medical trial.
Nurenberg code for ethics.
Established the modern rules of medical
treatment.
10 points made of significance for experiment.
(next question)
10 Points of U.S. v. Karl Brandt
1. Voluntary, informed consent of subjects
2. Scientific merit for good of society which can’t be gained by
other method(s).
3. Based on results of animal experimentation, knowledge of
disease/problem under study, anticipated results justify the
experiment.
4. Avoidance of physical and mental suffering during conduct.
5. No experiment if possibility of death or disablement.
6. Reasonable risk – benefit ratio
7. Proper preparation and adequate facilities to prevent even
remote possibilities of injury, disability, or death
8. Qualified researchers
9. Experimentee may terminate at his/her discretion
10. Experimenter must be prepared to terminate if reason to belive
continuation result in injury, disability, or death
Moore v. Regents University of California
Research – conversion case
Profiting from patient without consent
Tarasoff v. Regents University of
California (1976)
“Protective privilege ends where public peril begins”
Psychiatrist has duty to inform threatened person or
authorities if patient states intent to harm an
identifiable individual.
Threat to the public must be:
1.
Believable
2.
Plausible
3. Identifiable
Not true in state of Texas
Goldfarb v. Virginia State Bar (1975
Antitrust – price fixing
Supreme Court ruled the learned professions
(e.g., law, medicine, theology) are not exempt
from the requirements of antitrust and restraint
of trade laws and are therefore subject to the
Sherman Act.
Parker v. Brown
“The Sherman Act was not intended to restrain
state action or official action directed by a state.”
Private party can act in violation of anti-trust law
if it meets both parts of Parker test:
1. Clearly expressed policy – private entity’s
actions must be execution clearly expressed
state policy
2. Active regulation – state must be actively
supervising private entity’s execution. (active
supervision hardest to prove)
PLANNED PARENTHOOD v. CASEY (1992)
A. Supreme Court ruled that a state (Pennsylvania) could regulate
abortion during any stage of pregnancy, as long as the regulation
did not place an “undue burden” on the women’s ability to obtain
an abortion.
1. An undue burden exists if the purpose or effect of a law is to
place a substantial obstacle in the path of a woman seeking an
abortion before viability.
2. Specifically, the court found that Pennsylvania’s requirement for
a woman to notify a spouse of the abortion before it occurs was an
undue burden.
B. Note: the court allows requirements for parental consent for
minors, only if the state allows for a judicial bypass option allowing
a minor to get a court ruling stating parental consent is not
required
GONZALEZ ACT (1976)
Written in conjunction with FTCA to protect DOD health
care providers by immunizing them from liability for inscope personal negligent torts. Provided for transfer of
cases to Federal court and substitution of the U.S.
government as the defendant.
Hole in Gonzalez Act...what about military physicians
overseas or physicians in civilian residencies? Gonzalez Act
did not clearly include these groups...thus those people
needed to get their own coverage. The SMITH case plugged
the loophole. Ultimately superseded by the Westfall
Amendment.
Made FTCA exclusive remedy for those seeking damages for
allegedly improper medical treatment by military HC
providers