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Chapter 1
Introduction to Law
Jahangir Moini, MD, MPH, CPhT
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Role of Law
• Law includes statutes, rules, and regulations that govern:– People– Behaviors– Relationships– Interactions with society and state and federal
governments
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Role of Law
• Provides order for resolution of conflicts without violence
• Protects individual citizens
• Evolves to meet changes and challenges of society
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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
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Sources of Law
• Executive branch– Administrative law
• Judicial branch – Common or case law (derived from England)
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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
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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
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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• Statutes are laws enacted by legislatures• Start as bills (at federal or state levels)• May be passed or repealed (revoked), revised
(modified), amended (changed), or superseded (replaced) by legislatures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
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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
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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
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Divisions of Law
• Criminal law
• Civil law
• Administrative law
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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
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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
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Criminal Law
• Felonies– Punishable by much larger fines and
imprisonment of more than 1 year or death– Examples: rape, murder, domestic violence,
child abuse
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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
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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
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Civil Law
• Intentional torts– Committed willfully– Examples: assault, battery, false imprisonment,
fraud, libel, slander, trespassing, invasion of privacy
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Civil Law
• Unintentional torts– Are committed accidentally– Examples: failure to verify accurate
information, providing patient with medication that is less effective than intended
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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)
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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
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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
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The U.S. Court System
• State supreme court – Top court of the state
• U.S. Supreme Court– Decisions binding on all state and federal courts
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The U.S. Court System
• 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
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The U.S. Court System
• 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
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• Neither federal nor state courts completely independent of each other
• Many of their laws interact
Differences between Federal and State Law
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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
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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
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Statute of Limitations
• 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
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Statute of Limitations
• Most common occurrences for marking beginning of statutory period are:– On the day the negligence was allegedly
committed
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Statute of Limitations
– 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
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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
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• 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
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• 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
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– 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
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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
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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
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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