Law

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WHAT IS LAW?

Law is the set of rules that govern our behavior. Law affects everyone.

Criminal law prohibits and punishes certain conduct for the benefit of society. A crime is an offense against a locale, a state, or the United States. To commit a crime is to offend society. Not only are there crimes such as murder and burglary that we see on TV shows, there are also lesser-known crimes such as Medicare fraud that are connected with the medical profession.

Civil law concerns the private rights and duties of individuals who live within a society. A right is an individual power, privilege, or immunity. A duty is an individual obligation. We all have rights and duties concerning the way we interact with others.

Law makes a duty or right legal. Law also makes certain conduct punishable as a crime.

SOURCES OF LAW

Governments create laws. In the United States, government is constitutional, which means a constitution adopted by the people creates a government and gives that government the power to adopt laws governing the people. The United States has a federal government created by the U.S. Constitution, and each state has a government created by its state constitution. Local governments are created by states under the authority of state constitutions. All three levels of government—federal, state, and local—make laws.

The U.S. government has three branches—legislative, executive, and judicial. Each branch can affect laws.

LEGISLATION

We elect representatives to serve in legislative bodies. We also elect representatives to serve in our state legislatures. Legislators adopt laws. Statutes are legislation passed by legislative bodies on the federal and state levels. Ordinances are legislation adopted by local legislative bodies. The federal government passes laws that apply to all states. Individual states also pass laws that apply to only those in that state. Local government laws apply within the jurisdiction in which they’re adopted.

ADMINISTRATIVE REGULATIONS

Sometimes laws adopted by legislative bodies require an agency to carry out the law. For example, the Food and Drug Administration (FDA) is an administrative agency created to carry out, or enforce, laws relating to that subject matter. Agencies have the authority to create rules and regulations that clarify or interpret the basic statutes the agency is charged with enforcing. These administrative regulations have the same force of law that statutes have.

COMMON LAW

A system of law originally developed in England, called common law, is developed on a case-by-case basis from court decisions. Common law can be called court-produced law, case law, or judge-made law. Courts, when deciding specific disputes, try to establish rules that could be applied to future cases involving the same issue. A court’s interpretation of the meaning of a statute or administrative regulation becomes a rule that can be applied in future cases involving the same statute or regulation.

LICENSING AND CERTIFICATION OF MEDICAL PERSONNEL

Medical professionals may be licensed, which means government regulates who can practice the profession and what they’re permitted to do. Physicians, nurses, medical coders, and other medical personnel meet certain requirements established by statutes and administrative regulations that qualify them for their particular occupations. Licensing protects the public by ensuring that such medical personnel have met certain minimum requirements. Licenses can also be revoked. Grounds for revocation include unprofessional conduct, fraud, substance abuse, criminal conduct, and mental incapacity. Unlicensed medical personnel today perform many tasks formerly done by licensed personnel such as nurses. Unlicensed medical personnel are held to a high standard of care; laws and regulations may prohibit persons without medical training from performing some medical-related tasks, such as administering injections, which must be performed by people with specific training or education. Certification refers to a professional organization or institution representing that a certified person has passed a test, completed a course of study, or demonstrated knowledge or skill in some other way.

NEGLIGENCE LIABILITY

One area of common law, now modified by statute in some states, is negligence. Medical professionals have a duty to exercise reasonable care toward others. When they fail to meet that standard of care, they’ve been negligent and are liable for the damages they’ve caused. The standard of care that’s required, however, may depend on a person’s training. The distinction between a layperson and a professional is important in establishing the appropriate standard of care. If standard, customary, and accepted procedures and practices are not followed, that could lead to malpractice—failure to meet the required standard of care. The practice of medicine generally means diagnosing, treating, preventing, or curing diseases, ailments, or injuries.Medical malpractice is a type of negligence case. When medical personnel act in a way that harms others or fail to act in a way that helps others, they can be liable for the harm caused. If they fail to meet the standard of care that should be reasonably expected and this can be proven, damages could be awarded to an individual. This also applies to medical professionals who do not interact directly with patients.Due care includes the responsibility of the physician to hire qualified personnel and supervise the personnel accordingly. Not following customary procedures and precautions could be considered a failure to meet the standard of care required under the circumstances.

VICARIOUS LIABILITY

When one person is held responsible for the actions of another. Physicians are vicariously liable for the negligence of their employees when the employees are acting within the scope of their employment and knowledge. This principle is known as respondeat superior, which in Latin means “Let the master answer.” Scope of employment refers to actions taken in furtherance of the employer’s business. Employees are people whose work is controlled by their employer. Some people hired to do work, however, are self-employed independent contractors. Generally, the difference between an employee and an independent contractor depends on how much control the employer has over the person performing the work. Whether someone is an employee or an independent contractor matters because employers aren’t vicariously liable for an independent contractor’s negligence.

PRELITIGATION

Litigation is the process for resolving disputes through the court system. Alternative dispute resolution (ADR) is a process for resolving disputes outside of the court system that may be used before or after litigation has begun. Disputes that begin before litigation occurs, when something has happened and a patient is unhappy, are called prelitigation. If a medical professional has reason to believe that something has happened, or if a patient is complaining that something has happened, insurance companies, which insure the doctor against malpractice claims, may require doctors to file an incident report to document the event, but without admitting fault. Hospitals or other healthcare facilities may have internal procedures for documenting and investigating incidents. Some professionals may deny there’s a problem and fail to file an incident report. Normally, the patient seeks the advice of an attorney regarding alleged injuries. To evaluate the claim, an attorney usually requests copies of the patient’s medical records to determine if malpractice or negligence occurred. Since doctors have a duty of confidentiality to patients, the records request will need to be accompanied by the patient’s permission to release medical information. The attorney will have the records reviewed by a physician or legal nurse consultant and may have the patient examined by another doctor. If the attorney takes the case, he or she ordinarily agrees to a contingency fee arrangement. This means the attorney’s payment is a percentage of the recovery. If there’s no recovery, there’s no fee. At this point, the insurance company may become involved, and the parties may try to negotiate a settlement. If they can’t agree, it will be necessary to litigate—begin a legal process involving a court—the case.

LITIGATION

Litigation begins when a complaint is filed with the court and served to the parties being sued. The plaintiff’s (the person who is suing) complaint would be served—or delivered—to the defendants, or the people being sued, along with a summons, which is the court’s formal notice that one is being sued. Attorneys for the defendants would then file an answer to the complaint, admitting or denying the allegations and stating defenses. Once the complaint and answer have been exchanged, the next phase of litigation, called discovery, begins. Discovery is a way of collecting written or oral testimony, documents, and other evidence that can be used at trial. The civil rules of procedure give litigants (parties to a lawsuit) power to compel each other and nonparties to answer questions and provide documents relevant to the lawsuit. During the discovery phase of the case, attorneys for both sides are busy collecting evidence. One important discovery tool is deposition, which is the taking of oral testimony under oath before trial. court reporter—a person who records testimony for use in litigation. The court reporter has the person being deposed take an oath to tell the truth, and then the attorneys take turns asking questions about what happened. The court reporter creates a record such as an audio or video recording of the questions and answers and, for a fee, can create a written transcript of the questions and answers for the attorneys. Depositions are often taken of witnesses to cases, not just parties in the cases. A deposition transcript can be used later at trial to impeach a witness, which means to challenge the credibility of a witness.

TRIAL

A trial finds—or determines—the facts and applies the law to the facts. In a jury trial, the jury is the fact-finder, and the judge explains the law to the jury and supervises the presentation of evidence. In a bench trial, there’s no jury—the judge serves as the fact-finder, weighs the evidence, and decides how the law applies to it. The burden of proof—what the plaintiffs are obligated to prove—in a civil case such as medical malpractice is a preponderance of evidence. This means the plaintiff must prove it’s more likely than not that the defendant committed malpractice and that the plaintiff was damaged as a result. The burden of proof in a criminal case is different. The prosecutor must prove guilt beyond a reasonable doubt to convict someone of a crime. The standard of beyond a reasonable doubt is much higher than a preponderance of evidence.

EVIDENCE RULES

Evidence is presented at a trial through questions and answers. Rules of evidence control how questions are asked, what type of questions can be asked, and what type of answers can be given. Direct examination is the questioning of a witness by the attorney for the party who called the witness. Cross-examination is the questioning of a witness by anyone other than the party who called the witness. The main difference between direct examination and cross-examination is that the attorney can lead the witness on cross-examination. To lead is to suggest the desired answer to the witness. Leading is a way of controlling the witness by asking questions in a way that gives the witness very little leeway other than to answer yes or no. Direct examination, on the other hand, uses open-ended questions that don’t suggest a desired answer. Attorneys may object to given answers that violate evidence rules. Hearsay is a statement originally made outside of the court that’s repeated in the courtroom and offered as the truth. Hearsay often isn’t admissible under evidence rules. When attorneys object, it doesn’t mean the witness has done anything wrong; it means only that evidence rules don’t permit the evidence in that form. Speculation occurs when a witness gives an improper opinion rather than stating what he or she saw, heard, felt, touched, or smelled. Expert opinion testimony is an exception to the idea that witnesses should report observations rather than speculations or opinions. Knowledgeable experts such as medical professionals can give opinions within their fields of expertise. Experts can give opinions only within their fields of expertise.

PREPARING FOR TESTIMONY

When testifying, a person must tell the truth, as perjury—false swearing under oath—is a crime.

Answer only the question asked. Don’t volunteer information that’s not requested, especially on cross-examination.

Ask to have the question repeated if you don’t understand it or if it’s complicated.

Dress and behave professionally and respectfully.

Don’t argue, joke, or act flippant or bored. Be pleasant but serious

APPEAL

During an appeal, the question is whether an error of law was made at the trial court level. Generally, the facts found by the jury at trial can’t be attacked unless they’re so unreasonable that they’re without basis in the presented evidence. Trial judgments, however, may be reversed where there were errors, such as if the court misapplied the law or admitted evidence that isn’t admissible.

ALTERNATIVE DISPUTE RESOLUTION

ADR refers to methods of resolving disputes that are alternatives to litigation. ADR may be resorted to before or after litigation begins. The two main types of ADR are arbitration and mediation. In arbitration, the parties present evidence to an impartial person who makes a binding decision on the parties. Hiring an arbitrator can be compared to hiring a private judge. Mediation occurs when a neutral third person helps the parties in a dispute reach a settlement agreement. Mediators aren’t judges—they don’t hear evidence or make a decision about who is right. In facilitative mediation, the mediator guides the mediation process, but doesn’t express opinions on the merits of each party’s position. Instead, the mediator assists the parties in reaching a mutually agreeable resolution by asking questions that bring out each party’s point of view, including the underlying interests of each party. The mediator may assist the parties in finding and analyzing options for resolution, but doesn’t make recommendations or predict the outcome if the matter were to go to trial. In evaluative mediation, however, the mediator gives opinions about the merits of the case, pointing out weaknesses in the position of the parties, and may predict what a judge or jury likely would do. Evaluative mediators may have special expertise in the area of law in question. An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues. Mediation of malpractice claims is often evaluative mediation.