Sessions 1 & 2 Learning Objectives

Constitution:

Supreme law of the land A grant of power from the states to the federal government -- powers not granted to the

federal government are reserved by the states 2 Parts: Main Body & Amendments The US Constitution consists of seven articles and 27 amendments. The original seven articles

took effect in 1789. The 26/27 amendments were added to the Constitution from 1791 to 1992 (# is ambiguous due to prohibition)

1st 10 Amendments: "Bill of Rights” (effective 15 DEC 1791) o When enacted, the 1st 10 Amendments applied only to the federal governmento In 1870, the 14th Amendment made these (The Bill of Rights) applicable to the

states

14th Amendment ". . . Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Clauses most citied in court cases:1. Due Process- playing by the rules; being fair2. Equal Protection- “treating equals equally”; it is not treating everyone alike

1. Explain the differences among the branches of government

Legislative Branch- legislative powers are given to Congress (House of Representatives and Senate) The House of Representatives- composed of members chosen every 2 years,

Representatives must be at least 25 years old, live in the state, and be a US citizen for at least 7 years; number of representatives is determined by the size (population) of the state (at least 1 per state); The Speaker of the House (elected by the House of Representatives) has the sole power of impeachment

The Senate- composed of 2 Senators from each states, chosen every 6 years, Senators must be at least 30 years old, live in the state, and be a US citizen for at least 9 years; The Vice President is the President of the Senate and has no vote unless the Senate is divide; has the sole power to try all impeachments (at least 2/3 vote = impeachment)

Executive Branch- the Executive power is given to the President of the United States, elected to a 4 year term

The President, VP, and all civil officers may be removed from office on impeachment on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors

Judicial Branch- The judicial power of the U.S. shall be vested in one Supreme Court, and in such individual courts as the Congress may, from time to time, ordain and establish

Judicial power extends to all cases in law and equity arising under the Constitution, US laws, and treaties (Supreme Court has appellate jurisdiction); cases affecting ambassadors (Supreme Court has original jurisdiction)

The Judicial System

• Appellate courts that try appeals: Courts of Appeals and Supreme Court• State courts can appeal to the Supreme Court if federal in nature• 13 federal circuit courts (courts of appeal) that are geographically dispersed• **Federal Circuit is NOT geographically determined• 94 district courts (underneath federal circuit courts)• Circuit courts primarily dispersed geographically, but district courts assigned based upon

population density which make distribution unequal

Military Judicial System

• Includes U.S. Court of Appeals for the Armed Forces• 5 civilian judges in Armed Forces Court of Appeals appointed by President w/ Senate consent• Judge can be prior military, but cannot have 20 years or more of military service• Secretaries of military services are civilians appointed by POTUS• Secretary of the VA • Secretary of Health & Human Services – right to promulgate regulations

Military Separate from Civilian Judicial System

• Parker vs Levy, USC 1974 (417 US 733) CPT Levy court-martial for failure to follow orders and train special forces enlisted men going to Vietnam. Appeals within the military system were sustained. Court of Appeals reversed.

• Orloff v. Willoughby, 345 U.S. 83, 94 (1953): "[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian,"

• Burns v. Wilson, 346 U.S. 137, 140 (1953): "the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty . . . . "

• Burns v. Wilson, supra, at 140: "[m]ilitary law . . . is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment."

• United States v. Fletcher, 148 U.S. 84 (1893): upheld court-martial under Article 133 for “refusal to pay a just debt was "conduct unbecoming an officer and a gentleman."

• Swaim v. United States, 28 Ct. Cl. 173, 228 (1893): ruled cases involving "conduct to the prejudice of good order and military discipline," must be gauged by an actual knowledge and experience of military life,

Military and Civilian Law Differ

• Military personnel have less autonomy than civilians• the Uniform Code of Military Justice regulates a far broader range of the conduct of military

personnel than a typical state criminal code regulates of the conduct of civilians• W. Winthrop, Military Law and Precedents 711-712 (2d ed. 1920) & United States v. Howe, 37 C.

M. R. 429, 441-442 (1967): Court of Military Appeal decisions limited scope of Article 133/134 and specified examples of conduct for which they apply.

• United States v. Priest, 45 C. M. R., at 344: 1st Amendment rights are not applied equally under military law, as they are under civilian law, due to necessity for discipline

2. Explain the differences between the federal and state judicial systems

The federal system affects not only politics, e.g., how the country's leaders are elected, but, more importantly for our discussion, policies. The states, not the federal government, are primarily responsible for the policies that effect social and family issues; however, the situation is not black and white. The Supremacy Clause (Article VI) of the U.S. Constitution provides that, in its own area, federal law will take precedence over state law. The U.S. Supreme Court has, for example, often addressed and dealt with the constitutionality of state laws dealing with abortion. It has examined the question of physician-assisted suicide and, finding such no right under the U.S. Constitution returned the matter to the states for each to deal with as it sees fit, subject, of course, to the constitutionality of any state laws enacted.

3. Explain the differences among the types of law

Law- A system of rules that defines socially acceptable behavior and sets punishments for violations.

Statutoryo Examples:

Ethics in Government Act Federal Tort Claims Act Military Claims Act Foreign Claims Act Uniform Code of Military Justice Patient Self-Determination Act Statutes of Limitation

Commono Examples

Roe v. Wade Maher v. Roe U.S. v. Karl Brandt

Administrativeo Examples:

OSHA regulations; FDA regulations; DoD regulations Air Force / Army / Coast Guard / Marine / Navy regulations The Common Rule

Public Private Substantive Procedural Criminal

o Society harmedo No self-helpo Restriction on libertyo Beyond a reasonable doubt o Trial by jury guaranteeo Types: General criminal law, Military law

Civilo Individual harmedo Self-help permittedo Damageso By a preponderance of the evidence; by clear and convincing evidenceo Limited right to trial by juryo Types:

Tort law

Contract law Domestic relations Probate law

Health Law and Legal System

Health law found in:o Contract law (proper measure of damages for medical breach of contract)o Tort law (is a physical injury required for damages to be awarded)o Regulatory law o Substantive law (who protected under state’s good Samaritan law)o Procedural law (length of statute of limitation)o Statutory law (age of consent determination

And to lesser extent:o Criminal lawo Environmental law (how is medical waste disposed of)o Labor-management relations law (under what circumstance is a nurse classified a

supervisor) Health law can involve state and federal law depending upon where the matter arises and the

medical legal issues posed Best description of U.S. government: federalism - "unity without uniformity." States primarily responsible for policies affecting social and familial issues Article VI of Constitution provides federal government ability apply policy precedence over state

laws (i.e. abortion), but sometimes defer to state autonomy (i.e. assisted-suicide) Federal statute law affect funding and delivery of healthcare (Social Security & Hill Burton Acts)

4. Explain the parts of a civil lawsuit

5. List the steps in a civil lawsuit in the order in which they occur

6. Explain the different types of discovery

Motions to Produce Documents Motions for Physical Examination Requests for Admission Interrogatories Depositions

7. Explain the difference between stare decisis and precedent

Precedent - a case which stands as authority, either for or against a point, in a later case; advisory only, need not be followed.

Stare decisis - Latin for "let the decision stand"; a legal doctrine holding that the ruling of a higher court in the same chain or stovepipe will be followed by a lower court unless: the circumstances have changed; or the earlier decision was wrong in the first place.

8. Identify the proper court for a given lawsuit

9. Know the meaning of the parts of a legal citation

10. Explain the difference between a tort and a contract

Tort : non-contractual, civil wrong committed against a person or property for which a court may award damages as a remedy

o Tortfeaser: person or body committing acto 3 types of torts:

1. strict liability – due to inherent danger of engaged activity (not intent or negligence)2. intentional – act is intentional and when tortfeaser should realize likelihood of harm3. negligent – most common tort concerning health law

o What is the most common type of tort in health law? Negligent torto 4 elements of tort law required to prove legal justification for monetary award:

1. Conduct met minimum standard of care?2. Breach of duty by omission or commission?

3. Resultant injury?4. Demonstration that injury directly attributable to breach of duty?

o 3 characteristics of damages:1. Special – intended to compensate for monetary loss2. General – intended to compensate for pain, suffering, or loss of pleasures3. Punitive – indented to punish wrongdoer, and deter others from similar conduct

o 3 rules to determine standard of care:1. Conduct of providers in same locality (locality rule)2. Provider similarly situated (national rule)3. Provider of same school or specialty (practice rule)

Contract : A legally binding agreemento 5 elements of legal binding agreement (contract) between physicians and patients:

Competent parties (mental ability and requisite age to enter a contract) Legal subject matter (contract purpose is legal) Offer Acceptance Consideration (thing of value given for thing of value to include $, service, object)

o If federal government is involved in contract, then contract governed by federal regulation and statutory law

o Most actions brought in tort because: contract damages more limited than Tort damages

o Reasons for actions brought in contract: delay in filing because tort statute of limitation is shorter than contract statute of

limitation sovereignty or government immunity for tort liability

11. Discuss contracts and governance of organizations

12.Explain the difference between law and ethics

Law- A system of rules that defines socially acceptable behavior and sets punishments for vio

Ethics - The branch of philosophy dealing with values relating to human conduct with respect to the rightness or wrongness of actions and the goodness or badness of the motives and ends of such actions.

13. List the four primary principles of medical ethics

14. Explain and give examples of the four primary principles of medical ethics

15. Given a scenario, be able to identify legal issues and ethical issues

Other Notes:

Regulatory law: laws enacted by legislative body are general and grant authority permitting or requiring an agency to control or regulate certain activities

Rule-making: process by which such regulations are made Agency proposes regulation Public, lobbyists, those affected pose comments Who can issue regulations? State & federal agencies Lawyers that typically try malpractice cases? Personal injury lawyers

Army Providers as Witnesses

Army healthcare providers often serve as witnesses in litigation DA personnel must obtain proper authorization before appearing as witness in any litigation Refer request for testimony, interviews, or subpoenas to the Litigation Division, MTF staff judge

advocate, or MTF legal advisor Litigation testimony resulting from off-duty employment must be limited to factual matters only DoD providers never allowed to provide expert opinion or moonlight as expert witness Fees provided to Army health care providers for testimony which exceed travel, and per diem not

reimbursed by the government, must be forwarded to Treasurer of the U.S. 2 types of litigation:

1. U.S. Interest – U.S. named as party or official interest in outcome (malpractice involving tort claims)

Army providers not allowed to provide opinion or expert testimony for party whose interests are adverse to those of the U.S.

2. Private - government not party (personal injury, divorce, child abuse) Army providers not allowed to provide expert opinion in private litigation

2 types of testimony:1. Expert – professional medical opinion given in response to hypothetical question2. Factual – pertaining to treatment provided or actual observations made

Medical records the property of the U.S. government1. MTF commanders are the custodians of medical records in their facilities; often delegated to

Chief PAD officer2. Requests for medical records should be referred to PAD office

The Original Constitution

1. Establishes and defines the powers of Congress, the legislative branch. Congress is divided into two houses:

1) the House of Representatives, in which each state is represented according to its population;

2) the Senate, in which each state has two senators.

2. Establishes the presidency.

3. Establishes the court system, including the Supreme Court and other courts that Congress establishes.

4. Says that each state must give "full faith and credit" to the laws of other states.

5. Explains how to amend the Constitution.

6. Establishes the Constitution as the "supreme law of the land."

7. Says that if nine of the 13 states ratifies the Constitution, it will take effect.

(27) Amendments to the Constitution

The passage of first ten amendments to the Constitution, known as the Bill of Rights, was a promise made to opponents of the constitution who feared it would give too much power to a central government at the expense of individual liberties.

1. Establishes freedom of:

• Religion • Speech • Press • Assembly • Petitioning the government

2. Establishes right of states to have militias and to "keep and bear arms." The right of individual citizens to "keep and bear arms" is not mentioned in the Constitution.

3. The government cannot quarter any soldier in a person's house during peacetime without the owner's permission and in wartime except in a manner prescribed by law.

4. Freedom from "unreasonable searches and seizures."

5. Protection from:

• Double jeopardy • Self-incrimination • Private property taken without just compensation

6. Right to a "speedy and public trial by an impartial jury." Right to a lawyer at a trial.

7. Right to jury trial in civil suits.

8. Protection from excessive bail and "cruel and unusual punishments."

9. Provision that the enumeration of certain rights in the Constitution does not imply that there are not other rights.

10. Powers not given to the United States and not prohibited to the states, are reserved to the states or to the people.

11. An amendment clarifying the judicial power of the United States.

12. The system of electing the president through the Electoral College is revised. The system adopted in this amendment in 1804 is still in use today.

13. Abolishes slavery. It was enacted during the Civil War

14. This amendment was enacted in 1868. It has several provisions; the most important ones are:

• It makes all people who were born or naturalized in the US citizens. The main effect is to make former slaves citizens.

• It guarantees the right to vote to all male citizens aged 21 or more (except for former rebels). The main purpose was to give the vote to former slaves. This provision was not enforced in the South until 1965.

• It also says that any state may not deny to any person under its jurisdiction "the equal protection of the laws." This provision was later used to apply the guarantees of the bill of rights to the states. Before this amendment, the guarantees were applied only to the national government.

15. Gives citizens the right to vote regardless of "race, color, or previous condition of servitude." The goal of this amendment was to give former slaves the right to vote; it is more explicit than the 14th Amendment. It was not enforced in the South until 1965.

16. Gives the national government the right to establish an income tax. Before this amendment, a national income tax was illegal.

17. Changes the way senators are elected. Before this amendment, senators were elected by state legislatures. Since this amendment was enacted in 1913, senators have been elected directly by the people, the same as members of the House of Representatives.

18. Establishes prohibition-the sale and consumption of virtually all alcoholic beverages are outlawed.

19. Gives women the right to vote in national and state elections.

20. Changes the day of the beginning of the president's term from March 4 to January 20 and Congress's term from March 4 to January 3. The main effect is to end the Congressional session that had formerly met between January and March, which had included many representatives and senators who had not been re-elected the previous November

21. Abolishes prohibition.

22. Prohibits any person from being elected president more than twice (the two-term limit)

23. Gives three electoral votes to Washington, D.C. Before this amendment, the citizens of Washington, D.C. could not vote for president. (They still do not have any representatives or senators in Congress, although they do have one non-voting delegate in the House of Representatives.)

24. Outlaws the poll tax. Before this amendment was enacted in 1964, many states charged a fee (a poll tax) to vote.

25. Changes presidential succession. Before this amendment was enacted in 1967, when a president died, the vice-president took his office, but there was no longer a vice president. With the enactment of this amendment, the new president can appoint a vice president. There are also provisions for presidential disability.

26. Gives the vote to all citizens 18 years old or older.

27. Provides that no congressional pay raise may take effect until one congressional election shall have intervened.