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Final exam study guide

by: Gabriela Saint-Louis

Final exam study guide PUBH 3136

Gabriela Saint-Louis
GPA 3.04
Health Law
Professor Teitelbaulm

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Health Law
Professor Teitelbaulm
Study Guide
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This 10 page Study Guide was uploaded by Gabriela Saint-Louis on Friday October 30, 2015. The Study Guide belongs to PUBH 3136 at George Washington University taught by Professor Teitelbaulm in Fall 2015. Since its upload, it has received 37 views. For similar materials see Health Law in Public Health at George Washington University.

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Date Created: 10/30/15
Health Law Final Review Guide IDENTIFY ISSUE HOLDING AND RATIONALE Thursday January let gt Session 2 if law is the mechanism by which our society is in uenced it is intertwined with all functions or organization and protection gthow does it do this ega rights with both obligation and responsibility entail only when ac nglegaHy 1 right to something 2 right to privacy and free from interference government or individuals all legal rights shut off at some point being entitled to one thing doesn39t entitle to you everythingkjkjkk law is a balancing act when someone39s right end someone39s begin don39t attach always and in every situation ega rights de ne speci c relationships but it39s not every legal right that de nes relationships private parties vs government in order to violate civil rights or a constitutional law it has to be with an actor of the state example freedom of speech ends when someone incite violence enforcement you have to be able to get your rights if you don39t they are useless segregation unlawful and brown vs board of education ega system different from laws themselves interacting parts that make up a whole gtlaws process profession and importance of language LAWS statutes written at local federal and state levels almost nothing that you can39t regulate very broad and exible of cial DC dinosaur regulations put meat on the bones of statutes tell people how statutes are going to operate cannot go beyond the scope of the statute constitutions charters that set up government caselaw judge made law common law PROCESS disputes between branches and disputes between federal and state governments federalism creation of legal rights 1 slow moving 2 inherently political 3 very expensive to setup run and use PROFESSION bad portrayal of lawyers but they are the most important function of making the legal system work LANGUAGE all laws are words open to interpretation new layers are added and taken away careful to think I know what something means Thursday January 29thgt Session 3 Hurley vs Edding eld no right to treatment no duty to treat 59 NE 1058 lND1901gt the year the opinion was written by the highest court in that state if it is just written alone Indiana 59 number of a volume in a book 1058 page number in this book where you would nd this opinion NE region of states where this opinion appHes icensed doctors are quali ed and trained to practice but they aren39t forced to practice doctors willing to see patients they choose if there is no legal right then there is no right to carry anything out previous contact with a doctor does not legally require a their attention quotspell of illnessquot each instance alone establishes a contract on an individual basis is pregnancy a spell of illness good samaritan laws don39t mean you have to do anything but tries to incentivize you to help because it removes any liability that could occur if something went wrong but if you39re grossly negligent you can be help accountable Summers v Baptist Medical Center 91 F3D 1132 8TH CIR 1996 en bancgt 8th circuit F3D federal appellate court the federal report has different series en banc means you appeal the 3 judges that heard your case and then all judges from that circuit hear your case EMTALA was an explicit effort to change no duty to treat in a situation when people are in an emergency medical situation First Texas obligated to treat patients only federal law people have access that is equal bene t rich or poor no matter what EMTALA is only a tiny percentage of the medical care that occurs in the US only under emergency circumstances with screening Congress can39t tell a hospital how to operate can only legislate by taxing spending regulate commerceal in constitutionso how can they make EMTALA working within their rights ony hospitals that receive Medicare funds operate under EMTALA most every hospital works under Medicare because it39s a good system new obligation under existing money similar to civil rights public schools accepting federal money can39t discriminate summary judgement a way to preserve resources if both parties agree on the facts a jury isn39t needed to discern the facts and hold a trial up to a legal interoperation did BMC violate EMTALA by improper screening no BMC had to have done something more than ordinary negligence and care had to be equitable among patients in EMTALA EMTALA does not require the hospital to have a set process of procedures a doctor39s perception matters because if he didn39t perceive a certain situation then there would be no need for certain screenings a doctor39s intent does not have to be proven in order for Summers to have won he would have to prove that BMC was discriminatory in their treatment EMTALA requires that a doctor stabilizes a patient then it is satisfied difference between EMTALA and negligence uniform treatment based on assessment v does not guarantee that the treatment is right hospitals have uncompensated care costs from uninsured patients treated under EMTALA medical malpractice is a quality of care issue not an access issue therefore it doesn39t federalize malpractice that39s a state issue EMTALA streamlines treatment protocols to avoid getting sued Thursday February 5th gt Session 4 Bragdon v Abbott 524 US 624 1998 ADA 1990 is not a health law aimed to reintegrate people with disabilities into society not an attempt to correct no duty to care gt employment public programs and facilities public accommodations and transportation last real legislative passing with bipartisan support pubic accommodations are private establishments but open to the public like healthcare first time the supreme court interpreted ADA in a healthcare setting we want these protections in place because more people living with HIV as a lifetime chronic disease instead of people just dying whether HIV is a disability even when its asymptomatic and whether that entitles you to healthcare bene ts district court agreed with plaintiff court of appeals agree rst look at the ADA39s de nition of disability 1 physical impairment 2substantial limitation 3major life activities consulted the Health and Human Services de nition due the the immediacy and the severity of the disease she fell under the quali cations of 1 2 why that life activity choice because reproduction was the only thing that met the criteria if there is a major life activity that exists that mets the de nition she should claim away it39s not about choice its about satisfying the words of legality 3 reproduction is a major life activity quotare central to the process of life itselfquot why would the supreme court bring up sex sexual dynamics and why wouldn39t she choose that sending the signal that sex is also a major life activity to claim the limitation has to be substantial the risk that she could transmit HIV to her children 25 the court held that the ADA does not force caregivers to treat those who pose a direct threat health care professionals may not be granted deference to their views when serving as a defendant in cases of alleged discrimination Canterbury v Spence 409 US 1064 93 S Ct 560 34 L Ed 1972 the evolution of standards of care historicaly the approach to care was doctor knows best physician oriented approach Spotswood Robinson very respected judge a very in uential ruling for courts 180 degree paradigm shift in standards of care the age of consent for surgery has changed over years why didn39t spence reveal the paralysis options because quotdoctor knows bestquot was at work and was the norm duty to disclose and the scope of how much he has to disclose ega right of patient legal duty of doctor a lot of things adult humans of sound mind and body cannot do like sell organs or drugs duty to disclose v informed consent if the patient has been given adequate information then the consent is informed this relies on a physicians performance of information 1 patients reliance on physician is trust and we need them to be our advocate we now nd a duty of reasonable disclosure on physician quotbuyer be 39warequot if doctors are in a learned profession it39s their obligation to know what questions the patients should ask or are going to ask we shouldn39t have to ask because we don39t know what to ask duty Negligence de nes private party relationships what would a prudent person do in that circumstance 1 duty 2 breach 3 causecausation very hard to prove 4 harm scope what would a reasonable patient ask not subjective it remains objective minimal things that physician must disclose in order to have legally binding informed consent 1 any potential risks and harms 2oonns 3 what happens if you don39t take options EXCEPTIONS a when a patient is unconscious b the doctor may remain silent because the divulgence of information might prompt the patient to forgo therapy that the doctor thinks the patient really needs delusional paranoia the rule became a tiny exception quot Thursday February 12th gt Session 5 TORT negligencegt duty breach cause proximate harm medical malpractice two types of liability corporate and vicarious corporate an institutions own actions proper instruments hiring opens you up to vicarious adequate staffing vicarious agency 1 employeremployee 2 independent contractors 1 was he or she acting in the scope of their job duty employer held liable for employee39s negligence 2 surgeons EMT may be hired as independent contractors to remove liability in vicarious situations employer not held liable except for three exceptions 1 actual agency a proof of control do they work on site how many hours do they work exible schedule b proof of supervision 2 apparent agencyostensible a quotlooks toquot looking to the institution for the care rather than an individual doctor b quotholds outquot hospital leads a reasonable person think that the doctors are employed by institution 3 nondelegable duty exception to the rule if there is a duty that is so important to a community that person has to be liable sometimes used if can39t use above Darling v Charleston Community Memorial Hospital corporate liability is a hospital liable for the negligence of it39s staff icensed and accredited hospital and licensing regulations and accreditation standards and its own bylaws de ne the hospital39s duty and that an infraction of them imposes liability for resulting injury defendant says quotwere just four walls and a roofquot quotit39s just the doctor39s practicingquot duty of nurses to watch his toes only did them a few times a day staffing and oversight issue duty of hospital staff to see these procedures were followed and either the nurses failed to report the developments to the hospital administrator and he didn39t bring anything up to the medical staff or the staff was negligent in failing to take action There is no reality to the idea that a hospital provides facilities only and does not claim to act through its staff doctors and nurses Modern hospitals provide facilities and much more They employ a large staff of doctors nurses administrators and other workers and are not hesitant to collect fees for services performed at the hospital A person goes to a hospital and reasonably expects the hospital as an entity to treat him Therefore no legitimate basis exists for not holding a hospital vicariously responsible for torts of its employed staff In this case the jury found negligence by both Alexander Defendant in the procedures he used and the nursing staff in their followups Boyd v Albert Einstein Medical Center vicarious liability doctor working for HMO appea summary judgement PA supreme court HMO claims that in PA this theory has only been applied to hospitals HMO contract with doctor estabished apparent agency and control and supervision Jones v Chicago HMO Dr jordan has 21 HMOs contracted private insured and 4500 patients just from Chicago HMO Chicago heights had one doctor HMO goes door to door jordan diverged from standards of care can a health maintenance organization be liable for institutional negngnce Count I is entitled quotInstitutional Negligencequot another way of referring to independent corporate negligence Count II is entitled quotVicarious Liabilityquot and contends Chicago HMO as principal is liable for the negligent acts of its agent Dr Robert A Jordan Dr Jordan Count lll referred to as quotContract Liabilityquot contends Chicago HMO breached its contractual obligations to the plaintiff same standard imposed on doctors and hospitals for HMO judging HMO against HMO duty breach harm left with causation gtcourt infers that causation should be decided by jury inability to see shawndale because of patient overload HMO failure to askJordan if he had other contracts to inventory his patients Thursday March 19thgt Session 7 what39s law39s role in regulating public health and personal american pnvacy unduy burdensome do individual liberties change over time A Civil Action using legal process to incentivize certain behaviors what if the unifying approach of controlling behavior by using law what if the system doesn39t work Thursday April 2ndgt Session 9 ROE V WADE a balance between individual rights and the interests of a state abortion framework has changed a lot since Roe the quottrimesterquot framework de ned by medicine through which they applied law not a legal fact Norma McCorvy Jane Roe 1st 4th 5th 9th 14th violations privacy right is vague enough to include pregnancy person does not refer to the embryo historic reasons that states initially enacted this law discourage illicit sexual conduct hazardous to a woman39s health protecting prenatal life potentiality of life ISSUES do the Texas statues improperly invade a right possessed by the appellant to terminate her pregnancy embodied in the concept of personal liberty contained in the 14th amendment39s due process clause especially 14th amendment right to privacy imminent domain private party space used for public consumption with compensation do the state39s interest trump personal property gt yes if there issubstantive due process there has to be a goal the process of justifying why they would squash a fundamental right RIGHT TO PRIVACY due process clause cannot deprive person of life liberty or property without due process or providing counsel iberty where the right to privacy lives not in the constitution what does it mean to be a fundamental right it should trigger the highest level of scrutiny least likely for government to infringe quotimpicit in the concept of ordered libertyquot marriage procreation child rearing education the need for order in a modern democratic organized society the fabric of society stuff abortion included the right is broad enough not absolute because the state has quotcompelling interestsquot in the 1 potentiality of life and 2 protection of woman39s health the federal government can39t regulate individual behavior because states regulate public health and medical practices in general unborn child is not deemed a person in the constitution compeling interests increases with pregnancy 1 starting in the second trimester this is the quotappropriate pointquot at which maternal health becomes compelling 2 from the beginning of the second trimester there39s more risk in having an abortion than carrying a child 3 on demand abortion in the rst trimester is legal via ROE because neither of the states legitimate interests have been triggered yet rst state interest unfettered right doctorpatient thing 4 restriction in right to have abortion after lst trimester maternal preservation ends the viability in potentiality of life during the end of the second trimester 26 weeks in 1973 begins by a state basis 5period between lst and 2nd cannot restrict because of human life only because of maternal health ABORTION EXCEPTIONS life or health mental physical emotion of mother in jeopardy Thursday April 16thgt Session 10 ROE V WADE REMINDER lst Trimester state interests on maternal health restrict access 2nd Trimester state interests on potentiality of life deny access except if there are exceptions for maternal health and life In the middle state can prohibit and regulate Planned Parenthood v Casey payed with language to rearrange the interpretation of Roe quotstate has legitimate interests from the outset of the pregnancyquot words from Casey that are NOT TRUE in ROE Abortion Control Act required women to give quotinformed consentquot before abortions could be performed imposed a 24hour waiting period upon women seeking abortions during which time the women would be provided with information regarding abortions minors seeking abortions rst obtain informed consent from their parents except in cases of quothardshipquot in which a court could waive this requirement a wife seeking an abortion must inform her husband of her plans prior to the procedure Pennsylvania abortion clinics report themselves to the state IN CASEY 45 SURVIVED noti cation of husband notconstitutional Reiterating quotsubstantive right to privacyquot that is protected from state interference in quotmarriage procreation contraception family relationships child rearing and educationquot It implicates equally intimate questions of a woman39s personal autonomy personal sacri ces emotional and mental health and fundamental right to de ne her life Rejection of trimester framework quotToo limiting in state39s interestsquot they want to allow potential life to ourish if you have an abortion you39re taking out the potentiality therefore the interest doesn39t exist anymore VIABILITY is now considered 22 weeks choice more restricted advancement of technologyfetuses need to breathe and eat at the moment there is no way to create lungs or help a baby breathe nstead of trimester UNDUE BURDEN quotthe Court proclaimed that any regulation that imposes a quotsubstantial obstaclequot preventing a woman from obtaining a legal abortion is an quotundue burdenquot that violates the woman39s constitutional right to an abortionquot VERY SUBJECTIVE Court trying to balance state interests and personal liberty Undue burden is subjective and the legality is up for decision on a state by state case basis no explanation for why they moved state interests up the mandatory 24hour waiting period was not an undue burden and was thus constitutional because the purpose is to promote well considered abortions was legitimate and only incidentally and slightly limited access to abortions it39s bullshit because they39re saying the state interests in educating a woman with information is something they couldn39t do by themselves instead of doctormother it39s now statemother The PartialBirth Abortion Ban Act batant attempt to chip at ROE probation of health exception Stenberg v Carhart gt two circuit courts would not let it stand and now the supreme court is letting it stand overlooks the exception of health because it39s an quotinhumane procedurequot congress wrote in quotfactualquot laws that weren39t true 1 disregarding precedent 2 allow everyone to bypass exceptions 3 does medical uncertainty make it ok to make laws 4 now disregarding mother39s health allowing pieces of the framework to fall awaynot a decision of integrity just 4 people making a decision


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