SPEA-H341 legal aspects of health care 8/28 I.

I. Indiana general assembly is the legislative body that passes laws Local laws are passed by city counsel o Ex: noise, zoning Administrative Law a. Public law issued by state or federal and state federal agencies i. Examples 1. Epa standards 2. Clean water act b. Administrative law is not voted on, it is passed i. Legislative ii. Judicial iii. EPA 1. If they say one has violated regulations and one has hearing, if appealed then moves on to court for judicial review iv. Uses an administrative law judge v. Executive functions c. Agency does not have the authority to enforce laws Case law a. English common law came from Europe i. Differ state to state b. Appellate judge or court we consider that to be the law that we follow, it is called precedence. Stare decisis Courts slide 27 a. State i. Primarily preside over state law ii. Trial Courts iii. Court of appeals 1. No trials in appeal courts, they are only to review and reanalyze the initial court case. iv. Indiana Supreme court b. Federal i. Federal law c. State Supreme d. Supreme Court system

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8/30/12 know terms and definitions for exam

judge is the finder of fact Alternative methods of dispute resolution Civil procedure law a. Procedural law i. Type of law provides the specific processes for enforcing and protecting rights granted by substantive law b. Procedure of a lawsuit i. Commencement 1. Charges that person is defending c. Response i. Answer ii. Countersuit Procedure of a lawsuit I. Procedure of a lawsuit-trial a. Two types of Trial i. Bench 1. All factual and legal issues are heard by, and decided by, the judge ii. Jury 1. The Sixth Amendment to the United States Constitution gives the defendant the right to a jury trial in all criminal cases. 2. The Indiana Constitutions Bill of Rights, Article 1, 13 and 20, gives a defendant the right to a jury trial in both civil and criminal cases. iii. Stages of the Trial 1. Jury Selection: lawyers for both sides (as well as the judge) may question potential jurors to see if they can be impartial a. Lawyers can ask a juror to leave if they think the juror wont be fair b. In Indiana, either 6 or 12 jurors are picked for criminal trial and 6 jurors are picked for a civil trial b. Choosing a jury i. In Indiana there are 6 people 1. After picking jurors it is ready to go to trial ii. Preemptive strikes 1. Can not pick a juror just because you dont want them iii. Jurors can ask questions in a trial c. Presentation of evidence i. The party that has the burden of proof (usually the plaintiff) presents its case first; followed by the defendant I. II.

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1. Evidence may be photographs, documents, or testimony 2. Testimony is gathered on direct and cross examination 3. Direct Examination: initial questioning of a witness, by the party that called them to the stand a. The major purpose of direct examination is to explain your version of events to the judge or jury and to undercut your opponent's version 4. Cross Examination: the opposing partys opportunity to question the witness (often consists of leading questions) a. The major purpose of cross examination is to get the witness to say something helpful to your side, or to cast doubt on the witness's testimony by eliciting something that reduces the witness's credibility Instructions or Charge to Jury: once all of the evidence has been presented, the judge will instruct the jury on the law i. Parties may file request for court to use specially drafted instructions or the Indiana Model Jury Instructions ii. Instructions must include (1) the applicable burdens of proof; (2) the credibility of witnesses; and, (3) the manner of weighing the testimony received. Deliberation i. Generally, jurors select one member to act as foreperson ii. Bailiff ensures that jurors communicate with no one during the deliberation process; however, jury may ask judge question (communications must be shared with both parties) Verdict: formal finding of fact made by a jury on matters or questions submitted to the jury by a judge i. Must be unanimous ii. Judge may poll each juror to ensure verdict is unanimous; if juror dissents from verdict during the poll, the jury shall be sent out to deliberate again Burdens of Proof i. Criminal: Beyond a Reasonable Doubt: sufficient doubt on the part of jurors for acquittal of a defendant based on a lack of evidence. 1. A reasonable doubt exists when a juror cannot say with moral certainty that a person is guilty ii. Civil: Preponderance of the Evidence: proving a proposition by the preponderance of the evidence requires demonstrating that the proposition is more likely true than not true 1. Example: At the end of civil case A v. B, 51% of the evidence favors A. Thus, A has a preponderance of the

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evidence, A has met their burden of proof, and A will win the case. iii. Comparative and Contributory Fault: claimant is barred from recovery if the claimant's contributory fault is greater than the fault of all persons whose fault proximately contributed to the claimant's damages h. Damages: What is Recoverable i. Types of Damages 1. Compensatory Damages: designed to place a victim in the position he or she would be in if the injury had never occurred a. Includes compensation for lost wages, medical expenses, lost earning capacity, pain and suffering ii. Punitive Damages: designed to punish the defendant for inflicting the victim's injuries and to deter others from engaging in similar behavior iii. Typically awarded when the defendant's conduct has been especially egregious or outrageous i. Appeal-When a party loses, it may appeal the case to the court of appeals within 30 days after the entry of final judgment i. Court of appeals is limited to a review of the law in the case; it accepts the facts as determined by the trier of fact ii. Three Standards of Review: 1. Abuse of Discretion: a test which requires the reviewing court to determine whether the decision of the trial court is manifestly unsupported by reason or is so arbitrary that it cannot be the result of a reasoned decision 2. De Novo: reviewing court considers the matter anew and freely substitutes its own judgment for that of the lower court 3. Plain Error: error which is so fundamental that, absent the error, the trier of fact would have reached a different result j. Court of appeals may affirm the trial courts decision, modify or reverse the decision, or reverse the decision and remand the case for a new trial Types of claims for medical malpractice a. Breach of contract b. Intentional torts c. Negligence Elements of a contract a. Legally Competent to Contract i. Contracts entered into by minors or incompetent adults are not valid

b. Meeting of the Minds i. One party must make an offer (e.g. to buy or sell) and the other party must accept ii. Offer and acceptance must be identical c. Consideration Must Be Given i. Consideration: the price paid for the contract (need not be money; could be promise to do something or not do something) d. Purpose of Contract Must Be Legal i. Party cant excuse the other from liability in advance e. Express contracts: written or spoken between the parties f. Implied contracts: arises from conduct, assumed intentions, or existing relationship between the parties i. Implied Contracts Are Found in Our Daily Interactions 1. Restaurant: If you serve me what I order, I will pay the bill. a. Restaurant accepts by serving what you order 2. Doctor-Patient: patient makes an offer to pay money and doctor makes appointment to treat patient g.