Precedence
The law that came before in other trials; the guidance that came before from other rulings; Common law Principle/black letter law
Res Judicata
its decided; Common Law Principle/black letter law
Stare decisis
Let the decision stand; Common Law Principle; black letter law
Cross v. Guthery (1794)
First Medical Malpractice Case Breast/Bled to death/Damages
Marbury v. Madison (1803)
Judicial Power example; people are the same no matter where in history: last day of office President John Adams the federalist congress/party decided he was going to give his friends new jobs appointed 16 circuit judges and 42 justices of the peace Judici
3 Branches of Government
Legislative, Executive and Judicial
Separation of powers
Checks and balances
Department of Health and Human Services and it's Center for Medicare and Medicaid
how each program came into being during Presidency of Lyndon Johnson in 1965 and explained the basics of Part A,B,C, D to help finance insurance chiefly age 65 and over.
Statutory Law ( Legislature)
comes out of the legislature at the federal level in congress; or from the senate house; and each bicameral (two Bodies) body has a senate and a house representative. The law that is made in the legislature (made by Congress) Nebraska does not use bicamer
March 7
Florida's Legislative session begins and typically files more that 2000 bills with possibly passing 200+ meet for 2 months. only have to do florida constitutioally is pass the budget.
Administrative law (Executive)
comes out of the agencies out of the executive branch as rules and regulations; rules and regs that come from administrative agencies from the executive powers.
Judicial decisions (court cases)
come from court cases interpreted by Judicial rulings guided by precedence
Strict Liability
when an activity regardless of fault, intentions or negligence is so dangerous to others that public policy demands absolute responsibility on the part of the wrongdoer
Medical Malpractice
a negligence concept
IRAC
Legal thinking;
Issue-Reasoning- Analysis-Conclusion
Eggshell Skull Rule
Take them as they come; Early battery case in Vosburg; to take plaintiff as you find them; intentional tort case in Garratt to illustrate a minor can be liable for intentional tort with force; and the duty of care inly goes so far as is reasonabley forsee
civil cases
mediated with money
Injunctions
making someone stop action
criminal cases
resolved by jail time
Tort (civil)
to harm; to prove there was culpability for wrongdoing
1-preservation of peace
2-Culpability
3-deterrance and
4-compensation remedy the harm damages through fines typically $ or stop action. We do not use the word guilty compensate with money in a civil m
3 categories of tort (civil)
1-negligence
2- intentional torts
3- strict liability
RPP threshhold
what a Reasonable Prudent Person would do (Peer against Peer)
Negligence
to do or not todo something that a reasonable prudent person would or would not do under given circumstance; civil or personal wrong
3 basic forms of negligence:
1- Malfeasance-performace of unlawful/improper act
2-Misfeasance improper performace resulting in injury
3-Nonfeasance-failure to act when there is duty to act RPP Threshold
Intentional tort
assult and battery; false imprisonment; and invasion of privacy; defamation of character in libel and slander cases; and intentional infliction of mental distress
Kowal v Deer Park Fire District
shows professionals are held to higher standard when an EMS guy stuck a tube in the wrong place for intubation.
Elements of Negligence
1-duty to care
2- Breach of Duty
3- Injury
4- Causation
a. forseeability
b. test for foreseeability;
4 elements of tort
[to win/settle claim]
1- duty to use due care (national)
2- breach of duty
3- causation/injury/actual harm
(proximate or legal cause)
4-that results in damage typically remediated by $ or other equitable solutions.
Presumably this harm was forseeable and therefore preventable.
8 categories of claims typically face providers
1-Professional negligence
2- Vicarious liability Ostensible Agency
3- Corporate liability
4- Informed Consent
5- Negligenct Infliction of Emotional DIstress
6- EMTALA
7- Wrongful life/wrong birth
8- Negligent Disclosure of Medical Records
Professional Liability posed as direct liability
whether in negligent hiring/retention; vicarious liability; apparent agency; and various iterations on the legal doctrine that holds employers liable in certain cases for the wrongful acts of their agents
Medical Malpractice case structure
...
Pleadings
include papers such as complaint, demurrer, answer, and bill of particulars.
Res Ipsa loquitur
the thing speaks for itself
circumstances speak for themselves
Shifts burden of proof in negligence case from plaintiff to defendant
Capping non income damaged
2014 Supreme Court Ruling in McCall tha Overturned those caps beg a thin going to legislature to ask for more funds; to have contract honored;
Medical Malpractice insurance
cyclical nature of insurance market
3 components of insurance
1- id of covered risk
2- specifications of amt payable
3- specificatioin of occurance
Insurance
contract in which company agrees to assume risk of insured party for payment of premium.
three primary categories of risk
1-property loss
2- personal
3- legal liability
Occurrence policies
cover all policies during the policy year, regardless of when they are reported
claims made policies
cover claims made or reported during the policy year, no matter when they occurred.
standard liabilities policies have five distinct parts
1- Insurance agreement
2- Defense and settlement
3- Policy Period
4- Amount by insurance company
5- Policy Conditions
Plaintiff V. Defendant
plaintiff files the complaint
Pleading
Alligation
Responds
Admit or deny
Bill of Particulars
Details of claims
Discovery
Digging out the evidence
Demurrer Objection
complaint is insufficient; is an objection to lawsuit
Depositions
testimony of what happened
Priveledge of Attorney/Client
Confidentiality under the law
Civil law burden of Proof:
Proponderance of the evidence
is a far less difficult threshold to meet than what would be required in a criminal case.
In civil case means you are more persuasive than not to the JURY. 50 % more persuasive than not.
Burden in criminal is beyond resonable doubt; can go to jail.
Hiring
Criminal Threshhold
Beyond reasonable doubt; prove all 3 elements beyond a reasonable doubt
criminal law
limits behavior that alls out outside of social norms and social harms are then punishable though incarceration et...
Model penal code
the concept of guilt in criminal law
3 elements of a crime
1- ACTUS RETUS- the guilty act that rises to the level of a crime
2-MENS REA- requisite mental state/intent mental state to commit a criminal act
3-circumstances that proved it was acted upon
Majority health law cases
deal with some type of health fraud
Department of Justice, Office of IG, and other federal prosecutors
recover health fraud dollars chiefly through violations of FALSE CLAIMS ACT, STARK VIOLATIONS, and the ANTIKICKBACK statues.
False Claims Act of 1986
Violation of the act happen whenever a provider knowingly presents to government a false claim for payment
Corporate Integrity Agreement
5 year written agreement on how a health systems thought to be too big to punish without harming the people they serve settle alligations with office of Inspector general.
Federal Stark Law
federal law that prohibits self referral specifically from referring Medicare/Medicaid patients designated health services to entities which the physician or an immediate family member has a financial relationship unless an exemption applies.
Florida Patient Self Referring Act of 1992
florida state provisions 42 CFR 411.350-389 tougher than federal law
Stark
named after former Congressman Peter Stark of California;
strict liability civil statue you can violate without realizing. The ACA now self disclosure protocols to assist to help lower your penalties.
3 priority items in Stark to consider in your transactions with physicians
1-Fair Market Value
2- Commercially Reasonable
3-Compensation cannot take into account volume or Value of the refferals between parties
Stark purpose
keep physicians from making medical decisions influenced by financial considerations
Federal Anti-KickBack Statue (AKS)
prohibits offering, paying, soliciting or recieveing anything of value to induce or reward referrals or generate Federal health care program business
President Harry S Trumen
First to register in Medicare
Antikickback
a. statutory criminal when there is knowingly solicited or pay anything of value for referals
b. criminal negligence- negligence on steroids total disregard of sick
c. Criminal intent voluntary safe harbors
d. target a group of people to provide service t
stark violations
oftern travels with criminal violations but is technically a civil violation, it is a strict liability statue; you don't even know that you have violated it; it involves physician self referral
Qui Tam Process
Ex rel/whistleblower relator brings attention to government of fradulent claim
1-Original source
who has direct and independent knowledge of wrongdoing
2-unclean hands
does not have uncleand hands/has not participated in the wrongdoing
Seal
complaint remains secret while the action remains under investigation of about 60 days or extended
Ex Rel Plaintiff v. D
If DOJ takes over case then it becomes public
Ex Rel Compensation %
15-25 % of recovery
30% of the government doesn't intervene
Elin Baklid v. Halifax
stark paper violation Oncology M.D.
Dr. Drakeford v Tuomey Healthcare sysytems Inc. C coro
19 doctors had to use hospital for 10 years, very long contract for part time services with no information on what to practice
ex ral shawn helen v Wellcare Humana etc.
tampa and hawaii
Florida Toucher Statues
1- The FLorida Patient Bokering Act
2- The Florida AntiKickback Statue
3- The Medicaid antikickback statue
Contracts
Some enforceable some are not
Agreement 3 elements
1-offer(to do something or not to do something)
2- Consideration (something of value, promised in exchange) for which, there was mutual acceptance
3- Acceptance (there was a meeting of the minds as to what was agreed upon)
If breached
can be argued in a court of law if a lawsuit if filed in a contract dispute
chartering a corporation
sunbiz.org
articles of incorporation
corporations internal bylaws
then apply for EIN number IRS
8 Potential choices of legal entity
1-P.A.
2-C Corp
3- LLC
choice of legal entity/structuring
based on counsel of legal and accounting tax advisors.
they help decide what level of liability protection and tax advantages will be best for operation
P.A. Professional Association
all shareholders are the same kind of licensed professionals in a PA.
C-Corp
C Corporation Inc.
LLC
Limited Liability Corporation
For Profit corporation
Investor Owned/with at least one director; asset ownership
Non profit corporation
at least 3 member board directors; tax exemptions; 501c 3 status with IRS
Bad Debt
Write off bad debt as a reduction in revenue and not as an expense
Operating Margin
operating revenue - operating expenses = operating margin
Not for Profit
Margin re invested in within organization
Acquisition of non-profit by a for profit system
Prf Goodman wrote law review article Cy Press judicial process
employement contracts
include key provisions on duties, base compensation, termination, regulatory matters, medical staff membership, conflicts of interest, base salary adjustments through RVU's
New Payment Model/
New physician payment model that pays more on quality/value outcomes, ACO's, medical homes and bundle payments
MACRA
Medicare Access and Chip Reauthorization Act - a law that alters how doctors are paid.
Restrictive Covenants (non-compete)
clause in an employement contract that is typically enforceable if they are narrowly tailored to geographic and time length limits .
Dr. Eskioglu
Lee county neurosurgeoun
settlements
contract agreements there is no liability or guilt fr previously alleged wrongdoing that is now settled.
Contingency fee contract agreement
trial lawyers can enter into contracts with clients that may promise them 30-40% of an award if recovery is achieved.
Contigency arrangements
used in civil negligence and malpractice lawsuits, were challenged when a local law firm won a recvery from Lee Memorial on behalf of a child injured at birth; award was capped by sovereign immunity $200,000.
Claims bill process
beg-a-thon -law firm pursues additional remedies from legislature; award was increased byt legislature capped out law firms fees. Lawyers challenged and went to florida supreme court and prevailed on theory that legislature cannot disrupt contract agreeme
Medical Staff Bylaws
Function as if they were a contract
Bad debt needs to be booked
subtract from the revenue
Anti Trust:
Sherman Anti-Trust Act Key Federal Law
section 1: prohibits concerted actions which unreasonable restrain competition
section 2: generally prohibits monopolies
Sherman Act 3 things they look at:
1-did competitors (2 or more) get together and agree to charge a particular amount for a particular service (PRICE FIXING)
2-did the two independent competitors come together and decide to not contract with an HMO (BOYCOTTING)
3-did they independently get
Anti trust law violations
FTC and department of justice will pursue them all
MCO MANAGED CARE ORGANIZATIONS
Fee for service; alter patient doctor contract for fee for service
Gatekeeper
...
ACO
discounted fee; reduce cost, yet preserve quality, and if these value based outcomes are achieved
Utilization Review (UR)
can shift the risk
Canterbury v Spence
informed consent; all risk; professional liability Threshold is PRR
HMO Health Maintenance Organization
(PPO,POS, EPO)
medical necessity
ERISA
federal law; protection against pension and health plans only in private industry
SB 240
Direct Primary Care
SB262
amend the HMO act to provide civil causes of actions against HMO
Wickline v state of California
Utilization Reviewer (UR) demonstrated potential liability for clinical role
Rush Prudential HMO, Inc v. Moran
Moran; HMO are risk bearing organizations subject to state insurance regulation "the Illinois HMO act" is thus saved from pre emption under ERISA's saving clause
Borinquen and HCD model
good infrastructure safety net for primary care project in underserved areas
Federally qualified health centers (FQHCs)
work by circulating in NC and PBC DOH was ordered to get out of primary care business.