Legal Issues in Health Care Practice

Chapter 1: Overview

A. Law in the Profession

Main Objective to attain a normal & orderly procedure in the practice of profession
Presumption a professional should know the laws in the practice of profession & ignorance of
the law excuses no one

B. Classification of Law in General

A. Divine Law God is the author
B. Human Law man is the author
1. Public Law
a. Criminal Law
b. International Law
i. Public International Law
ii. Private International Law
c. Political Law
i. Constitutional Law
ii. Administrative Law
iii. Law of Public Administration
iv. Law of Public Corporations
2. Private Law
a. Civil Law
b. Commercial Law
c. Remedial Law

Definition of Law
- rule of civil conduct prescribed by the supreme power in a state, commanding what is right
and prohibiting what is wrong.
- laws of the state are promulgated by the legislative authority of the state

Definitions
Public Law is that branch or department of law which is concerned with the state in its
political or sovereign capacity. It applies generally to the people of the state adopting or
enacting it.

Private Law is a statute which relates to private matters that do not concern the public at
large. It is administered between citizen and another citizen.

Criminal Law is the branch of jurisprudence which treats of the nature, extent, & degrees of
every crime & adjusts to it its adequate and necessary penalty.

International Law or the Law of Nations is the law which regulates the intercourse of
nations.

Public International Law is the body of rules which control the conduct of independent states
in their relations with each other.

Private International Law or Conflict of Laws is that part of the law of each state which
determines whether, in dealing with a legal situation, the law of other stat will be recognized,
be given effect or be applied.
 Political Law is that branch of jurisprudence which treats of the science of politics (the
science of government) or the organization & administration of government. A branch of
public law that defines operations of governmental organs of the state, & regulates the
relations between the state & the individuals that compose it.

Constitutional Law is the department of law which treats of constitutions, their

establishment, construction & interpretation, and of the validity of legal enactments as tested
by the criterion of conformity to the fundamental law.

Administrative Law is the part of the law that fixes the organization & determines the
competence of the authorities which execute the law & indicates to the individual the
remedies for the violation of his rights.

Law of Public Administration is the branch of political law which deals with the organization
& management of the different branches of government.

Law of Public Corporations is the branch of political law which deals with public corporations.
A public corporation is a corporation created for the public or governmental purposes, for the
administration of a portion of powers of government; such as municipal corporations.

Civil Law is the branch of law which has the double purpose of organizing family & regulating
property.

Commercial Law is the branch of law which relates to the rights of property & the relations of
persons engaged in commerce.

Remedial law is the branch of law which prescribes method of enforcing rights or obtaining
redress for their invasion. It is the means to redress an injury.

C.

Meaning of Legal Right

- this is defined in civil society as that which a man is entitled to have, or to do, to receive from
others within the limits prescribed by law.
- Right: a capacity residing in one man of controlling, with the assent and assistance of the
state, the action of others.
- Legal Right: the right to which the state gave its sanction (approval).

Court of Justice
- A court is that body in the government to which the public administration of justice is
delegated. It is a place where justice is judicially administered

Court of Law
- Tribunal administering the laws of the state or nation.

Court of Equality
- Court which administers justice & decides controversies in accordance with the rules,
principles, & precedents of equity.
Competent Court
- A court having lawful jurisdiction.

Two Purposes of a Court:

1. To provide a forum where people with disputes can get authority to settle by an outsider
who is not personally concerned in the outcome of the dispute.
2. To provide a place where persons accused of offenses against society as a whole may have
their guilt or innocence ascertained.

Jurisdiction
- The authority to hear & decide a legal controversy. It is the power to hear & determine a cause
- The authority of the court to entertain a particular kind of action or to administer a particular
kind of relief or it may refer to the power of court over the parties over the property which is
the subject of litigation.

Venue
- It is the place where either party to a suit may require the case to be tried, and to the
convenience of the parties. It does not connote jurisdiction but the locality or place where the
suit should be heard.

Legal Remedies
- Remedy is the means employed to enforce a right or redress an injury.
1. Ordinary Remedy ordinary action or suit is a court of justice, by which one party
prosecutes another for the enforcement or protection of a right, or the prevention of
redress of a wrong.
2. Extraordinary Remedy one remedy afforded by law other than the ordinary remedy
by action. It is not granted where there is adequate remedy in the ordinary course of
law.

Extraordinary Remedies

Certiorari
~ a writ of review..writ is meant a mandatory precept (rule of action) issuing from a court of justice.
~ a petition for certiorari is proper in a case where tribunal, board, or officer, has acted without or in
excess of its jurisdiction or with grave abuse or discretion & there is no appeal. The purpose of the
petition for certiorari is to request the court that judgment be rendered annulling or modifying the
proceedings of such tribunal.

Prohibition
~ it is an extraordinary writ, issued by the superior court to an inferior court to prevent the latter from
exceeding its jurisdiction. It commands the judge of the inferior court to cease from the prosecution
of the suit. A petition of prohibition is proper in cases where there is grave abuse of discretion, and
there is no approval in any ordinary course of law.

Mandamus
~ an extraordinary remedy in cases where the ordinary proceedings are powerless to afford remedies to
parties aggrieved, & when without it, theres a failure of justice.
Quo Warranto
~ writ by which the government begins its action to recover an office or franchise from the person or
corporation in possession of it. A person claiming to be entitled of a public office which is usurped may
bring in his own name an action for quo warranto against the usurper.

Provisional Remedy
- A remedy which is provided for present need or for immediate occasion that is to meet a
particular exigency.
- A temporary process & merely collateral proceeding.
e.g. Preliminary Injunction order granted at any stage of an action prior to the final
judgment. It is
granted after commencement of action & before judgment.
Final Injunction granted when the rights of the parties are determined.

Service of Process
1. Warrant writing from a competent authority in pursuance of law, directing the doing of an act, &
addressed to an officer or person competent to do the act & affording him protection from
damages.
e.g. search warrant search for personal property
2. Summons writ commanding a sheriff to notify a party to appear in court to answer a complaint
against him.
3. Subpoena process by which a witness is required as a particular time and place.
e.g. subpoena duces tecum does not only compel the attendance of the witness but also
requires to bring with him documents to elucidate the matter in issue.

Damage and Damages

- Damage means a loss, injury, or harm caused by ones person, property or rights by negligence,
design, accident or wrongful act or omission of another
- Damages (pl.) refer to sum of money which the law awards to a person to compensate him for
his loss, injury, or harm caused by the negligence, design or wrongful act or omission of
another. It is a monetary compensation for such loss, injury or harm.

D..Employment Law

Hiring Process
1. Interviewing no questions concerning race, religion, age or even to inquire whether a woman is
pregnant.
2. Pre-employment Testing should only include questions what will measure skills & abilities
necessary to do the job.
3. Drug Testing the law specifically requires that tests provide qualitative data on the presence of
drugs & alcohol. The intent of the law is to determine whether the employee is fit for duty. New
performance tests are being developed such as hand-to-eye coordination, spatial perception,
reasoning ability & judgment to replace the usual test of urinalysis.

Equal Opportunity Employment

The Civil Rights Act of 1964, states that everyone has an equal opportunity to be hired for a job
& go up the corporate ladder without discrimination of race, color, religion, sex, or nationality.
Discrimination may be shown by either disparate treatment or disparate impact.
Disparate Treatment
Disparate treatment cases are proven by the plaintiff establishing a prima facie case, the
elements being (1) the plaintiff must be a member of one of the groups protected by the Title VII, (2)
the plaintiff must be capable of doing the job, and (3) he or she must have been discriminated against.

Disparate Impact
For example, a minimum height requirement may discriminate against a certain group of
minorities.
An employer faced with a charge of disparate impact may counter that the policy is justified by
business necessity & is related to job performance.

Sexual Harassment
Sexual harassment is unwanted sexual attention from anyone the victim may interact with on
the job where the victims response may be restrained by fear of reprisals. This can include peers,
subordinates, supervisors, customers and clients.
The range of behavior includes verbal comments, subtle pressure for sexual activity, leering,
pinching, patting and other forms of unwanted touching as well as rape or attempted rape.
Sexual harassment has elements of premeditation & persistence & involves obscene suggestions
& hints often followed by pinches, pats and grabs.

E. The MEDICAL RECORD

What is a medical record?
The medical record is a record-keeping of the patients treatment, the attending physicians &
their specializations & all other information pertinent to the history of medical care & diagnosis of a
patient.

Importance of Medical Record:

1. as a source of information for the continuing progression of patients treatment & care
2. as a legal document in case of a medico-legal problem & physicians liability insurance
3. a tool to support reimbursement because it is a standard by which a practice is judged

Ownership of the Medical Record

The hospital, the organization & the physicians own their medical records. They have property
right over these records & could limit their removal from their premises. The fact that the hospital or
physician claim ownership over the medical records does not prevent other individuals, professionals,
corporations & courts from claiming right to see & copy the information.
The physician has no absolute control over the medical records after his death the latter
cannot be distributed in the same manner as a piece of property.
X-rays, MRI & other diagnostic results usually belong to the hospital & access to this will
depend on the policy of the hospital. If a patient wants to get his X-rays, a hospital may not allow the
personal viewing of patients tests/films; however, the hospital can release them to a physician
selected by the patient.
In an outpatient clinic, the medical records are purely focused on the outpatient medical care
of the patient. However, it can also be used to allow reimbursement of insurance payments of the
patients treatment. A separate medical certification may be requested by the patients for personal
reference & other purposes.
Privacy and Privileged Communication

Privacy in the medical setting, involves at least two different kinds of interest in avoiding
disclosure of personal matters; the second is interest in decision-making.
There is no federal law that protects the confidentiality of medical records. Currently, because
of the number of professional involved in an individual patients care, absolute privacy cannot be
expected by a patient, but a high standard of professional confidentiality is to be expected.
Communication between a physician & a patient is private & legally recognized as privileged.
Privileged communication is a legal label put on information passing from one person to another that
cannot be submitted into evidence in a court room because of the relationship.
e.g. communication between a husband & a wife
communication between a priest & a penitent

In a typical physician-patient privilege, a physician is prevented from revealing in court

confidential information obtained during the treatment of a patient unless the patient waives his or her
privilege against disclosure. This right is conditional & may be overruled.
Privilege communication can be revealed if it contains information that can be harmful to the
patient or others. e.g. suicide attempts or attempting murder