How the Law Works

1. How the Law Works Chapter 2

2. Criminal and Civil Laws • Laws can be divided into two kinds 1. Criminal Laws 2. Civil Laws

3. Criminal vs. Civil Laws • The legislature creates laws and it decides which laws are criminal and which laws are civil. • Criminal laws are any laws that, if not obeyed, have as punishment the possibility of the offender being sent to jail or prison.

4. Criminal laws: Felonies and Misdemeanors • If the punishment entails the possibility of being incarcerated then it is a criminal law. • Criminal laws can either be a misdemeanor or a felony. • A felony is any crime that is punishable by serving more than one year in prison. • A misdemeanor is any crime that is punishable by paying a fine and/or serving no more than one year in jail.

5. Healthcare • A common example of a misdemeanor crime in the healthcare industry is the failure to report a crime. • Therefore, if a healthcare worker knows that there is abuse going on with a patient, and the health care worker fails to report the abuse, he or she can be prosecuted for a criminal act (breaking a criminal law).

6. Criminal vs. Civil Laws • Another important distinction between criminal and civil laws is that a citizen cannot sue another citizen for breaking a criminal law. • Criminal charges can only be pursued by the District Attorney’s office, which is a part of the government. • Prosecutors are the attorney’s who work for the governmental office of the District Attorney.

7. Citizens and Criminal Laws • While citizens cannot bring about a law suit against another citizen for breaking a criminal law, they can press charges. • Citizens press charges by presenting to the District Attorney’s office an official request that the they(the District Attorney’s office) file charges against someone for a crime committed. • The District Attorney’s office has absolute authority and power as to who gets charged and with what crime.

8. Civil Laws • Most laws that you will encounter in the healthcare industry are civil laws. • In most civil law cases, the remedy is monetary only. • Any citizen can sue another citizen or company for breaking a civil law. • Both criminal and civil suits must be initiated with the filing of a law suit.

9. Criminal vs. Civil Criminal Civil • Written by legislature • Common law no longer used. • Based on the harm principle • Focus is maintaining order in society at large. • Determines what actions society will not tolerate. • Court proceedings start with filing buy prosecutors. • Can only be brought by government. • Provides the possibility of prison as a punishment • Written by legislature • Exists in the common law, but is only used if necessary • Based on the harm principle • Focus is maintaining order among the individuals. • Determines what interactions are inappropriate among individuals. • Court proceedings start with filing of a lawsuit by an individual. • Can be brought by an individual • Provides for a monetary award only, imprisonment is not allowed.

10. Other Types of Laws • Administrative Laws • Alternative Dispute Resolution Laws • Bankruptcy, Debtor and Credit Law • Business Law • Constitutional Law • Contract Law • Criminal Law • Employment/Labor Law • Family Law • Real Property Law • Taxation Law • Tort Law • Will, Estates and Trust law

11. Legal Analysis 1. Identifying the law’s elements 2. Applying the facts to the law. 3. Applying the facts to the law.

12. Identifying the law’s elements • This entails understanding the law and its meaning. • In cases of definitional law, what is required is to determine the necessary and sufficient conditions. • For instance The law concerning an Assault. • The laws states that “A person who intentionally threatens another with physical harm is guilty of an assault.” • Here the elements of the relevant law are (1) to threaten another, and (2) with physical harm. Both are required for a person to commit an assault against another person.

13. Applying the facts to the law. • After analyzing the elements of the law, we must consider the facts of the case. • Here the objective is to determine whether or not the specific case is an instance of disobeying the law; that is, does the case contain or satisfy the elements identified in step 1. • Concede a nurse that tells a patient if he gets out of bed again, he will have to tie him up and strap him to the bed.

14. Determining the Outcome • Did the nurse assault the patient? • Notice that the law does not require actual harm or for the parson making the threat to actually go through with the threat.

15. A Civil Law Suit Step 1 - A Wrong or Injury Occurs Step 2- The Wrong or Injury is Discovered Step 3 - The Lawsuit is Filed Step 4 - The Involved Parties are Notified Step 5 - A Pretrial Conference Occurs Step 6 – The Lawsuit Proceeds to Trial

16. Step 1 - A Wrong or Injury Occurs • Anyone can file a law suit. There are no restrictions, except the paper work must be completed and filing fee must be paid. • However, if no law has been broken and no damage has been caused the law suit will be dismissed and will not even get to court. (Note that you cannot simply file a suit based on principle) • So the first step before filing a law suit is to make sure that a wrong or injury has occurred.

17. Step 2- The Wrong or Injury is Discovered • This is related to step 1, because in many cases an injury and wrong has been committed but it remains undisclosed. • For instance, imagine an instrument remains in a patients body after surgery. Until this is discovered there can be no case.

18. Step 3 - The Lawsuit is Filed • Once it has been determined that a law has been broken and that injury has been caused (damages), and the relevant information has been discovered, a lawsuit can be filed. • There are many courts with different jurisdiction, so you cannot simply file the lawsuit where you please.

19. Step 4 - The Involved Parties are Notified • A defendant must be officially notified of the lawsuit. If an official notification does not take place then the lawsuit cannot proceed. • Register mail or process server is usually sufficient for the notification requirement to be satisfied.

20. Step 5 - A Pretrial Conference Occurs • Interrogatories: written questions that are submitted to parties in a lawsuit. • Depositions: In a deposition a person is sworn in and then questioned in person. This works much like in a actual trial except there is no judge. Moreover, in depositions the witness must answer all questions, even if his attorney objects to the question. Later a judge may decide to sustain the objection and the answer can be overlooked. • In both interrogatories and depositions the witness is under oath and lying would constitute perjury which is a felony.

21. Step 6 - The Lawsuit Proceeds to Trial • Opening Statement • Witness Testimony and Cross examination • Closing Arguments • Jury Instructions and deliberations

22. Step 6 - The Lawsuit Proceeds to Trial • Burden of Proof: refers to the party in the lawsuit who is required to demonstrate or provide the evidence. For instance, in most cases, because it is the plaintiff that brings about a lawsuit the burden of proof is on the plaintiff. • Moreover, the defendant is considered innocent until proven guilty.

23. Standard of Evidence • The standard of evidence applies to the evidence and not the parties involved. • There are three standard: (1) Balance of probabilities (preponderance of the evidence); (2) clear and convincing evidence; and (3) beyond all reasonable doubt. • The first is used for civil cases and the second and third for criminal cases.

24. Appeals and the American Judicial System • Once a court decision has been reached the conclusion is final. • However, a loser may appeal, but only based on legal error and how that legal error adversely affected the outcome. • Note that appeals can only be based on legal issues and not because one is not satisfoed with the result.

25. Lawsuit Alternatives • Most law suits do not make it to trial. One reason why they do not is because of the lengthiness of trails. A law suit may take 3 to 5 years to be completed. Moreover at the end of this lengthy and costly process, one party wins and the other loses, a very risky outcome for plaintiff and defendant. • Instead, Alternative Dispute Resolutions can be resolved within a few short months at a reduced cost and with compromises so that everyone gets some satisfaction out of the outcome.

26. Alternative Dispute Resolution (ADR) • ADR are very popular. • There are 2 ADR: (1) Arbitration and (2) Mediation

27. ADR Arbitration Mediation • Sometime mandatory • Can be binding or nonbinding • Utilizes a judge-like figure • Evidence and testimony is presented • Only used in civil cases. • Never mandatory • Never binding • Utilizes a referee • Operates like a business meeting (less formal) • Evidence and testimony is presented • Only used in civil cases.