Constitutional, Common, Federal Law and Federal Register - Essay Example

? Identify all of the sources of law in the American legal system, and include, in your response, a brief description of each source that you list, as well as an example of each. Constitutional law Constitutional law is founded on an official document that explains broad powers. Federal constitutional law originates from the American constitution. The United States constitution is the foundation of the U.S that deals with fundamental relationships within the American society. An example of constitutional law is the sixteenth amendment that bestows congress the power to collect national income tax without apportioning it among states. Regulation (federal law and federal register) Regulations are federal agency rules published in the proposed and final form. Regulations appear in the federal register first and finally organized and published in the code of federal regulations. For illustration, one must not vend Christmas trees or pumpkins grown outside Minnesota city limits (Snyder, para 5). Common law Common law is founded on the concept of precedence with regard to how courts have interpreted the law. Under common law, the facts of a particular case are determined and compared to prior cases having similar facts so as to reach a decision by analogy. An example of common law is that minority shareholders cannot bring actions against a company. The reference case for this common law was forth in the Foss v Harbottle (1843) case. Administrative law Administrative law is made by administrative agencies that define the intentions of the legislative body that passed the law. Administrative agencies are created by statute and charged with regulating a given area of conduct. For illustration, the federal Food and Drug Administration regulates safety of drugs by necessitating pharmaceutical corporations to abide by testing and reporting procedures. Statutory law Statutory laws are enacted by the American parliament and are published in various formats such as statutory codes or session laws such as criminal laws. Pozgar (19) defines statutory law as written laws emanating from a legislative body whose rules and principles are set in hierarchical order. An example of an American statute law is the section 1 of the fourteenth amendment to the United States constitution that states that all persons naturalized or born in America subject to the jurisdiction are citizens of the United States and of the state where they reside. Explain the importance of the standard of care in the context of a medical malpractice case, and describe what type of evidence is typically required to prove a breach of the standard of care by the defendant doctor. The standard of care phrase is a legal model with a clear expression, which may be expansive or specific. Generally, standard of care in medical practice is the level at which an normal, cautious expert with the same education would practice under similar conditions. Standard of care does not essentially mean perfect care. However, many doctors take the concept of standard of care to mean best practice. Therefore, any care that digresses from best practice is prima facie the failure to meet the standard of care. Failure to meet the standard of care in a medical care context amounts to medical misconduct. The standard of care is significant in the context of medical malpractice as it determines the extent of negligence needed to affirm applicable grounds of action (Pozgar, 386). Medical malpractice litigation is regulated and governed by the tort law. In order to succeed in a medical malpractice claim, the plaintiff has to prove beyond reasonable doubt that the medical service provider (defendant) owed a duty of care to the plaintiff (Pozgar, 116). Expert witness testimony is needed to demonstrate negligence by the medical practitioner. In some instances, actual negligence may not be proved such as when a patient was unconscious during a surgical operation. The plaintiff has to establish adequately that the defendant violated this duty by failing to observe the standard of care expected. As a result of the duty contravention by the defendant, the petitioner suffered injury related to damages (Pozgar, 102). Malpractice litigation sets out to accomplish compensation for negligently injured patients, discourage unsafe medical practices, as well as achieve corrective justice. List and explain all of the types of pre-trial discovery that may be utilized by a party in a civil case under the Federal Rules of Civil Procedure or the Maryland Rules of Civil Procedure Kind of discovery validity to conduct inspection Discovery is the process of assessing the facts of a case before trial. Pretrial discovery is employed for the disclosure of characters of persons acquainted with the facts pertinent to the initiation of an action, although not for the discovery of the identities of extra parties to the civil litigation. Discovery may be obtained on any subject that is not privileged, which is applicable to the subject matter entailed in the pending action. The parties to a civil suit have the right to discovery and to conduct inspection, as well as to examine witnesses prior to trial. Examination before trial is one of the various discovery techniques employed to allow the parties of a civil case learn more in regard to the nature and substance of each other’s case. Either party can obtain a court order allowing the assessment and copying of records like medical records. Incident report not privileged Hospital incident and investigation reports are not protected from discovery as the burden resides with the hospital to establish that incident and assessment reports are protected from discovery under the work product principle, as well as the attorney-client privilege. The attorney client privilege ensures that a client remains free from apprehension that consultations with a legal advisor will be discovered. The work product principle may justify unwarranted questions into files and the mental impressions of a lawyer. Pretrial motion and motion to dismissed before trial The procedural steps that arise prior to trial are particularly categorized as pretrial proceedings. Either party may move for a judgment on the pleadings after the pleadings have been completed. The court has to evaluate the whole case and decide whether to enter into judgment in accordance to the merits of the suit as indicated in the pleadings, after the motion is made. The moving party is allowed to introduce sworn statements showing that claims or defenses are sham. The procedure is dismissed when there is potential dispute regarding the facts presented by the affidavits. Pretrial motion will be ordered at the judge’s initiative or on the appeal of one of the civil suit parties. The defendant may formulate an action to dismiss a case, holding that the petitioner’s complaint, even if believed, does not set forth a recognizable claim in law. A dismissal motion may be made before, during or after a trial. A trial made before trial can be made on grounds that the court lacks jurisdiction. A dismissal motion made during the trial can be made following the presentation of the petitioner’s case on the basis that the defendant is allowed to a fair judgment. The defendant may make a dismissal motion at the end of the trial on t-grounds that the petitioner presented a prima facie case. Purpose of questioning The purpose of the opening statement is for the petitioner’s lawyer to prove the wrongdoing of the defendant by tendering plausible evidence favorable to his/her client. The opening statement by the petitioner’s lawyers also gives the facts of the suit on what he/she intends to prove through evidence summary to be tendered, as well as a description of the damages to the client (Pozgar, 116). Other methods of pretrial discovery include: Depositions Deposition is a testimony of a witness that has been recorded in a written format (Pozgar, 111). The interrogation is referred to as examination before trial. Interrogatories Interrogatories are particular inquiries tendered by a person to a challenger who has to answer in writing. Interrogatories have to highlight inquiries in a precise manner in order to elicit answers that are significant to the concerns being sued. Production and inspection A plaintiff is entitled to production and inspection of pertinent documents in possession of the challenger, pursuant to disclosure. Physical assessment Physical or mental evaluation of a suit party whose state is a subject in court case may be permitted by the court in the application of its judgment (Jeffrey and Walker, 12). Explain and distinguish peremptory jury strikes from jury strikes for cause and give examples of each Pozgar (133) notes that a peremptory strike is one that may be employed for virtually any reason at all. One of the attorneys may not like a potential juror’s level of enthusiasm. The attorney may not like a potential juror’s fashion sense, eye contact among others as long as the peremptory strike is not founded on religion, race, gender or other kinds of unlawful discrimination. The striking lawyer may employ it in any manner they see fit. Strikes for cause are complex as they are founded on a prospective juror stating that there are some factors of the law that he or she will not follow. For illustration, a prospective juror that they will hold it against the defendant if he/she does not testify will be struck for Cause depending on his/her inability to honor the Fifth Amendment Right against self-incrimination. A challenge for cause arises when an attorney gives the court with a lawful justifiable reason why a prospective juror should be excluded. For illustration, a juror does not comprehend English. A peremptory challenge does not necessitate any justification by the lawyer (United States Department of Justice, 98, Pozgar, 133). Peremptory challenges are limited to a small number, and are not implicitly based on race or gender. In the process of jury selection, prospective jurors are excused for cause when the judge finds that they cannot decide on the case impartially. Autonomously, each side may exercise some limited number of peremptory strikes to excuse extra jurors without offering a reason. For illustration, every side obtains ten peremptory strikes a piece in a felony jury trial. Identify and describe the three branches of the federal government. There United States has three main branches: the executive, the legislature and the judiciary. The executive comprises of the president and several advisors including the cabinet and government departments. The executive branch is responsible for enforcing the country’s laws and offers national leadership by setting goals and policies. The president is elected by citizens who are eligible to vote. The votes are tallied by states and make up the Electoral College system (Pozgar, 21) The legislative branch comprises of the two houses of the congress: the House of Representatives and the senate. The legislature is responsible for making laws for all citizens, organizations and businesses to follow. There are 100 senators, and each state has two senators. The house of representatives has 435 representatives who meet and discuss on bills that decide whether the bills will become laws. Representatives and senators are elected by eligible voters in their respective states. The senate has the power to sanction or reject treaties and approves a president’s nomination of Supreme Court justices and other certain appointments (Pozgar, 22). The judicial branch of government comprises the federal court system, including the Supreme Court. The judicial branch of government is responsible for settling disputes related to laws governed by the United States constitution. The Supreme Court is the overall court of the land and its decisions are not appealable. The Supreme Court is made up of nine justices, who are special judges who interpret laws in accordance to the United States constitution. The federal judicial system also has lower courts located in every state to hear cases concerning national matters (United States Department of Justice, 39; Pozgar, 24). Bonus questions 1. Yes. Ms. Hidalgo has any viable cause of action for negligence. The reason is that limitation for negligence action is three years, which have not lapsed. However, Ms. Hidalgo cannot sue on the basis of intentional tort since one year has lapsed since she suffered damages and did not sue for intentional tort. In case she needs to take an action on malpractice and negligence, Ms hidalgo has seven months, that is, up to 19th February 2014 2. Ms. Hidalgo has several actions to take against the entire medical doctor Jones, Dr. Juarez and against Dr. Johnson. The causes of action include negligence, lack of standard care, non disclosure of information and violation of consent form contents. Negligence There was negligence by the hospital management and the entire medical practitioners. For illustration, the fact that Dr. Johnson mentioned that consent form was a legal routine required by the hospital sounds unprofessional. In addition, Dr. Johnson does not work at the hospital, yet they allow him to perform surgical operations at the hospital. Dr. Juarez was negligent in placing Minerva under anesthesia when the intended surgeon (Dr. Johnson) was not at the hospital compounds. In addition, Minerva was operated by an inexperience surgeon; Dr. Jones, which caused necrosis. This shows that there was inadequate preparation with regard to Minerva abdominoplasty surgery and this amount to negligence. Lack of standard care On the part of Dr. Johnson and Dr. Juarez, Minerva can sue for lack of absence of standard of care. Dr. Johnson is aware of the risk and complications that comes along with the intended surgery but kept silent on the issue. It is anticipated that a cautious expert with the same experience would highlight the risks involved in the abdominoplasty surgery procedure to a patient. In addition, Dr. Juarez ought to have let Minerva understand the risks involved in anesthesia and the abdominoplasty surgery as well. Non disclosure of information Minerva can also on the grounds that some information was not disclosed for her. The verity that she only know rudimentary English necessitated that dr. Johnson should find an interpreter to explain all that the surgery comprises in Spanish. In addition, Dr. Johnson did not disclose the smoking risks that could adversely affect the surgery procedure. Violation of consent form contents Minerva may also bring an action on infringement and disregard of the content form contents. She signed the form with the knowledge that she will be operated by Dr. Johnson, only to be operated by a surgeon who had never performed an abdominoplasty procedure on his own. 3. There is a potential for intentional tort action that may be brought against dr. Jones. The cause of action is that dr. Jones went on to perform the operation despite knowing that he was not experienced. The potential merit of bringing such an action is to discourage unsafe medical practices, ensure professionalism is adhered to, as well as achieve corrective justice. 4. In a jurisdiction that recognizes contributory negligence, the impact of this case is that Minerva would not be entitled to damages from the defendants who caused the injury. Under contributory negligence rule, the badly injured Minerva cannot win in litigation against a very negligent health provider/practitioner as she was aware of the risks of the smoking risks. In a jurisdiction that adopts a comparative negligence rule, Minerva can only obtain damages which are reduced by the percentage of her failure to heed Dr. Johnson’s advice. In this case, responsibility for her surgery fate will be shared between her and the health practioners/provider. Works Cited: “The U.S. Justice System 3 Volume Set: An Encyclopedia”. California: ABC-CLIO. Nd. Print. George Pozgar. Legal Aspects of Health Care Administration. Burlington: Jones & Bartlett Publishers, 2011. Print. Michael Snyder. 12 ridiculous government regulations that are almost too bizarre to believe. Web 27 July 2013 Read More