As a general legal term, abandonment is the surrender, relinquishment, disclaimer, or cession of property or rights. In medical law, abandonment is the physician’s unilateral refusal to continue treating a patient with whom the physician has a physician–patient relationship.
A civil or criminal proceeding in a court of law, a lawsuit.
American College of Obstetrics and Gynecology.
The Americans with Disabilities Act of 1990.
A decision by a court of law or an administrative law judge.
Ad litem
(Usually attorney or guardian ad litem.) A person, usually an attorney, appointed to protect the rights of a minor or an incompetent who is involved in a legal proceeding. An attorney or guardian ad litem’s duty is limited to issues that arise in the legal proceeding. The usual role of the attorney or guardian ad litem is to ensure that the parents or legal guardian do not put their interests before the child or incompetent. See Guardian.
Administrative Agency
An executive branch department of the state or federal government arm which administers or carries out legislation. The FDA, DHHS, HCFA, and state BOMEs are administrative agencies.
Facts or testimony that the judge in a lawsuit allows the jury to consider. For example, the judge in a medical malpractice lawsuit must decide if the expert witnesses presented by the plaintiff are properly qualified to give evidence to the jury. If they are not, the judge can declare their testimony to be inadmissible and they cannot testify to the jury.
Alternate Dispute Resolution. The resolution of conflicts using means other than litigation; chiefly by arbitration, mediation, or facilitated settlement conferences.
A person who makes an affidavit.
A voluntary, sworn statement of facts or a declaration in writing made before a person with the authority to administer an oath. These are usually prepared by an attorney in consultation with the affiant, then signed before a notary public.
Affirmative Defenses
Arguments raised by a defendant in a civil lawsuit that indicate extenuating circumstances that negate the plaintiff’s claim. A physician sued for failure to attend a patient in a hospital could plead the affirmative defense that he or she had not admitted the patient, previously treated the patient during the hospital admission, or been consulted by the patient’s admitting physician. If the judge accepts this evidence as true, then the plaintiff’s case would be dismissed.
Action of an appellate court in which it declares that a judgment, decree, or order of a lower court is valid and correct and must stand.
The legal term for the relationship in which one person either acts for or represents another. The person acting is the agent and the person for whom the agent acts is called the principal. Lawyers act as agents for their clients when they negotiate leases and other contracts with a third- party for their client. Physicians act as agents for their patients when they order medical tests for which a patient is legally obliged to pay a hospital.
Artificial Insemination. (Confusion sometimes arises because in medical computing AI means artificial intelligence.)
Artificial Insemination by Donor.
Amicus Curiae
“A friend of the court.” A person who has no right to appear in a suit (no standing), but is allowed, at the court’s discretion, to present legal arguments or evidence to the judge. Medical professional organizations often file briefs as amicus curiae in cases such as Cruzan v. Director, Missouri Dept. of Health (1990) that affect medical practice.
The defendant’s response to the plaintiff’s complaint or original petition.
Antitrust Laws
State and federal laws intended to prevent businesses from using their market power to injure their competitors.
A complaint to a superior court to reverse or correct an alleged error committed by a lower court.
The party who appeals the decision of a lower court to a higher, appellate court.
Appellate Court
A court which has the power to review the actions and decisions of a lower court. The U.S. Supreme Court has final appellate jurisdiction over all the courts in the United States.
The party against whom an appeal to a higher court is taken.
A private, nonjudicial proceeding in which two or more parties agree to allow one or more arbitrators to decide disputed issues. This agreement may be made before there is a dispute, as when patients insured by an MCO agree to arbitrate medical malpractice disputes. Arbitration is binding if the parties agree that neither can bring a legal action on the same facts that are subject to the arbitration agreement. Arbitrators are persons who have no interest in the dispute. They may be attorneys, but are often lay specialists in the area being arbitrated. Each party chooses one or more arbitrators. The parties often agree to abide by the American Arbitration Association (AAA) established rules for arbitration. They may also agree to choose arbitrators from a list of persons certified by the AAA.
Legally, an assault is the act of putting a person in apprehension of immediate harm. (Battery is actually inflicting the threatened harm.) In general usage, and even in many legal proceedings, assault is used to denote both the threat and the action. Threatening a person with a gun is an assault, and an unwanted sexual touching is also an assault. Since assault is a threat of immediate action, upsetting a person by threatening to do something in the future is intentional infliction of mental distress rather than assault.
The transfer of rights or property to another. This is commonly done by physicians when assigning their delinquent accounts to a collection agency.
Assumption of Duty
The process of agreeing to accept legal obligations. A physician has the legal right in most circumstances to drive by a roadside accident without stopping to render aid. A physician who does stop to render aid assumes certain obligations to care for the patient in a professional manner.
Assumption of Risk
An important legal doctrine whereby a person agrees to accept the consequences of certain behavior. Assumption of risk is effective only if the person makes a free, uncoerced choice and understands the risk being assumed. Informed consent is the assumption of the risks of the medical treatment that the patient agrees to undergo.
Signing a written statement that a document is correct or that you have witnessed the document being signed. The witnesses to a living will may attest that the patient making the will was of sound mind and made the will of his or her own volition.
The amount of money a court orders a party in a legal proceeding to pay.
An unconsented, harmful, or offensive touching. A patient who is restrained without permission, or properly documented medical indications, could bring an action for battery. A patient who is sexually assaulted will bring a legal action for battery, with the sexual touching being the offensive contact. Since a battery is considered an injury to the person’s dignity as well as to their person, the court can find large damages even if the person suffered no physical harm.
Best Evidence Rule
A legal doctrine that requires the primary evidence of a fact should be found, or its absence explained, before a copy or oral evidence on the same matter can be introduced. This is often at issue in medical records. A physician may not testify about the contents of medical records unless the record is in evidence. If the defendant can show that the medical record was lost in a fire, then the court will allow the testimony. If, however, a party intentionally destroys a record, the court may not allow that party to testify about the contents of that record.
A disparaging term for generic paragraphs that are inserted in legal documents without reference to the specific subject of the contract. A common example is the endless pages of fine print that fills commercial leases. A certain amount of boilerplate is necessary in most legal documents to establish the assumptions underlying the agreement. Boilerplate becomes a problem when it is inserted as a matter of course without determining its effect on the document. This is a special problem for physicians because of the special laws that govern medical practice. A standard commercial lease often has terms that base part of the rent on the tenant’s net sales. While acceptable for a clothing store, such terms violate the medical practice acts of many states when applied to a physician’s office.
Board of Medical Examiners.
Bona Fide
In good faith; openly, honestly, or innocently; without knowledge of fraud; without fraudulent intent.
Borrowed Servant
An employee temporarily under the control of another. The temporary employer of the borrowed servant will be held responsible for the negligent acts of the borrowed servant. Hospital employees were once considered to be the physician’s borrowed employees for all medical care. See Captain- of- the-Ship Doctrine.
Breach of Contract
Failing to comply with the terms of a contract. A breach can occur through failing to comply at all, through incomplete compliance, or through untimely compliance. A breach can be excused if the court finds that either the contract contained an applicable exclusion, such as a physician not being able to fulfill an employment contract requiring a medical license because he lost his license, or that the contract was breached because of the occurrence of an event, such as an act of war, beyond the control of the contracting parties.
Written arguments on questions of law or facts to assist the judge in making a decision. May be filed by the parties to the lawsuit or by amicus curiae.
Captain-of-the- Ship Doctrine
A legal doctrine holding a surgeon liable for the acts of the entire operating room personnel. This is an old doctrine, predating physician anesthesiologists and nurses with independent duties to the hospital. It has been overruled in most jurisdictions, at least as regards the actions of other physicians.
The legal test for whether a given action lead to the plaintiff’s claimed injury. It is not enough to be negligent: the negligence must cause the injury. Causation is often at issue in claims of malpractice associated with the treatment of severe illness. In most states, plaintiffs must prove they had a more than 50% probability of recovering from their medical condition before they can sue a physician for allegedly reducing their change of recovery.
Cause of Action
A set of facts or legal circumstances that can support a claim for relief in the courts.
Critical Care Unit.
The Centers for Disease Control and Prevention.
A designation by a private or governmental body that a person or entity has satisfied a preestablished set of standards or requirements. In medicine, it is common for governmental agencies to defer to certifications by private, voluntary organizations such as the Joint Commission.
A legal order directing a lower court to transmit the record of a proceeding to an appellate court for review.
Code of Federal Regulations. A listing of federal regulations arranged by subject matter into fifty different titles.
The final address by a judge to the jury in which the judge instructs the jury how to apply the law to the facts in the case before them. Since the slant of the jury charge has a great impact on the jury’s final decision, many appeals cases are based on the errors in the charge.
Charitable Immunity
A disappearing legal doctrine that gives a charitable hospital immunity from the negligent acts of its employees.
Civil Law
In the United States, legal actions that cannot result in a person being punished by imprisonment. In most of Europe, and Louisiana, civil law refers to a system of law based on statutes rather than court decisions. See Common Law.
A demand for compensation, benefits or relief.
Congressional Omnibus Budget Reconciliation Act. The massive bill passed at the end of a term of Congress that approves the spending for all areas not previously authorized in specific bills.
Common Law
Law made by judges in the context of particular cases, and based on decisions made in previous cases involving related facts and laws. In the United States, the Constitution provides a limit on the reach of judges making common law. (Most of constitutional law, however, deals with disputes over the extent of these limits.) The United States has a combination of common and civil law because the legislatures can overturn the common law made by judges.
Comparative Negligence
The legal theory that allows the jury to consider the plaintiff’s negligence in determining whether the defendant’s actions caused the plaintiff’s injuries. In most states, negligent plaintiffs can still recover, provided that they were not more than 50% negligent. See Contributory Negligence.
Compensatory Damages
Money paid to an injured or wronged plaintiff based on their proven losses.
The written statement in a civil case setting forth the plaintiff’s claims and the legal basis for the lawsuit.
Certificate of Need.
Confidential Communication
Communications between persons in fiduciary or confidential relationships. The right of confidentiality belongs to the client or patient, not to the fiduciary. A patient can freely discuss his physician’s advice, but the physician cannot freely discuss the patient’s condition or the advice given the patient.
A voluntary choice based on appropriate information. Informed consent to medical treatment is a special case of the general laws governing consent. The legal effect of consent is the assumption of the risks of the acts consented to.
Contingent Fee
When attorneys base their fees on a percentage of their client’s recovery. This allows clients to secure representation without having to pay the costs of the litigation. Most medical malpractice litigation is done on a contingent fee, as is some medical business litigation.
Contributory Negligence
A legal theory that prevented plaintiffs from recovering damages if they were even 1% at fault. This has been supplanted in most states by comparative negligence.
Any unauthorized interference in a person’s or legal entity’s right to goods or personal possessions, usually the conversion of those goods to another’s use or possession. Keeping an insurance payment intended for a patient but mistakenly sent to the physician’s office would be conversion.
Coroner’s Jury
A special jury called by the coroner to determine whether a person died because of criminal action.
Corporate Practice of Medicine
When physicians are employees of nonphysician corporations that are in the business of providing medical services.
CPT Code
Current Procedural Terminology code. A standard system for describing medical procedures.
Criminal Law
Laws dealing with individuals and society as defined by acts that are prohibited by statute or regulation and punishable by fine or imprisonment.
Certified Registered Nurse Anesthetist.
Witnesses who testify in a legal proceeding may be questioned by the opposing counsel to test the truth and credibility of their character and testimony.
The amount of money necessary to compensate a plaintiff for injuries caused by the defendant’s conduct.
Declaratory Judgment
A court decision that interprets a law without a trial on the merits of a particular dispute. In some states, the State Supreme Court can give declaratory judgments about the constitutionality of proposed state laws.
De Facto
A right or obligation that is recognized because of existing custom, rather than by a statute or court decision. Many physicians believed that joint ventures in health businesses were de facto legal because they were so widely practiced. See de jure.
The injury of a person’s reputation or character by untrue statements made (published) to a third person. Defamation includes both libel and slander.
The person accused of committing a crime in a criminal case; or the party against whom suit is brought seeking either damages or relief in a civil case.
The defendant’s answer to the plaintiff’s complaint. A defense may contest the truth of the plaintiff’s allegations, or claim a legal privilege to commit the act complained of.
De Jure
Status of a right or obligation that exists by an act of law. See De Facto.
Oral or written testimony taken under oath but outside of a courtroom. A verbatim transcript is made and can be used as evidence in a trial.
The writings of a judge in an opinion that do not specifically affect the resolution or determination of the case and are not part of the common law resulting from the decision. Dicta are important when used to indicate how the court might rule in future cases with related facts.
Directed Verdict
When a trial judge decides that the evidence or law is so clearly in favor of one party that it is pointless for the trial to proceed, the judge may direct the jury to return a verdict for that party.
The pretrial investigation by an attorney to determine the relevant facts of a case.
Discovery Rule
A rule tolling the statute of limitations until the plaintiff knew or should have known of the injury. This is important for conditions such as cancer due to a toxic exposure that take years to become manifest.
United States Department of Health and Human Services.
Doe or Roe
Fictitious names used in test cases brought on behalf of many parties by representative plaintiffs who, although they may also have a personal interest and standing to bring to the case, prefer to remain unnamed. The best known example is Roe v. Wade, where Roe was a pseudonym and Wade was the District Attorney in Dallas, Texas.
United States Department of Justice.
One who receives a gift.
One who makes a gift.
Diagnosis-Related Groups. A prospective payment system based on diagnoses rather than on the medical services provided to the patient.
Due Care
The degree of care that would or should be exercised by an ordinary person in the same position.
Due Process
Procedural Due Process: The ensurance of fundamental fairness in the legal procedure used. A physician who has his or her hospital privileges terminated has a right to a hearing before an impartial party to ensure the fairness of the termination proceeding.
Substantive Due Process: The ensurance of fundamental fairness in the result reached. Terminating a physician’s hospital privileges because of his or her religious beliefs (independent of actions taken to further those beliefs) would be unfair, irrespective of the procedural due process afforded him or her.
Durable Power of Attorney
The written authorization of one person to act for another should he or she become disabled. A recent variation would be living wills or termination of care provisions.
Enzyme Linked Immunosorbent Assay. This acronym is commonly used to refer to the screening test for HIV infection.
Emancipated Minor
A person who, although not having reached the statutory age of majority, is granted the legal status of an adult. This may be done through a legal proceeding where the minor proves that he or she is not living with his or her parents and is self-supporting. Marriage and joining the military also convey adult status in most states.
A historic term for courts dealing with situations where there was no specific legal remedy.
Evidentiary Standards
The level of evidence required by a court to reach a finding differs depending on the nature of the claim. Criminal actions must be proven beyond a reasonable doubt, while civil actions must only be proven by a preponderance of the evidence. The legal question in the Cruzan right to die case was whether Missouri could require an incompetent patient’s wishes to be proven by clear and convincing evidence, a standard more strict than a preponderance of the evidence.
Tending to disprove or excuse a charge of fault or guilt.
To sign, seal, and deliver a written legal instrument.
Expert Witness
One who has special training, experience, skill, and knowledge in a relevant area, and is allowed to offer his or her personal opinion as testimony in court.
Manifestation using direct, clear language, either spoken or written.
Food and Drug Administration.
Federal Question
Legal question involving the U.S. Constitution or a statute enacted by Congress.
Federal Register
A daily journal (running to hundreds of pages) that contains all the official announcements by federal agencies. Agency regulations must be published in the Federal Register before they are accepted as legally binding.
A serious crime usually punishable by imprisonment for a period of more than one year, or death.
Fiduciary Duty
A class of legal duties that arise when one party in a legal relationship has greater power than the person seeking the party’s aid. The attorney– client relationship is a fiduciary relationship, as is the relationship of trustee to the beneficiary of a trust. Most states hold that the physician– patient relationship is a fiduciary relationship. A fiduciary is bound to act in the client/patient’s best interests even if it is against the fiduciary’s interests. Most important, the fiduciary must avoid conflicts of interest. The safe harbor regulations, while viewed as overly restrictive by some physicians, merely reflect traditional fiduciary law.
First Impression
A case that presents issues in controversy for which there is no prior judicial precedent.
The investigation, preparation, preservation, and presentation of medical evidence and opinion in court.
The degree to which a reasonable person would expect a given injury to follow from a specific action. While defendants are liable for unexpectedly severe injuries (thin skull rule), they are not necessarily liable for injuries that are too remote from the negligent action. The classic example is the physician who saves the life of a baby who later becomes a bank robber. While it is logically correct that, had the physician not saved the baby’s life, there would have not been a bank robbery, the physician is not liable for the bank robbery.
Fraudulent Concealment
Hiding or suppressing a material fact or circumstance that the party is legally or morally bound to disclose.
Items that are so similar to one another that a consumer does not care if they are interchanged. Most produce is fungible; personal computers are becoming fungible. Many health insurance plans assume that physicians are fungible.
Good Faith
Honesty in intentional acts toward others. Part of a physician’s fiduciary duty is to act in good faith to further the interests and well- being of the patient.
Good Samaritan Laws
Laws designed to protect those who stop to render aid in an emergency. These laws generally provide immunity for specified persons from any civil suit arising out of care rendered at the scene of an emergency, provided that the one rendering assistance has not done so in a grossly negligent manner.
A person appointed by the court to protect the interests of a ward: a minor or legal incompetent. The guardian has the rights of a parent for minors. A guardian may have full powers over an incompetent, or the court may limit the guardian’s powers to a specific task such as managing the finances of the incompetent. A guardian has a right to full informed consent before making medical decisions for a ward.
Habeas Corpus
Literally, bring me the body. A petition to the court requesting the release of an individual who claims to be unjustly or illegally confined. The traditional remedy for a person who claims to have been improperly quarantined is to seek habeas corpus.
Hepatitis B Virus.
Health Care Financing Administration.
Hearsay Rule
Testimony of what another person witnessed or said is inadmissible in a trial as being hearsay. A nurse who was present in an examining room could not testify as to what the physician told a patient during diagnosis. He or she can testify as to whether the physician’s testimony reflects what he or she remembers.
Health Care Practitioner
An individual who directly provides health care services.
Health Care Provider
An individual or an institution who provides health care services.
A high-efficiency particulate filter that can remove bacteria and some virus from air.
Health Maintenance Organization.
Iatrogenic Injury
Injury or sickness caused by medical treatment.
Society has decided that certain endeavors or institutions provide such a vital service that they should be protected from attack in the courts should injuries result from the providing of the service. Some types of immunity are codified as law. Governmental or sovereign immunity protects governmental units from some types of lawsuits. At one time hospitals were granted immunity because they were charities serving the public good.
Incident Reports
Reports, usually filed by nurses, describing any unexpected events. These are used to identify quality of care and potential legal problems.
A contractual agreement in which one party agrees to reimburse another for losses of a particular type. Many insurance policies have indemnity clauses that allow them to recover money paid to an insured who later recovers damages in court for the same injury.
Independent Contractors
Persons with special expertise hired for a specific job. Independent contractors control the details of their own work. The person or entity contracting for the work of the independent contract is not legally responsible for the negligent actions of the contractor. The contracting party can be liable if the independent contractor was negligently chosen or retained. The medical staff members of a hospital are independent contractors. The hospital is only liable for their actions if it was negligent in giving or continuing their medical staff privileges.
A formal written accusation of crime brought by the prosecuting attorney against a person charged with criminal conduct.
Informed Consent
A physician cannot perform any procedure upon a patient without ensuring that the patient understands the purpose of the procedure, including its potential benefits and dangers. The physician must make certain the patient has all the information needed to make a knowledgeable decision to accept or reject a given treatment or to choose an alternative treatment. See Assumption of Risk and Consent.
A court order preventing a person or entity from performing a certain act. A preliminary injunction is temporary and awarded prior to a trial on the merits of the case. A permanent injunction is awarded after the trial and is a final order.
In Loco Parentis
Literally, in the place of the parents. At one time, colleges and universities acted as the parents of their students, but this ended in the 1960s. The state has the right to act in loco parentis in child welfare cases. See Parens Patria.
The law punishes intentional acts more severely than negligent acts. A physician who negligently fails to obtain an informed consent may be sued only if an injured patient can establish that he or she would have refused the surgery had he or she been given sufficient information. A physician who intentionally deceives a patient about surgery can be sued for battery even if the surgery is a success.
Intentional Infliction of
A cause of action for intentionally causing emotional suffering. The
Mental Distress
defendant must intend to cause the suffering, the defendant’s conduct must be outrageous, and the suffering must be more than just the ordinary distress of daily living.
Written questions used to investigate a lawsuit or establish facts for a trial. These are answered in writing and under oath. The most common interrogatories are those that are used to establish that a copy of a medical record is complete and that the original record was properly created and maintained.
Institutional Review Board.
Intervenous Drug User.
Judgment Non Obstante Veredicto (not withstanding the verdict). A judgment entered by order of the court in favor of one party, notwithstanding the verdict by the jury in favor of the other party. A court only orders a JNOV when the jury’s findings contradict the clear evidence in the case.
Joint and Several Liability
When several persons share responsibility for another’s injury, they are each liable for the full amount of the damages, irrespective of their percentage of fault. This becomes a problem when one or more of the defendants are underinsured or are insolvent. Many states have abolished joint and several liability in medical malpractice lawsuits. This increases the pressure on plaintiffs to sue everyone who had any part in the patient’s care.
Joint Commission
Joint Commission on Accreditation of Healthcare Organizations.
The court’s official decision in a legal case. The judgment in a case establishes what damages, if any, must be paid, and the legal responsibilities of all the parties in the lawsuit.
Jurisdiction over the subject matter of a claim is the power of a court to hear the case and bind the parties. There are monetary, geographic, and political limits on jurisdiction.
A defense in which the defendant claims that the plaintiff waited so long in bringing the complaint that it would be unjust to allow the case to go to trial. The laches defense is important in claims that have no clear statute of limitations.
Learned Intermediary
This is a doctrine that modifies the strict liability (products liability) that usually accompanies injuries due to dangerous products such as drugs. In general, the manufacturer of a product has a duty to warn the consumer about the dangers posed by the product. Since patients cannot purchase prescription drugs without a physician’s order, the law holds the drug manufacturer must warn the physician. If the physician is provided proper warnings, the drug company is not liable if the patient is injured because the physician improperly prescribed the drug.
A legally enforceable obligation.
Defamation by written or printed materials, including pictures.
Trial of a dispute in a court of law or other legal forum to determine factual and legal issues, rights, and duties between the parties.
Living Wills
A legal document that outlines the patient’s wishes for refusing or discontinuing lifesaving medical treatment if the patient becomes incompetent.
Managed Care Organization.
Professional negligence resulting from improper discharge of professional duties or failure to meet the standard of care of a professional, resulting in harm to another.
A court order compelling public officers to do their legally mandated duties.
A process in which the parties to a dispute ask a neutral person to help them come to a mutually beneficial settlement.
A federal health insurance program for the aged and the disabled.
A federal health insurance program for the poor.
An unlawful act of a less serious nature than a felony, usually punishable by fine or imprisonment for a term of less than one year.
Maternal Serum Alpha-Fetoprotein. Used in the prenatal diagnosis of neural tube defects and Down syndrome.
Material Safety Data Sheet.
National Practitioner
A national clearing house for data about physician disciplinary actions,
Data Bank
including adverse peer review finds and payments in medical malpractice litigation.
The failure to exercise the degree of diligence and care that a reasonable and ordinarily prudent person would exercise under the same or similar circumstances.
Negligence Per Se
Violation of a law or statute that leads to an injury. The law or statute provides the proof of the proper standard of care. The harm complained of must be the kind the statute was intended to prevent, and the plaintiff must be in the class of persons that the law was intended to protect. If a person catches a communicable disease because the physician does not comply with a state disease reporting law, then the physician can be liable for negligence per se.
Failure to do an act that should have been done.
Notary Public
Historically, a notary was a powerful public official who approved the filing of all official documents. In the United States (outside of Louisiana) a notary, or notary public, is a public officer, usually bonded, who may attest to the signing of legal documents. In most states the notary must affix a seal or stamp to the document and must keep a record book of all witnessed documents. Since the notary only attests that he or she saw the document signed, not the content of the document, notarization adds little but pomp to a legal document.
Knowledge of the existence of a fact by a party such that they can be held accountable for any ramifications resulting from the receipt of that knowledge. Notice may be either actual or constructive. If a hospital administrator knows that a physician has a drinking problem, the hospital has actual notice that the physician is impaired even if the medical staff committee never disciplines the physician. The hospital will then be liable for negligent continuation of medical staff privileges. If the National Practitioner Data Bank of the Department of Health and Human Services contains the information that the physician is an alcoholic, the hospital is charged with knowledge of this information even if it never checks the database. This is constructive notice.
Nuncupative Will
Oral statement intended as a last will made in anticipation of death.
The Office of the Inspector General. While most federal agencies have an OIG, in health care this usually refers to the OIG of the Department of Health and Human Services.
The judicial reasons given for an appellate court’s decision.
A law passed by a municipal legislative body such as a city council.
Original Petition
The pleading that begins a lawsuit. Also called the complaint.
The Occupational Safety and Health Administration.
OSHA 300 Log
A specific log of occupational injuries and illnesses that must be kept by businesses with high risk.
Parens Patria
The power of the state to act as parent to protect an individual for the individual’s own good. This is different from the police power, in that the individual is protected because of the state’s interest in not having to bear the burden of injured citizens. Motorcycle helmet laws are enacted under parens patria.
Parol Evidence
Oral evidence rather than written evidence. The parol evidence rule says that a written contract is presumed to be the final expression of agreement between the parties and other oral testimony cannot be used to vary the terms of the contract.
Any direct, named litigant in a legal proceeding.
Patient Dumping
The slang term for transferring a patient because the patient is unable to pay for the needed care.
Peer Review
The process whereby a group of physicians determines the medical competence and general professionalism of a physician.
Per Curiam
A court opinion made by all members of the court.
The willful act of giving false testimony under oath.
Nonphysician practitioners
Nonphysician personnel who are limited to practicing under the direction and supervision of the attending physician. Physicians are personally liable for the actions of such personnel.
The party to a civil suit who brings the suit seeking damages or other legal relief.
A formal statement made to the court setting out a party’s claims. The plaintiff initiates a lawsuit by a pleading called a “complaint.” The defendant responds to the plaintiff’s complaint by filing an “answer.
Police Power
The power of the state to protect the health, safety, morals, and general welfare of the people. The police power is the power to restrict the liberty of individuals to protect other individuals. Communicable disease laws are enacted under the police power.
Prima Facie
When all the necessary elements of a valid cause of action are alleged to exist. Once the plaintiff has established a prima facie case, the defendant will lose unless he or she can rebut one or more elements of the case.
A special legal status that prevents the privileged actor from being held legally liable for actions that would otherwise trigger liability. The state and federal governments are privileged to do actions, such as exposing a population to atomic radiation, that would be torts if done by a private individual. The physician–patient relationship is privileged in most states, allowing the physician to refuse most requests for information about the patient’s medical condition.
Business relationship between a physician and a health care facility, in which the physician remains an independent contractor but has the right to be part of the medical staff and to admit and treat patients in the facility, in return for meeting certain standards set by the facility.
The judicial proceeding that determines the existence and validity of a will in the Probate Court.
To bring (produce) documents or physical objects during the discovery phase of a lawsuit.
Products Liability
Manufacturers are liable for injuries caused by their products, regardless of whether they were negligent in designing or manufacturing the product. This strict liability is based on the policy that the manufacturer is better able to bear the cost of injuries, and that strict liability for injuries will encourage the manufacturers to be more careful in product manufacture and design. There is an exception for inherently dangerous products such as guns and tobacco, and for products such as drugs that are controlled by a learned intermediary.
Punitive Damages
Money awarded to a plaintiff to punish a defendant for intentional or grossly negligent conduct.
Reasonable- Person Standard
The vaguest of all legal terms of art. Typically used to describe an objective standard of behavior, for example, one that is based on what a reasonable person would have done, had that reasonable person been in the defendant’s position. For physicians, this is a reasonable physician familiar with the standards of practice that would apply to the defendant physician.
Answering the allegations of an adverse party in a legal proceeding. If a charge is not rebutted, the court must accept it as true.
A standard published by a governmental administrative agency under legal authority delegated to it by the legislature. Regulations have the force of law in both civil and criminal proceedings. Much of medical practice is governed by regulations rather than by statutes.
Regulatory Agency
An executive branch department such as the FDA or HCFA that enforces legislation regulating an act or activity in a particular area.
The legal requirement that persons making claims based on representations made to them prove that they actually relied on the representations. In cases alleging failure of informed consent, patients must show that they relied on the physician’s representations, for example, that they would not have undergone the treatment had they been given correct information.
When an appellate court reverses the decision of a lower court and sends the case back to the lower court for retrial or other action in accordance with the appellate court’s ruling in the case.
The means by which a court will enforce a party’s rights or redress a wrong. These include payment of damages, injunctions, and ordering the parties to carry out specific actions.
A judge may decrease the amount of a jury award if the amount is clearly unjust. Many of the large jury verdicts reported in the news and in jury verdict reports are reduced, often substantially. The plaintiff may either accept the reduced award or retry the case.
Res Ipsa Loquitur
A legal presumption against a defendant who had exclusive control of the instrument causing the harm when the harm suffered would not ordinarily occur without negligence. Res ipsa loquitur allows a plaintiff to make a claim when no one knows how the injury occurred. A surgery patient who wakes up with a dislocated shoulder can claim that although no one knows how the injury occurred, it must have been due to someone’s negligence. Many states have limited the use of res ipsa loquitur in medical malpractice litigation.
Res Judicata
A rule that a final judgment on the merits of a case precludes any further litigation on the issues decided.
Respondeat Superior
An employer or supervisor of a person who is not an independent contractor is liable for the actions of that person. In some cases this vicarious liability extends to intentional acts such as sexual assault.
The party who argues against a petition or appeal.
Restraining Order
A court order forbidding a threatened or imminent act until a hearing on the proposed act can be held.
The common abbreviation for state or federal racketeering laws.
Safe Harbor Regulations
The legal regulations governing the involvement of physicians in medical businesses. They are termed “safe harbor regulations” because they describe what practices are legal under laws prohibiting self- referral arrangements.
The practice of sending patients to a medical business because the physician referring the patient has an interest in the business or is given a benefit by the business for patient referrals. Self-referrals create a conflict of interest, violating the physician’s fiduciary duty to the patient. Self-referrals are also criminal conduct under federal and some state laws.
Service of Process
Notification to persons named as defendants in a lawsuit that a suit has been filed against them. Made by an agent of the court, either in person or by mail.
Defamation by spoken words.
Supplemental Security Income. A disability program for the poor managed by the Social Security Administration.
The required status, based on a party having a personal stake in the outcome of a suit, to raise a particular issue in court. The critical issue in many constitutional law cases is who has standing to bring an issue before the court. Standing is always at issue when physicians bring lawsuits over issues such as Medicare funding where patients are the intended beneficiary of the litigation.
Stare Decisis
“Let the decision stand.” The legal doctrine stating that courts should follow previous decisions and apply them to subsequent cases involving similar facts and questions.
Statute of Frauds
The requirement that contracts governing certain transactions be in writing. This is intended to prevent fraudulent lawsuits based on allegations that the parties had entered into an oral contract.
Statute of Limitation
A statutory deadline for filing lawsuits. Unless the statute is tolled, the plaintiff cannot bring an action after the statute of limitation has run. The statute of limitation is typically two to four years for medical malpractice actions. See Discovery Rule.
Sexually Transmitted Disease.
Where the parties to a lawsuit agree to a particular statement of facts and dispense with the need to produce evidence to formally prove those facts.
Strict Liability
Liability without fault. Traditionally, strict liability has been limited to ultrahazardous activities such as blasting. Products liability is a modified form of strict liability, as is vicarious liability.
A command to an individual by a court that the individual must obey or face discipline from the court. A subpoena ad testificandum is a command to appear at a certain time and place to testify on a matter. A subpoena duces tecum is a command to produce specific documents needed in a trial or court proceeding.
Civil court proceeding where one person seeks damages or other legal remedies from another.
Summary Judgment
A judgment that decides a case based on affidavits or depositions. Requests for summary judgment are made before trial. A summary judgment is desirable because it saves the time and expense of a trial.
Survivor Action
A legal cause of action brought on behalf of a dead person to recover losses sustained by the deceased during his or her lifetime.
Survivorship Clause
A contractual agreement between joint owners of property that, should one of the owners die, the surviving owner is entitled to the decedent’s ownership rights in the property.
Statements made at a hearing or trial by a witness under oath.
“Thin Skull Rule”
The legal principle that a defendant must take the plaintiff as he finds him. For example, the defendant cannot complain that the plaintiff’s injuries were unusually severe because the plaintiff has an unusual physical condition. The term comes from an apocryphal case involving a plaintiff with a thin skull who suffers a serious head injury in a very minor accident.
Third Party
A third party, sometimes abbreviated TP, is a person who is not a party to a legal relationship or transaction, but is affected by the transaction.
Third-Party Liability
A defendant in a civil case can compel a third party to join the suit as their codefendant and share in the liability if the third party is also liable to the plaintiff. A surgeon who is named in a wrongful death suit may implead an anesthetist who is partially or completely at fault.
Under some circumstances the statute of limitations is suspended, allowing an action to be brought after the usual deadline. These include the plaintiff’s minority, which tolls the statute until the plaintiff reaches eighteen, and periods when the defendant is out of the United States and thus unavailable for service of process. The discovery rule also gives a plaintiff additional time to file a lawsuit.
A civil wrong done to an individual by a private individual or private legal entity. Torts usually involve personal injuries. A criminal wrong done to an individual becomes a matter of state interest with prosecution and punishment being handled by the state on behalf of the people of the state. Accidentally injuring someone in a car crash is a civil matter; attempted murder using a car is a criminal matter.
A person who commits a tort.
Uniform Act
A model act concerning a particular area of the law created by a nongovernmental body in the hopes that it will be enacted in all states to achieve uniformity in that area of the law.
United States Code, Annotated. A collection of all the federal laws, arranged by topic under fifty broad headings and cross-referenced to specific case law that has arisen concerning the law in question.
Utilization Review
The review of the medical care rendered a patient to determine its medical and financial appropriateness.
When a court sets aside a previously entered order or judgment.
The formal declaration of the jury of its findings of fact.
Vicarious Liability
Liability for the actions of another. This is a special case of strict liability. Vicarious liability arises from a special legal relationship between the parties. This may be the employer–employee relationship, parent–child relationship, or relationships created by licensing and certification laws, such as the medical licensing laws. The borrowed-servant rule made physicians vicariously liable for the actions of nurses taking care of their patient, even though the nurses were employees of a hospital. See Respondeat Superior.
The voluntary, informed relinquishment of a legal claim or right.
A minor or legal incompetent who has a legally appointed guardian.
Work Product
Attorneys preparing for litigation enjoy protection from discovery for their work product, for example, their writings, documents, and impressions of the case. This is a limited immunity. A physician’s confidential interview with his or her attorney concerning pending malpractice litigation is protected. Giving otherwise discoverable materials such as personal diaries to one’s attorney will not protect them from discovery. The privilege applies only to the attorney’s own work. A court may order the production of work product if it is the only way to obtain critical facts.
Written Authorization
Consent given in writing specifically empowering someone to do or assume a duty for another.
Wrongful Birth
A legal cause of action by the parents for the extra medical costs of raising a baby with birth defects. The legal claim is a form of failure of informed consent: had the physician properly informed the parents about the risk of a defective baby, the woman would either have not become pregnant or would have aborted the fetus. A wrongful birth claim is different than a claim that the physician’s actions injured the baby.
Wrongful Death
A legal cause of action brought by the relatives of a person who has died to recover the relatives’ losses, such as the loss of economic support.
Wrongful Life
A legal cause of action brought on behalf of a child with birth defects claiming damages for being alive. Since the essence of these claims is that the child would have been better off dead, most courts reject wrongful life claims.