Tort Law Definition
Law, Tort Law, Criminal Law, Contracts, and Civil Procedure
Linda Baker
Strayer University Professor Sandra Levengood HSA 405 February 29, 2013
Introduction The development of health care law goes hand in hand with the development of the health care industry itself. As the industry grew and expanded so did the need for laws and reform to protect those that offered health care as well as the patients that received it. In this essay the following subjects will be explained in order to give a clearer understanding to health care law. The definition of law will be …show more content…
given and the three sources from which laws are derived. Also four objectives will be given for; tort law; the elements that must be proven in order to be successful in a negligence suit and the objectives of criminal law. The three elements of a contract will be discussed in this essay as well and finally the nine defenses a defendant can present in order to refute a plaintiff 's evidence.
Law
According to the Encyclopedia Britannica law is defined as “the discipline and profession concerned with the customs, practices, and rules of conduct of a community that are recognized as binding by the community. Enforcement of the body of rules is through a controlling authority.” It rules over the relationships between organizations and private individuals as well as both of those entities and the government. There is public law and private law. Public law deals with the individual and government while private is the law that which is used for relationships between individuals. There are three sources of law, common law, statutory law and administrative law. Common law also called Anglo-American law and is the body of customary law, based upon judicial decisions and embodied in reports of decided cases. The foundation of common law was brought over from England to be used to govern the early colonies. These laws had to be adapted in order to work in the new America and its basic principles were adjusted and built upon to become the basis of the modern common law we use today. Statutory law is written law emanating from a legislative body. Statutory law is written law passed by legislatures. It is different than judge-made common law or case law. Statutory laws are laws that are formally established to deal with specific situations and are set in hierarchical order. According to Merriam-Webster’s administrative law is “law dealing with the establishment, duties, and powers of and available remedies against authorized agencies in the executive branch of government” Administrative law is considered public law and deals with the decision-making of administrative units of government.
Tort Law Tort laws are civil wrongs, except for breach of contract, which can be recognized as grounds for a lawsuit.
Torts fall into three general categories intentional, negligent and strict liability. There are four basic objectives to tort law. The first is preservation of peace which eliminates reasons to seek revenge. Next is culpability or finding fault for wrong doing. Third is deterrence which is to deter the criminal from repealing his offences or deterring him from repealing the same act. The final objective is compensation which is to "make one whole" (or at least better) after for an injury or …show more content…
loss.
Negligence Suit
Negligence is conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. To prove negligence there must be four elements that must be present in order for a plaintiff to be able to be compensated for damages. The first is duty of care, which is an obligation to conform to a recognized standard of care. The second element is breach of duty of care which requires the plaintiff to show not only that the defendant owed duty of care, but was also breached duty of care. The next element is injury, which is the ability of the plaintiff to prove that actual injury, loss or damage resulted from the negligence. The final element required is causation which is the ability of the plaintiff to show or prove that the departure from the standard of care caused negligent conduct and the resulting injury.
Criminal Law
According to the Encyclopedia of Crime and Punishment the purpose of criminal law “is to maintain social order and protect individuals and society from harm. Criminal law is concerned with offenses that threaten the public, is developed and enforced by the state, imposes sanctions that range from fines and imprisonment to death, and requires a standard of proof “beyond a reasonable doubt.” There are four objectives to criminal law; to maintain public order and safety; to protect individuals; use punishment as a deterrent to crime and rehabilitate criminals for return to society.
Contracts
A contract is an agreement that is written or oral that is enforceable by law. Two or more parties are usually involved in a contract and can seek justice in the court if one party defaults by failing to execute their side of the agreement. There are three elements that must be in a contract in order for it to be legally binding and enforceable. The first element in any contract is an offer. An offer usually expresses the willingness to initiate a contract. It is a promise by one party to do or not to do something if the other party agrees to do or not do something. Without an offer, there is actually nothing for the other party to accept and so no contract can be formed. The second element is consideration. Consideration is giving up something in exchange for something else of value. The final element is an acceptance, which is an agreement and willingness expressed by the person offering the contract. It is an indication or approval by the person receiving the offer that the offer has been accepted. An acceptance is supposed to be clear and direct without modifications or other new conditions added. A valid acceptance requires; a meeting of the minds, has to be definite and complete, include duration and be complete and conforming.
The Defendants Defense
In order to defend a plaintiff in a negligence suit the defendant typically tries to negate one of the elements of the plaintiff 's cause of action. This will relieve the liability of the defendant to the plaintiff. The first defense is ignorance of fact. This defense is not a legal defense. Ignorance of the law does not excuse or negate responsibility of the negligent action. Assumption of risk is when a plaintiff has assumed the risk involved in an obviously dangerous activity but proceeded to engage in it anyway. This may include things like smoking or drinking alcohol. In order for this to apply, the plaintiff must have actual, subjective knowledge of the risk involved in the activity. Contributory negligence is the actions of an injured individual who may have also contributed or caused their own injury. An example of this is a person leaving the hospital when they have been advised against it and their condition worsens. Good Samaritan statues are laws that protect individuals in the healthcare profession (and some laypersons) from lawsuits who attempt to rescue or aid another in a reasonable manner. These laws are designed to encourage public acts of assistance. Most of these statues only apply in an emergency. This could be a nurse assisting someone choking in a restaurant. The borrowed servant doctrine is when the employer of a borrowed employee, rather than the employee’s regular employer, is liable for the employee’s actions that occur while the employee is under the control of the temporary employer. Captain of the ship doctrine is the defense of holding a surgeon liable for the actions of assistants who are under the surgeon 's control but who are employees of the hospital, not the surgeon. The surgeon is directly responsible for the negligence. Comparative negligence is when the degree of negligence or carelessness of the plaintiff and the victim are compared which may lead to a reduction of the award against the defendant, proportionate to the contribution of the victim’s negligence. An example would be if someone was in a car accident and hit from behind but was not wearing a seat belt making the level of her injuries higher. Statute of limitations is a legal time period in which a law suit is allowable. If a suit is not filed within the mandated time the issues is considered forever barred from prosecution. An example would be if a person waits 20 years to file suit against a surgeon for an elbow injury they believe was received from surgery. Sovereign immunity has been abolished for the most part but it refers to the common law that historically made federal and state employees immune from liability for negligent behavior. Intervening cause is a defense that may be used by a defendant to negate responsibility of liability based on an event which occurs between the original improper action and the damage itself.
Conclusion
In conclusion this essay has examined the following subjects in order to give a clearer understanding to health care law.
The definition of law has been given and the three sources from which laws are derived. Also four objectives have been given for; tort law; the elements that must be proven in order to be successful in a negligence suit and the objectives of criminal law. The three elements of a contract were also discussed in this essay as well and finally the nine defenses a defendant can present in order to refute a plaintiff 's evidence.
References law. (2013). In Encyclopedia Britannica. Retrieved from http://www.britannica.com.libdatab.strayer.edu/EBchecked/topic/332745/law
common law. (2013). In Encyclopedia Britannica. Retrieved from http://www.britannica.com.libdatab.strayer.edu/EBchecked/topic/128386/common-law
administrative law Merriam-Webster 's Third New International Dictionary Unabridged
Retrieved from http://mwu.eb.com/mwu
CRIMINAL LAW. (2002). In Encyclopedia of Crime and Punishment. Retrieved from http://www.credoreference.com.libdatab.strayer.edu/entry/sagecp/criminal_law
Pozgar,G.D.(2012).Legal aspects of health care administration(11th ed.) Sudbury, MA: Jones and
Bartlett.
Linda Baker
Strayer University Professor Sandra Levengood HSA 405 February 29, 2013
Introduction The development of health care law goes hand in hand with the development of the health care industry itself. As the industry grew and expanded so did the need for laws and reform to protect those that offered health care as well as the patients that received it. In this essay the following subjects will be explained in order to give a clearer understanding to health care law. The definition of law will be …show more content…
given and the three sources from which laws are derived. Also four objectives will be given for; tort law; the elements that must be proven in order to be successful in a negligence suit and the objectives of criminal law. The three elements of a contract will be discussed in this essay as well and finally the nine defenses a defendant can present in order to refute a plaintiff 's evidence.
Law
According to the Encyclopedia Britannica law is defined as “the discipline and profession concerned with the customs, practices, and rules of conduct of a community that are recognized as binding by the community. Enforcement of the body of rules is through a controlling authority.” It rules over the relationships between organizations and private individuals as well as both of those entities and the government. There is public law and private law. Public law deals with the individual and government while private is the law that which is used for relationships between individuals. There are three sources of law, common law, statutory law and administrative law. Common law also called Anglo-American law and is the body of customary law, based upon judicial decisions and embodied in reports of decided cases. The foundation of common law was brought over from England to be used to govern the early colonies. These laws had to be adapted in order to work in the new America and its basic principles were adjusted and built upon to become the basis of the modern common law we use today. Statutory law is written law emanating from a legislative body. Statutory law is written law passed by legislatures. It is different than judge-made common law or case law. Statutory laws are laws that are formally established to deal with specific situations and are set in hierarchical order. According to Merriam-Webster’s administrative law is “law dealing with the establishment, duties, and powers of and available remedies against authorized agencies in the executive branch of government” Administrative law is considered public law and deals with the decision-making of administrative units of government.
Tort Law Tort laws are civil wrongs, except for breach of contract, which can be recognized as grounds for a lawsuit.
Torts fall into three general categories intentional, negligent and strict liability. There are four basic objectives to tort law. The first is preservation of peace which eliminates reasons to seek revenge. Next is culpability or finding fault for wrong doing. Third is deterrence which is to deter the criminal from repealing his offences or deterring him from repealing the same act. The final objective is compensation which is to "make one whole" (or at least better) after for an injury or …show more content…
loss.
Negligence Suit
Negligence is conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. To prove negligence there must be four elements that must be present in order for a plaintiff to be able to be compensated for damages. The first is duty of care, which is an obligation to conform to a recognized standard of care. The second element is breach of duty of care which requires the plaintiff to show not only that the defendant owed duty of care, but was also breached duty of care. The next element is injury, which is the ability of the plaintiff to prove that actual injury, loss or damage resulted from the negligence. The final element required is causation which is the ability of the plaintiff to show or prove that the departure from the standard of care caused negligent conduct and the resulting injury.
Criminal Law
According to the Encyclopedia of Crime and Punishment the purpose of criminal law “is to maintain social order and protect individuals and society from harm. Criminal law is concerned with offenses that threaten the public, is developed and enforced by the state, imposes sanctions that range from fines and imprisonment to death, and requires a standard of proof “beyond a reasonable doubt.” There are four objectives to criminal law; to maintain public order and safety; to protect individuals; use punishment as a deterrent to crime and rehabilitate criminals for return to society.
Contracts
A contract is an agreement that is written or oral that is enforceable by law. Two or more parties are usually involved in a contract and can seek justice in the court if one party defaults by failing to execute their side of the agreement. There are three elements that must be in a contract in order for it to be legally binding and enforceable. The first element in any contract is an offer. An offer usually expresses the willingness to initiate a contract. It is a promise by one party to do or not to do something if the other party agrees to do or not do something. Without an offer, there is actually nothing for the other party to accept and so no contract can be formed. The second element is consideration. Consideration is giving up something in exchange for something else of value. The final element is an acceptance, which is an agreement and willingness expressed by the person offering the contract. It is an indication or approval by the person receiving the offer that the offer has been accepted. An acceptance is supposed to be clear and direct without modifications or other new conditions added. A valid acceptance requires; a meeting of the minds, has to be definite and complete, include duration and be complete and conforming.
The Defendants Defense
In order to defend a plaintiff in a negligence suit the defendant typically tries to negate one of the elements of the plaintiff 's cause of action. This will relieve the liability of the defendant to the plaintiff. The first defense is ignorance of fact. This defense is not a legal defense. Ignorance of the law does not excuse or negate responsibility of the negligent action. Assumption of risk is when a plaintiff has assumed the risk involved in an obviously dangerous activity but proceeded to engage in it anyway. This may include things like smoking or drinking alcohol. In order for this to apply, the plaintiff must have actual, subjective knowledge of the risk involved in the activity. Contributory negligence is the actions of an injured individual who may have also contributed or caused their own injury. An example of this is a person leaving the hospital when they have been advised against it and their condition worsens. Good Samaritan statues are laws that protect individuals in the healthcare profession (and some laypersons) from lawsuits who attempt to rescue or aid another in a reasonable manner. These laws are designed to encourage public acts of assistance. Most of these statues only apply in an emergency. This could be a nurse assisting someone choking in a restaurant. The borrowed servant doctrine is when the employer of a borrowed employee, rather than the employee’s regular employer, is liable for the employee’s actions that occur while the employee is under the control of the temporary employer. Captain of the ship doctrine is the defense of holding a surgeon liable for the actions of assistants who are under the surgeon 's control but who are employees of the hospital, not the surgeon. The surgeon is directly responsible for the negligence. Comparative negligence is when the degree of negligence or carelessness of the plaintiff and the victim are compared which may lead to a reduction of the award against the defendant, proportionate to the contribution of the victim’s negligence. An example would be if someone was in a car accident and hit from behind but was not wearing a seat belt making the level of her injuries higher. Statute of limitations is a legal time period in which a law suit is allowable. If a suit is not filed within the mandated time the issues is considered forever barred from prosecution. An example would be if a person waits 20 years to file suit against a surgeon for an elbow injury they believe was received from surgery. Sovereign immunity has been abolished for the most part but it refers to the common law that historically made federal and state employees immune from liability for negligent behavior. Intervening cause is a defense that may be used by a defendant to negate responsibility of liability based on an event which occurs between the original improper action and the damage itself.
Conclusion
In conclusion this essay has examined the following subjects in order to give a clearer understanding to health care law.
The definition of law has been given and the three sources from which laws are derived. Also four objectives have been given for; tort law; the elements that must be proven in order to be successful in a negligence suit and the objectives of criminal law. The three elements of a contract were also discussed in this essay as well and finally the nine defenses a defendant can present in order to refute a plaintiff 's evidence.
References law. (2013). In Encyclopedia Britannica. Retrieved from http://www.britannica.com.libdatab.strayer.edu/EBchecked/topic/332745/law
common law. (2013). In Encyclopedia Britannica. Retrieved from http://www.britannica.com.libdatab.strayer.edu/EBchecked/topic/128386/common-law
administrative law Merriam-Webster 's Third New International Dictionary Unabridged
Retrieved from http://mwu.eb.com/mwu
CRIMINAL LAW. (2002). In Encyclopedia of Crime and Punishment. Retrieved from http://www.credoreference.com.libdatab.strayer.edu/entry/sagecp/criminal_law
Pozgar,G.D.(2012).Legal aspects of health care administration(11th ed.) Sudbury, MA: Jones and
Bartlett.