Introduction to Law

Introduction to Law Jody Blanke Distinguished Professor of Computer Information Systems and Law Mercer University

Tort Law • A tort is a wrong, other than a breach of contract, committed against person or property, for which a court provides a remedy, generally in the form of monetary damages • There are three types of torts • Strict liability torts • Intentional torts • Negligence torts

Strict Liability • Liability without fault • neither intent nor negligence need be shown • Ultrahazardous activities • e.g., dynamite blasting • e.g., ownership of wild animals • lions and tigers and bears …

Intentional Torts • Battery • Assault • False Imprisonment • Intentional Infliction of Emotional Distress

Invasion of Privacy • Appropriation of name or likeness • Intrusion upon seclusion • False light • Publication of private embarrassing facts Silvia Leyva at Café Intermezzo, Perimeter

Appropriation of Name or Likeness • Earliest privacy cases • Ex. Michael Jordan Wine

Intrusion Upon Seclusion • Jackie O • Holiday Inn • Mazzio’s Pizza • Sean Penn • Bill Gates • Bob Dylan • Katz • Kyllo

U. S. v. Katz (1967) • Introduced the “reasonable expectation of privacy” standard • The FBI had placed a tape recorder between two telephone booths and recorded Katz making or taking bets

Your Home is Your Castle • Kyllo v. U.S. (2001) • Thermal imaging of a home constitutes a search • Bowers v. Hardwick (1986) • Supreme Court upheld Georgia sodomy law • Lawrence v. Texas (2003) • Supreme Court overturned Bowers

Your Workplace? • Not so much

False Light • Parade Magazine article on Teenage Prostitution

Publication of Private Embarrassing Facts • “Joe Hero” • Potomac River plane crash • Assassination attempt on Gerald Ford

Defamation • Libel and slander • Truth is a defense • Richard Jewell • against media defendant, must prove “actual malice”

Negligence • Duty of Care • Breach of Duty • Causation • Injury

Duty of Care • Reasonable person standard • Is there a legal duty? • e.g.,Lady Di, Seinfeld finale, Good Samaritan laws

Breach of Duty • What would the reasonable person do in similar circumstances? • Professional standard – malpractice • Negligence per se • Res ipsa loquitur • A burden of proof shifting doctrine • Defendant in complete control • Plaintiff did not contribute to injury • Result would not have occurred absent negligence

May Involve Commission of an Act • Administering wrong medication • Administering wrong dosage of a medication • Administering medication to the wrong patient • Performing procedure without patient consent • Performing procedure on wrong patient • Removing the wrong body part • Failing to assess and patient’s nutritional needs

May Involve Omission of an Act • Failure to administer medication • Failure to order required diagnostic tests • Failure to follow up on abnormal test results • Failure to perform a “time-out” to ensure the correct surgical procedure is being conducted on the correct patient at the correct site

Malpractice • In a health care environment, examples of negligence of a professional person: • A surgeon who conducts surgery on the wrong body part • A nurse who administers wrong medication injuring patient • A pharmacist who mislabels a medication and the patient is harmed

Forms of Negligence • Malfeasance • Misfeasance • Nonfeasance

Malfeasance • Execution of an unlawful or improper act • performing a partial birth abortion when prohibited by law • performing a procedure without having the appropriate credentials

Misfeasance • Improper performance of an act • wrong sided surgery • leaving an instrument in the patient’s body

Nonfeasance • Failure to act, when there is a duty to act as a reasonably prudent person (or a licensed professional) would in similar circumstances: • failure to prescribe antibiotics when indicated • failure to respond to emergency call

Causation (First step) • Actual cause (causation in fact) • “but for” analysis • e.g.,Rube Goldberg cartoons, Mouse Trap

Causation (Second step) • Proximate cause (legal cause) • foreseeabilty • e.g.,Palsgraf v. Long Island Railroad • e.g., Crankshaw v. Piedmont Driving Club

Injury • Plaintiff must prove injury • Injury need not be personal injury

Defenses to Negligence • Assumption of Risk • Fellow-Servant Rule

Defenses to Negligence • Contributory Negligence • e.g., the “rolling stop” • Comparative Negligence • pure comparative negligence • modified comparative negligence (50% rule)

Criminal Law • Crime - any social harm defined and made punishable by law • Objectives of criminal law • maintain public order and safety • protect the individual • use punishment as a deterrent to crime • rehabilitate the criminal for return to society

Classification of Crimes • Misdemeanor - an offense punishable by less than one year in jail and/or a fine (e.g., petty larceny) • Felony - is a much more serious crime (e.g., rape, murder) and is generally punishable by imprisonment in a state or federal penitentiary for more than one year

Health Care Fraud • Health care fraud costs the country an estimated $80 billion a year • Health care fraud is committed when a dishonest provider or consumer intentionally submits or causes someone else to submit false or misleading information for use in determining the amount of health care benefits payable

Health Care Fraud Examples • Johnson & Johnson paid $2.2 billion in fines for marketing prescription drugs for uses that were never determined to be safe and effective (2013) • Illinois Medicaid paid $12 million to 2,900 dead people (2014) • Doctor who claimed he provided psychotherapy treatments more than 24 hours a day, was among 91 doctors , nurses and health-care company owners charged in Medicare sting (2011) • Medicare paid at least $77 million to medical equipment suppliers who used Medicare ID numbers of deceased doctors (2008)

Burden of Proof • Criminal case • “beyond a reasonable doubt” • burden on prosecution, i.e., state • Civil case • “by a preponderance of the evidence”, i.e., more likely than not • burden on party making the claim, usually the plaintiff • Ex. O.J. Simpson • Ex. Hans Kraus • Ex. Andrea Sneiderman

Defenses Against Recovery • Good Samaritan Laws • Statute of Limitation • A legislatively imposed time restraint that restricts the period of time after an injury occurs during which a legal action may be commenced • The statutory period usually begins when the injury occurs, although in some cases (e.g., leaving a foreign object in the body after surgery), the statutory period commences when the injured person discovers or should have discovered the injury

Georgia’s Good Samaritan Law • “Any person, including any person licensed to practice medicine and surgery pursuant to Article 2 of Chapter 34 of Title 43 and including any person licensed to render services ancillary thereto, who in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof without making any charge therefor shall not be liable for any civil damages as a result of any act or omission by such person in rendering emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person.” • O.C.G.A. § 51-1-29

Georgia Medical Malpractice Statute of Limitations • 2 years from the time of the negligent act • Even if patient or family did not know of negligent act, no action can be brought after 5 years, absent a showing of fraud, concealment or misrepresentation • 1 year from the time of discovery of a foreign object left after surgery • Different rules for patients under 7- and 10-years old • O.C.G.A. §§ 9-3-71 to 9-1-73

Introduction to Law