Saturday, February 1, 2014



Click to Return To Start Page

List does not yet correspond to order presented in course.

Bang v. Charles T. Miller Hospital
 This case addresses medical battery and informed consent.

Berthiaume v. Pratt. M.D.
  This case addresses invasion of privacy.

Hicks v. Arkansas State Medical Board

   This case addresses invalid administrative regulations

Shilkret v. Annapolis Emergency Hospital
    This case addresses standards of care.

Canterbury v. Spence

     This case addresses the therapeutic privilege exception to informed consent.

Cobbs v. Grant

      This case addresses the therapeutic privilege exception to informed consent and reaches a slightly different conclusion than Canterbury.

Olson v. Molsen
      This case addresses public policy and the invalidity of exculpatory contracts in medicine.

Schneider v. Revici
        This case addresses alternative medicine and assumption of risk


            This post is intended to provide skeletal information about a typical lawsuit. 
Special terms are in bold when first used.

Physician/Patient Relationship.  There normally cannot be medical malpractice unless a provider is actually practicing medicine.  That typically requires that there be a physician/patient relationship, a therapeutic relationship.  This is a relationship in which a physician and patient agree that the physician will provide medical care to the patient. A physician conducting an Independent Medical Examination (IME) is not in a physician/patient relationship because an IME is not conducted for therapy.  There are many interactions between physicians and individuals that call upon a physician's skills but are not necessarily physician/patient relationships.

A physician/patient relationship is (1) Therapeutic, (2) Contractual; and (3) Fiduciary.  That is to say that the relationship (1) is intended for the treatment of the patient; (2) it is entered voluntarily by both patient and physician; and (3) it is such that the patient--as a matter of law--is entitled to place his trust in his physician.  The physician is the patient's expert.

A physician/patient relationship (contract) begins when the physician accepts the patient for treatment.

Duties.  Once the physician/patient relationship exists a number of legal duties settle on the physician.  The principal duty is to render care at the applicable standard of care which requires that a physician must exercise that degree of care, skill and learning that would be expected under similar circumstances of a reasonably prudent physician.

Courts have identified many other duties imposed on physicians but the greater part of those flow from the principal duty to provide therapy at the applicable standard of care.  In reading the assigned case readings, note how often the court identified an express duty and then addresses whether the physician has met it.

Malpractice Liability.  Medical malpractice liability is created when: 

(1)  A physician/patient relationship exists.

(2)  Duty.  There is a recognized legal duty.

(3)  Dereliction.  The physician has failed to meet that legal duty while treating the patient.

(4)  Damage.  The patient has suffered an injury.

(5)  Direct Cause.  The dereliction of the physician has directly caused the patient injury.

It is not sufficient to show that a duty exists and that a physician has somehow failed in that duty.  It must also be shown that the patient has suffered an injury and that that injury was directly caused by the physician's dereliction.  Unless all four 'D' elements can be proven the physician should not be found liable.  Of the four, proving that the physician's dereliction somehow directly caused the patient's injury is often the most difficult.

In reading the section below on the structure of a lawsuit, remember that the plaintiff (the injured party filing the lawsuit) must prove that a Physician/Patient relationship existed and that there were:  Duty, Dereliction, Damage and Direct Cause to win. 

TORT   A dereliction of a legal duty is often called a tort.  A tort is a wrong for which you can be sued if the wrong directly causes an injury.  An intentional tort is a tort that involves a deliberate act.  Battery is an intentional tort.  A battery is 'an unauthorized touching' and may include hitting someone in anger or failing to obtain a patient's consent before doing an invasive medical procedure.  An unintentional tort is a tort that usually involves inadvertence or accident.  The actor (tortfeasor) did not intend the act.  Many automobile accidents involve unintentional torts.  Medical malpractice often arises when a physician commits an unintentional tort by negligently failing to diagnose an illness or by accidentally leaving sponges or instruments in a patient's body during surgery.

Medical malpractice is a tort.

        Medical Malpractice Lawsuit - A Civil Suit

            A civil suit generally involves parties using the court to resolve a dispute in terms of money.

            A civil suit should not be confused with a criminal action.  A criminal action is brought by the government to punish someone who has committed a crime.  

Usually, no crime is involved in a civil case, but it is possible for the same action to lead to both a criminal action for punishment and a civil lawsuit for money damages.  That was the situation that former football star, OJ Simpson, found himself in when he was criminally charged with murdering his wife and her friend.  He was acquitted in the criminal trial, but then family members of the victims sued him in a wrongful death case in civil court, asking the court for monetary compensation for the loss of their family members.  Notice that Simpson’s acquittal in the criminal case did not prevent a large monetary judgment against him in the civil case.

            A medical malpractice lawsuit is a civil suit.

            In a medical malpractice case, the dispute usually centers on whether the physician wrongfully harmed a patient and, if so, to what extent money will compensate the injured party for the harm done.

            A judge and jury cannot restore a lost limb or impaired capacity, but they can award money to compensate for the real physical loss to the extent that money can.

            If a doctor removes the wrong leg of a patient, the patient does not go to court to grow a new leg; he goes for a sum of money to compensate him for his lost limb.

            The amount of money claimed as compensation for the harm done is often referred to as the Damages.

            Beginning a Lawsuit

            A lawsuit begins when the Plaintiff (the person suing) files a Complaint  with the court against the Defendant (the person being sued).

            The suit is assigned a case number when it is filed with the court.

            A typical Complaint will name the court and the parties in the heading and then the body of the Complaint will further identify the parties and describe the reason for the lawsuit and, finally ask for a Judgment (final decision) from the court.

            Before the lawsuit can proceed, the Defendant must be served (or given) a copy of the Complaint together with a court Summons  ordering the Defendant to respond.  This is sometimes called service of process.

            The Defendant must be served (given copies of the Summons and Complaint) by a third party not involved in the lawsuit.  The Plaintiff cannot serve the Defendant himself.  Usually, a professional process server is hired to serve the Defendant, but any adult not a party to the lawsuit can also do it.  When the Defendant has been served, the process server will file a return to the court attesting (saying) that the Defendant has been given the Summons and Complaint.  

            When the Complaint and Summons have been served on the Defendant the court will then have Jurisdiction over the case.  When a court has jurisdiction it has the power to hear and decide the issue.  

If the case has been filed with the court and given a case number the court will not have jurisdiction until the Defendant has been served.  The history of law is full of amusing stories of intended defendants dodging service of process and the ingenious methods process servers have used to find and serve them.  Sometimes the methods are too ingenious.  For example, crushing the Summons and Complaint into a ball and bouncing it off the chest of the intended Defendant can be satisfying when finally catching an elusive Defendant, but it may not constitute valid legal service.

            Under special circumstances the intended defendant might be served by some method that does not involve placing the Summons and Complaint in his hands, such as by publication in a legal paper or service of process on a registered agent, and so forth.

Once served, the Defendant must file an Answer with the court.  Typically the Answer must be filed within about 20 days (21 in Federal Court).  The Answer can be as simple as a denial of every allegation in the Complaint.  Together, the Complaint and the Answer frame the issues of the lawsuit and are often called the Pleadings  of the case.

If the Defendant fails to file an Answer, the court may enter a Default Judgment in favor of the Plaintiff, meaning the Plaintiff has won the lawsuit.

Jurisdiction refers to the power of a court to hear and decide an issue.  As we saw above, if a Defendant in an action (lawsuit) is not properly served with process then the court does not have jurisdiction over that person to decide the case.  Jurisdiction over a person is sometimes referred to as in personam jurisdiction.

However, even if a person is served it may be that the court does not have jurisdiction over the subject matter (in rem jurisdiction) and therefore will not be able to hear or reach a decision in the case.   For example, a Small Claims Court created to hear and decide disputes up to $5,000 in value will not have jurisdiction to hear a medical malpractice claim demanding an award of $5 million.

A court may be either a Court of General Jurisdiction or a Court of Limited Jurisdiction.  We have already heard of a court of limited jurisdiction in the example of a Small Claims Court limited to cases of $5,000 or less (the amounts vary from state to state).  

All courts of appeal, including the United States Supreme Court, are courts of limited jurisdiction.  Courts of appeal do not hold trials; they review decisions made in the trial courts to determine whether the judge in the trial court made the correct legal decision.  One notable exception to the general rule that appellate courts do not hold trials is when the U.S. Supreme Court hears a case in which one State is suing another State.

United States District Courts are trial courts of limited jurisdiction.  As a matter of law they (and other federal courts) hear and decide only cases involving federal law (including the United States Constitution) or cases in which the United States is a party to the suit.  United States District Courts may sometimes hear cases involving only State law when the parties are from different states under the diversity jurisdiction exception.  In diversity jurisdiction cases, the federal court only provides a forum to hear the issues but it will use the same state law that would apply if the suit had begun in state court.

A Court of General Jurisdiction has broad authority to hear and decide essentially any justiciable issue brought before it.  A justiciable issue is one that can be heard and decided by a court of law.  Sometimes it is hard to believe in our litigious society, but there actually are quite a few disputes that are not a matter for the courts.

In the United States, all courts of general jurisdiction are state courts.  Each State will have its own name for its trial court of general jurisdiction, but ‘Superior Court’ is one of the common designations.

Medical malpractice cases are almost always heard in a state court of general jurisdiction and that court will follow state law.

There are exceptions to this rule.  One mentioned above is when the parties are in different states (Plaintiff in one state and Defendant in another) and the suit is heard in federal court (United States District Court) under diversity jurisdiction.  [Note this example is in federal court because the parties live in different states]. The federal court will use the law of the state in which the alleged malpractice occurred.  It is a state 'cause of action' (see below) and the federal court is only providing a forum, not a different set of laws.  Another exception is when the United States is a party to the suit.  That may occur, for example, when there is an allegation that a Veterans Administration (VA) doctor committed malpractice.  Since the VA is a federal agency, the United States would be a party to the malpractice suit, but the malpractice law followed by the court would be that of the state in which the alleged malpractice occurred.

Cause of Action and Standing

        A valid civil lawsuit must be based on a cause of action, a wrong that the courts can legally provide a remedy. 

        If a surgeon removes the wrong leg of a patient he has committed a tort (legal wrong, more on this later) which is a cause of action - - a basis for a suit against him. {Yes, it happens.}

Contrary to what one might think following the news, not every offense is a cause of action (not yet anyhow).

For example the federal HIPAA Privacy Rule provides for penalties to be assessed against a health care worker who wrongly violates a patient’s privacy.  Those penalties may be a financial fine (a fine goes to the government, not to the victim) or even criminal prosecution of the physician.

However, the HIPAA Privacy Rule expressly does not create a cause of action for the victim.  If the person whose privacy has been violated sues the physician claiming a HIPAA Privacy violation he will be told that HIPAA does not create a cause of action against the offender and that he has no basis for his lawsuit.

State privacy and medical confidentiality laws do give a cause of action to the victim of an invasion of privacy, so though the victim may be turned away from federal court for a federal HIPAA violation, the same physician’s dereliction will allow the patien to sue (he has a cause of action) in state court.

A Plaintiff must also have standing to sue.  Basically, the person suing must be a true party in interest.  If my neighbor is wrongfully injured in a car accident, another neighbor cannot rush in to sue to try to collect the money award.  He would not have standing.  He was not injured.

This seems an obvious principle because it is.  However, the standing issue can be raised in unexpected situations.  Some suits against the government by concerned citizens are booted from court when those citizens are unable to show that they have standing, or some recognizable harm, because of the government’s action.


            Once a Complaint and Summons have been served and the defendant has filed an Answer, a lawsuit typically proceeds to the discovery phase.

            Both the Plaintiff and the Defendant are entitled to the benefit of discovery proceedings, and those proceedings are very broad.

            The Federal Rules of Civil Procedure (FRCP) are typical of most state procedures and FRCRP 26(b)(a) provides that “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter” (emphasis added).

            A confidential document, such as a personal diary, can be obtained by the opposing party if it might be relevant to the dispute.  However, as can be seen, anything that is subject to privilege is protected from discovery.  A personal memorandum written for your reference after a possible act of medical malpractice may be confidential, but it is not privileged and is subject to discovery.  Exactly the same memorandum prepared to inform your attorney and assist with your case probably would be protected by the attorney/client privilege and not be discoverable under court rules.  Typically, these interactions may be privileged: attorney and client; patient and mental health therapist; any person and his spiritual advisor; communications between a husband and wife.  Anyone hoping to claim privilege should be aware that it can inadvertently be waived.

      Besides obtaining documents and records, discovery can also include entry on property, physical and mental examinations, and depositions, in which a party is required to respond under oath to the questions of opposing counsel.  Here is an amusing segment of an actual deposition in which Actor Wesley Snipes is using his words and ideas to describe a performer's relationship with an agent.

    Motion for Summary Judgment
            A motion is simply a request made to the court.  It can be an oral motion or a written motion supported by a brief (memorandum of facts and legal authority).

            There are many possible motions, but an important pretrial motion is the motion for summary judgment.  It may become apparent before the trial that if the Plaintiff is able to prove everything he says he is going to prove he will still not have a valid legal claim on which a judgment can be based.  Basically a party making a motion for summary judgment will concede (only for the motion) all of the facts that the Plaintiff is going to present and couple those facts with legal authority to show that those facts do not support a valid claim.  If it truly appears that the Plaintiff will not have a valid suit if he spends trial time proving those facts, why waste time with a trial he can only lose?  In such a situation the judge may very well grant the motion for summary judgment in favor of the Defendant and the trial will end before it even starts.

      A motion for summary judgment was one of the issues in the Olsen v. Molsen case that is one of the required course readings.
         Motion in Limine

         A motion in limine asks the court to bar certain evidence because it may be prejudicial or irrelevant or otherwise impair the fair and efficient operation of the trial.  If, for example, the injured patient who is suing the doctor makes her living as a madam of a brothel, a house of prostitution, a motion in limine might be useful to keep the jury from learning of that profession.  Her being a madam might prejudice the jury against her, but it would have no bearing on whether or not she was injured by an act of medical malpractice.

The Trial Begins

            A very high percentage of medical malpractice suits are settled before trial.   In most civil cases, each side pays its own costs and attorney’ fees and those can be very high in medical malpractice cases.  Therefore, even when there is a valid defense against the malpractice suit it is often possible to find a settlement amount that is less than the cost of going to trial and winning.  Put simply if you are a physician who is being sued for malpractice, even though you know you can prove that you did not commit malpractice your insurer may prefer to settle the case and pay the patient/plaintiff if the settlement amount is likely to be less than the cost of actually going to trial.  If the parties are unable to settle, taking the dispute to the judge and jury is the next step.

            The jury is a panel of citizens called to hear and decide court cases.  They are summoned by the court and could face penalties if they fail to show up on the appointed day and time.  Often the names are selected from voter’s registration lists or auto license holders or other means.  It is very rare, but it is possible simply to pull passersby from the street and conscript them to serve on a jury.  

            When prospective jurors are seated in the jury box, the attorneys for each side are given an opportunity to question them to see if they might have some prejudice in the case.  It is important to know, for example, whether they are related to any of the parties or the witnesses, but the questioning can be broader than just that.  This process is called voir dire.

             The role of the jury is to hear the case, decide the facts, and then apply the law to the facts to reach a verdict, or decision.  The jury is the sole arbiter of the facts of the case.  However, the court tells the jury what the law is.  The jury can choose its facts; but it cannot choose its law.   The court gives the jury the law of the case in the form of jury instructions.  Each state has its own set of jury instructions, but they tend to be similar from one state to the next.  Here is a link to a pdf document of the California Civil Jury Instructions.

            Many jury instructions are extracted from the written opinions of court decisions.  For example, the California court's written opinion on therapeutic privilege and informed consent in Cobbs v. Grant provided the language for the accepted jury instruction on therapeutic privilege given to juries in California.
            Burden of Proof and Standard of Proof

            The Plaintiff, the party making the allegation, has the obligation of proving that his allegation is true.  We say that he has The Burden of Proof.  If he cannot prove his case he should not win.

            But, to what extent must he prove his case?  Generally, in a civil case like a medical malpractice case the Plaintiff must prove his case to the 'preponderance of the evidence' standard.  This is often likened to “51% proven” or proven “more likely than not.”  In fact, nothing really does more than give one a subjective sense of the burden.

            There are higher levels of proof for special situations.  

For example, the 'clear and convincing' standard is supposed to be stricter and more exacting than the ‘preponderance of the evidence’ rule.  The clear and convincing standard is sometimes used in disputes over property lines, and is almost always used in civil commitment proceedings that may result in the involuntary confinement of an individual with mental problems likely to make him a danger to himself or others.

The highest level of proof is the 'beyond a reasonable doubt' standard.  This standard is required in all criminal cases and is sometimes said that to be meet the case presented “must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence.”  Although the ‘beyond a reasonable doubt’ standard is almost always used in criminal cases it is also sometimes used in cases involving the civil commitment of a sexual predator.  In Kansas v. Hendricks the United States Supreme Court ruled that the civil commitment of sexual predators is lawful and that the use of the ‘beyond a reasonable doubt’ standard did not convert a civil proceeding to a criminal proceeding.

To win a malpractice suit, the Plaintiff usually has to show that the Defendant physician:

(1)  Had a Legal Duty - usually 'to render care at the medical standard of care'.

(2)  Was Derelict in that Duty

(3)  Caused Damage or injury to the patient

(4)  Directly caused the Damage
 These are the 4 'D's that lead to liability:  Duty; Dereliction; Damage; Direct Cause.
            Note that that the 'standard of care' is established by the medical profession ('expert witness' below).  However the 'duty' to practice at the standard of care is a legal standard that has been established by the courts.  Over the years many legal duties (those enforceable in court) have been established in the legal system.  Many of those duties, like the duty to obtain informed consent from a patient, have been created by court decisions in the common law process.  This is one of the reasons lawyers, medical journals, and medical cost management people pay close attention to the decisions rendered by courts.

            Opening Statement

            The trial gets underway when the attorneys for each party give their opening statements.   The Plaintiff goes first since he has brought the case to court.

            In theory the opening statements give each lawyer an opportunity to tell the jury what he intends to prove and what facts he will introduce to help with that proof.  It is not a time for argument.  Argument is done at the end of the trial as the closing argument.

            Neither the opening statement nor the closing argument are evidence in the trial, but only a tyro would remind the jury of that.  If you have made a particularly good opening statement it might be better to let the jury be unsure whether or not your statement is actual evidence.

                        Making the Case
            Once the opening statements are finished, the Plaintiff’s attorney must go forward with the case.  This is the stage where the attorney calls witnesses and introduces exhibits into evidence to support the case.

                        Expert Witness
            As a general rule, a medical malpractice case cannot be proven without the testimony of an expert witness.  Typically, the expert witness will be a physician who is familiar with the issues presented and who can give an expert opinion as to whether or not malpractice occurred and whether or not the standards of care have been met by the Defendant physician.  The standards of care are established by the medical profession, not by judges, juries and lawyers.

            An ordinary witness can testify only to what he has seen, heard, smelled, felt, etc., etc., but his opinion has no value as evidence.  By contrast, the opinion of an expert is evidence.

             An expert witness may not be needed if the tortious (wrongful) act is something that falls within the ability of an ordinary person to perceive as wrong.  For example, leaving forceps in a patient's abdomen would not require an expert to convince the jury that something was wrong.  Also see res ipsa loquitur.

                        Proving or Convincing

            It is not unusual for a party to a lawsuit to believe that all he has to do is prove his case to the jury in order to win.

           Unfortunately, it is not that simple.  If you prove your case to a scientific certainty but fail to convince the jury, you will lose.  A beautiful, scientific and logical case presentation that would convince 100% of the neurosurgeons at a continuing medical education seminar is likely to leave a typical jury baffled.  Most will not have the education or experience to understand a technical proof no matter how perfect it may be.

         The problem becomes more daunting when one recognizes that the the case probably would have been settled if the two opposing law firms did not think that they could convince a jury that they are right, and, indeed, it is possible to watch a trial with competent counsel on opposing sides and be swayed back and forth as to who has the right of it.

       This well-known optical illusion gives an idea of the problem faced in trial.

            One side will be arguing that this is clearly a vase while the other will contend that it is an image of two faces.  Actually, both can make a sound case, so winning will depend not on who can prove that it is a vase or prove that it is a couple of faces but on who can persuade the jury that his narrative is correct and that only a vase (or face) is visible in the image.  The persuasive element depends on performance more than proof.  The expert for one side can say that in his opinion this is clearly two faces.  The expert for the other side will say that in his opinion this is obviously a vase.  Whom will the jury believe?  They tend to go with the expert they like and who inspires their trust.

Similarly, the impressions made by the Plaintiff and the Defendant can help persuade the jury one way or another.  We have been told by one successful plaintiff's attorney for medical malpractice cases that an important factor for him when he is deciding whether to take a case is whether or not he likes the prospective client.  He has learned that if he does not like the client it is difficult for him to get the jury to like the client and if the jury does not like his client, it is harder to win.

What does liking the client have to do with legal proof?  Nothing.  But it has a lot to do with persuading the jury that this client deserves to win.  It is about winning; not proving.

Incidentally, the world of criminal law provides us with an example of how not to create a favorable impression with the jury.  "Ladies and gentlemen of the jury, I'll kill all of you.  That goes for your family, too."

Punching one of the jurors may also prejudice the rest of the jury panel against you.

Plaintiff Rests - Motion for Directed Verdict or Dismissal

After the Plaintiff has called all of his witnesses to testify and introduced all of his exhibits, he will announce to the court: "Plaintiff Rests".   That signals the formal end of his presentation.  It is next the turn of the Defense to present a case in opposition.  However, before that begins the defense attorney may make a motion for a directed verdict or dismissal of the case.  This is akin to the motion for summary judgment discussed above.  If after everything the Plaintiff has done to present a case it is evident that he has fallen so short of meeting the legal standard that no presentation by the Defense is necessary, then the case should be ended without wasting more time and requiring the Defense to respond.  A motion for directed verdict or for dismissal are requests for the the judge to end the trial in favor of the defense then and there.  A directed verdict was an issue in the Berthiaume case, one of the required reading cases for this course, albeit in Berthiaume the trial court (superior court) granted the motion for directed verdict after both plaintiff and defendant rested so that the judgment was entered without the hazard of jury deliberations.

The Defense Case

The defense case proceeds very much like the plaintiff's case.  Exhibits are introduced and witnesses are called.  One or more of the important--and necessary--witnesses for the defense will be yet another expert whose opinion will be part of the evidence given to the jury.

One can see at this point the problem for the jury.  The members of a typical jury will not be overly familiar with medical procedures so they probably will lean heavily on the opinions of medical experts.  But what to do when one expert declares that malpractice occurred and the other medical expert declares that in his opinion malpractice never occurred?  Each jury will find its own method of reconciling the differences in evidence and testimony, but many factors may come to play.  Is an expert understandable?  Can he explain complex ideas in relatively simple terms?  Is he arrogant, distant and cold or is he likeable?  How believable does he seem?  Any these things, and a good bit more, could come into play when the jury finally retires to deliberate and reach a decision of the case.

When the defense has finished introducing exhibits and testimony from witnesses, counsel will declare to the court, "Defense Rests".


Though both the plaintiff and defense have put on their cases in full, their may be some things raised during the defense presentation that need to be clarified by a brief rebuttal given by the plaintiff, usually be introducing an additional exhibit or taking brief testimony from another witness.  The defense may get its rebuttal to the new matter provided by the plaintiff, but this process, and the scope of response, can wind down fairly quickly.  Rebuttal is a mop-up operation.

Final Argument

Each side has an opportunity to present final argument.  The plaintiff goes first, followed by the defendant, and then the plaintiff has an opportunity to submit rebuttal argument.

No new evidence or testimony is presented in final argument.  Instead each side argues why the evidence already presented supports his side of the dispute.  It is also a good time to point out how the other side had promised to present certain evidence during opening statement and yet failed to do so during the actual trial if that occurred.

When final argument is completed, the entire case is given to the jury.

Jury Deliberation & Verdict

The jury will weigh the evidence presented during the trial and then apply the law to those facts as the law has been given to them in the jury instructions by the judge.

The decision of the jury is the verdict.  If the verdict favors the plaintiff, the jury will also award a monetary sum known as damages.  The verdict is then given to the judge.

Judgment & Consequences

If the judge accepts the verdict (and he generally will) he will enter a judgment in the case.  The judgment is the final phase of the trial and it is the final resolving the dispute.

The effect of the judgment is almost immediate.   When it is filed with the clerk of the becomes a lien on all repeal property owned by the defendant in that county.  A lien ties that property to the repayment of the debt created by the judgment.  If the defendant [or his insurer] does not pay the judgment, the plaintiff can obtain a writ of execution allowing the sheriff to put the real property up for public auction with the proceeds of the sale paid to the plaintiff judgment holder.  In addition to seizing real property, the plaintiff can get a writ of garnishment for the seizure of the defendant's property held by others, such as bank accounts, brokerage accounts, and salary as it comes due.  Also, the sheriff can be instructed to seize personal property like automobiles, yachts, airplanes, stock certificates, cash, etc. that can be used to satisfy (pay) the judgment.

Here is a video of a judgment levy on a bank.  The bank foreclosed on the wrong home and then refused to compensate the homeowners for the damage they had done and the bank also refused to pay the court judgment the homeowners held against the bank.  As described above, the homeowners and their attorney got a writ of execution and showed up at the bank with trucks to remove furniture, computers, cash, etc. to be applied toward the payment of their judgment.  The bank decided that it should pay the judgment after all.

Homeowners Show Up With Trucks to Seize Bank Assets.


If a judgment is appealed, the case will go for review by an appellate court.  Usually it will go first to an intermediate court of appeals and then, if the question is very important, on to the state supreme court.  A state court judgment will not go to the United States Supreme Court unless there is a federal question involved.  

No new evidence or testimony is presented during an appeal.  Instead, the appeals court will review the record and exhibits and transcripts of testimony presented in the actual trial.  Review in an appeals court is not a trial.

An appellate court will almost never disturb the jury's decision as to the facts of the case.  Instead it will look for alleged legal errors made by the judge.  Did the judge wrongly exclude important evidence?  Did the judge give the jury erroneous jury instructions?  Did the judge rule wrongly by granting a motion for summary judgment or motion for directed verdict?

No trial is totally free of errors, but if the errors are sufficiently prejudicial to affect the outcome, the appeals court can reverse the decision and send the case back for a new trial.

The decisions of courts of appeal are often (but not always) given with written and published opinions that explain the law and why they reached the decision they did.  These decisions become a part of the law.  Much of medical malpractice law is found in court decisions/opinions rather than statute books.

For more on the influence of case law on the evolution of law, see sources of law.

This concludes this post


SUMMARY:   Law comes principally from all three branches of government.

First, the Legislative Branch which meets to pass formal laws in the form of Statues (Acts, Bills, etc.).

Second, the Executive Branch consisting of the executive (President and Governors) and the executive agencies operating under their authority.  The laws of the Executive Branch are usually in the form of agency regulations.  Lately, so-called 'executive orders' of the president are also gaining prominence.   

Third, the Judicial Branch consisting of the state and federal judges, especially those of the appellate courts.  Court decisions are law and much of medical malpractice law has evolved by court decision rather than formal legislation or administrative regulation.

Two less noticed sources of law are the people themselves (by referendum or initiative) and international treaties which become a part of federal law.

A constitution is a founding law (each state has a constitution as does the United States).  The constitution can change by the rather difficult amendment process but also by differing interpretations given to it by the judiciary.  It is sometimes amazing how many things the courts 'find' in the Constitution that, in fact, are never actually mentioned in the document.

In some respects this is an amalgamation of several previous posts.

One thing this post will try to do is make clear why court cases and opinions are a part of the law that impacts physicians and why it is important to understand the case/common law process.  Many of the 'duties' that imposed potential liability on physicians come from case law rather than constitutions or statutes or regulations.

        Constitutional Law.  The Constitution of the United States is the basic and paramount law of the land.  It has priority over every other law that may conflict with it.  When the United States Supreme Court held that a constitutional right to privacy negated a state law that prohibited abortion, it was the state law that became unenforceable, Roe v. Wade.  Any federal (United States) law that conflicts with the Constitution is unenforceable.  Similarly, each state has a constitution establishing state government and guaranteeing fundamental rights within the boundaries of that state.  Any state statute or regulation is subordinate to the state constitution.

Besides being a founding document, much of the authority of the Constitution as law derives from the fact that it was adopted by the people.  Indeed, it begins with the words, "We the people . . . do ordain and establish this Constitution of the United States of America."  After the Constitution was adopted by the Constitutional Convention, it was submitted to the people of the various states where it was analyzed and argued over in great detail before the people voted for it. 

            Statutory Law.  Statutory law is what most of us think of as law.  Statutes (or Acts) are the laws enacted by the legislative authority.  In the United States government the legislative authority (according to the U.S. Constitution) rests with the United States Congress.  At the state level, the legislative authority rests almost entirely with the state legislature.  The fountain of legislative authority flows from the citizens themselves, but legislators have been chosen by them to exercise delegated legislative power.

However, a state may also draw upon the people’s inherent and original legislative authority to legislate by referendum or by initiative.  In the referendum process the legislature may draft recommended legislation and then submit it to the vote of the people at the next election.  If a majority vote for the referendum, it becomes law.  This is essentially the same process by which the United States Constitution became law.  The people themselves may originate legislation by having a prescribed number of registered voters sign an initiative to put proposed law up for a vote of the people.  The state law allowing medical use of marijuana was adopted in California by the initiative process.

            Case Law and Common Law.  Case and/or common law is a type of law that layman usually find most baffling.  Essentially, court decisions, precedents, particularly appellate court decisions, become a part of the law.  That is why lawyers (and increasingly physicians) are alert to changes in the law brought about by court decisions.  The Canterbury case linked on this site is a good example of how law may change through a court decision.  The Tarasoff case (linked on this site) is another example of a court decision that changed both law and medical ethics.

There are thousands of cases with published court opinions that have decided many fundamental rules of law and those case have been combed through and analyzed and reduced to basic black letter statements of case or common law.  The RESTATEMENT OF TORTS published by the American Law Institute is a particularly authoritative analysis of court law, and it is common to see it cited as an authority in court opinions.  Wikipedia has a short but interesting article on the Restatement series. 

            Administrative Law.  Rules and regulations adopted by administrative agencies have the force of law.

In the hierarchy of law, an administrative regulation is subordinate to legislation adopted by the legislature or by initiative or referendum, just as legislation is subordinate to the constitution.

One growing danger from regulations is that they are becoming so complex and so extensive that it is difficult and costly to understand and comply with them even though a failure to comply can lead to severe penalties.  Much has been heard about how massive the Affordable Care Ace (Obamacare) is, but it has been dwarfed by the regulations promulgated under it thus far.

SEE:          ADMINISTRATIVE LAW - IS IT LEGAL  on this blog.  

AND:         KING v. BURWELL  on this blog. 

This image shows the massive Obamacare Act on the chair and the regulations created under authority of the Act in the column of paperwork beside it.

For some issues on administrative law see Hicks: Adminstrative Power Uses and Abuses.
The Hicks case is required reading for the course.

The following on Civil Law and common law is only a general description and not intended to be authoritative.

Legal Systems are Operating Systems for Society

            In modern terms, a legal system can be treated as the operating system for a society.
            The comparison is not as fanciful as it first seems.  Both are essentially information that consists of a set of instructions for guiding the system.  Both respond to their environments and evolve to address new environmental challenges.  Both have problems when there are internal conflicts.  In fact, both are similar to a genome in sharing these characteristics. 
            Windows and Mac are the two best known operating systems for personal computers and Civil Law and Common Law are the principle legal systems in use in the West.  Both work in complex societies and, like Windows and Mac, both have factions claiming one is better than the other.
            Except for this brief introduction, this site will deal entirely with issues in the common law system.
            Common law is better.

            The two major legal systems in the West are Civil Law and common law.

            Civil Law is the system of law used in Europe, Scotland, Latin America, and the Province of Quebec in Canada and the State of Louisiana in the United States.  Both Quebec and Louisiana were once French possessions so they acquired the Civil Law system of France.

            Common Law is the system of law in England, the United States, Australia, and many former colonies of Great Britain, including India with some modifications.



            Civil Law is a tradition of law that arguably begins with the Twelve Tables of Rome in about 450 B.C. that expressed and codified existing law and subsequently went through additional codifications, most notably that of the emperor Theodosius in 429 BC and finally the great and complex work of codification begun in 529 AD during the rule of Justinian.

            It is Justinian’s Code, now known as the Corpus Juris Civilis, that still forms the backbone of the legal systems of Europe and Latin America.

            Civil Law is sometimes described as ‘written reason’ and consists of laws or codes expressly adopted and updated by the legislative authority.  Roughly speaking, the law is in those codes or it isn’t anywhere.

            Role of Civil Law Judges

            An important point to be made for this course is that the role of the judges in a civil law system is to determine the facts of the case and then apply the relevant part of the legal to code to those facts.  Judicial interpretation of the code is somewhat restricted because interpretation can drift into legislation and that is a role reserved for the legislating authority.

            In the United States one sometimes hears people complain that the role of American judges is just to hear the facts and apply the existing law instead of making laws up as it suits them.  That nicely describes a Civil Law legal system, but things are quite different in common law jurisdictions.  In a common law system judges do make law.

            COMMON LAW


            Some understanding of the common law is particularly important to physicians because many of the legal principles governing the medical profession have evolved in the common law system.

            The common law originated in England and originally may have been nothing more than the law under the king’s authority that applied to everyone, that is that part of the law that was common to all.  Some laws that were not part of the shared law applied to very local conditions such as a manor or a hundred [a 'hundred' was a legal jurisdiction consisting of one hundred 'hides'.  A 'hide' was a parcel of land sufficient to support one family.]

            If ever that was sufficient to define common law, it did not last long.  Hogue says that “The greater a man’s knowledge of the law, the more hesitant he will be in answering the question:  What is the common law?”  [Hogue, Arthur, Origins of Common Law].

            It is not even clear when common law began.  In his History of England, David Hume states that Alfred the Great (849 – 899) founded the common law, others tend to look to Henry II (1133 – 1189) for the origins of the mature common law.

            Whatever the origin, common law is judge-made law.

            Basically, common law is the law customarily applied by the courts.

            Common law is sometimes called lex non scripta, or unwritten law, but that is not precisely true.  The law established by judicial decisions is often found in the written opinions of courts.  When a number of court opinions hold (decide) that a valid contract must have consideration (an exchange of value), a common law rule is established and future courts will generally follow the same judge-made rule.   In the United States the American Law Institute publishes Restatements of important areas of law by consolidating court decisions into statements of black letter law (law so well established by many court decisions that it is no longer a matter of dispute).  Thus, the  Restatement of Contracts will include a statement that a valid contract must have consideration.

            Still, the assumption is that there is a body of unwritten legal principles that have the force of law.  In theory, common law judges do not so much ‘make’ law as discover it and apply it to the case before them.  Whether they 'discover' law or create it is a question similar to a related question in mathematics.  Do mathematicians 'discover' mathematical principles or create them?  In both law and math the correct answer is probably a mix of discovery and creation.

            We can see the action of both discovering and making law in action in the case of Cantebury v. Spence [Required Reading].  The Canterbury case, of course, addresses an issue on a physician's duty to obtain a patient's informed consent to a procedure versus the physician's right to exercise 'therapeutic privilege; and withhold some information from his patient.

    In its Opinion, the Canterbury court notes that it has no guidance from statutes or codes to help resolve the case.  The court also noted that to the extent that there were precedents from other courts, those courts erroneously tended to support therapeutic privilege.  Without court precedent or statute to assist it, the Canterbury court decided to turn to ‘first principles’.  One of the first principles that the court identified and chose to rely upon was the right of self determination, the right of every competent person to say what will be done with his own body.  Having recognized that right, the court went on to conclude that a person also has the right to be given basic facts about a medical procedure before he consents to it.  Going further up line of inference, the court held that a physician must not withhold material facts from a nervous patient just to keep him from making the ‘wrong decision’.  The patient has the right to make the decision; not the doctor. 

            One can see immediately how this contrasts with a Civil Law system.  In Civil Law countries the judges do not make law, but in Canterbury, the court drew upon a fundamental, but unwritten, principle to express a new rule of law.  The Canterbury decision fashioned new, judge-made law that was an interpretation and extension of a postulated fundamental principle.

            The law customarily applied by common law courts is given strength by the doctrine of stare decisis, or ‘stand on the decision’.  As a rule it means that if a legal issue has been decided before, the court will follow that precedent and use it again.  That gives predictability to the law.

            Thus, another court confronted with a factual situation similar to that in Canterbury will not have to resort to fundamental, unwritten principles because it can ‘stand on the decision’ reached in Canterbury.  It would almost be sufficient for the court to say that ‘this issue was decided in Canterbury and we follow that decision in the matter before us.’

            This is why lawyers in common law legal systems are almost always citing other cases.  It is because those cases are actual law.


            A case decided by the highest tribunal of a state, typically a supreme court, will be a mandatory precedent throughout the entire state and will be followed by all courts in the state.  A case decided by one of the lower courts of appeal in the state will likely be a mandatory precedent in that court’s district but only a persuasive precedent in other districts.  Sometimes different courts of appeal in different parts of a state will reach different conclusions as to how to resolve a legal issue and different parts of a state will have different legal rules.  Usually a conflict like that is an invitation for the supreme court of the state to step in and enter a decision that will bind all state courts.

            The court decisions of one state are not mandatory precedents in other states, but they may be persuasive precedents.  Thus, in reading a court’s opinion it is not unusual for the opinion to refer to decisions on the same issue that have been rendered in other states.  Often, a court will be persuaded by the reasoning given in the opinion in another state’s courts and will formally adopt it as the rule of law in its own state.

            The court decisions in a common law country like the United States may serve as persuasive precedents in other common law countries and the reverse is also true.  Thus, an American court may give consideration to court decisions rendered in Canada, England, Australia, or other common law countries.

            Being able to draw upon the judicial wisdom of other common law countries means that a common law judge has a vast pool of existing law that may help form his opinion in the case before him.

            One can almost distinguish Civil Law and common law by seeing Civil Law as an engineering project in which the model is created in the legislature and then applied to all, while the common law is an active evolutionary process in which the law changes as it mutates on a case-by-case basis.

            Startling as it is for student to learn that common law is judge-made law that is constantly evolving and can draw upon the decisions of cases in other common law countries, it is even more of a shock to learn how old it is.  Much of the common law of Olde England is actual law in modern countries.  Lest there be any doubt, consider these laws that are in the law books:

New York Constitution, Art. I, Sec. 14
Such parts of the common law…as…did for the law of said colony on the 
nineteenth of April, one thousand seven hundred seventy five…shall be and continue 
the law of this state…But all such parts of the common law…as are repugnant to this 
constitution are hereby abrogated.

Florida Statutes 2.01 
The common and statute laws of England which are of a general and not local nature with the exception hereinafter mentioned, down to the 4th of July, 1776, are declared to be of force in this state: provided the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the legislature of this state.

California Civil Code Sec. 22.2
The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.

United States Constitution, Seventh Amendment
In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
     What do these laws about the common law mean?

Basically, what the above provisions mean is that law established before the United States even existed are part of the body of law in the modern United States.
The importance of that body of law can be seen in some of the opinions of the United States Supreme Court when it draws upon the works of Glanville (1188), Bracton (1235) and Blackstone (1766) to elucidate or provide authority for its reasoning.

            Physicians & Common Law

            As a practical matter for physicians, it is very unlikely that the ancient elements of common law will have much visible significance.  However, here are things that a physician needs to know:

            1.  A physician should know that the law passed by the legislature does not define all of a physician’s legal role and responsibilities in a community.  Much of his legal role will have been created in the courts.  That is why knowing rules established by courts can be important.  Notice that the AMA News and, particularly, the AMA Code of Medical Ethics often refer to specific court cases by name.

            2.  A physician should know that even in the absence of a legislative statute and a court precedent, a physician may find himself under obligations imposed by unwritten law that are given force by a court.  That is what happened in Canterbury when the court set a new rule on therapeutic privilege in medical practice.  It also happened in California in the Tarasoff case in which the court first identified a duty for a therapist to warn and then, or reconsideration, protect a third party who is in imminent risk of harm from a patient even if that requires that the therapist ignore his usual obligation to protect patient confidences.

            3.  A physician should know that a court case in another state, or even another country, may be used to establish new, judge-made law in his own state.  Thus, if the courts and legislature of his state have not yet settled the confidentiality issue in a Tarasoff type situation, if the courts get such a case they may draw upon California’s Tarasoff case and make it the law binding all practitioners in his state.

            4.    A physician should know that many legal obligations have been created in the common law (case law) system.  These include 'battery', 'informed consent', 'abandonment', 'right to privacy', 'duty to render care at the level of a reasonably prudent physician' and a good many more.