Saturday, February 1, 2014


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.

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