As per the Section 601 of the California Business and Professional Code, the following laws apply:-
“…Every person who willfully writes, composes or publishes any notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or who offers his services by any notice, advertisement, or otherwise, to assist in the accomplishment of any such purpose is guilty of a felony and shall be punished as provided in the Penal Code…” (California Code – Section 601)
According to Section 601, any person who aids or conducts an illegal miscarriage or abortion or advertises for the same is guilty of felony and would be punished as per the Penal code, whether for a minor woman or a woman.
Even Section 2253 of the California Business and Professional Code would apply if they do not meet the details mentioned under the Reproductive Privacy Act. The Code says that
“… (a) Failure to comply with the Reproductive Privacy Act (Article 2.5 (commencing with Section 123460) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code) in performing, assisting, procuring or aiding, abetting, attempting, agreeing, or offering to procure an illegal abortion constitutes unprofessional conduct.
(b) (1) A person is subject to Sections 2052 and 2053 if he or she performs or assists in performing a surgical abortion, and at the time of so doing, does not have a valid, unrevoked, and unsuspended license to practice as a physician and surgeon as provided in this chapter, or if he or she assists in performing a surgical abortion and does not have a valid, unrevoked, and unsuspended license or certificate obtained in accordance with some other provision of law that authorizes him or her to perform the functions necessary to assist in performing a surgical abortion.
(2) A person is subject to Sections 2052 and 2053 if he or she performs or assists in performing a non-surgical abortion, and at the time of so doing, does not have a valid, unrevoked, and unsuspended license to practice as a physician and surgeon as provided in this chapter, or does not have a valid, unrevoked, and unsuspended license or certificate obtained in accordance with some other provision of law that authorizes him or her to perform or assist in performing the functions necessary for a non-surgical abortion.
(c) For purposes of this section, “non-surgical abortion” includes termination of pregnancy through the use of pharmacological agents…” (California Code – Find Law, 2010).
It would be an offence to aid, assist, or perform an illegal abortion under the Reproductive Privacy Act. Any person who does not have a license and performs an abortion would be considered as illegal under the Act.
Thus it can be seen that Dr. Williams has no license as he has graduated from a foreign medical school and besides has not registered with the licensing authorities in the US. Further he has committed a medical error and can be held for Negligence under the California laws.
Indicate how long he has to respond (file an Answer) to the lawsuit;
Once the plaintiff files a case before the court, the attorney would study the complaint and send a notice to the opposing party of defendant in the form of a summons. The defendant can put his Motion of Strike forth by accepting the fact of the case or by opposing the same. A response has to be filed by the defendant to the court within a period of two months after receiving the summons. If the defendant does not file the motion within a period of two months, then the court would make a decision without involving the defendant. The attorney in some cases may request the plaintiff to modify the complaint and re-file the same again (Kinsley Law, 2007).
Discuss whether Joan’s attorney has to give advance notice of her lawsuit? If so, how many days?
The Attorney had to give sufficient notice to the defendant to begin the lawsuit. This would be to ensure the defendant is fully prepared and comes to the court with proper evidence in the form of documentary or witnesses. In actual sense, the attorney would give the defendant a period of 2 months to respond to the summons. Once this response is completed, 2 to 3 weeks has to be given to initiate the trial period in the court (Kinsley Law, 2007).
Explain a subpoena and what discuss your obligations in responding to the subpoena;
All witnesses of a particular case are given subpoenas to ensure that they are obligated to come to the court and give the facts of the case before the court along with documentary evidence and all other forms of evidence. It is usually provided in a prescribed format to the witnesses after affixing the proper stamps (Judicial Council of California, 2007). The court may provide certain allowances for travel and stay to the witnesses and the witness can ensure that he/she is assured of receiving the same from the court. However, any contract that the individual would be entering with another for receiving such allowances would be deemed as illegal by the court.
The subpoena should be respected by the witnesses and attend the hearings of the case as mentioned. Commonly, subpoena is issued to witnesses, lawyers, bank employers, employees, etc. In certain situations, there is a need for the witnesses to keep some issues confidential. This confidentiality has to be ensured by the lawyers of the particular case (Massachusetts Rules of Professional Conduct, Rule 1.1.6).
3. Discuss whether there has been a violation of the Health Insurance Portability and Accountability Act (HIPAA)?
The Attorney General of the case is looking to access the medical records of the patients that have undergone abortion at Dr. Williams’s clinic, as he thinks that the same could hold a clue to the felonies against the patients. Some of the cases reported from the clinic include criminal cases of child abuse and illegal abortions against women and children. The subpoenas should contain details such as name, age, addresses, sexual history, medical history, medical record details, etc, of the women to determine if any late abortions have been performed illegally.
Any issue that needs to be responded in the subpoena is the question of whether any minor girl has been raped and was required to perform abortion or deliver a birth. Usually, the clinic has to report such cases to the authorities to ensure that proper action has been taken against the culprit. Any women that is below the age of 16 and becomes pregnant is considered to be impregnated by an adult man or raped. All these cases need to be investigated. The medical records can be subpoenaed by the court, and as such names, addressed and other patient identifiers would not be revealed. All subpoenas are broad in application and in case they are limited, they would be considered a violation of privacy (Klepper, 2005).
Crime Victim Law (2008). What is a Civil Lawsuit? Retrieved on July 15, 2010, from Crime Victim Law Web site: http://www.crimevictimlaw.com/civil/claw.html
Find Law (2008). California Code – California Business and Professions Code, Retrieved on July 15, 2010, from Find Law Web site: http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=ccp&codebody=&hits=20
Kingsey Law – General Procedural Outline, Retrieved on July 15, 2010, from Kingsey Law Web site: http://www.kinseylaw.com/clientserv2/civillitigationserv/realestate/realestateindex.html
Klepper, D. (2005). “Medical clinic records sought.” Knight Ridder Tribune Business News. http://proquest.umi.com/pqdweb?index=0&did=894144691&SrchMode=1&sid=8&Fmt=3&VInst=PROD&VType=PQD&RQT=309&VName=PQD&TS=1184279280&clientId=29440&cfc=1
State of California Civil Court (2008). Civil Subpoena Form, Retrieved on July 15, 2010, from State of California Civil Court Web site: http://www.courtinfo.ca.gov/forms/documents/subp001.pdf