Law and Legal process Essay

Dr. Williams is a new graduate from an overseas medical school. He has passed all applicable licensing exams and requirements allowing him to legally practice medicine. Because he graduated from a medical school outside of the U. S. he experienced a hard time finding a full-time permanent position. Dr. Williams knows that his classmate and friend, operates a medical clinic in another state. The clinic provides abortion services and is very profitable. Dr. Williams decides to open a similar clinic.

One of Dr.Williams’ patients, Joan, suffers injuries as a result of an error by Dr. Williams. This was witnessed by an assistant (YOU) who no longer works with Dr. Williams. Anticipating a lawsuit, Dr. Williams shows Joan’s medical records to a friend for advice. His friend tells Dr. Williams to contact his medical malpractice insurance carrier. Joan decides to sue Dr. Williams. Joan’s attorney files a complaint with the superior court and a summons issues. A week later, Dr. Williams is served with papers by the Marshal’s office.

Soon thereafter you receive a subpoena to appear and testify. Assignment expectations: 1. Prepare and submit a 3 page paper The California Business and Professional Code Section 601, if any individual put up an advertisement or a series of advertisements for providing drugs, assistance, surgery or other procedures concerning abortion, then the same act can be considered as a Felony and would be subjected to the course of law, under the Penal Code (Section 601 BPC – http://www. leginfo. ca. gov/cgi-bin/calawquery? codesection=bpc&codebody=&hits=20 ).

Under section 2253 of the BPC, any individual who does not meet with the provisions of the Reproductive Privacy Act or the Health and Safety Code, in providing illegal abortions or aiding, procuring, assisting or attempting the same, such an act would be illegal and against the professional conduct. If a person does not have a valid or an unsuspended license at the time of performance of at the surgical abortion or aiding in the same, then such an act would violate sections 2052 and 2053 of the California BPC code. Dr.

Williams has to have an unsuspended, valid and an unrevoked license to ensure that all abortions conducted by him are legal and valid. Section 2052 and 2053 would also be applicable in the cases of non-surgical abortions especially the utilization of pharmaceutical agents and drugs in terminating the pregnancy (Section 2052/53 – http://www. leginfo. ca. gov/cgi-bin/displaycode? section=bpc&group=02001-03000&file=2050-2079). Dr. Williams has a proper license and cannot advertise especially for the provision of abortion services.

However, he may have exercised some amount of negligence in handling the Ms. Joan case. Dr Williams was expected to exercise certain duty of care during the treatment of a patient, to a reasonable extent. However, Dr. Williams has not exercised the same, due to which, the patient suffers damages which can be determined in terms of money. The patient can file a suit to claim these damages which may include emotional and physical damages, including for nominal damages and exemplary damages.

Nominal damages are actually meant to compensate the patient for the injury and the losses suffered, whereas the exemplary damages are meant to punish the healthcare provider for willfully or rashly negligent acts, so as to prevent any future repetitions (Francis X Dorrity Law offices, 2010). 2. Assuming Dr. Williams is in California and California statutes apply. • Indicate how long he has to respond (file an Answer) to the lawsuit; Once the plaintiff files the lawsuit, the case has to be made known to the opposing party, also known as the defendant, of determining the damage to permit the response for the damages suffered by the defendant.

Usually, the plaintiff would have to pay for the litigation fees, and once the defendant is held liable, then these costs are recovered from the damages amount that would go to the defendant. Once the plaintiff files the case, a notice is sent to the defendant providing specifications and issues of the case and requesting a response within a 60 day or 2 month period. The response of the defendant is known as “Demurer” and can either be acceptance of the plaintiff’s claims or challenges to the claims. This would have to be done within a 2 month period (Kinsley Law 2009).

• Discuss whether Joan’s attorney has to give advance notice of her lawsuit? If so, how many days? ; The actual period of initiating the case against Dr Williams has to be three months. This includes time periods for several processes including:- 1. Sending the summons report to the defendant 2. Response time of the defendant to the claims of the plaintiff (maximum of 2 months) 3. Trial period taking about 2-3 weeks (Find Law, 2010) • Explain a subpoena and what discuss your obligations in responding to the subpoena;

A subpoena is an order issued by the court that demands that the witnesses of the court be present for the case to present the facts of the case and also provide documentary evidence and hence, the witnesses have to bring these documentary evidences along with them. Any individual who is a witness of the case or a potential witness of the case can be issued a subpoena, if there is evidence that the witness is not likely to attend the case, or will not provide relevant documents for the case. Typically, a subpoena form would consist of:- • Name of the witness • Address of the witness

• Telephone number and other contact details • Witness fee that the witness may be entitled to which includes travel allowance, compensation for loss of employment • Documents that should be produced • Declaration • Other details • Appropriate revenue stamps affixed Individual, who is provided the subpoena by the court, can ask the court for an assurance that the costs would be met before actually ensuring that he/she visits the court during the case. However, the people who get the subpoena has to enter into an agreement with the court and not with the individual parties are there are chances of providing tempered evidences.

Often lawyers, financial experts, bank officials, etc, are also presented with subpoena. There may be a need to exercise confidentiality of information in case the owner demands for the same (Judicial Council of California, 2010). 3. Discuss whether there has been a violation of the Health Insurance Portability and Accountability Act (HIPAA)? Under the HIPPA Privacy and Security Rule, certain standards need to exist for protecting the health information of the patient and ensure that the same is held and transferred safety in an electronic format.

Under the security rule, there are certain technical, administrative and non-technical safeguards that apply to the healthcare provider, health plan or the clearinghouse. All the patient information in electronic format is protected under HIPAA, ensuring confidentiality during receiving, storing, maintenance and transfer. The patient has the right of all health information, and if the doctor wishes to disclose the same to other parties including other doctors, specific consent need to be taken. However, Dr.

Williams has failed to do so and hence it would be a violation under HIPAA for Breach of confidentiality (US HHS, 2010). References Centers for Medicare and Medicaid Services (2003). Home Page. Retrieved on May 27, 2010 from http://cms. hhs. gov/default. asp? fromhcfadotgov=true. Cornell School of Law, Legal Information Institute (2000). State Statutes on the Internet. Retrieved on May 27, 2010, from http://www. leginfo. ca. gov/cgi-bin/calawquery? codesection=bpc&codebody=&hits=20 Dorrity, F. (2010). Damages in Medical Malpractice Cases. Retrieved on Retrieved on May 27, 2010, from http://www.

lawyers4justice. com/CM/FSDP/PracticeCenter/Personal-Injury/Medical-Malpractice. asp? focus=topic&id=4 Judicial Council of California (2010). Subpoena a Witness. Retrieved on Retrieved on May 27, 2010, from http://www. courtinfo. ca. gov/selfhelp/smallclaims/subpoena. htm United States Department of Health and Human Services (2003). Home Page. Retrieved on Retrieved on May 27, 2010, from http://www. os. dhhs. gov/. United States Department of Health and Human Services (2009). Summary of the HIPAA Security Rule. Retrieved on May 27, 2010, from http://www. hhs. gov/ocr/privacy/index. html