Elder care law involves the legal practice of protecting the elderly under various issues that they face, particularly in the way in which they are cared for. The legislation that pertains to the elderly and the care that they receive from the government and other private organizations is covered under elder care law, which generally deals with those who are over the age of 65.
The method in which the elderly are cared for, how they are treated by medical insurers, and how they are enforced to enter certain agreements are covered under the legislation of elder care law. Depending on what specific law may have been broken under elder care law, there may be legislation and litigation issues that may arise as a result of a violation of one of these laws, which can carry a civil or criminal punishment to the guilty party.
Any type of care that is specifically geared towards the elderly is known as elder care. There are many levels on which elder care may be carried out, including the following:
- Live-in facilities for elders with special needs
- Live-in facilities for elders requiring constant medical supervision
- Day nurses who visit an elderly person in their own home for a few hours per day
There are many variations in which elderly care may be carried out, depending on the person’s specific needs and their resources. A high level of care for these seniors is ensured through the intensive training that health care workers receive who will be specifically looking after and caring for elders in a variety of settings.
Elder care can also include helping older patients move around, getting groceries, keeping their homes tidy, picking up the mail, paying bills, and other chores and errands that need to be done that the elder patient is physically unable to do on his or her own. Part of this care not only involves physically caring for the person, but also providing some form of companionship for the elderly, which is also an important aspect of elder care.
On more intense and specific levels of elder care, more specific and serious health issues can be targeted. For example, an elder patient who has suffered a stroke, broken hip, memory loss or other specific injury or illness can be cared for to specifically deal with these particular issues that each elder faces. These patients will have specific medications and treatments that will be targeted at alleviating the symptoms of the patient’s illness or disease. These patients will often require assistance in administering prescribed medication, or help with bathing. Anything that improves the quality of life for the patient falls under the umbrella of elder care.
Specific homes and facilities are offered to seniors who may need more full-time medical supervision. These institutions are referred to as assisted living facilities, which are specifically geared towards the elderly. Depending on the patient’s needs and aliments, the specific type of care provided to each elder patient will vary. Some patients simply require some assistance to help improve a sense of independence, while others who are bedridden or seriously injured may require more serious assistance.
Elder Care Law and Legislation
Each state in the US will have its own elder care laws and legislation governing the care of the elderly. Even though some topics related to elder care may be consistent from one state to the next and general in nature, many laws are specific to the particular state. Lawyers who specialize in elder care law must be proficient in both the general elder care laws, as well as the more specific laws pertinent to the state in which they work.
Elder abuse is a common occurrence in the US, in which elders are often the victim of harassment and physical or verbal abuse from their caregivers. Elder care law governs these illegal actions, and enforces punishment upon those who have been proven guilty of elder abuse in health care facilities or in-house care. Seniors who are in particularly compromising physical and mental condition are considerably vulnerable to abuse by others, particularly those who are caring for them for much of their lives.
Elders can also be taken advantage of financially. There have many incidents in the US where elderly individuals were tricked out of their finances by individuals who sought to rob these elderly based on their vulnerable physical and mental state. Elder care law helps to protect the elderly from these types of instances, and enforces legal action against those who are guilty of the crime.
Elderly individuals who require physical and mental care need to be taken care of and protected under the law from those who seek to abuse and take advantage of them. Elder care law works to protect these elders that are much more vulnerable than able-bodies younger people. Regulations set forth under elder care law enforce the fair and adequate treatment of the elderly, as well as bringing justice to those who fall victims to elder abuse under the care of a health care professional or facility.
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Medical malpractice is also referred to as medical negligence, and involves the negligent or irresponsible medical treatment of a doctor, nurse or other medical practitioner that results in injury or death of a patient in their care. The results of such malpractice can also result in economic damage to a patient. The substandard medical care that a health care professional provides to his or her patients must be considered to be in violation of normal medical practices in order to be deemed malpractice.
Some of the more common examples of medical malpractice include the following:
- Failing to properly diagnose a patient with a specific ailment
- Misdiagnosing a disease or condition
- Failing to provide proper treatment for a specific medical condition or illness
- Unnecessary delay in providing treatment for an illness or medical condition
Medical malpractice laws govern the care that medical practitioners provide to their patients, and deal with retribution and consequences that are dealt to those who perform their medical duties at a substandard level, resulting in injury to a patient. It is important to note that each state may have medical malpractice laws that vary significantly.
Factors That Dictate When Malpractice Has Occurred
There are generally three factors that must exist in order to prove that a health care practitioner is guilty of medical malpractice:
- Direct causal link
Liability in the Form of Informed Consent
A health care practitioner may be liable if their inappropriate actions or failure to act results in damages to a patient. Liability describes a form of obligation or responsibility that a medical practitioner has with their patients. Legal liability on the part of a medical professional can involve a medical treatment or procedure that is conducted on a patient without obtaining informed consent from the patient. If a patient does not provide informed consent for their health care practitioner to perform a specific treatment or procedure, which results in some form of physical or economic damage, that medical professional can be held liable for these damages.
Regardless if the procedure is performed properly and with great accuracy, if no prior informed consent was provided by the patient beforehand, medical liability on behalf of the health care practitioner may be present.
An example of this type of informed consent would be a doctor intending on performing a specific type of surgery to address an ailment on a patient. If the doctor does not fully explain the risks associated with the surgery, such as the fact that there is a 50/50 chance of the patient suffering paralysis as a direct result of the procedure, the doctor can be held liable if paralysis does in fact occur as a result of the surgery.
Since the patient did not receive all the pertinent information related to the surgery, he or she was unable to provide accurate informed consent or be able to make an informed decision on whether or not to allow the procedure to be performed. Even if the surgery or procedure is performed perfectly, the doctor can still be liable based on the fact that informed consent was not given based on all the available information that was not provided to the patient.
Injury or other damages must be a direct result of an inappropriate act or absence of a necessary act on the part of the medical professional on the patient in order for medical malpractice to exist. If the patient suffers no harm or damages as a result of the doctor’s conduct or error, the patient will be unable to recover any damages under medical malpractice law.
Damages alone are not enough to bring a medical malpractice charge against a medical practitioner. For example, there are certain inherent risks associated with specific surgeries. If the patient was fully informed of all the risks, gave informed consent prior to the surgery, and the doctor performed the surgery with the highest degree of accuracy, any physical damages suffered as a result of that surgery will most likely not be considered medical malpractice.
Malpractice cases and suits can be challenging and expensive to bring forth. Litigations and cases brought against a doctor or a medical facility or organization require the necessity to seek out legal advice from experts. An attorney who specializes in medical malpractice lawsuits is the best source to obtain legal advice from in these cases, and to help bring forth a malpractice suit should the injured patient decide to go that route. These lawyers have the necessary resources to help develop a patient’s case and take the case to trial to recover any damages suffered as a result of a medical practitioner’s errors and omissions.
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The practice of public health is based on the responsibility of the state to protect its citizens and residents from any potential harm. The state has a moral decree to fulfill its accountability to maintain the health and safety of its residents. Public health deals with the masses at large, rather than taking on an individualistic approach.
A state’s public health efforts involves taking steps and measures to provide the necessary services and interventions needed to maintain the health of the public. Not only does the realm of public health involve dealing with illness and disease that is occurring in a particular group of people, but also to take measures to prevent illness and disease from happening in the first place.
Public health law is a governing body that deals with the legal issues that are raised with the concern of the health and safety of a community. It is the realm of public health law that regulates the legislation and litigation sectors of public health where attempts are made to maintain and improve the health and welfare of a large population, such as residents of a particular city, state or country.
Protecting the Health and Safety of the Public
Public health law helps a governing body operate within moral framework, which generally overrides the benefits of a specific individual with the greater good of the public at large. What may be good for one particular person may not necessarily be what’s best for the surrounding community. It is the greater health benefits for the greatest number of citizens that is the most important aspect of public health law, rather than focusing on an individual.
For example, public health law attempts to demand specific behaviors from its citizens to protect a society as a whole, such as preventing smoking in public areas. Another example involves the requirement that all children be immunized according to the state’s immunization schedule in order to protect all children of the community. It is important to note that public health law varies from one jurisdiction to another. What may be legally required to protect the public in one state may be slightly different than what is required in another.
One of the major areas serviced by public health law is medical legislation aimed at protecting a patient’s rights. There may be times where certain actions may be deemed necessary to take on an infected patient in order to protect the public at large from being vulnerable to illness or disease. This may include actions of quarantine and other actions.
However, there is a fine line between protecting the public at large, and maintaining the integrity of an individual’s rights. For example, although certain actions may be necessary to protect the public health, there exists the obligation of the state to protect the individual as well, and to ensure that no measures are taken that can be considered criminal battery or a breach of civil or human rights.
All fundamental public health tools and administrative measures are governed by public health legislation that justifies interfering with an individual’s rights to protect public health, primarily when there is a threat posed to public health at large.
Medical professionals who deal with and treat patients are also bound by public health law to provide adequate medical service and treatment to their patients. Legal structures put in place to protect the citizens of a community are essential to ensure that medical professionals are performing their jobs to the highest degree. Public health law regulations help to ensure a smoother and more efficient running health care system that benefits the public as a whole.
The government is also responsible for protecting its citizens. Public health law also extends to these components of society to help ensure that certain government bodies are performing their duties properly to maintain public health and safety. Public health law also assists governments in guiding them on maintaining the integrity of a healthy and safe public environment.
Public Health Law as an Expression of Cultural Values
Protecting the health and well-being of the public is a specific role that public health law dictates, but it also plays a role in expressing a culture’s beliefs of what public safety is all about. For example, although in most states it is unlawful to drive without a seatbelt, one of the goals of this law is to display what is an acceptable form of behavior in a particular community. Wearing seatbelts while being transported in a vehicle should not only be done because it is required by law, but also because it is an acceptable behavior that protects and respects the safety of the citizens of a particular state, or other community. Social and cultural norms can be influenced and altered by the implementation of specific laws over time.
While the rights and treatment of an individual are of great importance, there sometimes arises the need to override these individual rights when it comes to protecting the public as a whole. Public health law exists to ensure that the public’s health and safety is held in the highest regard. Public health law also demonstrates the standards which the state expects of its residents when it comes to specific health behaviors. Public health provides the legal framework within which these standards exist.
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Medical law governs both medical care practitioners, as well as patients that are under their care. It helps to protect both the responsibilities and rights of both of these parties. Although there are a wide variety of subjects that are covered under the umbrella of medical law, there are essentially three main categories or branches of medical law:
- Criminal Law
- Medical Negligence
These three branches of medical law help to both protect a medical practitioner if he or she is being accused of breaching medical laws even though they are innocent, and also to help bring legal action against those practitioners who acted unlawfully toward a patient under his or her care.
Under medical confidentiality law, health care practitioners are forbidden to disclose any sensitive or private medical information about a patient in his or her care to other people. Not only is it ethically moral to maintain a level of confidence pertaining to medical information about a patient, but it is also legally required. Doctors and other health care practitioners who reveal medical information about a patient without their consent are in breach of medical law.
There are certain exceptions to this confidentiality law, including the following:
- Getting permission from the patient to divulge the medical information
- Transferring medical records to another medical facility
- Divulging pertinent medical information in order to prevent injury or fatality
There are many branches of confidentiality laws that exist, such as legal confidentiality between a lawyer and their client, and confidentiality between a business owner and its employees. Medical confidentiality is one of the most familiar and well-known type of legal confidentiality that exists under the law. Although some types of legal confidentiality must be established and agreed upon through a binding contract or agreement, medical confidentiality requires no such written agreement. Rather, it is assumed that any information that becomes privy to a doctor or other health care practitioner about a patient will be kept in the strictest confidentiality.
Most health care professionals consider medical confidentiality to be one of the most important aspects of their profession. It is an aspect of their job that most of these professionals hold in the highest regard, and as one of moral and ethical obligation. Facilitating full honesty and openness between a patient and their doctor is essential to help the doctor provide the best care for the patient.
The section of medical law that covers criminal law involves dealing with health care professionals that may be guilty of a criminal act against a patient. For example, doctor’s who perform a medical procedure without a patient’s consent, or against their will, are considered under law to be criminally liable.
The criminal branch of medical law deals with the criminal code, which means that any medical practitioner that has committed a criminal offense in the medical sense can be punished under the law as a criminal. This includes being subject to court proceedings where punishment can include jail time. If a prosecution team can prove beyond a reasonable doubt that a doctor or nurse committed a medical crime against a patient or anyone under their medical care, they can be held liable and punished as a criminal under US law.
Medical negligence is also referred to as medical malpractice, and involves the negligent acts of a doctor or nurse that cause injury or death to a patient under their care. This can also include an omission by the medical practitioner or a medical facility that causes harm to a patient. Patients who are subject to such medical negligence or malpractice have recourse under the law to take legal action against the health care practitioner or medical facility. These types of cases are generally part of the personal injury law branch of medical law.
People who are in need of medical care have the right to be given adequate medical care by a health care professional or a medical facility. When these standards are not met, medical negligence has taken place. This can happen as a result of an error or irresponsible act made by the health care practitioner.
Whether the medical professional displayed incompetent medical skills or poor patient care is the cause of injury or death to the patient, it all still constitutes medical negligence. Anyone who is medically responsible for the care of a patient can be held liable under the law for medical negligence. Medical facilities and hospitals can also be held liable in these situations, and can also be charged under the law.
Medical law is a caveat that encompasses the protection of both patients and medical professionals. Patients are protected under medical law against medical professionals who cause some form of harm, injury or death to a patient, as well as breaching a level of confidentiality. Medical law also protects medical professionals who have acted responsibly when caring for a patient, despite being wrongly accused by a patient for medical malpractice or other breach of the law.
Mental health law involves assessing a person’s mental capacity and competence, and determining whether or not the person can be deemed mentally incompetent or handicapped. Under mental health law, both criminal and civil suits can be covered and addressed. Different states have their own measuring tools and assessment procedures that they use to determine a person’s mental competence and capacity, and which rights are able to be removed from the person if they are classified as mentally incompetent.
Mental Health Law in the Civil Arena
Civilly speaking, mental health law can be used to help establish whether or not an individual is mentally competent enough to engage in a contract that is legally binding. These types of contracts can include:
- Marriage contracts
- Divorce contracts
- Adoption contracts
- Purchase contracts
- Real estate contracts
- Financial contracts
Any type of contract that is used to solidify an action is a contract that mentally incompetent people – under mental health law – can be prohibited from entering into, unless approved by a mental health practitioner or legal guardian of the individual.
Any assets or finances owned by a person who is deemed mentally incompetent is protected under mental health law. Maintaining control over their finances or valuables can be dangerous, therefore a separate person or entity is usually deemed responsible for the valuables and assets of the mentally incapacitated individual. Most of the time these finances and other assets are placed in a trust fund, and a trustee is generally responsible for handling this trust fund. Generally speaking, these assets in the trust funds are to be used to help pay for any type of care or need that the individual requires in order to live a comfortable life. For example, bills can be paid with this trust fund money, or regular allowances can be provided to the individual to cover any expenses.
Mental Health Law in the Criminal Arena
Mental health law is used in criminal cases to help establish if a person that has been charged with a criminal offense is mentally capable to stand trial for the crime. Many people who have committed crimes have been determined to be mentally incompetent, which resulted in the crime being committed. Under mental health law, tests are conducted on the individual to determine if the person in question is capable of understanding the consequences of the crime he or she committed, as well as the role he or she played in the crime.
Mental health law will also help to determine if the person who committed a crime is able to actively participate in his or her defense, and understand the process of court proceedings. Each state will have its own set of rules and methods as to what constitutes a person’s inability to understand court proceedings and the person’s role in the crime.
Mental Health Law in the Psychiatric Commitment Arena
Mental health law can also help to dictate whether a person who is deemed mentally incompetent can be involuntarily committed to a psychiatric institution. A person must be classified as one who poses a danger to themselves and to the public before having their rights stripped away and committing them to a mental health facility.
Certain states have laws that allow an individual to draft up a contract or directive for any future care and actions on the individual should they be deemed mentally incompetent at a future date. For example, a person may draft up an advance directive stating what type of psychiatric facility they’d like to be in, who should care for their estate or trust fund, or how they wish to have their property dispersed.
Mental health law is a caveat that helps to protect both a mentally incompetent person, as well as the public. It is a law that first helps to determine the mental capacity of a person before they are subject to criminal punishment, or enter into a legally binding contract. Mental health law will also protect a mentally incapacitated person’s finances and assets, in situations where others attempt to take advantage of the mentally incompetent individual. Overall, mental health law was put in place to look out for the best interests of both the individual and the society in which he or she lives.