HEALTH LAW 7
Describethe basic elements of a contract?
Avalid contract will normally contain some elements that make itacceptable under any given circumstances. Failure to adhere to theseprovisions will always render such a contract null and void.According to the conventional legal practice, a contract has tocontain the following basic five elements for it to be valid.
Objectivityof coming up with a legal deal
Itis often assumed that in any transaction be it commercial orotherwise, the parties that enter into a contract must be committedin their plan to come up with a legal agreement. What such a clausemeans is that one of the involved parties must be in a position tosue to its counterpart in case they do not honor their part of thebargain. This basic element also ensures that none of the partiesbacks out of the contract since they may face legal proceedings inthe future (Blum, 2007). However, such a provision can be scrapped ifand when the contracting parties are not willing to enter into alegally binding contract.
Anoffer refers to the willingness and ability to do something if onlythe contracting parties enter into an agreement. For instance, if acompany tells it client that it will sell him 20 computers at theprice of $ 13,000, the company is in essence making an offer that caneither be accepted or rejected. In a contract, one of the partiesmust be willing to take the offer if they are willing to enter into acontract. If there is no restriction in terms of time, the offer willstill be valid for some significant time before the party that makesthe offer withdraws from the deal or revokes the offer. In order toprevent any future disputes, the party making the offer needs to puta time limit within which the offer can either be rejected oraccepted. Failure to which, they have the right to withdraw from thecontract without any explanation.
Acontract is not contracted before there are one who gives the offerand one which accepts it. The person who accepts the offer (offeree)can do so either in writing or orally. But in case there is aprovision in the contract that allows for the simultaneous actionsincluding acceptance and conduct, there is no need for writing ororal communication. For instance, when a supplier is given a check,he, or she may deliver the goods without even notification eitherorally or in written form.
Consideration(benefits and detriments)
Whenentering into a contract, the parties have to make a consideration.In essence, a consideration means that one party makes a promisewhich benefits the other party. The value of such a consideration canbe determined in terms of economic value. Examples of considerationin any given contract will normally include goods, services, and tosome extent even money. In most cases, considerations do not need tobe adequate. This provision has various ramifications. For instance,if either of the parties is contracted to sell some products orservices at certain value that may be less than the prevailing marketprice, the other party cannot sue him or her for the shortfall.
Thisis a provision that specifies the people who are allowed to enterinto a contract. For instance, the law does not allow minors,children below the age of eighteen to enter into any contract. Inaddition, the law does not allow persons with mental disability totake part in a contractual agreement. As such, any persons who enterinto a contract and are not of sound mind cannot present such in anylegal avenue. A contract entered by such persons is considered nulland void under the law.
2.Explain one way in which the Standard of Care is determined inprofessional malpractice cases?
Amalpractice lacks professional intervention even though there is ahigh possibility of harm to either the client or the patient. In mostcases, it would only take the service of a medical expert to provethat there has been the practice in any given situation. However,when there is clear evidence of intentional harm in a given medicalcase, such medical testimony is not even required. The law alsoallows the defendant to produce his or her testimonial expert to cometo his or her rescue by countering the allegations which have beenraised by the plaintiff (Pozgar, 2004). Some of the professionals whocan take part in legal suits pertaining to malpractice include realestate brokers, engineers, architects, accountants, hospitalattendants, dentist, physicians, as well as lawyers.
Thereis a legal provision in some countries that require the plaintiff togive the medical caregiver an opportunity to settle the issue beforefiling of any legal suit against it. In legal suits against theattorney, it is the duty of the plaintiff to provide evidence thatthere were damages caused. This would then mean that if the attorneyhad handled the lawsuit appropriately, then, the plaintiff would havewon the case or received better compensation. As such, there is alegal requirement to prove the initial case within the current caseduring the proceeding for the claim of malpractice.
3.What is a Clear and Convincing Evidence and what case establishedthis standard
Clearand convincing are terms used in legal proceeding meaning that thepresented evidence must be of the high standard. The evidence mustpossess some element of truth and must be void of fallacies. Inaddition, the presenter of a given fact needs to convince the jurybeyond any reason doubt that he or she is making a factual claim.Another phrase for the above standard is "clear, convincing andsatisfactory evidence" (Fletcher, 1998). This standard is usedwhen there is a clear clash of interests between civil liberties andpersonal remedial compensations. It can also find application in someof the criminal cases. The standard is also a burden of proof whichis applied in civil cases that require the establishment of certainelements. Examples of cases where such a standard can be appliedinclude fraud claims, inheritance and wills claims, and claimsrelated to family issues.
4.What does it mean to be employed "At Will", explain fully?
Itis a doctrine contained in contract law. It means that an employeehas the freedom to leave his or her job any time he or she feels likeand an employer can terminate him or her any time regardless of anyreasons. The fact that it is a contract law it can be amended at anytime by the two parties upon agreement. However, in case it issilent, the employer can sack his or her employee withoutnotification.
Employmentat-will also states that an employer may decide to terminate anemployee at any given time for any proper or no genuine reason exceptan illegal one and may not incur any legal liability. On the otherhand, an employee may decide to terminate a job at any given timewith a good or no good reason. The employer can decide change theterms of employment without giving a notice and will not incur anyconsequences. Any employer may decide to alter the salaries, reducepaid off time and also terminate benefits at will.
5.Describe at least two rights protected by patient`s rights law orregulation
Ina significant number of states, patients have the right to inspecttheir medical records.
Suchinformation my help the patient to Decide on crucial issues such ashis or health plans, as well as his choice of a physician. It is notappropriate for the medical records to be full of criticalstatements, especially on character traits (Wellman, 2005). Negativestatements in the medical records may make some members of the healthcare to avoid giving the patient access to the file for fear of theirreaction. A patient has got all the right to be informed of anyaction which is to be carried including his or her transfer toanother facility. This helps the patient to determine whether themedical care is of high or low quality and therefore decideaccordingly.
Anypatient has a right on whom to access his/her health informationsince there are set privacy rule and these rules that protects theprivacy of the patient identifiable information. These rules areapplicable to all individuals’ protected health information whetherwriter, electronic or oral.
Allpatients have a guarantee to attain a copy of any your medicaldetails and also have the prerogative to keep them in private. When apatient requires some treatment, the healthcare provider is requiredto give the information need by the patient inorder to make adecision whether to be treated or not. It’s a right to all patientsto get any bit of information regarding his/her health.
Blum,B. A. (2007). Contracts:Examples & explanations.Austin: Wolters Kluwer Law & Business.
Cross,F. B., Miller, R. L. R., & Cross, F. B. (2009). Thelegal environment of business: Text and cases : ethical, regulatory,global, and e-commerce issues.Mason, OH: South-Western Cengage Learning.
Fletcher,G. P. (1998). BasicConcepts of Criminal Law.New York: Oxford University Press.
Pozgar,G. D. (2004). Legalaspects of health care administration.Sudbury, Mass: Jones and Bartlett Publishers.
Wellman,C. (2005). Medicallaw and moral rights.Dordrecht, The Netherlands: Springer.