Healthcare Law

Healthcare Law














Healthcare Law


The term “Partial-birth” abortion is a term that is a non-existent in the medical profession. This term was brought about by anti-choice movements in the United States as a means of ensuring that later term abortions were banned by the government. There were controversies over the definition of “Partial-birth” with a number of courts in various states terming the definition of partial birth abortions as vague because it could apply to a number of procedures such as the second trimester procedures such as dilation and evacuation (D&E) (Torr, 2006).

It is assumed that “Partial-birth” abortion has been termed as a reference to “intact dilation and extraction (D&X) procedure” (Torr, 2006). This rare procedure is reserved for third trimester and late second term abortions. The intact dilation and extraction (D&X) procedure is primarily designed for use in dying and malformed fetuses or in the event that the pregnancy is risks or threat to the mother’s life or health. This procedure involves the removal of the fetus from the womb, after collapsing of the head, which has been rendered as initially large to pass through the uterus.

The Partial Birth Abortion Act is based on the premise and insistence that the movement of the fetus through the vagina is exterior to the woman’s body, which renders it unborn. This definition has inferred that women’s vaginas are exterior organs thus rendering the fetus as “unborn” (Torr, 2006). This is a common standard in anti-abortion imagery. Some term this as a clear omission of the law as it provides a basis for committing murder of children given that they are partially delivered. More than 31 states since the year 1995 have banned partially birth abortions given the presence of issues related to this practice (Torr, 2006).

The banning of Partial Birth Abortions has been based in two classic arguments. First it is argued that the statutes present are vague and secondly because it is unconstitutional to undertake imposition of a health burden on women in terms of their respective abilities to obtain abortions. The federal government in a variety of cases held that a woman has the right in selection of the appropriate strategies to terminate a pregnancy. This is appropriate in incidences whereby the mother is at risk of death or ill health because of continued pregnancy (Torr, 2006).

Case 1


James JOHNSON, Plaintiff-Respondent, Vs. MISERICORDIA COMMUNITY HOSPITAL and Employers Mutual Liability Insurance Company of Wisconsin, Defendants-Appellants Petitioners.

No. 79-696.

Argued Nov. 24, 198-Decided Jan. 6, 1981


Dr. Salinsky started working for the defendant after he had successfully falsified a variety of statements within his applications to gain privileges. The false information provided was not unearthed by the various review processes for the applications, which resulted in the subsequent hiring and election to chief of staff at the hospital. The plaintiff was subjected to surgery for removal of a pin fragment that was dislodged in his hip (United States, 1981). In then process of the surgery, an artery that severed which resulted in partial paralysis of the plaintiff’s leg. The plaintiff settled with the doctor. The jury apportioned 80% of the blame on the defendant for the liability as a result of findings of corporate negligence.

Statement of the Issue(s)

  1. It is questioned as to whether the records held by other healthcare facilities; statements by other physicians in regard to the application made by Dr. Salinsky to other institutions and their rejection of his privileges were inaccurately admitted?
  2. Whether the testimonies over Dr. Salinsky’s incompetence made by other doctors were inaccurately admitted?
  3. Whether expert testimonies should have been used to prove Dr. Salinsky’s incompetence?

Main issues raised based on the provided questions include:

  1. Tort of negligence
  2. Failure to adhere to duty of due care towards the patient
  • Professional malpractice
  1. Failure in due care towards selection and prevention privileges

Rule of Law

Negligence refers to “The duty of any person is the obligation of due care to refrain from any act which will cause fore-seeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the act” (United States, 1981).


The jury held that the hospital was negligent in its conduct in terms of granting the orthopedic privileges to Dr. Salinsky. It apportioned 80% of the costs to the institution. The Damages accrued amounted to $315,000 in terms of past and future injuries on the patient, and a sum of $90,000 for past and future personal impairment of individual earning capacity. The court held that   “a hospital is under a duty to exercise reasonable care to permit only competent medical doctors the privilege of using their facilities” as the judgment delivered by the Supreme Court Justice Coffey (United States, 1981). It is noted that the trial court noted that reasonable care amounts to a “degree of care, skill and judgment usually exercised under like or similar circumstances by the average hospital“ was proper; and evidence supported finding that, exercising ordinary care, the hospital would not have appointed the physician to its medical staff” (United States, 1981). The statements raised were not termed as hearsay given that they could have been used by the defendant prior to the hiring of Dr. Salinsky for the surgical privileges.


The facts availed indicate that the hospital, on a minimum, should demand the completion of applications and verify all statements made by applications in regard to medical education, skills, training, and experience. The hospital failed in scrutiny of the credentials of the medical staff applicants in manner that was deemed as adequate which resulted in appointment of unqualified surgeons and physicians into its staff.


There is adequate evidence that there was adherence to proper evaluation of Dr. Salinky’s professional skills and competencies. However, the inadequacies arose from the failure to evaluate and investigate the authenticity of the statements that were made by Salinsky (Wecht, C. 2009). Furthermore, the defendant failed to attempt towards subpoena of the individuals in the statements, as well as failure in attempting to disprove the facts that were provided in the reports. Additionally, the evidence of the lack of skills should not be likened to the improper introduction of evidence of character as a means of illustrating the propensity of an individual to engage in an illegal or unprofessional act. Such evidence fails to implicate the Federal Rule of Evidence (”F.R.E”) Rule 404(b).

Other Opinions

Evidence in this case was properly admitted to illustrate the presence of adequate knowledge availed to the hospital before its approval of surgical privileges for the physician in question, Dr Salinsky (O’Reilly, et al., 2011).

Final Thoughts

As a result, this culminated in a breach of duty in terms of failure to conduct adequate investigations over the competency of the physicians. Furthermore, there is evidence of actual incompetence, which does not necessitate the need for expert opinion.

Case 2


National Federation Of Independent Business V. Sebelius, Secretary Of Health And Human Services Et al.

648 F. 3d 1235, affirmed in part and reversed in part.

Certiorari to the United States court of appeals for the eleventh circuit

No. 11–393.

Argued March 26, 27, 28, 2012—Decided June 28, 2012

Delivery of opinion was undertaken by Chief Justice Roberts in respect to Parts I, II, and III.

The two primary provisions in this case were Medicaid expansion and individual mandate.


In the year 201, the United States congress enacted the United States Patient Protection and Affordable Care Act with the primary aim of increasing the number of Americans who were covered under the various healthcare insurance plans and in the process reducing the overall costs of healthcare.

The first key provision within the legislation was individual mandate that demanded that a majority of the American citizens to ensure that they maintained “minimum essential” health insurance (United States, 2012). Additionally, individuals who are not exempted and do not receive health insurance overage from governmental programs or their employers, the means of meeting of such requirements can be achieved thorough purchase of insurance from a private entity. At the start of the year 2014, individuals who failed to comply with the mandate were tasked with making a “shared responsibility payment” towards the Federal Government  (United States, 2012). The Act also noted that the “penalty” was to be forwarded to the Internal Revenue Service together with the taxes of an individual and to be “assessed and collected in the same manner” as the tax penalties due to the federal agency (United States, 2012).

The second key provision of this Act was the Medicaid Expansion. The existing Medicaid Program provides extensive federal funding to all states in the country a assistance to expectant women, needy families, children, the elderly, individuals with disabilities. The Affordable Care Act extended the scope of Medicaid and increased the number of parties to be covered in the States.

Statement of the Issue

Does the individual mandate that is dully provided in the Affordable Care Act that demands individuals to undertake purchase of private health insurance from a private entity of choice providing a minimum coverage violate the American constitution?

Rule of Law

The individual Mandate Section provided within the Affordable Care Act, requires individuals purchase health insurance policies that provides the minimal level of coverage from a private entity, which means that it is a tax and does not violate the constitution  (United States, 2012).


Chief Justice Roberts held that the individual mandate section provided within the Affordable Care Act is a tax, which does not violate the constitution. He added that the court does not undertake any consideration of sound policies within the Act; rather such judgment is a responsibility of elected government officials. He notes that the case is concerned with only two powers granted by the constitution to the Federal Government (defendant), which should be accurately noted so as not to create a parallel authority that is similar to police power. Congress is provided with authority by the Constitution to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” (United States, 2012).

This provides a precedent that congress has the ability to regulate “channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce” (United States, 2012). The power is extensive over other activities, which have the propensity of affecting interstate commerce. Furthermore, it is noted that the Congress has the ability to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.”  This means that Congress can impose taxes and spend on welfare. This provides the defendant with considerable authority and influence in areas, which it can or cannot directly regulate (United States, 2012).

The judgment also noted that it is impossible to extend respect for policy judgments of congress, which may give rise to disregard the restraints, imposed on federal powers as provided in the constitution. The Court’s responsibility is to ensure enforcement of limits on federal power by elimination of acts of Congress, which may violate such limits of power and authority. The Federal government provided that individual mandate is a legitimate exercise of power held by the Congress as provided by the Commerce and Necessary and Proper Clauses (United States, 2012). Thus, the Federal Government (Defendant) does not possess power to force people to purchase health insurance. The Federal Government (Defendant) does not have the power to impose taxes on individuals who do not do so. Thus, the Act is deemed as constitution given that it is reasonably read and understood as a tax (United States, 2012).

“The decision of the Eleventh Circuit is affirmed in part and reversed in part” (United States, 2012).

Majority’s opinion (5-4)


Majority’s opinion (5-4) illustrates that the “individual mandate” section provided in the Affordable Care Act is unconstitutional as per theories relative to the Commerce, Necessary, and Proper Clauses  (United States, 2012).

Other Opinions

The provision can be termed as a proper tax that provides the Federal government with a means of assessment of financial burdens in failing to engage in the purchase of health insurance  (United States, 2012).

Final Thoughts

The dissenting opinions are evidently invalid and are impossible to separate from the rest of the Act, which results in its total failure (United States, 2012).





O’Reilly, J. T., Sobotka, J., Hagan, P., & American Bar Association. (2011). A practitioner’s guide to hospital liability. Chicago: Tort Trial and Insurance Practice Section, American Bar Association.

Pozgar, G. D., (2013). Legal and ethical essentials of health administration. Burlington, Mass: Jones & Bartlett Learning

Torr, J. D. (2006). Abortion: Opposing viewpoints. Farmington Hills, MI: Greenhaven Press.

Wecht, C. H. (2009). Preparing and winning medical negligence cases. Huntington, N.Y: Juris Pub.

United States. (2012). National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al: Certiorari to the United States Court of Appeals for the Eleventh Circuit: syllabus. Washington, D.C.: United States Supreme Court.

United States. (1981). James JOHNSON, Plaintiff-Respondent, Vs. MISERICORDIA COMMUNITY HOSPITAL and Employers Mutual Liability Insurance Company of Wisconsin, Defendants-Appellants Petitioners. Washington, D.C.: United States Supreme Court.





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