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Health Law
Rutgers University, Camden School of Law
Rosenblatt, Rand E.

HEALTH LAW – Prof. Rosenblatt

Fall 2012

Models of Health Care:

– Professional Authority (1880-1960)- the medical profession had the power to make the medical decisions and set the standard as to who would get care and pay, etc

o Doctors decide

– Egalitarian Social Contract (1960-1980)- courts said that doctors do not have the only say. Patients and society at large also have legitimate interests. Goal is not to empower the doctors but to reach a fair resolution between the competing interests.

o Market view but modified- market is good, but creates moral dilemma, and may need mandatory charity

– Market Competition (1980-Current)- Point of the law is to treat the health care system as a market commodity. Health care is a commodity and the quality may depend on the price. This system wants there to be a differentiation based on your ability to pay.

o Markets are good

Professional Authority


Egalitarian Social K


Market Competition

1980s – present

· rise of modern scientific hospital

· structuring medical educ. along scientific lines

· broadly inclusive heath insurance

· everyone covered at same price

· no way to control costs

· no way to guarantee access

· govt version of social insurance

· patients rights law

· anti-discrimination law

· couldn’t control costs

· couldn’t cover everyone

· couldn’t muster political support

· developed managed care

· costs were contained in 1990s

· reduced patient rights and anti-discrim law

Market/ Affordability/ Need

Uneven Cost Distribution/ Subsidy/ Equity (see curve chart)

Open-Ended Expenditure (in gov there are budgets, but not for Medicare)

Cost-Benefit Quality

Agency Conflict of Interest (relationship between Dr and Patient)

Professional Authority 1980-1960

Doctors Decide

No answer for how to deal with costs- up to doctors

Professional self-regulation

Professionally committed to patient’s best interest, self interest

Egalitarian Social Contract 1960-1980

Market modified

Social Insurance (Medicare)

Use government regulation

Informed consent plus regulation


Market Competition 1980-Current

Markets are Good

For-Profit Insurance

Market Competition

Need Informed Consumers


Uneven Cost Distribution- cost of care is not evenly distributed (few sick ppl cost the most)

– Market competition- people think this distribution is bad that healthy people subsidize others

– Egalitarian social contract- people think it is good because we are all in this together

– Other Countries/Universal Health coverage-include everyone in the system in one big pool, and then average the costs out

Health Insurance:

– Market Competition- it’s a transaction between rational economic actors who want the best coverage for the price and the company who wants to make a profit

o Fragments the pool b/c they’re only going to want to insure the young and healthy

o For-Profit Insurance- here in US

– Egalitarian Social Contract- As a society we’re trying to give health care to people who need it at a price they and society can afford. Look at it as a big system

o Everyone in the same pool so you’re spreading the costs as widely as possible

o Social Insurance- dominant system across the world

o Ex- Medicare/Medicaid

Open Ended Expenditure

– With Medicare/Medicaid—no budget because you don’t know the price until after the bills come in. Health care has gone from 5% of the GDP to 16% of the GDP and climbing

– How to fix costs?

o Professional Authority Model- no answer for this question. Thinks it should just be up to the doctors

o Egalitarian Social Contract- government regulation

o Market Competition- use market competition among insurance providers and users

Cost Benefit Quality

– Market Comp- thinks there should be informed consumers. We should have advertisements for brain surgery and be able to shop for price and quality. However, it would be difficult b/c of the complex information you would need

– Social Contract- like informed consumers, but also want some regulation

– Professional Auth- professional self-regulation

Agency Conflict of Interest (Relationship of Doctor and Patient)

– Prof Auth- professionally committed to patient’s best interest (Also self interest—financial incentives)

– Social Contract-regulation and prohibition of certain kinds of financial incentives

– Market Competition- transparent markets- more information



A. Introduction

3 Major Themes:

Legal duty of health care providers to furnish any care to persons who seek it.

Intersection of health care and civil rights law

discrimination based on race/national origin

discrimination based on disability

3. Direct Govt intervention—publicly funded health care

Right to Health Care

– no right exists to enter into health care relationship

– no duty of care (supported by PA and MC models)

– Americans generally believe that people who need health care should be able to obtain it on reasonable, non-onerous terms.

Patient Rights (only apply once attain status of patient)

§ right to privacy

§ informed consent

§ right to refuse medical treatment

Barriers to Health Care


o personal characteristics: discrimination

o financial and insurance status

o health care providers’ concerns about patient

Improvements to Barriers:

o Passage of Medicaid

Impact of Govt regulation:

Beneficial intervention: how laws can be modified to ensure critical access to care

ex: post-911—NY opened Medicaid program to anyone w/o coverage

Malevolent intervention: how law can exacerbate access barriers at critical points in life

ex: federal govt’s response to anthrax—policy statements—person w/ anthrax can be sent away from hospital to designated community facility.

· how factors beyond insured status alone can influence access

B. The Common Law: From “No Duty of Care” to Limited Social Responsibility

1. A Brief Overview of the American Common Law

Four Background Ideas (p. 40)

§ Charity- late 19th-20th century

· no legal obligation past charity- they could refuse care and discharge patients on many grounds, including misbehavior

§ Liberty of Contract- Late 19th and early 20th centuries (Lochner era)

· Only interest is commitment to unregulated markets and individual liberty

· Liberty of Contract versus effected with a public interest- a hospital is like an inn, duty of public service

§ Rise of Position Authority- late 19th, early 20th century

· Doctors became much more powerful and wealthy, due to rise of modern science, and this gave them a lot more authority. Judges more likely to defer to doctors b/c of this

§ Racism- late 19th, early 20th century

· Period of racism in the US- segregation, no right to vote, etc

· Refusal of care to minorities

2. Basis of Doctor No Duty Principle—Doctor Patient Relationships

Hurley v. Eddingfield (1901)- p. 19

§ professional and market conceptions—physical autonomy

§ example of how the two models can be mutually reinforcing

§ individual doctor in private practice has no duty to render care in life/death emergency, even when the fee had been tendered

§ Facts: doctor was approached by messenger, who offered doctor a fee for him to go to the patient’s house and care for her, and doctor refused. Patient died

` Reasoning:

i. under K law, party has no duty to accept an offer (function of market liberty)

ii. no acceptance of K, therefore no K and no duty

· Note- Doctor “had been” the patient’s doctor- unclear whether there was an existing relationship or whether he was no longer the doctor anymore

iii. analogies to innkeepers and common carriers doesn’t apply

Public Calling Doctrine

o The public calling doctrine defines various duties that are imposed upon those engaged in specific occupations. Those engaged in public callings were required to charge reasonable prices, to serve without discrimination [i.e. service could only be refused for a legitimate reason], and to exercise their calling with adequate care, skill and honesty. By engaging in the activity, the aforementioned obligations arose. [i.e. innkeepers, common carriers, and those who applied horseshoes/care to horses]

o Not contractual; it doesn’t matter if buyer/seller ever discussed

§ Not based on agreement of parties, but on law

o Attempt by the law to regulate the market

o Example of social contract model: the law doesn’t just impose contracts, it also imposes other values society deems important

ssity for some members of the public]

o The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

o Party invoking exculpation possesses a decisive advantage in bargaining strength

o Whether the signee is placed in control of the negligent party

§ Holding: the hospital-patient contract falls within the category of agreements that affects public interest. [although all categories don’t need to be met, in this case they all are]

§ Even though the hospital is selective about which patients to accept, the selectivity does not negate the public aspect/interest in it.

4. The Evolution of the “No Duty of Care” Principle Under the Common Law

Criticism of “No Duty” Principle: ignores values of interdependence and community

Exceptions of No Duty Principle: began in 1960s re: hospital emergency care. Legal Concepts that modify/limit the no duty doctrine (p. 51)

1. Detrimental Reliance- Where Hosp has long established custom of accepting persons for emergency care and P relies, Hospital has a duty to provide care

§ Ex- someone who comes to an emergency room and relies on the sign and custom, and if you turn them away, then they waste time in getting care—there is a duty

2. Undertaking- anyone who undertakes to provide aid must continue to act with reasonable care

3. Public Function and Public Accommodations- tort law prohibits certain actions [i.e. common carriers, innkeepers, public utilities] from denying services on an arbitrary basis unrelated to the purpose of the enterprise. Public hospitals have an obligation to provide emergency service. Non-profit hospitals that receive public funding through grants, tax exemptions, etc are quasi-public entities or public accommodations and may also have a duty

4. Physicians as a public accommodation and the Patient Protection and Affordable Care Act

5. An Alternative View: The Hospital as a Quasi-Public Organization

Thompson v. Sun City Community Hospital (1984) p. 41

o Facts: Patient has injury in thigh and initially treated. After determining that he was stable they transferred him due to economic reasons.

o Holding: State statutes and hospital licensing regulations had effectively modified the no duty principle and created a duty to render emergency care based on public policy.

§ It is “public policy… that a general hospital may not deny emergency care to any patient without cause”- 44

§ “No patient should arbitrarily be transferred if the hospital where he was initially seen has means for adequate care of his problem.”- 44

§ “The patient may not be transferred until all medically indicated emergency care has been completed.”- 44

§ Reasonable cause for transfer before completion of emergency care refers to medical considerations relevant to the welfare of the patient and not economic considerations relevant to the welfare of the hospital” -45

o Main Result: Emergency care must be completed! Consider hospital’s duty under the public policy (general welfare or social utility model). Remember—talking about quasi-public hospitals—duty only for emergencies—otherwise would be public hospital

o Three Defenses for Hospitals:

§ “ (1) that the hospital is not obligated (or capable) under its state license to provide the necessary emergency care, (2) there is a valid medical cause to refuse emergency care, or (3) there is no true emergency requiring care and thus no emergency care which is medically indicated.” – 45

o Shows a shift in the models from Professional Authority to Egalitarian Social K

o Causation

§ Used to have to show ∆’s negligence caused the injury (51% responsible), but hard to show b/c person may have already had less than 50% chance

§ Now- Increase the Risk Doctrine/Loss of Chance Doctrine- whether the actions increased the risk of not surviving