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

Rosenblatt Health Law Outline – Fall 2014


Professional Authority


Egalitarian Social K


Market Competition

1980s – present

· rise of modern scientific hospital

· Courts justified it on basis of doc’s scientific expertise.

· Point of health law was to support power of medical profession

· broadly inclusive heath insurance

· everyone covered at same price

· no way to control costs

· no way to guarantee access

· fairness/justice

· Fairness= access based on need (not ability to pay); high quality of care; respect for patient autonomy, dignity, & privacy.

· govt version of social insurance

· patients rights law

· anti-discrimination law

· couldn’t control costs

· couldn’t cover everyone

· couldn’t muster political support

· Free-market oriented ideas rose up

· Function of law is to support market, not to legislate equality.

· developed managed care

· costs were contained in 1990s

· reduced patient rights and anti-discrim law

· laissez faire

· encourages freedom of K

Consumer Choice:

Theme: dismantling of the intermediaries (HMOs and insurers)


Four components:

1. tax-favored health savings accound (HSA): employer, govt and individual make contributions.

2. If consumer has spent $ in HAS account, additional health expenses must be paid out of individuals’ own pocket until the high deductible is met

a. function of 1 and 2 are to deter moral hazard

3. Insurance policy attaches after HSA and deductible are spent, but patient must still pay a percentage

4. Tiered-pricing: brings the cost decision to the consumerà consumer can design own benefits

under this theory, strong consumer preferences for ‘convenience and mastery’ will sweep aside inefficiencies and create ‘focused factories’.

plan is attractive to young people



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

1. Current State of Health Care

o 2002: US health expenditures = 14.9% GDPà higher than all other industrialized nations.

o price of care is cause of money spent

o other nations spend less per capita, but our life expectancy is lower

o Because US system has market characteristics, its affected by factors that are unrelated to the need for care or ability to afford it: family income, employment status, employers’ approach to worker’s comp, fine print of insurance plan

2. 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

3. Barriers to Health Care


o personal characteristics: discrimination

o financial and insurance status

o health care providers’ concerns about patient

Improvements to Barriers:

· 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.

o how factors beyond insured status alone can influence access

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

· The Physician & the No Duty doctrine

a. Classical Contract Law, Professional Authority, and the Counter-Doctrine of Public Callings”

Hurley v. Eddingfield (1901)

· No duty of care exists; he has freedom of contract to take or decline any patients

· professional and market conceptions—physician autonomy

· example of how the two models can be mutually reinforcing

` 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

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

Compare with Medical Ethics for Physicians

a. Dr. is free—except in emergencies—to choose whom to serve

b. Dr. shall put patient first

c. Dr. shall support access to medical care for all people.

AMA: doctor’s duty is to provide competent medical service w/ compassion

t ER they have relied on it to their detriment when they are turned away.

· where H has long established custom of accepting persons for emergency care and P relies, H has duty to provide care

· Wilmington Gen. Hospital v. Manlove

ii. Undertaking

· No duty to initiate care, but anyone who undertakes to provide aid must continue to do so & not abandon the person in need.

· In some cases, initiation of calls to an in-network insurance provider by the ER can start the relationship and create duty.

iii. Public Function & Public Accommodations

· Applying same concept as common carriers’ inability to refuse service to people who are willing to pay and need their services. (for public hospitals)

· Applied to private non-profit hospitals as well

o Called them “quasi-public institutions”; found a fiduciary relationship with the public

· Doesn’t apply to doctors’ private practices (they don’t get similar public benefits like tax exemptions, grants)

· Doe v. Bridgeton Hospital

· Mercy Medical Center of Oshkosh v. Winnebago County

c. An Alternative View: The Hospital as a Quasi-Public Institution

Thompson v. Sun City Community Hospital (1984)

· Kid injured, taken to Boswell hospital. He’s determined to be “medically transferrable” at some point and is sent to County Hospital for financial reasons. Worsens, then gets better, then gets surgery on the leg around 1 am after being transferred at 10:13. Has residual impairment of the leg.

· Shift in models: from PA to ESC

· AZ Sup Ct. uses social K model: JCAH & licensing standards are evidence of public policy that we will take into account when fashioning common law.

o Public policy says you can’t transfer for econ reasons. We will support the state’s licensing standards & JCAH standards with a remedy in tort.

o Instead of default position being “no duty” (as with prof authority or market comp models); the position is “public service; nondiscrimination; & fiduciary duty to public & patients”

§ Sup Ct said econ considerations cannot come into play.

§ Only legit basis is “what is medically indicated emergency care”—for benefit of patient, not hospital