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Health Law
Rutgers University, Camden School of Law

major topics

health care system: access, financing, organization
quality controls
fraud and abuse
antitrust in health care
obligations of tax-exempt health care providers
current issues: HIPAA, fat tax
types of law

i. common law—ie, malpractice
ii. statutory—doc licensure, ERISA, antitrust
iii. regulations—Medicare, anti-kickback

legal substitutes

i. professional oversight—accreditation, hospital staff privileges
ii. market oversight—payers (employers, patients, insurers) as regulators

table of contents


i. obligation to provide care: common law, EMTALA, ERISA


decreased access / barriers to access

lack of insurance/poverty—solution would be free care, but poss lower quality
facilities/providers—subsidize doc pay, loan forgiveness, new construction
educated consumer—either don’t know they’re sick or should get preventative care, so can use flyer, public notice, info to appeal denial of access
racial and gender discrimination—licensing standards to solve it

increased access


i. increase short range costs, but in long run can do either;
ii. can improve or worsen health status, affecting quality of care
iii. increase it by not requiring referrals, free clinics
iv. unnecessary care which causes harm—worsens quality b/c there’s not a good ratio between benefit (improved health status) and risk (applying treatment that has side-effects).. Donabedian’s idea.
v. Unnecessary care which is harmless—worsens quality b/c doesn’t yield benefits vs. utilization of resources. Donabedian’s idea.

examples of ways to increase access

i. common law—obligation to provide care
ii. EMTALA—only if accepts Medicare, has ER
iii. COBRA—employee has option to continue coverage
iv. HIPAA—restricts pre-existing condition clauses
v. Any wiling provider—requires managed care to allow providers to join
vi. ERISA—ensures access to those who are already covered by employee benefits plans
vii. Medicare—ensures access to 65+, disabled, dialysis patients
viii. Medicaid—ensures access to the poor

the obligation to provide care—common law

physician voluntarily chooses to enter into relationship w/ patient; sometimes there are legal obligations to provide care, usually statutory, although some common law doctrines, too
default rule—doctor voluntarily chooses to enter into relationship with patient, which creates a contract

i. the presumption is freedom of contract
ii. doctor can arbitrarily refuse to treat if there is no contract, but not for discriminatory reasons.
iii. what does negligence have to do with contract? The contract defines the doctor-patient relationship. Then doctor owes patient a duty of reasonable care.

how does the relationship start?

i. Express or implied contract
ii. Vicarious liability—if employee of a doctor, like a nurse has relationship with patient
iii. NOT just by telling patient to call own doctor, even when there is an emergency
iv. Child v. Weis, pregnant woman went to ER, but was turned away. Nurse said she spoke to doctor, then told woman to see her own doctor at home. Ct found contract was not created b/c all doctor did was ask about identity of woman’s doctor.

The obligation to provide care terminates when:

i. agreement limiting the services
ii. Termination by mutual consent
iii. The treatment is no longer necessary
iv. Patient fires doctor
v. Doctor withdraws from case with reasonable notice to patient so that he can get other care.
vi. Doctor can’t provide care because the problem is outside her training
vii. Patient fails to cooperate—not taking meds or not coming back
viii. Ricks v. Budge, patient saw doctor, who said come back if gets worse. Doctor sent him to hospital, but then wouldn’t treat him there b/c he owed him money. Ct found that relationship was continuing doctor told him to come back and see him. Responsible for damages of pain and fear of death.

Restrictions on Common Law Freedom of Contract

Includes: no discrimination based on race, if can’t pay and hospital is tax-exempt, under EMTALA, must provide interpreters to deaf under ADA, state licensure of hospital
can’t refuse treatment if based on race

i. Hill-Burton act—fed gov’t pays for construction in return for non-discrimination, 20 years of limited free care; problem is that it expired
ii. Civil Rights Act of 1964 title VI—prohibits discrimination on race if receive federal funds
iii. state hospital licensing acts. ex, pa law on emergency services—emergency care is required in order to keep hospital’s license, regardless of patient’s financial status
iv. problem for bringing suit though is that they often don’t create a private cause of action, like Williams
v. Williams v. US, patient went to ER on Indian reservation operated by US. Hospital wouldn’t treat him, and referred him to another hospital. Ct found that there was no private right of action for the patient.

tax exemption

i. if tax-exempt, hospital must provide services to indigent patients

Americans w/ disabilities act—provide interpreters, accommodate the needs of deaf patients at no charge. Obligation to identify language needs of patients.
Promissory Estoppel

i. Can be used for public hospitals, on the argument that an emergency room is a public utility. Didn’t really talk about this.

Hospitals: EMTALA, Emergency Medical Treatment and Labor Act

i. Triangle—prevent patient dumping; keeps from shuffling patients from ER to ER b/c of no payment. Increases access and spreads cost to all hospitals. In reality it’s led to decreased access in some respect since less doctors willingly serve on ER on-call, and clogs up ERs. Does NOT regulate quality of care, although it might have some effect on it. Increases costs b/c people with insurance and the hospital pays for it, not the gov’t.
ii. Baber, action against ER doctor for violating EMTALA. Patient had previous history of psychiatric illness, but docs didn’t catch the fatal hematoma b/c transferred her to hospital with a psych ward. Hospital didn’t violate EMTALA b/c there was no evidence of disparate treatment that would constitute failure to screen, and neither did hospital. B/c they determined that no emergency existed, stabilizing requirement doesn’t apply.
iii. Requirements
1. hospital accepts payment from Medicare & operates ER
a. if hospital doesn’t participate, or doesn’t have ER, still subject to common law duty to treat in Hick and Williams.
2. person comes to ER and reques

isk allocated to insurer/payor); incentive is to give more care than necessary. Different from blues b/c aren’t limited by community-rating requirements.
iii. HMO/capitated system—risk is shifted away from payor and towards physicians; insurer gives doctor a lump sum for certain number of patients, no matter what each individual gets done
iv. pre-paid system—ie, Kaiser permanente. Same thing as HMO

problems with insurance

i. often are a monopsony—reverse monopoly, where company is the buyer, not the seller
ii. mandated benefits, where some states require all insurance companies to provide minimum benefits. Problem is that causes increased costs, making more people not buy it, and creates more adverse selection
iii. adverse selection—people who are more likely to buy it are in poorer health

how insurance works

i. ratemaking—predicts future loss/expenses and allocate cost among classes of members
ii. underwriting—the decision of whether to cover a member
iii. adverse and favorable selection—as above, tendency of sicker people to buy insurance, driving up the cost, and less number of healthy people will buy it.
iv. Insurance companies try to avoid this by limiting coverage, denying it, or raising cost of premium

Regulation of Insurance

State regulation

i. Private insurance
1. used to be the primary regulator of insurance to ensure access, but ERISA preempts it
2. covers insurance plans not covered by ERISA such as individual insurance plans, group plans covering church or state employees
3. doesn’t regulate the RATE of the commercial health insurers—assumption is that employers and large groups have bargaining power
4. underwriting usually isn’t regulated—except to prevent discrimination
5. but can impose minimum requirements for financial reserves, marketing, claims practices, allowable investments
6. blue cross/blue shield—usually rates and underwriting are regulated b/c they get tax breaks from the state. Justification is they have greater obligation to make services available to public

federal regulation

i. managed care
1. They’re not always treated as insurers, but sometimes as a pre-paid service. Therefore they’re often, but not always regulated like insurers. Rush Prudential v. Moran
2. ERISA doesn’t necessarily preempt state malpractice claims against managed care plans that both provide and pay for health care
ii. private insurance
1. ADA, Americans with Disabilities Act—puts constraints on discrimination by employers and insurers against disabled
2. HIPAA, health insurance portability and accountability act of 1996
a. amended ERISA and other fed statutes
b. limits use of preexisting condition clauses