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Health Care Law
SUNY Buffalo Law School
Wooten, James A.

Health Law
Fall 2015
James Wooten
CLASS 1 September 9
Unnecessary Care
Unnecessary care
 care that a patient believes is necessary, or care that has a harm that exceeds the benefit, unnecessary care drives up costs. We are spending money we shouldn't be spent.
This will have an effect on patients physically
2% of cancers are caused by x-rays and cat scans
Harm to patients, and 30 yrs. from now they will have had so many X-rays etc. there will be no one to blame
Drugs are poison and each have a side affect, so unless you know there’s going to be a benefit patients are being put at risk
Over testing, doctors have an incentive to over test because they get paid for the tests
Reasons doctors have to doing these:
FFS—Fee for Service, the more you do the more you get paid (doctors)
Defensive medicine: fear of doing too little, doctors can be sued so they are afraid, people think the only real benefit of this is to protect doctor
Mrs. E thought her surgery was necessary? Because one doctor told her she needed it. Gawande told her its an unnecessary surgery but she still did it because she wanted to be safe
Information asymmetry: idea that one party knows more than the other party about something that's important to them.
i.e. patients are in the subordinate position because doctors know much more than the patients
Fragmentation: US health care is very fragmented (uneven), different doctors are prescribing some of the same things or people end up with drugs collaborating. So we need a system which is more organized and allow primary care doctor to take a larger role and they will know everything that's going on with the patient
WellMed, system that tries to link primary care physicians to specialists, where primary care doctor is essentially acting as an agent for the patient.
more people are being diagnosed but the mortality rate is the same
basically with early diagnosis, people are living longer but they are still dying so it does not lower mortality rate
little girl goes to the dentist just for a check up and they tried to say she needs an X-Ray, father says no, this is an example of over testing
many doctors don't know higher survival rate and more lives saved are different
survival rate- people are living longer after diagnosis
more lives saved- people are not dying because they have been diagnosed
Surgical Placebos
Placebo surgeries, in some situations are just as effective as real surgery
Its all mental, in patient’s head
There are ethical issues
Consumer-directed health care: looking at consumers to pay a larger role as to which provider to use and keep down medical costs
4 examples
professional (physician focus)
social justice (health care access issues, not fair that lots of people don't have health care)
want people in our economy to have competition, that's how capitalist economy works. Don't want to have people locked in their jobs because when they move to a new job they will be denied health insurance, this is why we created HIPPA
Story: Person had HIPPA and couldn't get a job to get covered, so unfair this is the issue of social justice
Competitive institutional analysis—deciding who should do things. Allocating responsibility for decisions.
CLASS 2 September 14
American Health Care System History (Chapter 1: pg. 27-64)
Era 1: of Physician Dominance
**think fee for service**
Information knowledge Expertise
Physicians ask your history, they ask how do you feel, then the physician can take that knowledge an infer deeper patterns that a person doesn't have the knowledge to understand
Like the physicians can see things that you cant see
Physicians know a lot of stuff that we don't
Legal Authority medical services: Physician Autonomy
Nobody who’s not a physician tells a physician what to do
Have to have a license to practice
Only an individual can get a license, corporations aren’t allowed to practice medicine so they cant tell doctors what to do
In some states hospitals cant even hire doctors as employees because technically an employer is the boss of an employee and since the ‘hospital’ cant get their license they cant tell the doctor what to do
Only someone who is a doctor is able to say whether a person is qualified to be a doctor
Organization of delivery of services:
Doctors usually operated as independent
Hospital Physician Relationship
Doctors have privileges, since they are not employees, they are independent contractors, and they don't have to pay to use the hospital facilities
Doctors don't pay rent because certain doctors may be brining in patients that normally wouldn't come. Physicians are bringing in patients who will then provide a source of revenue for the hospital
Fragmentations- the process or state of breaking or being broken into small or separate parts.
the hospital & the doctor bill separately for their services, the surgeon and the anesthesiologist and the hospital all bill for separate different things
Like for Medicare there is:
Medicare part A-hospital
Medicare part B- physician
Medicare part C- drugs
We have separate bills because cant have Hospital board (who may not be doctors) oversee quality of care, could possibly involve lay people telling people what to do and we cant have that
Conditions of access to medical care
One cant just get medical care, someone has to give it to you for a reason
People could either pay out of pocket, insurance company or charity care
Modes of medical decision-making
Doctors know more than patients about what patients need, cant rely on market transactions, since patients bare little of the costs people didn't care as much so physicians acted as a purchasing agent for the patient
Modes of payment
*look at hand out*
Docs billed for every service they provided—Fee for service
Regulation of the market for medical services
Doctors would try to avoid competition on price of care, which was an ethics issue. Physicians aren’t allowed to low ball to try to get more work
Quality and Standards of Care
SOC was local medical custom
Would ask did this doctor do what the local custom is
Duty was do what local custom was so if you did then no breach and no liability
In this era people got insurance through their insurance company, either through their e

so that people providing services are risk bearers. If physician provides too many services then they will go in the red. With this physicians are now the risk bearers. If doctors provide too many services they will lose money.
Insurance-risk bearing- plan assumes risk that employee will incur medical expenses because plan is liable to pay those expenses.
Era 4: Consumer Directed Health Care (CDHC)
**think of patients having to foot some of the bill for most medical services**
In the MCO era the pressure is being put on the people who provide health care to get them to provide less, is to make them essentially the payer
Employers and Insurers were essentially forcing providers to lower costs through their incentives
They make more money if no one gets sick
With fee for service, you make money when people are sick
CDHC takes a different approach, says what can we do to exercise pressure to patients to control costs
Basically is its free a patient wont care how much it costs if they aren’t paying for it.
But if you put more costs on people then they will reconsider going to the doctor
Study’s show that the $20 co-pay that some patient don’t want to pay may cause them to get sicker
At first physicians were the purchasing agent and insurance would pay
Now patients would think about it before they agree to do something
Different ways of paying people creates incentives
At first hospitals were giving services for free, charity
If more medical services are being paid for then for-profits may be more interested in providing services because they will get paid for it by the government
Starting to pay for things that used to be free, now providers are getting paid for more things as opposed to pro-bono
Rise of pharmaceutical companies especially on TV, has a lot to do with this consumer directed 4th era: it would create greater demand for pills, if people see it on TV they are more likely to ask for these specific things
Think of health care as a system of inner connected parts
CLASS 3 September 16
The Patient Protection and Affordable Care Act  (Chapter 2: pg. 65-86)
Affordable Care Act
Main goal of ACA is to reduce health care costs and improve the quality of care
ACA aimed at building a modern health care delivery system that attacks the fundamental deficiencies in the US health care system such as
High costs
Concerns about the quality of care
Limited access to care for those without health insurance and
Under investment in population health
The ACA established a health insurance marketplace or exchange