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Health Law
SUNY Buffalo Law School
Szczygiel, Anthony H.

HEALTH LAW READING

for September 4th 2007
Chapter 1 – Law and the Health System: An Integrated Approach
Introduction
· health care system is devoted largely to improving individual health outcomes
· “medicine is commonly associated with the care and treatment of the individual, while public health’s central focus is on populations…this book believes public and individual healthcare are interconnected
· for both public and individual healthcare, the law plays an integral role in how they are organized and financed and how their respective services are delivered
Law and Public Health
· public health is a creature of and is defined by law
· lack of empirical work re: how to use law to improve public health
Law and Personal Health Care
· law overlaps with “business” areas of private healthcare
· law also controls medical practice, insurance benefits and judicial ruling impose liability for substandard medical care
Interconnections
Historical
· until the mid-20th century most health concerns were public health concerns until advancement in technology allowed for increased and more intensive individual health care (hospitals, etc.)
· mid-20th century, personal healthcare began to supplant public health concerns
· until recently (west nile, etc.) public healthcare was dominated by private individual health care…spending on public healthcare also decrease and the focus on it decreased
· increasingly, medical care is driven by market forces as opposed to becoming a largely governmental function
· LHDs (local health departments) concentrate on providing population-based core public health functions and have chosen to cut direct services
· problem with obesity shows the interconnectedness/ interdependence of public and private health because publicly the society offers bad food but privately people need to exercise more
· Pelman v. McDonald’s Corporation, 237 F.Supp. 2d 512 (S.D.N.Y 2003) – plaintiff sued McD’s because they were overweight and unhealthy
· problems resulting from the failure of public health to prevent disease inevitably become personal health care issues and often private litigation issues
· injury prevention is another area the public/private overlap
· the process of public health regulation has a direct impact on the personal health care system
· the privatization of both systems increases the importance of legal oversight
Current Legal Connections
· Jacobson v. Mass. (1905) – since this case the courts have generally deferred to the public health system to determine what policies are necessary to protect the publics health and have usually subordinated personal freedoms to the community’s health
· balance between public and personal health is protecting the public without invading personal freedoms
Summary
Recurring Themes
· role of government in shaping public health and medical care
· who decides how resources should be allocated
· application of risk assessment or cost-benefit analysis to issues
· contrasting values across law, public health and medicine
· ethical and religious implications
· use and misuse of scientific evidence and medical expertise in making public policy
· in regard to interdependence will look at: accountability, professionalism, and value conflicts
Competing Values
· law stresses process, public health stresses prevention and protecting the community, medicine stresses importance of individual outcome
· competing values must be reconciled
· social justice (public) v. economic model (private) of health care; law acts to mediate conflict
o tension between the two is how to allocate scarce resources
· the dominant ethos in the US revolves around an indiviudal’s freedom to make personal and behavioral choices (which sometimes conflict with public health protections, etc.)
· underlying legal issues are ETHICAL issues such as who decides?
· healthcare raises moral, philosophical and legal questions
Future-Oriented Problem Solving
· the goal of this textbook: to introduce students to a range of issues that are future-oriented and to explore areas where legal doctrine must adapt to radically changing social and economic conditions
· constant theme will be to consider what doctrine the legal system should pursue to achieve the optimal balance between individual and societal needs
Interdisciplinary Approach
· balance of science, law and medicine
· legal analyses along with ethical considerations are to be presented and used
Professionalism and Accountability
· a key feature of the law is to ensure accountability of social institutions in both the public and private sectors
· tort doctrine – accountability
· law can be used in positive ways to improve individual and community health outcomes
· law is a vessel for articulation the public values inherent in the health system

for September 6th
Gostin and Jacobson pgs 12-41
CHAPTER 2- THE PUBLIC HEALTH SYSTEM: LAW AND THE POPULATION’S HEALTH
I. Public Health Law: The Foundations
A. Defining Concepts

public health – the study of the legal powers and duties of the state to assure the conditions for people to be healthy and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for protection or promotion of population health

1. The State’s Powers, Duties and Limits

public health has deep historical roots (cleaning filth out of the streets, etc)
the Supreme Court has consistently articulated the wide breadth of state police power to regulate for the health, safety, morals, and general well-being of the population
state is limited in its role however because when the government acts to promote the common good, it often diminishes personal interests in autonomy, privacy, or liberty
public health can be achieved only through collective action
collective goods must be secured through organized activity

2. The Health of Populations

the single most important feature of public health is that it strives to improve the functioning and longevity of populations
PH promotes public health and safety
PH seeks to understand the conditions and causes of ill-health in the populace as a whole

3. The Role of Communities and Civic responsibility

PH is interested in communities and how they function to protect and promote the health of their members
PH professionals want to understand what health risks exist among various populations and what/why differences in health risks exist
PH is more sociological
PH encourages individual attachment to the community…group sense makes people strive for health of the whole

4. The Salience of Prevention

the field of PH is often understo

consumption in 2000 which is a reduction of 15,000 from 1990

Microbial Agents

in the past, infectious agents were the leading cause of mortality
several improvements in the health system have led to a decline in mortality from infectious diseases

Toxic Agents

toxic agents are associated with increased mortality from cancer, respiratory, and cardiovascular disease
2% – 3.5% of total mortality in 2000 attributed to toxic agents

Motor Vehicles

decline of deaths in 2000 from 1990 attributed to the increased use of child safe seats and safety belts, decreases in alcohol impaired driving, changes in vehicle and highway design and nation goals to reduce motor-vehicle-related mortality and injury

Firearms

decline in deaths from 1990 to 2000

Sexual Behavior

sexual behavior is associated with an increased risk of preventable disease and disability
mortality due to STD’s, especially HIV, is declining

Illicit Use of Drugs

estimate that drug use resulted in 17,000 deaths in 2000, a reduction of 3,000 from 1990

Other Factors

poverty and low education levels are associated with increased mortality
lack of access to proper medical care or preventative services is associated with increased mortality
low education levels and income are associated with increased risk of cardiovascular disease, cancer, diabetes, and injury

Comment

we found that about half of all deaths that occurred in the US in 2000 could be attributed to a limited number of largely preventable behaviors and exposures

our findings indicate that interventions to prevent and increase cessation of smoking, improve diet, and increase physical activity must become much higher priorities in the public health care systems

focus on poor diet and physical inactivity

most disappointing finding was the slow progress in reducing tobacco related mortality

smoking and the deaths attributed to the constellation of poor diet and physical inactivity currently account for about one third of all deaths in the US

Notes and Questions

Health and Behavior…are individuals responsible for their own behavior…
Health and Behavior…law and economics scholars often see ill health in terms of rational choice, but public health scholars note that behavior is largely determined by the environment in which people live

Geoffrey Rose, Sick Individuals and Sick Populations
The Determinant of Individual Cases

in medicine must consider “why did this happen?”; “why did this patient get this disease at this time?”
case-control method looks at how sick and healthy individuals differ; considers “risk factors”