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Health Law
SUNY Buffalo Law School
Szczygiel, Anthony H.

­   Two health systems:
·        Health care system devoted largely to improving individual health outcomes
Ø Study of the HC system focuses on financing, organizing, & delivering of personal medical services.
·        PH system is devoted to safeguarding & improving health outcomes in the population.                                          
Ø PH system focuses on interventions designed to improve morbidity & mortality (M&M) in the community.
­   Law & PH
·        PH is defined by law
Ø Law creates PH agencies, designates their mission, provides their authority, & limits their actions to protect a sphere of freedom outlined by the Constitution.
·        Fundamental challenge of agencies is how to use the law as a tool to improve the public’s health.
­   Law & Personal Health Care
·        Health care executives interact w/ attys on a daily basis on issues ranging from regulatory policy, antitrust, & liability to labor relations & joint ventures.
·        The law provides regulatory oversight of physician practices, legislation mandating that certain insurance benefits must be provided, & judicial ruling imposing liability for substandard medical care.
·        Distrust b/t legal & medical professions is deep & has adverse implications for patient care.
­   Interconnections
·        Historical
Ø PH & HC are mutually dependent & interactive.
§ Boundaries b/t the 2 did not emerge until the early to mid-20th century.
Ø From 18th – beginning of 20th century
§ PH dominant concern in the US
§ Most of the nation’s investment in health involved disease prevention & sanitation
Ø Mid-20th century
§ Advances in medical technology & hospital care permitted more intensive & effective individual medical treatment.
§ Development of biomedical model & focus on individual treatment of disease uncoupled medical care from PH’s population-based approach.
§ Personal HC began to supplant PH as the dominant system
§ Spending on PH declined & increase on personal health
Ø Later-20th century
§ Medical care dominated resource, public & media attention
§ Bioterrorism – PH reemerges in awareness of public & policy makers
Ø Present – Both systems undergoing significant changes (financing & organization)
§ Biomedical system
o   Medical care driven by market forces opposed to becoming a gov’t function
o   Since 1990s emergence of managed care – has eroded physician dominance in medical delivery
§ PH system
o   LHD (local health dept) are moving away from providing direct services (family planning & primary care)
s Concentrating on providing population-based core PH functions (health education, surveillance, policy development)
o   Conventional wisdom is that PH services will either shift to private sector or provided through public-private collaborations.
Ø Still interdependent
§ Health of population depends on both systems
§ Both contributed to expanded longevity, a reduction in the overall burden of disease (i.e., reductions in tobacco-related M&M)
§ Example – Obesity
o   Individual social choices in eating patterns & exercise habits
o   Environment (misleading marketing & advertising materials, lack of fresh fruit & veggies in low income areas) encourages poor eating choices.
o   Complex medical problems
s insurers debating whether to cover the increasing HC costs of treating obesity
s Long-term care providers are dealing w/ the costs of purchasing equipment to lift obese pts.
o   Reducing obesity problem (M&M costs) requires both interventions at the individual pt. level & at the population level.
o   Pelman v. McDonald’s Corp. (2203) – Πs alleged the became overweight & developed health problems related to obesity (diabetes, coronary heart disease, etc…) & other adverse health effects as a result of ∆s conduct & business practices in marketing fatty foods to consumer.
§ Injury prevention
o   PH policy perspective
s Mandating the use of helmets for motorcyclists & bicyclists is appropriate b/c it would reduce injury-related M&M costs.
i.        Such regulation potentially interfere w/ personal freedoms & social choices
ii.      Failure to mandate helmets results in higher E/R dept. & related HC costs.
s Process of PH regulation has a direct impact on the personal HC system
§ Focusing on similarities b/t the 2 systems will reveal interesting policy connections & suggestions for the development of legal doctrine.
o   i.e., privatization of both systems increases the importance of legal oversight.
§ Moral questions –
o   To what extent should & individual’s social & behavioral choices affect the personal HC he/she receives?
o   If an individual’s health status is a function of factors beyond their control (i.e. genetic / environmental factors) should that mitigate the individual’s responsibility for unhealthy lifestyle choices?
o   Should PH eschew interventions in areas involving individual lifestyle choices?
·        Current Legal Connections
Ø Development of judicial doctrine
§ during ascendance of personal HC, legal system supported rulings that ensured physician domination of the HC enterprise
§ During managed care, supported industry cost containment strategies at expense to individual’s access to HC.
§ Both – law supported the “winner” in the marketplace.
Ø Similar supportive relationship b/t law & PH
§ Jacobson v. Massachusetts (1905) – courts generally deferred to the PH system to determine what policies are necessary to protect the public’s health. 
Ø Essence of law & PH is balancing the tension b/t protecting the community’s health w/o unduly intruding into & individual’s personal freedoms.
Ø Key to understanding the interaction b/t PH & personal HC is the balance b/t protecting populations w/o sacrificing individual liberties or an individual’s access to HC that the legal system holds sacrosanct.
Ø 2 Fundamental Questions:
§ What separates a PH from a personal health issues?
§ What are the policy & legal implications flowing from how the issue is characterized?
·        the role of gov’ts & markets in shap

viders (where most of the jobs are for lawyers – most money is)
·        Regulators (gov’t entities that look at how care is provided, insurance regulate their reimbursements)
·        Consumers (patients, employers paying for the health insurance)
·        Revolution – ascendancy of managed care
Ø Independent health, UNIVERA, Blue Cross – Blue Shield (before we pay for this you have to call us & get prior approval)
·        Canada has single payer system : US takes individual pieces to address issues, i.e. Medicare, Medicaid (elderly & poor), Children, Veterans – still 45 million people uninsured
­   One absolute right to health care, if you get to an ER & it is an ER.
CHAPTER 2: FOUNDATIONS OF PH                                                                                           CB 012 – 041
I.        PH LAW: THE FOUNDATION                                                                                                                       CB 12
A.     Defining Concepts
­   PH Law – the study of legal powers & duties of the state to assure the conditions for people to be healthy & the limitations on the power of the state to constrain the autonomy, privacy, liberty, propriety, or other legally protected interests of individuals for the protection or promotion of population health.
1.       State’s Powers, Duties, & Limits
­   Legal maxim salus populi est suprema lex – the welfare of the people is the supreme law
­   Constitutional perspective – police power provides hx wellspring of authority to protect the common welfare.
­   Limits on power:
·        Often gov’t acts to promote the common good, it often diminishes personal interests in autonomy, privacy, or liberty.
·        Constitution affords gov’t a great deal of authority to safeguard the population, but it also explicitly preserves & protects a sphere of individual freedoms.
­   Primacy in govt’ matters of PH are to provide mutual protection for health, safety & security.
­   PH achieved only through collective action
­   The community as a whole has a stake in environmental protection, hygiene & sanitation, uncontaminated food & drinking water, safe roads & products, & control of infectious disease.
2.       The Health of Populations
­   PH strives to improve the functioning & longevity of populations.
­   Purpose: