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Health Law
SUNY Buffalo Law School
Szczygiel, Anthony H.

CHAPTER 1
LAW AND THE HEALTH SYSTEM: AN INTEGRATED APPROACH
 
Two health systems
·        Health care system devoted largely to improving individual health outcomes
o   Study of the health care system focuses on financing, organizing, & delivering of personal medical services.
·        Public health system is devoted to safeguarding & improving health outcomes in the population.     
o   PH system focuses on interventions designed to improve morbidity & mortality (M&M) in the community.
 
Law & Public Health
·        PH is defined by law
o   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 and medical professions is deep and has adverse implications for patient care.
 
Interconnections
·        Historical
o   PH and health care are mutually dependent and interactive.
§ Boundaries b/t the 2 did not emerge until the early to mid-20th century.
o   From 18th – beginning of 20th century
§ PH dominant concern in the US
§ Most of the nation’s investment in health involved disease prevention & sanitation
o   Mid-20th century
§ advances in medical technology and hospital care permitted more intensive and effective individual medical treatment.
§ Development of biomedical model & focus on individual treatment of disease uncoupled medical care from PH’s population-based approach.
§ Personal health care began to supplant PH as the dominant system
§ Spending on PH declined and increase on personal health
o   Later-20th century
§ Medical care dominated resource, public and media attention
§ Bioterrorism – PH reemerges in awareness of public and policy makers
o   Present – Both systems undergoing significant changes (financing & organization)
§ Biomedical system
·         Medical care driven by market forces opposed to becoming a gov’t function
·         Since 1990s emergence of managed care – has eroded physician dominance in medical delivery
§ PH system
·         LHD (local health dept) are moving away from providing direct services (family planning & primary care)
o   Concentrating on providing population-based core PH functions (health education, surveillance, policy development)
·         Conventional wisdom is that PH services will either shift to private sector or provided through public-private collaborations.
o   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 and exercise habits
o   Environment (misleading marketing and advertising materials, lack of fresh fruit & veggies in low income areas) encourages poor eating choices.
o   Complex medical problems
§ insurers debating whether to cover the increasing health care costs of treating obesity
§ long-term care providers are dealing w/ the costs of purchasing equipment to lift obese pts.
o   Reducing obesity problem (M&M costs) require both intervention at the individual pt. level & at the population level.
o   Pellman v. McDonald’s Corp. (2203) – Ps 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
·         PH policy perspective
o   Mandating the use of helmets for motorcyclists & bicyclists is appropriate b/c it would reduce injury-related M&M costs.
§ Such regulation potentially interfere w/ personal freedoms & social choices
§ Failure to mandate helmets results in higher E/R dept. & related health care costs.
o   Process of PH regulation has a direct impact on the personal health care system
§ Focusing on similarities b/t the 2 systems will reveal interesting policy connections & suggestions for the development of legal doctrine.
·         i.e., privatization of both systems increases the importance of legal oversight.
§ Moral questions –
·         To what extent should & individual’s social & behavioral choices affect the personal health care he/she receives?
·         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?
·         Should PH eschew interventions in areas involving individual lifestyle choices?
 
o   Current Legal Connections
o   Development of judicial doctrine
§ during ascendance of personal health care, 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.
o   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 heal

te sectors
o   Through legal doctrine (tort) & regulatory policy (quality care regulation)
·        Private law concepts (patient-physician relationship) can be applied to PH systems in ways that will improve its ability to meet its responsibilities to protect the public’s health.
 
CLASS NOTES
Public Health
Historically PH was at it’s height in first half of the 20th century when their was a concerted effort to deal with problems
i.e. epidemics, chronic problems (nutrition / work environment), mandatory restraints (seat belts)
Leading case: Jacobson mandatory immunization
These problems did not get resolved in the market place – consumers didn’t have the info.
·        Defines what the scope of authority of government agencies
 
Individual Medicine
·        Individually related (injuries, sickness, etc…)
·        Most resources for PH shifted over to IM – some have shifted back to PH b/c of bioterrorism
·        Providers (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
o   Independent health, UNIVERA, Blue Cross – Blue Shield (before we pay for this you have to call us and get prior approval)
·        Canada has single payer system : US takes individual pieces to address issues, i.e. Medicare, Medicaid (elderly and poor), Children, Veterans – still 45 million people uninsured
MANUALS / INFORMAL POLICIES
DM
REGULATIONS
STATUTES
CONSTITUTION
 
 
One absolute right to health care, if you get to an ER and it is an ER.
 
 
CHAPTER 2
PUBLIC HEALTH SYSTEMS: LAW AND THE POPULATION’S HEALTH
 
I.       PUBLIC HEALTH LAW: THE FOUNDATION
 
A. Defining Concepts
Public Health 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, and Limits