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Health Law
University of California, Davis School of Law
Ikemoto, Lisa C.

HEALTH LAW OUTLINE- IKEMOTO SPRING 2010

Introduction

What is Health Care Law

i. Health Care Law- Delivery of medical services, relationships between doctor-patient payers

1. Access to/barriers to health care within civil rights framework

2. Health care financing

3. Quality of care

ii. Bioethics: Ethical, legal and social issues arising from use of biomedical knowledge and technology, in medical and research settings

iii. Public Health Law: Issues arising from gov’t efforts to address health a population level

History: Health care financing & delivery system

i. Early 19th Century: Not “science” based”

1. Hospitals- Place for the poor to die

2. Low survival rates

3. No required medical education, quality control

ii. Early 20th Century

1. Professionalization

a. Formal medical training

b. Licensing and accreditation

2. “Era of professional sovereignty”

3. Financing

a. No health insurance

b. Out of picket, direct pay, fee for service

iii. 1930s: Birth of the “Blues”

1. Blue Cross: Hospitalization insurance

2. Blue Shield: Physician services, -non-profits, enabled by state law. Commercial insurers

3. Dominant model: Indemnity insurance

a. As a legal concept, it has a more specific meaning, namely, to compensate another party to a contract for any loss that such other party may suffer during the performance of the contract.

b. Free choice of provider

c. Fee for service reimbursement

iv. 1940s: Employment-based insurance

1. Demanded by unions

2. Federal funding of health/health care

a. E.g. medical care to federal populations, funding of biomedical research, medical education, and hospital building

v. 1950s

1. Federal tax subsidization of employment-based insurance

vi. 1960s: Era of cautiously egalitarian social contract

1. Medicare passed

a. Covers senior citizens and the disabled

b. Federal program

c. Part A: Hospitalization insurance (automatically enrolled)

d. Part B: Physician services (voluntary)

2. Medicaid passed

a. For “deserving poor”

b. State-federal program

c. Linked to federal welfare program

vii. 1970s: Rapid inflation

1. Federal cost containment efforts

2. 1974 HMO Act

a. Provided grants and loans to provide, start, or expand a Health Maintenance Organization (HMO); removed certain state restrictions for federally qualified HMOs; and required employers with 25 or more employees to offer federally certified HMO options IF they offered traditional health insurance to employees. It did not require employers to offer health insurance. “HMOs” were defined simply, as plans that: specified list of benefits to all members, charged all members the same monthly premium, and were structured as a nonprofit organization.

viii. 1980s: Market-based medicine

1. Rapid inflation & disaggregation of risk pools

2. Rapid increase in costs; moving away from big government towards privatization

3. Rise of managed care as dominant payor model

4. Use prospective payment system for inpatient hospital services under Medicare

a. Payment based on patient’s diagnosis on hospital, not cost of treatment

5. Decrease in private insurance coverage

Different Care Types

i. Total Indemnity insurance

1. Relationships

a. Employer-Insurer

b. Employer-employee

c. Employee-Provider

d. Provider-Insurer

2. Free choice of provider

3. Fee for services

ii. Managed Care

1. Payor + cost containment mechanisms

2. Examples

a. Limited choice of provider

b. Utilization review

i. Health insurance co. reviews request for treatment

c. Capitation

i. The annual fee paid to a physician or group of physicians by each participant in a health plan.

Health Care Reform

i. Goals

1. Cost reduction

2. Increase coverage for uninsured

ii. Concerns

1. Cost

2. Quality of treatment

3. Government control, “big g

erogative: Medical emergency, individious discrimination, or contractual arrangement that requires them to treat

v. Manlove v. Wilmington General Hospital (Del. 1961)

1. Facts: Manloves take four month old baby to emergency room after staying up multiple nights with child. Emergency room nurses they cannot treat the child because it has been treated by another doctor out of concern that it would conflict with other treatment, even though parents had medicine with them. Baby dies a few hours later.

2. Law: No common law duty to treat

3. Issue: Duty to treat?

4. NO

5. Factors to considered in determining hospital duty to treat

a. Public/quasi-public/private hospital?

b. Unmistakable emergency?

i. No emergency here

c. Patient reliance?

d. Well established custom that hospital will render aid?

e. Refusal will result in worsening patent’s condition

vi. Post-Manlove, in most states, hospitals have duty to treat in emergency room or in cases of medical emergency

Constitutional Basis

i. Widerman v. Shallowford Community Hospital (11th Cir. 1987)

1. No constitutional right under 14th Amendment to medical care by state or municipality

ii. Youngberg v. Romeo

1. Involuntarily committed residents had the right to reasonably safe confinement conditions, no unreasonable body restraints and the habilitation they reasonably require. And Medical care (Constitutional exception)

EMTALA

i. Patient dumping

1. Background- 1980s

a. Rapid increase in health care costs

b. Dominance of managed care

c. Other cost-containment measures