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

Health Care Law Outline
 
Furrow, et at, Health Law: Cases, Materials and Problems (5th ed 2004)
 
INTRODUCTION TO HEALTH CARE LAW
 
Models of Health Law
·         Rosenblatt article- “The 4 Ages of Health Law”
o   1: Authority of the Medical Profession (late 19th – mid 20th century)
§ MDs have primary authority regarding cost, treatment etc..; Laws: no real patient consent laws or informed consent laws
§ No hospital liability b/c doctors had total authority
§ Con: More discrimination b/d doctors decided who they wanted to serve
§ Pro: necessary freedom for good doctors
o   2: The Modestly Egalitarian Social K (50’s-80’s)
§ Gov has obligation to pop and pop. Must abide by rules
§ Start of 1st major public health insurance: Medicare, Medicaid
§ Con: high cost
§ Pro: more medical services for more people
o   3: Market Competition (80s-90s)
§ Managed care orgs put limit on care so power taken away from MDs
§ Justification: MDs used to set fees/needs and MDs and patients abusing system w/unnecessary treatments
§ Pro: reduced costs at first
§ Con: costs now rising
o   4: The Newly Emerging Model
§ Not specifically identified
o   All models can co-exist (not mutually exclusive)
 
Defining Sickness
·         Why define “sickness’?
o   Need definition of “health” to asses quality of care and need to promote or restore it
·         W.H.O definition: a state of complete physical, mental, and social well being and not merely the absence of disease or infirmity
·         Katskee v. Blue Cross/Blue Shield of Nebraska
o   Facts: ∏ diagnosed with breast ovarian carcinoma syndrome (leads to breast/ovarian cancer; strong family history); MD recommends hysterectomy to prevent cancer
§ Insurance rejected because not “illness” and policy only covered “medically necessary”- says hysterectomy not medically necessary
o   Holding/Reasoning: Crt says yes illness b/c ∏ suffered from bodily disorder/disease
§ Just b/c ∏ wasn’t detectable from physical evidence doesn’t mean no illness
§ BUT, not every predisposition to another illness is necessarily an illness w/in meaning of insurance policy
 
ACCESS TO HEALTH CARE: THE OBLIGATION TO PROVIDE CARE
 
General
·         US Health Care (H.C.) system requires either insurance or private payment
·         Racial disparity in H.C. due to discrimination and/or socioeconomic factors
·         Traditional Legal Principal governing physician-patient relationship
o   Voluntary and personal relationship
§ MD can choose to treat or not for various reasons
o   Legal obligation for providers to provide care are exceptions to the general rule
·         Professional ethics don’t create a duty of care
o   Hippocratic oath and AMA ethics don’t create duty
Common law and state approaches
·         CL
o   No affirmative duty to provide care- Only have to treat patient when valid K formed
§ Patient makes offer, up to provider to accept offer/not to provide care
§ Even in ER/emergencies
§ Only duty when care is engaged
o   OK to refuse treatment for:
§ Ability to pay
§ Ethnicity/race
§ Mission
§ Personal dislike
§ Fear of contracting illness
o   Ricks v Budge- duty to treat
§ Facts: Dr. treated hospitalized patient for infected finger; patient left hospital against Dr’s advice
·         Dr told patient to return if condition worsened and it did; so patient returned
·         Dr. refused treatment due to outstanding balance on previous bill
§ Holding/Reasoning: Dr. obligated to treat patient; valid K
·         Obligation begins when undertake treatment
·         If Dr wants to end treatment, then must give patient sufficient notice that Dr is withdrawing so patient can find diff Dr
o   Childs v. Weis- no duty to treat
§ Facts: on-call Dr. refused to treat pregnant woman; infant dies and woman is injured
§ Holding: no contractual obligation and therefore no duty to treat
o   Williams v US- no duty to treat
§ Facts: Indian hospital run by US on Cherokee reservation refused to treat a non-Indian man and man dies
§ Holding/Reasoning: ∏ didn’t establish a duty of care
o   Obligation to provide care under CL changed…
§ Manlove- duty to provide care b/c had ER; reliance on ER
§ O’Neill- respondeat superior principle
§ Stanturf- public funds, trust agreement
§ Guerrero & Thompson- public policy that emergency services be available to the public, based on existing state law
§ Le Jeune-  patient had previously been admitted
§ Harper- no admission, and no duty
§ Frazier- undertaking and admission so yes duty
o   How these change common law obligation (in degrees)
§ Least
·         Undertaking, based on admission
§ Middle
·         Public funds
§ Most
·         Respondent superior
·         Public policy
·         Reliance
·         Undertaking based on ER
·         Public funds
o   Patient Dumping
§ About transfer of economic burden for care of medically indigent from private to public hospitals due to:
·         Patient inability to pay
·         High cost of emergency care services
·         Hospital ER overwhelmed
·         Discrimination
§ Exacerbates US trend toward 2 tier H.C. system
·         Private hospitals for wealthy
·         Public hospitals for poor
Anti-Discrimination Law and Access
·         Hill-Burton Act (community service provision)
o   History:
§ Mid 1940s
·         National medical associations’ worked to eliminate segregation in hospitals
·         Exiting demand for upgrading and expanding hospitals
·         HB act gave matching funds to hospitals to upgrade and expand hospitals or build new hospitals
o   With requirement that hospitals met other demands…
o   Anti-Discrimination- Community Service Assurance Provision- Subpart G
§ Subpart G is the community service provision(prohibition on discrimination and some obligation for emergency services)
§ If hospital doesn’t receive Hill-Burton $, then this funding doesn’t matter
o   Key Language:
§ Prohibition of discrimination “on account of race, creed or color”
§ Originally Separate but equal exception
·         Simkins v Moses Cone
o   Challenged separate but equal
o   Facts: sick black child not let into all white H.B. $ recipient hospital
o   Holding: Crt said hospital had obligation to help
§ Based on Brown v Board (decided 9 years prior)
§ Obligation to provide a reasonable volume of hospital services “for persons unable to pay therefore”
·         ER services for those who couldn’t pay
§ H.B. facilities must participate in Medicare + Medicaid
o   Key Requirements for HB funded facilities:
§ Service area- Must provide care to persons in “service area”
·         State submits a plan
·         Plan approved by Secretary of Health and Human Servi

I and III
o   Howe
§ F: HIV+ man not served in hospital b/c had HIV
§ Claims: Title III- hospital= public accommodation
§ ADA prima facie case:
·         ∏ had disability, ∆ discriminated against based on this disability,  Title I, II, III apply
§ Section 504 prima facie case:
·         ∏ has disability, ∆ discrim against based on this disability, program received federal funding
§ H/R: no reason for discrimination; ∏ should have been served and ∏ received $
o   Bragdon
§ F: dentist will only treat patient with HIV in a hospital b/c dentist claims it is safer
§ Claim: Title III ADA
§ I: is the standard that the doctor had a good faith belief that the procedure would be safer in the hosp?
·         No, too hard to prove
·         “belief” must be backed up by scientific evidence by the medical community (not ethical community)
§ H: HIV is a disability, ADA applies
o   Rodde v Bonta
§ F: LA wants to shut down county hosp for rehab care for disabled indiv at same time they close down 16 other public clinics
§ H: must keep the facility open for at least 3 years
·         Can reevaluate closing, but must follow certain list of criteria
Gov Efforts to Ensure Access to Emergency Care
·         EMTALA – (Emergency Medical Treatment and Labor Act)- 1986
o   History:
§ Patient dumping became hug issue in 80s
§ Himmelstein article
·         97% of dumped patients have no insurance or gov insurance
§ Schiff article
·         Number of dumps in Chicago area increased 6x btwn 1980 and 1983
·         95% had no insurance
·         25% were unstable at time of transfer
§ Kellerman article
·         90% lacked insurance
·         55% transferred w/out advance authorization
§ EMTALA passed in 1986
o   EMTALA applies to hospitals:
§ 1. with ERs
§ 2. AND take Medicare $
o   Obligations under EMTALA:
§ “apply appropriate medical screening”
·         To see if there is an emergency
§ Can only ask for insurance info if doing so won’t delay treatment
§ Can’t call insurer until after screening
·         Policy reason: don’t want hosp to limit service once they find out what kind of insurance you have
§ RPP standard to check someone who comes in (if they don’t speak)
§ Obligation to stabilize after the screening
·         Then can transfer
§ Obligation for hosp to maintain on-call list
·         But No obligation on physicians to be on call
o   Exceptions to obligation:
§ Refusal of consent
o    “Comes to ER” definition
§ Makes a difference who owns and who sent the ambulance
§ People go to the wrong department – “presented on hosp property”
o   Transferring
§ Patient has been stabilized
§ Patient requests transfer in writing