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