UC HASTINGS, FALL 2010
PROFESSOR JAMIE KING: HEALTH LAW
TEXTBOOK: Health Law – Cases, Materials, and Problems, 6th Ed.
Illness and the Practice of Medicine
a. Health vs. Disease
i. What is Health?
1. WHO Definition: “A state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.”
2. Furrow Definition: Performance by each part of the body of its “natural” function
3. Two senses of “health”
a. Theoretical Notion: Opposite of disease
b. Practical Notion: Opposite of illness
ii. What is a Disease
1. Webster’s: An impairment of the normal state of the living animal or any of its components that interrupts or modifies the performance of the vital functions
2. Dorland’s Medical Dictionary: Any deviation from or interruption of the normal structure or function of any part, organ, or system . . . of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown.
iii. What is an Illness?
1. Illness is a subset of disease that is reasonably serious such that its incapacitating effects make it undesirable
2. Illness is a socially constructed deviance
a. E.g. Someone will take notes for you in class when you have an illness, such as a heart attack, but not when you have a disease such as high blood pressure
b. Ramifications of Illness
i. Affects individual by relieving responsibility
ii. Means the loss of control
iii. Illness costs the patient money in lost time and in medical expenses
iv. Katskee v. Blue Cross/Bue Shield of Nebraska
1. Doctor diagnosed Katskee as suffering from genetic condition known as breast-ovarian carcinoma syndrome. Doctor recommended she have a total abdominal hysterectomy and bilateral salpingo-oophorectomy. Katskee’s insurance did not cover the cost of the surgery because it contended that Katskee’s condition was not an illness, and that the treatment was not medically necessary.
a. Doctor also argues that having a family history of cancer gave significant anxiety about cancer that the symptoms experienced made it a disease in itself.
2. Policy describes illness as a “bodily disorder or disease” and claims that Katskee only has a predisposition toward an illness, but has no actual symptoms manifest themselves.
3. Court holds that language of the policy is unambiguous and that the definition of illness and disease includes a “deviation from what is considered a normal, healthy physical state or structure.” The Court was influenced by the fact that genetic predisposition is the best evidence and once symptoms are shown it is generally too late to treat the patient.
a. “When a condition is such that in its probable and natural progression it may be expected to be a source of mischief, it may reasonably be described as a disease or an illness.”
4. Court is in a sense saying that insurance companies pay for treatments that prevent morbidity and mortality, so forcing them to pay for a prophylactic treatment that will save people 50% of the time is no different
5. Main Point: Definition of disease is highly variable and open to manipulation in different situations
b. Alain Enthoven, Ph.D – 6 Myths of Medical Care
i. Doctors should be able to know what condition the patient has and be able to prescribe the right treatment
1. Doctors are confronted with patients who have symptoms not labels with their diseases
2. 10% of medical care today has been proven effective through a randomized controlled trial
ii. For each medical condition there is a ‘best’ treatment
1. For each medical condition there are several possible treatments
2. ‘Best’ treatment may depend on 1) patient goals, 2) cost-effectiveness, 3) availability of resources/time, 4) medical-effectiveness
iii. Medicine is an exact science
1. Often more of an art than a science
iv. Medical care consists of standard products that can be described precisely and measured meaningfully in standard units
v. Most medical care is a life and death matter
1. Most choices in medicine are about quality of life
vi. More medical care is better than less care
1. More exposure to medical care increases the possibility of exposure to illness, medical error
c. Is healthcare a right?
i. “Healthcare is a right” can mean “money is no object”
1. If a patient has 99-1 odds of dying, is a $20,000 treatment to reduce it to 97-1 a right?
ii. The problem with the “healthcare is a right” analysis is that the issues are not complete care vs. no care for a heart-attack patient. Rather the issues are often 7 vs. 14 days in a hospital after a heart attack
The Physician Patient Relationship
1. Establishing a Physician-Patient Relationship
a. Once physician-patient relationship is established, the law imposes a higher level of duty on physicians
i. Fiduciary obligation in medicine means that the physician focuses exclusively on the patient’s health; the patient assumes the doctor’s single minded devotion to him, and the physician patient relationship is expected to be free of conflict.
b. Esquivel v. Watters (2007)
i. Michelle went to a clinic to receive a free sonogram to find out the sex of her unborn child. The test technician noticed that the baby’s bowel was outside of her body. He does not inform Michelle but notifies a radiologist. The radiologist refuses to look at the sonogram because they were for a sonogram not a diagnosis. He also tells Michelle’s obstetrician who attempts to contact Michelle but fails and then forgets. 3 months later, Michelle gives birth by emergency caesarian section. The medical staff giving birth did not know about the condition and discovered that the baby’s bowel was dead. The baby died a month later. Michelle sues for malpractice.
ii. The Court compares a hospital-patient relationship to a physician-patient relationship.
1. A physician-patient relationship is a fiduciary relationship, where the patient depends on the good will of the physician and the physician is acting for the benefit of the patient. A fiduciary relationship creates a fiduciary duty.
a. Existence of relationship depends on the purpose of the doctor’s visit with the patient and whether doctor is seeing patient on behalf of someone else.
i. E.g. Smith v. Welch: If only seeing a patient for the purpose of litigation, then there is no fiduciary relationship
2. There was no hospital-patient relationship because the hospital did not undertake Michelle to treat her for a disease, illness, or medical condition. It undertook only to determine the gender of the baby.
a. The hospital only owed Michelle the duty to perform the sonogram in a non-negligent manner.
c. Courts have disagreed about the nature of a duty to notify even in the absence of the physician-patient contract, as in Esquivel
i. Webb v. T.D. (1997)
1. Duty on physicians retained by third parties to do independent medical examinations to exercise:
a. 1) ordinary care to discover those conditions which pose an imminent danger to the examinee’s physical or mental well-being and take reasonable steps to communicate to the examinee the presence of any such condition;
b. 2) ordinary care to assure that when he or she advises an examinee about her condition following an independent examination, the advice comports with the standard of care for the health care provider’s profession
d. Ways to establish a physician-patient relationship
i. Contract
1. Implied contract
a. Usually a basis of the relationship between a physician and patient
b. A physician who talks with a patient by phone may be held to have an implied contractual obligation to that patient
c. Merely scheduling an appointment is not enough by itself to create a relationship
2. Express contract
a. Courts sometimes allow parole evidence to fill in the terms of these contracts, where the patient has signed other consent forms
3. Comparison to traditional contract
a. Physician-Patient relationship is similar to traditional contract
i. Voluntariness
ii. Fee for service
iii. Consideration
b. Physician-Patient relationship is not similar to traditional contract
i. Terms of contract are fixed in advance of bargaining by customary practices the physician must follow at the risk of liability for malpractice
ii. Professional ethics impose fiduciary obligations on physicians outside of the contract
iii. Professionals are constrained in their ability to withdraw from their contracts by caselaw defining abandonment
1. A doctor who withdraws from the physician-patient relationship before a cure is achieved or the patient is transferred to the care of another may be liable for abandonment. The physician must give the patient time to find alternative care to escape liability
ii. Patient asks on behalf
iii. Guardian
e. Physicians in Institutions
i. Physicians who practice in institutions must provide health care within the limits of the health plan coverage or their employment contracts with the institution
1. The express contract is between the physician and the health plan a
sclosed, an expert is necessary to show what the standard is in that location
b. Requirements
i. Physician-Patient Relationship (Duty)
ii. Reasonably prudent practitioner would have disclosed information
iii. The physician did not provide the information
iv. Reasonably prudent patient would not have had treatment if information had been disclosed (Causation)
v. Harm from the undisclosed risk (Damages)
c. Strengths of Physician Based Standard
i. More consistent because more readily knowable
ii. More efficient for physicians
iii. Physicians can tailor information to each patient
iv. Less information overload for patients
v. Limits malpractice costs because harder standard to prove
d. Weaknesses of Physician Based standard
i. Custom is lower than negligence
ii. Ambiguity as to existence of custom
iii. Defining custom inconsistently due to resource limitations
iv. Future risks are not medical judgment, but decision of patient
v. Undermines patient autonomy
vi. Physicians may not agree with customs
2. Canterbury v. Spence (1972)
a. Canterbury had back pain. Spence recommended a myelogram, which revealed a “filling defect.” Spence told appellant that he would have to undergo a laminectory. The surgery went well, but revealed several anomalies. Following the surgery, the patient fell out of the bed, and there was no one to assist him, or side rail to prevent the fall. Several hours later, patient became paralyzed from the waist down. Spence’s orders were for Canterbury to void in his bed.
b. District Court rules against Canterbury holding that there was no medical malpractice.
c. Court of Appeals reversed, holding that Spence violated fiduciary duty of disclosing the risk of paralysis from the laminectomy. Focuses on informed consent rather than medical malpractice
i. It is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie.
d. Standard generally requires proof that the physician deviated from the standard of care (expert witness)
i. Certain situations require an expert witness, when they are of a special medical nature
ii. The facts of what a reasonable patient would want to know in making a medical decision is something for a jury to decide, rather an expert.
1. The patient’s right of self-decision can only be exercised if the patient possesses enough information to enable an intelligent choice.
e. This case begins shift from physician based standard to a patient based standard
3. Patient-based standard
a. Measured by patient’s need
i. The information that is material to the decision
ii. What a reasonable patient would want to know
b. Physician only needs to disclose things that are material to the decision
i. Reasonably patient would attack significance to it when making decision
c. Requirements
i. Physician-Patient Relationship (Duty)
ii. Reasonable patient would have found the information material to their decisions
1. Protects doctors by preventing hindsight
iii. Material information was not disclosed
iv. Reasonably prudent patient would not have had treatment if information was disclosed (Causation)
v. Harm from undisclosed risk (Damages)
d. Physicians should disclose and explain to the patient in as simple a language as necessary the following:
i. The nature of the ailment
ii. Nature of the proposed treatment
iii. The probability of success
iv. Alternatives
1. Option of nontreatment
v. Risks
1. Temporary or permanent nature of risks
2. Whether treatment is experimental (risks are unknown)
