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Health Care Law
University of Dayton School of Law
Erickson, Jody

Health Care Law
Professor Jody Erickson
Fall 2010

4 Major Concerns of Healthcare addressed over Semester
1. Quality
2. Cost
3. Access
4. Choice


Natural State – doesn’t cost much for vitamins, etc.

Society will accept and tolerate the natural state. Ex. Aging.

Disease – may be mild – a little more money.
Illness – considered serious, incapacitating, patients have a loss of control that relieves them of responsibility. – usually big dollar signs

They went to Webster’s dictionary to define medically necessary. Note that all insurance contracts have a definition of medical necessity (it does not mean medically necessary). Medical Necessity means is insurance going to pay for it or not. They found that this was illness or bodily disorder or disease. “Any abnormal condition of body or components to such a degree that in natural progression would be expected to be problematic.”
Hypo: Is infertility a disease? Problem in hypo 10 is that they paid for the infertility treatment the first time around. Lots of courts have said infertility is a deviation from the normal state. So insurance company probably will have to pay.

i. Policy: we have to procreate


1. Arises from the 10th Amendment
2. Arises from the joint federal/state Medicaid program

Arises from the purchasing power from the federal government
Questions to ask:

Is the law infringing upon any right granted by Constitution

· (state & police powers- health, welfare, safety, and morals)

Is that rule or law reasonably related to the goal

The good of the many outweighs the good of the one. In the note case where only required Chinese people to be vaccinated, it was struck because violated right granted by Constitution. Anti-cervical cancer medication. This is not AIRBORN – so somewhat questionable from a mandatory perspective. Public policy factors.


-Before relationship can be established the DOCTOR must consent (either explicitly or implicitly)
-Offer, Acceptance, terms to be enforced. Contract terms would have been that she gave up her bodily integrity and he agreed.

When is contract established?
· A private physician has the right to choose patients.
· If a doctor on the line gives orders which health care staff follows, the relationship is established. When the physician evaluates information provided and makes a medical decision, a physician-patient relationship is established. (Referrals outside of scope do NOT establish Dr. ßàPatient)
· A physician who has staff privileges at a hospital agrees to abide by hospital bylaws and therefore agrees to a doctor-patient relationship with whoever comes into the hospital according to most courts. Physicians who are part of managed care networks have a contractual relationship with the plan that requires them to treat subscribers.
· If on call then a patient physician relationship by virtue of contract with hospital. Factors determining whether to recognize a legal duty based on public policy:
1. The social consensus that the interest is worth protection
2. the foreseeability of harm and the degree of certainly that the protected person suffered the injury
3. the moral blame society attaches to the conduct
4. the prevention of future harm
5. the consideration of cost and ability to spread the risk of loss
6. The economic burden upon the actor and the community.
a. On call physicians owe a duty to reasonably foreseeable emergency patent to provide reasonable notice to appropriate hospital personnel when they will be unavailable to respond to calls. Physicians who cannot fulfill their on call responsibilities must provide notice as soon as practicable once they learn of circumstances that will render them unavailable.

If on call, 3 part test to determine if relationship is established:
1. Was the doctor a participant in the patient’s diagnosis?
2. Did the doctor prescribe a course of treatment?
3. Does the doctor owe a duty to either the hospital or health plan regarding the diagnosis and treatment?

Rule: the physician patient relationship is PERSONAL. Physician may choose to deny. But once have accepted, must continue treatment until:

Patient no longer needs treatment – the cessation of the necessity that gave rise to the relationship.
Patient discharges doctor

a. the mutual consent of the parties
b. the physician’s withdrawal after reasonable notice

Generally, the length of the relationship is one of two situations:
· temporary, which is determined by the nature of the procedure (like a surgery)
· OR until the relationship is severed. To not be guilty of physician abandonment, you must write a letter, giving 30 days to the patient.

Typical terms of the contractual relationshipà
· By specialty, by the discussion between the physician and patient (which MUST BE ON THE CHART). What did the doctor say about the patient’s condition, what did the informed consent say?
· Terms might be set by professional ethics, set by the standard of care by that physician’s specialty, or what other physicians might be doing in that area.


Where a physician promises particular surgical results, he may be held liable for breach of that express warranty. Here, Dr. Pate’s actions could be an express warranty; therefore summary judgment was not appropriate.

Privity of Contract

Hand v. Tavera
Was there privity between the patient and the HMO physician? YES, there was a relationship. The plan brought the patient and the physician together just as they had been brought together physically. The physician had made a medical decision.

Contract damages à expectancy, restitution, reliance, cover damages.
Because of these contract claims, if you’re on the defense side, be careful about advising

ceed with that particular doctor where the procedure is intricate and challenging, so that experience matters a great deal. However, most courts resist requirements that specific percentages of risks be disclosed, arguing that medicine is an inexact science.

If the patient asks your physician client a question, the physician better answer it fully and truthfully!! The court was definitely bothered by the doctor’s deceit. The lack of experience and availability of better care = difference in results; it should be revealed.

Do you have to put in consent everyone who is participating in the surgery?

· Centers for Medicare and Medicaid Services (“CMS”) required it, but it is impossible to do! Put in positions, meaning the types of people who may be in the operating room.

Hospital’s responsibility in getting informed consentà

· Typically governed by CMS and Joint Commission, who provides the accreditation to the hospital. If the hospital is doing research, informed consent is needed.

Do hospitals have the duty to make sure that their physicians are getting informed consent? Case law says no, but JCAHO says YES. Burden is being pushed more and more on the hospital.
In an informed consent, do you have disclosure everything? Not everything that is a normal part of surgery. It’s good practice.

Elements of Informed Consent:

Nature and purpose of proposed treatment
Risks of the treatment
Treatment alternatives, and remember, NOTHING IS AN ALTERNATIVE, as well as further tests.
Likely results of treatment and alternatives

Presumption of informed consent w/ signed form (otherwise fight in every malpractice case).
· Informed consent is ordinary negligence, so it doesn’t require experts.
o There was EXPERT TESTIMONY – even though an informed consent doesn’t require expert testimony, it can be used and can be helpful. In this case, it showed the difference in morbidity/mortality rates for specialists performing this procedure.

The problem with sticking with custom is that physicians could “come together” and only use the “lowest common denominator.” Must be based on DUE CARE. Again, this is an ORDINARY STANDARD OF CARE. How much should be disclosed? à Not everything has to be revealed. Just whatever is material to the ordinary patient. – objective standard of