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Health Law
University of Iowa School of Law
Kurtz, Sheldon F.

Health Law
Kurtz
2011
 
 
Financial Systems in Health Care:
employers, employed, those in private care have a vested interest in the continued system (since they bought into it)
most employers don’t provide direct HI, just provide financing for it.
employers pay premium
coverage/rules of insurance policies are regualted by the individual states. (problems for large companies who cover multpiple states: ex. GM- michigan, new jersey, iowa.
problems for companies- weren’t receiving equal kinds of health insurance (inconsistencies in state regulations)
unions fighting back for equal coverage →
Congress adopted ERISA as a response- added a sentence “employer/employee welfare plans that are self-insured are exempt from state regulation”- (meaning  any plan that employer has for employees for their welfare (health insurance)
thus –> increasing company reliance on self funded insured plans FREE FROM STATE REGULATION (Mostly for large companies who could afford it) (eliminated the profit the insurance company was getting by the company’s premium payments. company instead makes a “savings” account and the insured employee pays claim to the company directly. But since companies dont want to process claims (nor know how to, they outsource it to… insurance companies)
65% self funded, 35% regular insurance companies
insurance companies started to work for companies as 3rd party administrators (TPA)- administers plans for self funded employers.
*medicare works similar as a self funded plan- only difference is the gov’t is the provider, and not ur company.
Treatment Relationship
Formation
A.     Duty to Treat
a.       Duty to Accept Patients- DR doesn’t have a duty to accept patients.
                                                   i.      Hurley v. Eddingfield (dr. refusing to treat pregnant lady who he had deliverd for before. He had no other patients that needed him.
1.      HELD: DR. not obligated to accept patients
2.      RULE: principles of contract law- do’t have to enter into employment contract if dr. doesn't want to.
3.      Rationale: primary dr. patient relationship is grounded in “meeting of the minds”.
4.      Spell of illness doctrine- when does treatment end? Treatment ends when the illness is over.
5.      Examples:
a.       Pregnancy- clear cut end of K- when baby is born. Each pregnancy is a separate K w/ the dr. (even when it's the same dr who delivered ur first baby)
b.      Primary care physician- open ended K w/ dr.
b.     DR. can refuse to treat you in the middle of treating you.
                                                   i.      You can walk away at any time from your dr.
                                                 ii.      Dr is fiduciary to you,  so Dr. can walk away while treating you as long as
1.      You aren’t in emergency
2.      You received enough notice to get other medical care
                                               iii.      POLICY: if dr. had to keep every patient they ever took on, theyd be working too much- spreading himself too thin will result in adverse effect on the quality of care he provides you).
                                               iv.      CURRENT HEALTH CARE PLANS- managed care- assures patients a right to see a doc. (may have to wait a couple months, and limited in coverage).
1.      Drs response to managed care- boutique health care- drs who make themselves available to their patients (concierge drs)
c.      Hospitals liability in treating people
      Public hospital- duty to treat everyone (since public funds)
      Private hospital- no duty to treat everyone
§  Most hospitals are private nonprofits (grounded in religion)
      Quasi public- duty to treat if its an emergency (since receiving some gov’t funds)
 
                                                  i.      PRE-EMTALA
1.      Wilmington Gen Hospital v. Manlove (hospital refusing to treat)-
2.      DETRIMENTAL RELIANCE THEORY: if patient has justifiable reliance on the hospital to treat them, then the hospital must treat patient. If hospital puts up emergency sign, there’s a reasonable belief that patient comes in w/ reliance that he will be treated)
a.       Elements:
                                                                                                                           i.      Detrimental Reliance
                                                                                                                         ii.      Unmistakeable emergency
b.      RATIONALE: Hospitals don't get tired and perform worse, unlike Drs.
3.      Common Carrier/Innkeeper- certain institutions have monopoly over services have obligation to serve all paying customers (even if they should be rejected)
a.       NON-paying patients- rejection of treatment problems.
4.      State statutes- some state statutes imposed a duty to treat or care.
                                               ii.      POST EMTALA (LOOK AT CHART)
Hospitals contract w/ docs to provide round the clock care for ER.  Required under EMTALA to do it- otherwise fine.
1.      Hospitals subject to emtala if:
a.       Accept medicare funds AND
b.      Operate Emergency Room
2.      Patient triggers EMTALA duty to treat if:
a.       they have “emergency medical condition” OR
b.      “active labor”
3.      Emergency Room= broad definition
a.       Doesn’t have to be in Actual ER. Being in Hospital run ambulance, somewhere else in hospital.
4.      EMTALA Compliance Requirements
a.       1. SCREEN patient to see if EMTALA trigger is there
b.      2. Stabilize or Treat patient
                                                                                                                           i.      can transfer non stable patient if:
1.      patient consents, OR
2.      doc certifies, basd on risk analysis taht its medically reasonable.
                                                                                                                         ii.      If ur going to treat à don’t need to stabilize.
5.      EMTALA PENALTY-
a.       Hospitals and the doc = civil penalty by govt.
b.      Private right of action hospital (BUT NOT DOC)
                                                                                                                           i.      Dr. vs. Hospital liability rationale: if doc is liable, deters them from practicing ER (undermines the social utility)
              

                                 i.      HELD: Dr. can refuse to treat handicapped patient based on the risks to that person.
4.      Doctor’s disability vs. patients’s-
a.       Risk to Doctor from patient- doc can only deny treatment after reasonable accomodations made (wearing gloves drawing blood).
b.      Risk of patient from Doc- dr. must disclose, and patient can opt out of drs care- even if reasonable accomodations were being offered.
                                                                                                                         ii.      Handicapped-
1.      “impairment of major life activity “
a.       HIV is a disability under ADA/Rehab Act- (ex. Inability to reproduce).
2.      NOT disability if “Medication/devices can alleviate disability” (ex. Wearing glasses)
                                                                                                                     iii.      Discrimination
      Violation= UNreasonable medical decision that shows discriminatory intent
      NOT violation= Reasonable medical decision
1.      Racial Discrim- dr. refuses to see black patient b/c she refuses to get sterilized per his policy to not deliver 3 kids for mothers receiving Medicaid.
a.       HELD: not  Con violation but instead a legal discrimination- since dr. isn’t a state actor. Policy he made is purely his own. The consent to sterilization can be proper.
 
B.     Formation of the Doctor Patient Relationship
a.       Touching- Mere recitation of symptoms by a patient is NOT enough.
                                                   i.      But forms once dr offers advice after listening to symtoms
                                                 ii.      *some jurisdictions, listening to symptoms = relationship
b.      Doctor curbside consult- D1(p’s dr) curbside consults D2 à patient doesn’t have relationship w/ D2.
                                                   i.      Policy: don’t want to stifle communication b/w docs.
c.       BUT! if there’s a bill = relationship
d.      If u made specific treatment appointment and doc agrees to see u (even if he doesn’t see u)
                                                   i.      Rationale: reliance- refraining from seeking other care.
e.       NOTE: employment/insurance physicals- NO relationship formed- unless
                                                   i.      something imminently threatening is discovered, OR
                                                 ii.      doc makes recommendation to employer **(ties in w/ duty to breach confidentiality)