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Health Law
University of Michigan School of Law
Horwitz, Jill R.

I          Health Law & Policy(Quality, Cost, Access, Choice)
v Defining Sickness
·         Illness=socially constructed device
ú Highly contextual concept
ú Affects indiv & society
ú Definitional approach: w/in meaning of ins policy //Katskee: defns of illness & med nec re prophylactic surgery for breast-ovarian carcinoma syndromeàshould ins co pay or play odds, pass costs of eventual illness on to Medicare
·         Health=complete wellbeing/natural biological f/opposite of disease (theoretical)/opposite of illness (practical)
·         How to measure quality of care=min care/std of care/med necessity…subjective (bedside manner, unnec care) vs. outcome-based (mortality)
·         HC as a right?
ú Would mean $ is no object
ú Values: moral responsibility for ill, econ choices, moral stdg of patients, moral stdg of drs/med practice
v Spending
·         Enough?
·         Too much (outpacing GDP growth, 2.5x indust world median accord Gladwell)?
ú More than other countries but are the outcomes worthwhile? How to judge? Life expectancy? QOL?
ú Alterns for better health outcomes: clean water, nutrition, adequate housing
·         Implications for both indiv & group health
II        Quality of Care
·         Substantially self-regulating profession but also: (in)direct state police power; scope of practice reg (dr vs. nurse, med vs. other care); incentives for good care (performance measures, consumer mkt power); private mechanisms (prof orgs, malpractice suits); licensure; practice guidelines //allopathy (MD) vs. osteopathy (DO)
·         1/3 of all med care is wasteful (no diff in outcome), but which treatments?
v Monitoring & Regulation of Profs & Institutions
·         Susceptible to manipulation…
·         Not nec aligned w/profit: types of cases, types of patients, number of cases
·         Oversight by govt
ú State med bds & disciplinary proceedings
¨       Deferential std of review
ú In re Wms: weight control regimen ok b/c experts were divided & no express prohibition existed at the time
§ Bd brings complaint, prosecutes, & judges—deferential std of review: supported by reliable, probative, & substantial evidence & in accordance with the law
§ Expert testimony needed to estab std of care even though bd has expertise (appearance of fairness)
ú Hoover: bd used opinion of unqualified drs (inadequate evidence, familiarity, expertise) to find violation re prescription of controlled substances for pain management (not excessive/inapprop)
§ Deferential std of review: legal/proced error
§ No possibility of reas review w/o evidence/testimony; lay bd members need indep expert sources
¨       Expert testimony not nec for legal violations, obviously egregious/reckless behavior like leaving in scissors
¨       Proced issues: bd expertise (dr dominance of bd membership, specialty-dependent, lay reviewersàless input w/increased specificity to patient pop & thus technicality), licensee ability to cross-examine
¨       Chilling effect=drs avoid legit/effective treatments for fear of prof discipline
¨       Online dr profiles, interstate Natl Practitioner Data Bank (NPDB)
¨       Telemedicine: can be interstate whereas licensure bds are w/in statesàproblems esp for online pharmacies
ú Altern med: full disclosure, limited practice, could license separately
¨       McDonagh: off-label prescribing (what most drs do in treating this disorder vs. using this treatment)
ú Licensure & scope of practice (boundary-setting b/w professions)
¨       Primary enforcer: state med bd
¨       Unlicensed provider=public offense, license revocation for drs who aid/abet //matter of prosecutorial discretion
¨       Nurses: indep but limited practitioners, collab w/drs, prescribing auth under dr supervision
¨       PAs: act under dr delegation/supervision
¨       Ruebke: lay midwife practice ok b/c she’s supervised by drs (obstetrical diagnoses/judgments involved)
ú Assistance at child birth vs. delivering child (no artificial/mechanical means)
ú Dealing w/illness? No pathologies/abnormalities
ú Peaceful coexistence w/obstetrics (licensing pushed as mkt control device to create specialty)àmidwives left out unless licensed certified nurse-midwife…open mkt competition & hostility
ú Con claims for privacy right in reprod decisionmaking fail
ú Can expand scope

provide proced due process
ú Why punish? Fear of liability, bad apple
ú Still good system for drs—don’t rat each other out—but maybe bad for recruiting //Waste of resources?
¨       Std of review: arbitrary decision (OH) vs. substantial evidence std vs. no review of merits (bylaw compliance)
¨       HCQIA (HC Quality Improvement Act) 42 USC §11101
ú Immunity for H that applies when credentialed dr is terminated (except for civil rights claims)
ú Presumption of compliance
§ P dr has high hurdle to rebut:
·         Preponderance of evidence
·         4 Reasonables: belief for quality, facts, fairness, belief for folly
·         Objective std
§ Rarely overturned but Hs still have to bear litigation costs
§ P dr may have to pay attny fees if frivolous, bad faith
ú NPDB
ú Window to escape reporting
¨       Mateo-Woodburn: H can unilaterally change privileges when (1) quasi-legislative act that has to do w/overarching power of H to run H & set quality stds & (2) no harm to dr’s reputation
¨       Mahan: H can close staff for purely econ/competitive reasons
ú Managed care orgs over drs
¨       Harper: no-cause termination must comport w/covenant of good faith & fair dealing & must not be contrary to public policy (no bad faith use)
¨       Mayer: defer to K—enforceable
¨       Potvin: removal must be substantively rational & procedurally fair
ú Disclosure of delisting=devastation of practice but there’s a policy interest in keeping drs in business/profitable (no competition/choiceàless quality)
ú K not enforceable (too limiting—can’t sign away CL rights to fair proced), econ interests (right to practice, carry on a reas profession, make a living)àfair proced
ú Mkt power of HMO over Potvin here