HEALTH LAW AND POLICY
NICHOLAS BAGLEY
FALL 2011
THEMES:
1. Right v. Commodity – (First Organizing Principle)
a. Commodity (problems with this view)
i. The Nature of the Demand – Irregular and Unpredictable
ii. Expected Behavior of Physician
iii. Product Uncertainty
iv. Supply Conditions
v. Pricing Practices
b. Right (problems with this view)
-Unsustainable – if treat health care as a right, it is really expensive
– hard to define what level of care is – even a “minimum” care.
-people who talk of “basic minimum” care often mean the care that a middle class person would get. So it’s really about redistribution of wealth.
c. Conclusions
-We can’t afford all care for everyone
-Health care might not be that special – is it?
-may do disservice to spend $ on health care, while other needs go unaddressed
-We treat health care as both a right and a commodity
2. Professional Autonomy v. Cost & Quality Regulation
-why do we trust doctors more than bureaucrat? We trust doctors as ethical
-doctor-patient relationship built on trust
-think of bureaucrats as putting up red tape
-problems with this: doctors are “sales-men;” they make a lot of mistakes, a lot of unnecessary care.
3. Individual Freedom v. Public Health and Morals
-Let you choose your doctor, but don’t allow alternative medicine
-squeamish about denying life-saving measures
-We incarcerate mentally ill people who are dangerous
-Individual needs v. society’s needs
SUPPLY CONDITIONS (IE LICENSING REQUIREMENTS)
Licensing of Doctor
-Why need a license?
1) ensure quality
2) protect doctors’ jobs
State v. Miller – practicing radionics w/o med license
-What’s the harm?
-didn’t hurt, but delayed actual medical treatment (could help b/c of placebo effect)
-Did people actually think Miller was a doctor? Not really, but it’s basically fraud
-heavy handed imposition of liberty to work and freedom to choose own treatment
-who else could violate this? Barber, hypnotist, fitness trainer, naturopathic med (although licensed in some states), tai chi, tattoos in some states
-the statutes against practicing medicine are pretty broad
Lange-Kessler v. New York Dept of Educ – midwives prosecuted for no license
-ct applied rational basis test, said state has legitimate interest in making sure safe births
-midwives offered tons of evidence that they were safe, said it was just economic protectionism
-patients also had a claim: right to privacy (based on Roe, Griswold) – rejected
-Alternative medicine is huge flash issue; 1990 $13.7 billion on alt med (acupuncture, etc)
-driven by distrust, coldness, difficulty, cost of medical care
Justification for licensing is real and people are confused but there needs to be balance
-Associations (trade groups that are designed to protect the interests of their members) have gotten laws heavily in their favor
Also a big issue is Nurses and Physician Assistants
-so called doctor extenders
-should we encourage them to do work in place of doctors?
-studies show nurses spend more time with patients, better satisfaction
1) who can do what jobs
2) can other types of professionals provide care without doctor supervision?
Licensing laws relevant to access and cost of care
Modi v. West Virginia Board of Medicine – exorcism
-State Boards of Medicine are historically ineffective – very little discipline
-so getting med license a big hurdle, but once you have it, it is very hard to lose it
-Harm may not be to patient – harm is to profession, makes it look bad. But who cares?
Hard to Balance:
-Some conditions like chronic pain not well addressed by doctors.
-Some doctors prescribe carelessly -> addiction to drugs
Licensing is main way state regulates entry:
-tries to protect
-balance individual freedom and public health
-but are designed to keep out newcomers/competition, restrict supply of doctors
PHYSICIAN/PATIENT K
Common Law Duty to Treat
Hurley v. Eddingfield
-dr has no duty to treat, even in an emergency (h/e AMA ethical code requires this)
-a past relationship with a doctor does not create a K or duty to treat
-otherwise would have a lot of line drawing problems
-a dr’s license is just permission not compulsion
Ricks v. Budge – dr refused to treat b/c patient owed money
-duty to treat if there is an ongoing relationship
-dr. started treating him and even when he left, dr told him to call and come back in if it got worse; he came back and dr. gave him advice/sent him to hospital
-dr can terminate if he gives reasonable notice so the patient can secure other medical attention (or by cessation of the necessity that gave rise to the relationship)
-duty not to abandon when there is a physician/patient relationship
-strict adherence to these rules can piss off a judge though (think logically before you act)
Tunkl v. Regents of UC
-exculpatory provision protecting a hospital from negligence is unenforceable
-court calls hosp a common carrier/affects public interest (business suitable for public regulation, service is of great importance to the public, party holds itself as willing to perform the service for anyone, business has a decisive advantage in bargaining strength)
-common law immunity for charitable hospitals but this no longer exists
Wilmington Gen Hosp v. Manlove –baby turned away b/c hosp says it’s under care of a diff phys
-no duty for a hospital to accept a patient, except in cases of unmistakable emergency when patient is relying on you
Wrinkles in the no duty rule for physicians:
Exceptions that rely on a legal fiction – 3rd party beneficiary:
-if a dr is on-call there is a duty (arising from the law) to treat anyone who shows up at the hosp
-A physician’s contract with HMO gives rise to a duty to treat HMO patients who show up
EMTALA (emergency medical treatment and active labor act)
-passed to solve problem of the “dumping” of patients who don’t have health insurance
-requirement if hospitals want medicare support (doesn’t just apply to medicare patients tho)
-EMALTA does not require hospital to have ER – could just close your ER
Why Dump Patients?
-hospitals lose a ton of money out of the ER (55% don’t have insurance)
-hospitals in game of hot potato (want to deflec
is the complete rejection of this paternalism -> desire to enhance personal autonomy outweighs any paternalistic instincts of dr however justified
Canterbury v. Spence (DC)-dr recommended back surgery, didn’t say much about the risks
-Reasonable Patient Standard: reasonableness of the physician’s divulgence is viewed in terms of what he knows or should know to be the patient’s informational needs – this court
-problem: Culbertson (IN) says this means drs have to be “mind readers”
-h/e this ct says don’t have to tailor it to each indiv patient, but reasonable person in that patient’s position (still not much better)
-says don’t need to convey risks of surgery like infection b/c avg person knows this (h/e most patients don’t know this)
-essentially don’t have to tell patients about MOST or LEAST likely, just the in-between which is very unrealistic
-Professional Malpractice Standard: what reasonable physicians as a whole would do -> customs of the practice – this is the slight MAJORITY rule
-problem: there might not be a discernable custom/consensus
-lets drs do what they want
-can lead to battle of experts
Different stds won’t matter b/c jury will base it on what they would want to know.
Treated like a Negligence Action
Duty: Use the Standards above
-under either standard, duty to disclose hazards, alternatives, results if untreated, benefits
-h/e sometimes not a lot of clinical data about benefits/risks of surgery or alt trtmts
-under either std lawyer won’t want to take the case b/c so much is left to the jury’s subjectivity
-therefore decision to take a case will depend more on expenses and possible winnings than which std used
Breach:
-hard to figure out if it’s been a long time since it has reached trial
Injury:
-have to actually be injured to sue
-theory is that you wouldn’t have undergone the surgery if you had known the risk
-objective patient (majority rule) wouldn’t have undergone surgery if they had known the risk
-but isn’t this the same as asking if treatment recommendation was reasonable? So isn’t this just a medical malpractice case? Which means you can’t win w/o showing med mal (so now IC suits almost never brought alone)
-which defeats IC purpose of protecting autonomy
-problem with subjective patient is that obviously they would have done it differently in hindsight, so how can court know what they would have done at that time
-so what about keying it to a “psychic” injury? Too hard to prove
Bottom Line of IC:
-Court has made it nearly impossible to win this case alone. H/e drs still scared of it.
-meaning doesn’t work in doctrine but plays a huge societal role
