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Health Care Law and Policy
University of South Carolina School of Law
Fox, Jacqueline R.

Health Law, Fall 2010 (Fox)
What Is A Professional?
1)       How are professionals different than people with a job?
a)       Qualities of a professionals
i)         Increased education
ii)       Exclusionary/monopoly/barriers to entry (everyone cannot do it)
iii)      Helping someone (vulnerable clients/patients)
(1)     Asymmetric relationship of information/power
iv)      Fiduciary duty (?)
v)       Organized, codified norms
vi)      Position of trust/confidence
b)       Different laws/rules apply when someone is a professional
2)       Whose opinion matters?
a)       Licensing board
b)       Executive branch of the government
i)         Administrative law
c)       Judiciary (lawyers only)
3)       Newmark v. Gimbel’s Inc. (1969)
a)       Is a hairstylist a professional?
i)         Have to be licensed
ii)       Must do extra schooling
iii)      Help someone (style/cut hair)
iv)      Position of trust
b)       There is a vast difference between a doctor/dentist and a hairstylist
i)         Beautician is engaged in a commercial enterprise
ii)       Caters to a aesthetic convenience not to a necessity
c)       Is what doctors do as hallowed and grand as perceived by society?
d)       What is intrinsically different between a doctor and a plumber?
i)         Vulnerability
(1)     What is at risk?
(a)     Your life/health – arguably the most important thing in life
4)       Francis D. Moore
a)       Great/horrible surgeon
i)         Performed tests/procedures on as many people as he could
ii)       Developed a lot of useful/cutting edge things
iii)      Fought against commerce into medicine
(1)     Clash of cultures
(2)     Maximizing profits à always good for the patient?
5)       Two core characteristics
a)       A prolonged specialized training in a body of abstract knowledge
b)       Collectivity or service orientation
6)       Edmund Pellegrino
a)       Tackles issues on bioethics
b)       “True professional is an ordinary person called to extraordinary duties by the nature of the activities in which he or she has chosen to engage
7)       Fineman v. New Jersy Department of Human Services (1994)
a)       Bunch of doctors at a nursing home
b)       Fineman was asked to perform extra duties outside the scope of his employment
i)         One doctor was on a prolonged (unauthorized) vacation
ii)       Legal remedy – complain/make known “unsafe” working conditions
iii)      Instead, he went on a one man strike to protest the work conditions
c)       No distinction is drawn between a mere objection (including complaints) and the possible consequences of a refusal to participate (e.g., a refusal to carry out a professional responsibility)
d)       He was in a place, as a doctor, with people who needed care
i)         However, he did not perform the duties
e)       As a doctor, when you are in the presence of someone suffering, there is almost always a responsibility to attempt aide
f)        There is a normative aspect that as a doctor, Fineman should have provided service to the patients
i)         He is “worried about the patients” yet in the short term, he is hurting the patients by not providing service
g)       Similarities to air traffic controllers going on strike with Reagan
i)         Reagan à “you cannot go on strike”
h)       Circumstances that allow refusal of service
i)         Religious/cultural beliefs
ii)       When refusal to act benefits (“bad blood handling”)
8)       Hippocratic Oath
a)       Not a binding document
b)       Originally designed to prevent people from becoming surgeons
9)       AMA Principles of Medical Ethics
a)       Guidelines for doctors
b)       What to do/not do
i)         Protect patients’ rights
ii)       Protect societies scarce resources
iii)      Respect autonomy
iv)      Protect own rights
Patients, Subjects and Citizens
A. What Control Can Individuals Exercise?
1.       The Role of Assent or Refusal
a.        Schloendorff v. Society of New York Hospital (1914)
                                                   i.      Charity used provide an immunity to the related institutions
                                                  ii.      Law has changed since this case that hospitals can be liable now
                                                iii.      P sues D for unlawful touching (surgery)
b.       Two ways to sue a doctor
                                                   i.      Battery
1.       Unlawful/non-consensual touching, goes beyond consent
                                                  ii.      Malpractice
c.        Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits and assault
d.       Consent v. consent form
                                                   i.      Consent form – evidence of consent; furthers consent; consensual agreement to consent is weakened by the form à moves towards one-sidedness
e.       Doctor’s Concerns with Full Consent
                                                   i.      Asymmetry of procedures
                                                  ii.      Time
1.       Takes much longer
                                                iii.      Cost/differential view
1.       Costs differ between patients and doctors
                                                iv.      Lawsuits
1.       Blanket consent covers more
                                                  v.      Managed care
1.       Cannot afford alternative
f.         Emergency Care
                                                   i.      In times of emergency, consent is presumed by the situation
                                                  ii.      Only deals with situation that brought patient into ER
g.        Imply consent to basic treatment interactions
                                                   i.      At some point in escalation of care, consent will become necessary
h.       On Liberty – John Stuart Mills
1.       Everyone who receives the protection of society owes a return for the benefit, and the fact of living in society renders it indispensable that each should be bound to observe a certain line of conduct toward the rest
                                                  ii.      Your right to control what happens to your body is paramount to all others
                                                iii.      Capability of the person determines the level of autonomy
                                                iv.      All in favor of everyone watching out (nagging/nudging) for each other
1.       Still, people have the right to their own body
                                                  v.      Does not resolve the role of the state in forcing medical care for the good of the state
1.       Can intrude on autonomy for benefit of the state
a.        Communicable disease, etc…
2.       The purpose of government is to ensure that each person is free to come to his or her own definition of happiness and to pursue it
                                                vi.      What is left protected?
1.       Have the right to forgo medical care/treatment
2.       Cannot get something that is illegal
3.       What about ending one’s own life without state intervention?
i.         Patient autonomy
                                                   i.      Fear of being sued controls most strongly
j.         What is gained by ignoring autonomy?
                                                   i.      May improve the overall health of society (better outcomes)
                                                  ii.      No pressure on the patient
2.       The Role of Disclosure / What is Informed Consent?
a.        Canterbury v. Spence (1972)
                                                   i.      P’s mom asks if surgery is serious
1.       D responds that it is not any more serious than others
2.       Fails to mention grand risks of spinal cord issues / paralysis
                                                  ii.      What were the rights that the boy and his mom had when he entered into the surgery?
1.       Doctor is held to the professional norm
2.       Was there a fully informed decision proc

. Cannabis Cultivator’s Club (1999)
i)         FDA’s ability to regulate what consumers have the right to obtain on the marketplace
(1)     Is this actually occurring or is it a cover to stop marijuana use?
(2)     Distinction between treating one’s self and obtaining treatment through public market participation
ii)       Ability to choose
(1)     What has been invented
(a)     Cannot use a product not in existence
(2)     What is ruled to be available
(a)     Do not have the right to choose a substance that the government has previously ruled as not available
iii)      Why does the FDA regulate?
(1)     Ensure that marketplace for food and drugs is safe
(2)     Be society’s safe-guard
iv)      Hope
(1)     Possibility that a medical issue is alleviated partially or fully
(2)     Can help people deal with their condition
3)       Based on concern for those who cannot decide for themselves
a)       Rains v. Belshe
i)         Incompetent patients unable to make a decision for themselves and no one is around to make decision for them either
(1)     Incompetent
(2)     Elderly (normally)
(3)     No family
(4)     Alone
ii)       Decision maker becomes an almost interdisciplinary team
(1)     Doctor(s)
(2)     Nurses
(3)     Other medical professionals
iii)      Case covers what medical professionals can do in times of non-emergency medical conditions
iv)      Two things to protect
(1)     Develop a system that is efficient enough to protect patient and have quick treatment
(2)     Protect against profit-maximizing doctors
v)       Patient’s privacy
(1)     What expectation of privacy exsits?
(2)     What is the expectation when you are the person in this case?
(a)     In a nursing home, there is a decreased level of privacy à
(i)       Nurses constantly checking in
(b)     Incompetency à
(i)       Not aware of privacy level
(ii)     State has a duty to protect the individual and itself
vi)      Due Process
(1)     No matter what, patients still have the right to due process and challenging doctor’s decisions
b)       In re Seiferth
i)         Can you force a minor to undergo a medical procedure to treat a non-life threatening condition?
(1)     Parents allow the child to make decision to get/not get the treatment
(2)     14 year old child has lived with condition entire life
(3)     Is merely cosmetic
ii)       Ability to live becomes ability to live a “normal” life
(1)     What is normal?
(2)     Who defines normal?
(3)     How can one tell that a medical procedure will allow access to this life?
iii)      Since he has not had the procedure yet in life, there are no exigent circumstances that dictate an immediate need to have the procedure
(1)     Could have the procedure done at age 21 or whenever
iv)      If you forced an adult to have a surgery against their will, you would be battering them
(1)     The person would no longer own himself, he would belong to someone
v)       Role of assent arises out of this case
(1)     Gradual increase in the role of children in choosing what to do their bodies
(a)     Age/maturity, AND
(b)     Severity of the condition
c)       Sell v. United States (2003)
i)         Criminal defendant refuses to take drugs for mental disorder, NO DANGER to himself or others
(1)     Solely wish to administer drugs so that the defendant is fit to stand trial