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

Professor Fox
2 fact patterns and 1 policy question.
Part I: Who Is a Patient? Autonomy and State Control
I.                  Day 1: Private Control of Science and Medicine. Professionals and Their Organizations and Institutions. (pp. 216 -234)
A.                 What is a Profession?
Grounded on the fact that we treat medical as a profession.
1.                  Newmark c. Gimbel’s Inc 54 N.J. 585 (1969)
PROCEDURAL POSTURE: Defendant beauty parlor operator appealed from an order of the Superior Court, Appellate Division, (New Jersey), which reversed the judgment of the trial court, holding that defendant was not liable for damage to plaintiff’s hair and scalp allegedly caused by a product used in giving a permanent wave.OVERVIEW:  The Court makes a distinction between a person who in the regular course of business sells or applies a product which is in such a dangerously defective condition as to cause physical harm to the consumer-patron, that person should be held liable for the harm. However, in a different context, the strict liability in tort doctrine is not applicable to the “professional man” (i.e. dentist) because the essence of the relationship with his patient was the furnishing of professional skill and services. The use of instruments, or the administration of medicines or the providing of medicines for the patient’s consumption cannot give the ministrations the cast of a commercial transaction.
            The distinction lie around whether the person administering the service is a professional or non-professional, which carries different tort liability. The liability of the ‘professional’ involving the ordinary relationship of doctor and patient must be tested by principles of negligence, i.e. lack of due care and not by application of the doctrine of strict liability in tort.
OUTCOME: The Court believed that beauticians and doctors should not be held to the same tort liability standard. The beautician should be held to a standard of strict liability because they are in a commercial relationship with the purchaser/consumer. A doctor/dentist is in a more professional relationship which is not about commercial transactions, but is instead about the furnishing of an opinion by the doctor/dentist which results in a doctor/patient relationship and treatment, which is not solely commercial in nature. 
          Doctors also provide an essential function in society, which is the health and even survival of many people; which is so important that they outweigh the policy concern and the need to impose a strict liability standard upon the doctors in tort. 
 ANALYSIS: The Newmark Court draws a distinction between a professional, who fulfills a socially necessary service, and a non-professional, who merely engages in commercial activites that do not relate to a social need.
            Consider: “Many doctors equate professionalism with autonomy-to be left alone to do what they want, not only medically but financially. Autonomy, however, is not a divine right of medical or other professionals. Rather, it is a legal institutional, and moral privilege that is granted by society and that must be earned by health care providers through observing certain standards of behavior, including at least the following (1) Altruism: Professionals are expected to resolve conflicts between their interests and their patient’s interests in favor of the patients. (2) A commitment to self-improvement: Professionals are expected to master new knowledge about their trade and to incorporate it continually into their practice. They are expected to contribute individually to the knowledge base that informs their discipline. (3) Peer Review: Because of their specialized knowledge, professionals are uniquely positioned to supervise that work of their peers, to protect consumers against the failures of professionalism.”
-David Blumenthal, The Vital Role of Professionalism in the Context of Autonomy and Self-Control, Health Aff. 252 (1994).
NOTES: The 11th Cir. Defines “professional”: “The term professional is not restricted to the traditional professions of law, medicine, and theology. It includes those professions which have a recognized status and which are based on the acquirement of professional knowledge through prolonged study. It also includes the artistic professions, such as acting or music. Dyback v. State of Florida Dept. of Corrections, 942 F.2d 1562, 1564 (1991).
**A true professional is, in sum, an ordinary person called to extraordinary duties by the nature of the activities in which he or she has chosen to engage.**
B.                 Establishing Norms and Standard of Conduct
1.                  Fineman v. New Jersey Dept. of Human Services, 272 N.J. Super. 606 (1994)
FACTS: π was a doctor in a large long-term care facility (nursing home). He was one of three doctors on staff. During his employment, on several occasions, he was the only physician on staff, because the other two had left or were gone for various reasons. He was thus overworked and sorely understaffed.
After several complaints were filed by the π for being understaffed, the π stated that he would only be treating patients which he was assigned to in Unit 1. He would not be available to coverage patients in Unit 2 & 3 except for emergant or life threatening conditions. 
ISSUE: This case involves separate consideration of the clear mandate of public policy question in connection with: a) π’s objections to his temporary assignment and to the alleged consequences of inadequate staffing policy at the Home and (b) π’s refusal to participate in the policy, expressed by his openly declining to see any patients other than those to whom he was primarily assigned.
2.                  The Hippocratic Oath:
3.                  The American Medical Association, Principles of Medical Ethics (2001)
II.               Day 2: Patients, Subjects and Citizens (pp. 234 – 259)

close to an identifiable person, and if there is a foreseeable risk, and the doctors has specialized knowledge and is in the best position to disclose. 
Notes: HEPA is the protection of patient information. What’s a doctor’s obligation and what’s a patient’s right?
IV.           Day 4: What Limitations Should be Placed on the Individual Choice? Based on the concern for the individual. (pp. 264-282)
Medical Marijuana: Why medical marijuana? Medical uses are anti-anxiety (highly controversial), appetite stimulant, pain control, nausea, glaucoma.
Why medical marijuana is used besides the drug culture. It’s natural, easily produced, NOT PATENTED! (This is a big reason by drug companies are fighting against it.) 
FDA has approved a synthetic marijuana pill, but are not legalizing marijuana. You can buy this pill that has the same effects as the thing that you can grow in your backyard. 
Is it okay for your doctor to say, “Go get marijuana” but the govt. says “No! you’re not allowed to do that.”  Focuses on Doctor/Patient Autonomy.
Creation of the FDA. Based on the Novel “The Jungle” by Upton Sinclair. People wanted the FDA. Public policy to regulate the health of the public. 
FDA’s ability to control medication and government’s ability to criminalize.
A.                United States v. Cannabis Cultivator’s Club, 1999 WL 111893 (1999)
This case is about the validity of the regulation of the govt. of medical marijuana.
The power of hope in the health care process. Courts have ruled that stripping hope from a patient is not allowed. Weird that Court will recognize this amorphous concept.
B.                 Based on Concern for those who cannot decide for themselves
·         Incompetent patients: State can create a decision making process. Must balance privacy and due process rights of the incompetent. (This doesn’t count for a lot.)
1.                  Rains v. Belshe, 32 Cal.App.4th 157, 38 Cal.Rptr.2d 185.
2.                  In re Seiferth, 309 N.Y. 80 (1955).
Kind of a cool case. It was the 1950’s and it shows an interesting medical intervention. 
Parental intervention for the health care decisions of the child.
If you force an adult to undergo surgery, then it’s a battery. But you are able to force a child to undergo a surgery?
Age and maturity of child, and the risk. These are the two factors to consider for the consent of th