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

Health law
professor fox
fall 2015
I.                  Defining Health and Illness
·        What is Health? à Illness is a socially constructed deviance. Is the alcoholic sick or a drunkard?
o   When you are labeled as sick you become the object of medical attention and care
o   When you have a sickness or medical condition it has legal implications
Katskee v. Blue Cross/Blue Shield (1994)
o   RULE: Predisposition can be a bodily disorder/disease and thus should be covered
§  Ambiguous policy interpreted in favor of insured
o   Facts: P did not have cancer, but found by doctor to be in extremely high risk category due to family history of cancer; doctor recommended radical surgery to prevent cancer and filed claim with insurance; medical officer employed by insurance company made decision to refuse to cover; policy covers a “medically necessary” procedure to treat an ‘illness’ and they get to decide this; had surgery & filed suit
§  BCBS: not an illness, but a predisposition to an illness; agreed to should have the surgery, but not covered under policy
o   Issue: what constitutes illness within the meaning of a health insurance policy?
o   Holding: insurance policy interpreted like contract-rules of construction mandate that ambiguous policy construed in favor of the insured; She has something abnormal and expected to cause serious harm—disease and therefore medically necessary treatment to do prophylactic surgery
§  Fuslang Ruleàdefined disease within meaning of a health insurance policy excluding preexisting conditions only at such time as the disease, condition or illness is manifest or active or when there is a distinct symptom or condition from which one learned in medicine can with reasonable accuracy diagnose the disease
·        Preexisting Conditions—insurance companies want to limit the risk pool of candidates to those who get sick and then decide to buy health insurance
·        Matters whether condition had manifest itself; holding ppl accountable for seeking treatment
o   Effects/Resulting Problems: most cost efficient for patient and payer BUT Insurance company does NOT want this because hoped by time got cancer, she’d have new insurance; she could get dropped from insurance or not renewedàbut under ACA guaranteed renewal and issuance
§  Insurance is no longer about insuring against unexpected risk-more about getting ppl the care they need
Problem: The Couple’s Illness
·         Is infertility treatment covered by insurance policies? Do they have a reason as to why they are infertile?
o        Argument in favor of coverage: Fertility is a physical illness that impairs normal functioning – reproductive organs are NOT functioning normally
§  YES—irregular ovulation and low sperm count
o        Argument Against coverage:  the couple can’t conceive together, but might with other partner and insurance is for an individual
Public v. Private Responsibility and Interest in Health
·         Moving towards greater public responsibility for public health thru regulating private health insurance, mandates, funding Medicare/Medicaid
·         More collective financing of health insurance
II.               Informed Consent to Medical Treatment
·         Origins/Purpose –  idea that ppl have power to decide what is to be done to their body; to protect individual autonomy, protect patient’s status as human, avoid fraud or duress, encourage carefulness by doctors, foster rational decision-making, involve the public generally in medicine
·         Two Approaches to Defining Scope of Disclosure:
o   Majority: (25 states) Professional Custom/Reasonable Physician—what a reasonable doctor would have said under the circumstances. Physician-based Standard. Relies on expert testimony
§  Common Law Approach: what are other doctors doing? Custom of physicians practicing in the community, how much would they disclose?
o   Minority: (23 states) what a Reasonable Patient would need to know to make an informed decision? Physician must disclose risks that are material to patient which are the risks a physician knows/should knows a patient in that position would be likely to attach significance to in deciding whether or not to forego the proposed therapy
§  BETTER Test b/c whole point is self-determination; also gives power to jury rather than expert testimony in cases
·         Due Care Requires D to inform P of:
o   Diagnosis/Condition
o   Failure of treatment
o   Instructions for self-care and need to seek further treatment
o   Alternatives to treatment
o   Risks of proposed treatments
o   Risks of no treatment
Canterbury v. Spence à Negligence as a Basis for Recovery
·         RULE: Minority Standard/Reasonable Patient Analysis
·         Facts: P had back pain; D does imaging test and found filling defect; doctor says probably issue with disc and recommends surgery; D says “you need surgery”, and P doesn’t say much; D calls mother who asked if operation was anything serious and D said “not any more than any other operation”; shows up after surgery and signs consent for form for minor son; after surgery while voiding in bed with no one watching, P slips off bed
·         Claims:
o   Vicarious Liability on part of hospital for nurse not staying to watch P while voiding à failed b/c couldn’t prove causation in fact b/c no medical testimony that it wasn’t caused by surgery
o   Claims against Doctor:
§  1. Negligence of doctor during surgery; Compliance error/Negligent Treatment; his decision of what should be done is in compliance with standard of care but wasn’t done carefully à Failed; not enough evidence; too many inherent risks re surgery
§  2. Negligent Diagnosis: bad decision about what should be done to treat patient à Failed; same reason
§  3. Breach of Informed Consent: didn’t exercise du

  Emotional Risks: stress and anxiety; want patients to think about what will do with result info and decisions might make
o   No clear answer about what is/works best: must make value judgments
·         Idiosyncratic Preferences can be taken into account; i.e. very religious patient
III.           End of Life Decisions
·         Cruzan v. Missouri Dept. of Health (1990) à Right to Die/Refuse Medical Treatment
o   Facts: family wants to terminate artificial nutrition and hydration
o   Issue: Is there a constitutional right to die?
o   Holding: Court decided on clear and convincing evidence of person’s wishes to withdraw, right to refuse lifesaving treatment
o   Implications: State errs on the side of caution for extending life. Can we distinguish between life worth saving?
§  State variations creates problems
Bouvia v. Superior Court à Patient’s Right to Refuse treatment does not necessarily give you the Right to Die
·         RULE: A patient has the right to refuse any medical treatment or medical service, even when such treatment is labeled “furnishing nourishment and hydration.” This right exists even if its exercise creates a “life threatening condition.”
·         Facts: cerebral palsy and quadriplegic, etc. helpless and continuous pain; tried to starve herself to death; conscious and full capacity and competent mind
o   Expressing what she wants in this scenario herself, which is to have them provide palliative care while she dies
o   Provider Concerns: preserving life; preventing suicide; ethical standards of medical profession like right of physicians to effectively render necessary and appropriate medical service, etc.
·         Court: Right to Refuse medical treatment includes right to refuse life sustaining treatment – comes from battery and informed consent doctrine (very clear that patient has right to refuse, and consent is required for treatment)—cannot force treatment on anyone
o   Gives her right to refuse and she decides to live
o   Lawyer should try and find whether patient can be declared incompetent such that could disregard her wishes (i.e. in this case depression to point effecting psychological functioning)
o   Balanced Quality of Life v. Quantity of Life: meaningless existence as described by judge à improper to focus on this
§  Upsets Disability Rights Advocates