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

Health Law: Fall 2010 – Professor Fox

Informed Consent: reasonableness standard (likelihood of harm versus the severity of harm)****

What is Health Law?

Notions of autonomy – when can the state interfere w/ health care decisions?
Right of the government to protect itself
Access to health care – no right to health care in the US.
Insurance – employer-based, Medicare, Medicaid, self-insurance, military health coverage
Under-insurance
Paternalism: When is it appropriate for someone to make another’s health care decisions?
Medical malpractice – à increased health care costs, but counter-pressure from insurance companies who won’t provide coverage

Chapter 3: Private Control of Science & Medicine

I.                   Professionals and Their Organizations & Institutions
a.       What is a Profession?
i.      Newmark v. Gimbel’s, Inc.
1.      Lady goes to get hair done, scalp is burned, suit follows
2.      Court states that the action should be grounded in the principle of strict liability and not the “narrow conceptualism associated with the technical niceties of sales and implied warranties”
3.      Defense wants a ruling that strict liability in tort is not applicable to professionals
4.      Court says NO because a hair person is engaged in a commercial enterprise, whereas the doctor/dentist is engaged in a profession. Differences:
a.       no guarantee of a correct diagnosis
b.      docs/dentists can’t advertise for patients (even though they do!)
c.       performance of the professional is not mechanical in nature because of the requirement of individual study of each patient, etc.
5.      Nature of their services, which involve the health and survival of many people are so important to the general welfare as to outweigh in the policy scale any need for the imposition on doctors and dentist of the rules of strict liability
ii.      Professions are subject to the standard of care of that profession – not strict liability
1.      Best interest of the patient
2.      Note imbalance b/t information the doctor has and info the patient has
iii.      Members of the profession decide the qualification for its incoming members. If they are not self-governing, they are regulated by the government.
iv.      But note that licensing and the basis for suit are not the only things that define a profession.
b.      Establishing Norms and Standards of Conduct
i.      Fineman v. New Jersey Department of Human Services
1.      Discusses whether an employee has been retaliated against for acting upon an objectively reasonable belief of such clear mandate by objecting to or refusing to perform action in violation of the mandate
2.      Doctor worked at DHS, had to work really hard because everyone decided to either have a child or go on vacation, and decided he wouldn’t see a certain group of patients at the nursing home
3.      Doctor says the Hippocratic Oath, the AMA Medical Ethics, and nursing home regulations prevented him from caring for the 300 patients at his nursing home
4.      Court says an action for termination because of an objection exists under CEPA but in this case, they concluded that the jury could not have reasonably determined that the plaintiff was terminated solely because of his objections
5.      evidence suggests that defendants were in agreement with plaintiff’s complaints
6.      seems he was only terminated because he refused to treat
7.      no statute, regulation, or clear mandate that could suggest it would be ok to refuse to treat patients
8.      Court found that he should have continued his objections to the situation, instead of refusing to treat – must render medical treatment to the best of his ability, even given the difficult situation
II.                Patients, Subject and Citizens
a.      What Control Can Individuals Exercise?
i.      The Role of Assent or Refusal
1.      Two kinds of consent:
a.       Written form – evidence of the state of mind
b.      State of mind
2.      Consent can be express or implied, and someone can consent o/b/o children
3.      Schloendorff v. Society of New York Hospital (p. 234)
a.       Lady went to the hospital; eventually docs found a tumor
b.      Put her under ether; she need she didn’t want surgery and they took out the lump anyway; contends they did this without her consent or knowledge
i.      Of course she developed gangrene from the operation and lost some fingers and is suing the hospital
c.       Cardozo says the wrong is not mere negligence but trespass
i.      Everyone of adult years and sound mind has a right to determine what should be done with his own body
ii.      Surgeon’s that go against these wishes commit assault and thus is liable for damages
1.      this is true unless in cases of unconsciousness and emergency
d.      Cardozo lets the hospital off because they don’t have a master/servant relationship with the physicians
4.      John Stuart Mill, On Liberty
a.       “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”
b.      “the only part of the conduct of anyone for which he is amenable to society is that which concerns others”
c.       Where does the authority of society set in though?
i.      “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”
1.      not injuring the interests or rights of others
2.      each person bearing his share of the labors and sacrifices incurred for defending the society from injury and molestation
d.      At a certain point, there is a limit to compulsion. The value of the individual’s decision to plan his own life overrides a bad decision the individual might make.
ii.      The Role of Disclosure
1.      Patient can consent or refuse medical care, but the doctor has to make enough disclosure so that the patient can make an informed decision – this is informed consent. Issue of QUALITY of consent, not just its existence.
2.      Canterbury v. Spence (p. 240)
a.       FBI guy had some pain his back, went to the hospital, had a myelogram, and the doc said he needed surgery
b.      Surgery went really bad; doc never really mentioned a risk of surgery to the mother (who gave consent for the guy who was only 19); guy wound up in persistent pain forever
i.      Note that the mother was uneducated and rural, so doctor probably didn’t think she’d understand the details anyway
c.       Sued on a theory that the risk involved was not disclosed
d.      “the physician is under an obligation to communicate specific information to the patient when the exigencies of reasonable care call for it”
i.      Normally demands that the physician warn the patient of any risks to his well-being which contemplated therapy may involve
e.       Court holds that part of the physician’s obligation to the patient includes “a similar duty of reasonable disclosure of the choices with respect to proposed therapy and the dangers inherently and potentially involved”
f.       What’s the scope of disclosure (what do you have to tell them)?
i.      scope is measured by the patient’s need and that need is the information material to the decision
ii.      “a risk is thus material when a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy”
g.      Two exceptions to the general rule:
i.      Patient is unconscious
ii.      Risk-disclosure poses such a threat of detriment to the patient as to become unfeasible

s area of expertise
2.      In re Seiferth (p. 278)
a.       Child w/ cleft palate being raised by father who doesn’t believe in traditional medicine. Now child being asked to give consent to surgery (no emotional issues and condition is not life-threatening).
b.      While child may not have the power to legally consent, the court says they need the child’s assent to the procedure (assent is not a legal concept)
c.       We care more about assent as the child gets older and has the capacity to consider long-term benefits of the surgery.
i.      Note issue w/ donor siblings and decisions based on the idea of the family unit
d.      Court does a cost-benefit analysis and decided that the minimal benefit of early intervention weighed against the harm of damaging his belief system
3.      Sell v. United States (p. 282)
a.       They want to force a man to take psychosomatic drugs so that he is fit to stand trial
b.      Does he have the right to refuse treatment/medication?
i.      If he wasn’t a prisoner, the legal status of forcing medication upon him would be battery…
c.       What are they asserting in this case that balances his interests?
i.      The government interest in having a trial – prisoner is dangerous to others and a danger to themselves (gov’t has dual responsibilities)
d.      What’s different here? Very narrow issue: whether the Constitution permits the government to give drugs to a psycho for the sole purpose of making him competent to stand trial for a non-violent crime
e.       The Harper case is cited by the court: Ok to treat if he’s dangerous to himself or others and the treatment is in the inmate’s medical interest
f.       Riggins
i.      Court said forced medication in order to render a defendant competent to stand trial for murder was constitutionally permissible
ii.      Allowed also if they can’t obtain an adjudication of guilt or innocence by using less intrusive means
g.      Balancing test factors:
i.      Seriousness or violent/nonviolent nature of the crime
ii.      State’s interest in resolving the determination of guilt
iii.      Risk of severe side effects
h.      Both cases recognize the an individual has a “significant” constitutionally protected “liberty interest” in avoiding the unwanted administration of antipsychotic drugs
i.      They do make a carveout though; Must:
1.      be a serious criminal charge in order to render him competent for trial
2.      treatment must be medically appropriate
3.      taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests