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Public Health Law
West Virginia University School of Law
Paul, Stephan B.

Public Health Law Outline – Spring 2015
Professor Stephan Paul
Under federal law, the only right to health care is when someone submits themselves to a hospital that holds itself out as having emergency treatment.
            The hospital must provide emergency medical treatment
The patient must be treated and stabilized: can’t leave them in danger of losing life or limb or If they are in labor they must be treated
Licensing of Health Care Professionals
·         there is widely varying rates of disciplinary actions among the states
·         Medical licensure boards are often accused of “fraternal leniency”
·         most cases of professional discipline involve substance abuse
·         the number of disciplinary actions for sexual misconduct is increasing
·         Congress established a data bank to provide an effective system for preventing doctors with disciplinary history in one state from moving to another
National Practitioner Data Bank
Established by Congress in part to respond to the absence of an effective system for preventing doctors with disciplinary history in one state from moving to another and practicing until detected, if ever.
State licensing and disciplinary boards and hospitals are required to report adverse actions to the Databank.
Boards have access to the databanks and hospitals must check the Databank for physicians applying for staff privileges and periodically for physicians who hold staff privileges.
Alternate or Complementary Medicine
Allopathy: the conventional system of medical treatment which employs remedies which affect the body in a way opposite from the effect of the disease
Homeopathy: an alternate treatment method
In In re Guess, the doctor in the case practiced homeopathic medicine and was charged with unprofessional conduct. The board concluded that his practice departs from and does not conform to the acceptable and prevailing medical practice in the state. The Doc argued that homeopathy is a legitimate system that is practiced in other states. The court concluded that the legislative intent was to prohibit any practice departing from acceptable and prevailing standards w/o regard to whether the particular practice could be shown to endanger the public.
Quality Control Regulation of Health Care Institutions
The range of health care institutions includes: Hospitals, long term care facilities, home health agencies, hospices, ambulatory surgical treatment centers
Even though the institutions do not practice medicine, the quality of the institution itself can have a very significant impact on the quality of care
A state agency may regulate only under its statutory authority
In Mauceri v. Chassin, P operated a business out of home which provided patients and their families with the names of home health aides. As P was not a licensed home care services agency the Dept of Health sought to enjoin her business. The court held that P’s business was an organization engaged in home health aide services and must have a license. However, the court noted that requiring small businesses to comply will only further raise medical costs.
Private Accreditation of Health Care Facilities
Private accreditation: a non-governmental, voluntary activity typically conducted by not-for-profit associations
JCAHO and NCQA are the two leading organizations
Private accreditation provides a seal of approval, and virtually all U’S. hospitals are JCAHO-accredited
Both state and federal governments have relied on JCAHO accreditation in their hospital licensure and Medicare/Medicaid certification programs.
TX has accepted JCAHO accreditation in lieu of a state license.
Critics argue that accreditation programs only perform announced site visits and keep negative evaluations confidential. Moreover, this is little public participation.
The Dept. of Health Regulation of Home Health Agencies (addresses some of the criticisms):
·         required to be accredited by JCAHO
·         reserves option to remove JCAHO accreditation
·         requires that survey reports be released
·         implements unannounced visits
The Standard of Care
Medical malpractice is legal fault by a physician or surgeon. It arises from the failure of a physician to provide the quality of care required by law.
A physician has a legal obligation to provide minimally sound judgement and render minimally competent care in the course of the services he provides.
The question is: What are the minimal standards of care and judgement?
                        Hall v. Hilbun
Facts: The patient complained of abdominal discomfort.  The doctor diagnosed the problem and performed surgery with apparent success. The patient died 14 hours after the surgery. The husband brought a wrongful death action and argued that the doctor failed to provide adequate post-operative care. The P introduced experts who testified that the doctor did not provide the level of care that he should have.  The trial court excluded the expert’s evidence because he was not familiar with the local standards.
Holding: In light of the nationalization of medical education and training and the acknowledgement that reasonable expectations regarding a physicians skill and knowledge are the same everywhere, the court adopts a competence based national standard of care:

was designed to generate initial denials, which could be reversed with further appeals. (SO the physician should resubmit and if he still does not get approval then he can go to the patient, tell him he still needs care  and give him the choice to go home or pay – but HMO “gag orders can stop this)
Liability of Health Care Institutions
Traditionally the relationship of doctor to hospital was one of independent contractor rather than employee. The hospital, therefore, was not regularly targeted as a defendant in a medical malpractice suit.
Until recently hospitals have been considered as charitable institutions, and as such were exempted from the general rule that a corporation is responsible for its employees.
The reasons for the charitable immunity were related to hospital difficulties in getting liability insurance and the fiscal fragility of many hospitals in a time before extensive government financing of health care.
The rule of charitable immunity has all but disappeared. see Bing v Thunig (“hospitals should shoulder the responsibility borne by everyone else. There is no reason to continue their exemption”)
Note: Governmental immunity still remains.
Two basic kinds of liability for a hospital: (1) Vicarious and (2) Direct
Vicarious Liability Doctrine (vicarious liability for hospital employees, doctors generally are not employees)
Some of the theories
Captain of the Ship Doctrine: provides that a physician who exercise control and authority over nurses and other health care professional should be held liable for their negligence. It is a strict liability theory, often predicated on the surgeons “right to control”, rather than actual control. (TX has rejected this doctrine)
The Control Test: In Berel v. HCA Health Services of Texas, Inc, the court held that if a hospital retains the right to control the details of the work to be performed by a contracting party, a master-servant relationship exists that will authorize the application of the doctrine of respondent superior. It is the right to control, not actual control, that gives rise to a duty to see that the independent contractor performs his work in a safe manner.