Health Law Outline PDF

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Overview of all topics and concepts covered in Health Law and Policy class. Use to study for exam. ...

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9-7-11: What is Health Law? The weirding of law around health care. Major Themes 1. Right v. Commodity (i.e. egalitarian v. libertarian) Libertarian approach: Health Care is a product Arrow Reading: Health care is a strange market because - irregular command: you only go when you are sick, and more isn’t necessarily better Problems Moral hazard Adverse selection -physician behavior: patients can’t compare products, don’t want to compare prices - thus, rational actors rare - product uncertainty: a lot of uncertainty over what is best - supply restrictions: costs are very high - pricing practices: cross-subsidization, some pay nothing, some a lot Egalitarian approach: Everyone has a tight to health care Problems - funding: what care do we pay for – best or adequate? And how? - entitlement: it’s a right regardless of cost - efficiency: to improve overall health, don’t spend on health care 2. Autonomy v. Cost Control, Quality Improvement We are uncomfortable with letting someone besides a doctor decide Problem - market doesn’t work – not automatic cost control - doctors don’t always provide high-quality care - more spending does not mean more health 3. Individual Freedom v. Public Health and Morals We are willing to interfere with people’s autonomy around health care - Can’t contract around it like we do other things - certain individual liberties restricted: abortion, life support, etc. 9-8-11: State Control of the Practice of Medicine In a free market, anyone who wants can practice. In medicine, there are strict licensing laws for quality control. Miller: No practice of medicine without a license, per statute. 1. These laws prevent contracts between weilling adults 2. These are extremely broad laws – anyone who “holds themselves out” Lange Kessler (1997): Midwives: Legal grey area - Licensed midwives: regulated by state - Direct Entry midwives: apprenticed to other Midwives State statute bans them. Court upholds this, saying there is too much of a public interest in childbirth to allow unlicensed midwives. Counter: This is merely an excuse to protect physicians and hospitals. Why not certification/accreditation? Good reason: This is inadequate Bad reason: protect physician turf Physician extenders 1. What jobs can people other than doctors perform? - primary care, normal procedures 2. To what degree can they act without supervision from a doctor?

- studies show they do just as well without Modi (1995): Physician disciplined for charging for “depossession therapy”, i.e. exorcism. This is a hint that licensing is good as a barrier for entry, but not much good for regulating professionals. Reverse of practicing medicine without a license: She’s got a license and is practicing very weird medicine. Holding: Board can’t ban her just because her therapy is weird, if the patient agreed. Summary: Licensing is the principle way in which states regulate entry into the medical marketplace - protects people somewhat, but very restrictive - bad at weeding out professionals who are already licensed - autonomy v. public health: prevents consenting adults from contracting 9-14-11: The Duty to Treat at Common Law Physician-Patient Contract: Though normally, we don’t think of it as a contractual relationship, it is. - weird, because there’s no dickering - physician can’t unilaterally terminate Hurley: Doctor had no duty to treat woman in childbirth, even though he had treated her for otherthings in the past Plaintiff’s arguments countered - licensure as a duty: not true, licensure prevents quacks, doesn’t enlist servants - common carrier duty, like innkeeper: physicians are not common carriers Public Interest notes 1. Discrimination at the bottom is the norm: We don’t expect innkeepers to take guest that don’t pay, nor do we expect physicians to 2. Ideas behind public interest are still valid today, but we have statutes instead of common law Once duty is assumed, is assumed fully. So how can we tell when duty is assumed? Three ways to end a physician-patient relationship: 1. Problem ends 2. Patient terminates 3. Physician terminates with sufficient warning Ricks: Man with infected hand leaves hospital against medical advice, but doctors says to call if it gets worse. It gets worse, and he shows up at hospital, where they refuse treatment because he hasn’t paid a bill. Later, has to get hand amputated. Court: Duty did not end because physician said to call; thus, liable for injury Abandonment is a harm because it prevents you from getting care elsewhere Tunkl: Emergency room has a waiver for every patient to sign, promising not to sue. Court says this is against public policy and invalid, even though patient had capacity to sign. - important service - adhesion contract - unequal bargaining power One interpretation: extension of doctrine of unconscionability Charitable immunity: remnant of days where hospitals were charities, places for people to die often run by religious order. As hospitals became more professionalized and profit-driven, this seems to create loophole in tort law. Manlove (1961): Parents bring sick baby to emergency room, and hospital refuses treatment. Baby dies a few hours later. Plaintiffs sue for negligence.

Court: No duty of hospital to treat anyone off the street – this was not an unmistakable emergency, and this is a private institution - though this later changes with EMTALA 9-15-11: The duty to treat redux – EMTALA EMTALA: Requires hospitals to provide emergency care to anyone No private cause of action against physician, but can have it against hospital – probably because doctors didn’t want plaintiff’s attorney’s to have another bludgeon Duties 1.Treat “Emergency Medical condition” – acute symptoms, where absence of care would place person in “serious jeopardy” 2. Screen: Denial of care is whether the screening was discriminatory. Equal treatment, not entitlement. NOT medical malpractice 3: Stabilize: No deterioration of medical condition if transferred or released. Transfer only if informed consent, after stabilization, or where benefits outweigh risks. Private cause of action Burditt (5th Cir., 1991): Woman with hypertension in labor, refused treatment by doctor who thinks she’s too risky. transfers her to another hospital. She gives birth in ambulance, sues under EMTALA. Holding: Doctor violated EMTALA by failing to consider medical risks; EMTALA is not an unconstitutional taking Moses (6th Cir. 2009): Man taken into hospital for psychotic episode, later released and kills wife. Wife’s estate sues for failure to stabilize under EMTALA. Dismissed, summary judgment. Court: Representative had standing under EMTALA, and genuine issue of material fact existed as to whether patient had been stabilized. Summary judgment reversed. Amicus: EMTALA doesn’t mean that care continues indefinitely; rather it was meant to protect against patient dumping. 9-21-11: Informed Consent Formerly, paternalism was the norm - problem of how much information to give - patients’ inability to act in the face of fear - patients’ inability to understand illness - easier to treat patients Informed consent: rejects all of these justifications for autonomy Canterbury v. Spence (1972): Boy gets back surgery, surgeon says no more risk than any other operation. Buy winds up paralyzed, after slipping and falling post-op. Though this could be medical malpractice, court tries very hard to make it an informed consent case. Elements of negligence tort: Duty, Breach, Injury, Causation. Court: Patient had right to know of the risk of his surgery. a. Duty: Disclosure must be to “reasonable patient” standard Culbertson (1992): Is expert medical testimony required to establish standard of care? Court: Yes- aside from res ipsa, a reasonable jury would need the help of an expert - “reasonably prudent physician” standard, rather than reasonable patient in IN Problems in conveying risk and uncertainty to patience 1. Time: Takes a lot of time and attention – physicians don’t have this 2. Comprehension: patients don’t understand what’s going on anyway b. Breach: Hard to remember after 15 years what you said; best evidence is written c. Causation 1. Patient would have behaved differently if informed 2. Not telling is psychic injury in itself

d. Injury: What would have happened had you not taken the treatment? - depends on expert testimony 9-22-11: Confidentiality and HIPAA Doe v. Marselle (): HIV positive woman goes in for surgery. Surgical assistant tells her son. Court holds that she willfully disclosed HIV status, against state statute. In civil context, willful = knowing. - Patient privacy outweighed public health interest in this case. 1996: HIPAA enacted. - electronic records: increased risk of improper dissemination; also made information more valuable - genetic testing: more information, more revealing information Statute: If Congress failed to act, HHS would come up with rules Why HIPAA? HHS justification 1. Fundamental Right: HHS classifies privacy interest as a “fundamental right” - term of art; typically refers to Bill of Rights and substantive due process - Cites to Whalen (1977), which banned a NY registry of drug users - though HHS misinterprested the case Counter: Conceit is that providers didn’t have incentive to protect private information (despite state laws and the free market). But there was nothing but anecdotal evidence to back this up. 2. Patient Control of Information Concerns: Psychic harm, community reputation, marketers, job seeking ,insurance How HIPAA works - Linchpin of HIPAA is presumption that you shouldn’t disclose individually identifiable information, unless patient-approved and HIPAA authorized Exceptions: treatment, payment, operation (providers, insurance, etc.), law enforcement - Requirements for disclosure - secure: no email unless encrypted, fax okay - minimal information: leave out what’s irrelevant - third-party disclosure: must limit further disclosure - Patients may request records - Patients have right to know what privacy practice of health provider is - IT/records regulations; compliance backed up with civil and criminal penalties - no private cause of action under HIPAA How well HIPAA addresses concerns - marketing: pretty well - insurance: still share information - job seeking: employers are also insurers; can get info that way - psychic harm: stuff still gets disclosed - community reputation: less likely things will get out Costs of HIPAA 1. Administrative Costs: paperwork, IT, compliance, training 2. Research: sucks up research money 3. Crime prevention (? As in who’s going to go and stop HIPAA?) 4. Excessive caution from medical providers Summary HIPAA may have put privacy into wrong conceptual box Operates on conceit that your medical records are your property After HIPAA, you have illusion of total control over your medical records

Maybe we don’t want control, but dignity - HIPAA is not a good tool for this Are we willing to pay the price for HIPAA? 9-28-11: Malpractice and Medical Errors, Pt. 1 Hospitals are enormously risky places; many preventable errors - HAI and checklists: after checklists instituted, HAI dropped to almost nothing So why aren’t more of these simple, efficient programs instituted? Lack of implementation of error prevention: Sicker patients  more procedures  more money Why do physicians do a good job? 1. personal professional commitment – most important 2. professional and self-regulation – interventions are rare, privileges hard to revoke - we cede to the profession their own norms 3. malpractice suits – see below 4. free market – not really a free market 5. direct regulations – fairly rare - recognition that intervention in physician-patient relationship may not be that helpful Medical Malpractice Reasons for Tort, and how well Medical Malpractice addresses them 1. Compensation - economic consequences: for plaintiffs, mostly blunted by insurance - and when they do get damages, rarely cover all costs - inaccuracy: medmal cases don’t have identifiable error, but result in settlement anyway 2. Deterrence - arbitrary: 14% of practitioners sued each year - doesn’t deter like a normal market, since physicians are community-rated rather than experience-rated; insurance rates by hospital, not by doctor 3. Corrective justice – Redressing Wrongs - if all you want is an apology, that’s very unlikely – adversarial, admission of liability Costs of Medical Malpractice 1. Defensive medicine: more tests than necessary - $45 billion/year 2. Direct costs: damages, legal, administrative - $10 billion/year But all this only adds up to $2.4% of all medical expenses in the course of a year. Implications - we arent’ spending that much on medmal - changing the tort system won’t make a dent in halth spending Summary: Both too much and too little medical malpractice suits Too little: Those injured aren’t filing suit Too much: money not commensurate with benefits Would it actually better patient outcomes if it did? 9-29-11: Malpractice and Medical Errors, pt. 2 Caps on damages Fein (1985): Patient with misdiagnosed heart disease. State law caps noneconomic damages and establishes contingent fee rules. Plaintiff argues that noneconomic damages cap denies due process because it limits recovery without providing quid pro quo. Court: Statute upheld. Legitimately related to state interest in limiting health care costs But these limits only get at the margins of a much bigger problem Alternatives to Medical Malpractice 1. Regulating physicians

- I don’t have the notes on this, but it turns out to be a bad idea because physicians hate being regulated 2. Expanded Worker’s Compensation schemes If triggering event happens, you are automatically entitled to payment - no need to show cause or fault Pros: Cuts out the lawyers and wasted time Allows physicians and hospitals to admit fault and improve Cons: No fault means more claims, gobble up savings Politically infeasible 3. Apologizing Apology + Offer = high rates of acceptance from patients - patients feel better; cash on the table is easier than lawsuit Conceit of medical malpractice: A physician can be reformed, and the quality of care improved Problem: It’s a system that allows no mistakes; humans make mistakes; physicians are human. Most medical outcomes are the products of structures – perhaps we should be working on that. 10-5-11: Health Care Inequalities Structural Problems: Overriding concerns 1. Access to health care 2. Cost of health care In U.S., we think of health care as health insurance - this is debatable, but this is what America pursues Disparities in care: racial, income, international Factors to health: access to care, nutrition, education, environment, etc. - all these factors correlate; choosing one is difficult - cycle: health  socioeconomic status  health What we know 1. Access to health care is not the whole answer - Whitehall study: There’s a health/SES gradient even where everyone has iinsurance - giving people high quality healthcare won’t eliminate health disparity 2. Education matters – education by itself helps health outcomes 3. Early Childhood 4. Risky behaviors 5. Allostatic load – chronic stress leads to poorer health - poor are more stressed out Access to healthcare In the U.S., access usually requires insurance: Medicare, Medicaid, private insurance Employer insurance - tax break: incentive to offer health insurance instead of wages 10-6-11: Non-profit v. For-profit governance Entity Ownership and Health Care Entity: corporation, trust, any sort of organization Private vs. Public: Anything government is public, otherwise, it’s private – even nonprofits - nonprofits are not always charities - Hospitals are a huge piece of the nonprofit sector - Misconception: For-profit is not higher-quality than nonprofit. Nonprofit Law Nonprofit Requirements: depends on state, but is pretty easy

Fiduciary duties: Loyalty and care Trust: must be disinterested, care as if your own Corporation: can do business, care in good faith Tax: Important only if exemptions 501(c)(3): you can organize under state law as a nonprofit - no shareholders But they do earn profits – they just don’t pay it out to shareholders Why do NPOs get tax exemptions? 1. Halo effect – good PR 2. Pass on money to those who need it 3. supplementnt government services Providing care is trivially easy; providing health is hard. Because market for health is warped, NPs and FPs interact in funky ways 10-12-11: Private Health Insurance What is insurance? Pooling risk to prevent financial catastrophe. Risks must be 1. Large – so that no one person can handle 2. Unpredictable – outside of buyer’s control Most health insurance today is a blend of true insurance and prepayment 1. Catastrophic  True insurance 2. Prepayment  Optional services, like checkups and cleanings Preventative care Don’t want to make economic decisions about health Other possibilities: historical mistake, health provider desire for steady income Problems in Insurance 1. Moral Hazard: Demanding more because someone else is paying 2. Adverse Selection: Sicker people buy more insurance, death spiral as healthier people leave Insurers deal with this by: - pre-existing conditions: refusing people are already sick - charging different amounts – experience rather than community rating - selecting healthier people, as employees Result: Job lock – people are afraid to lose their jobs because of losing helath insurance - harder on small businesses that can’t offer it 10-13-11: Managed Care, Pt. 1 Marsh Article: Administrative complications, burden on patients of cheap healthcare Robinson Transcript: Health plans don’t want to second-guess physicians; they’re trying to clean up health care, but can’t convince anyone they’re doing it for the right reasons. - consumer-driven care Managed Care: Health insurance working with network of providers for cheaper prices in exchange for steady business. Fusion of 1. Insurance and 2. Delivery of health care. Jordan (D.C. Cir., 1939): Group Health charged with carrying on illegal insurance scheme. Court finds that it is not an insurance company because its goal is not to pile up to capital, but “to keep a steady flow of funds . . . running from patient to physician . . .”. Now rendered moot by statutes governing both insurance and HMO. Rush Prudential (U.S., 2002): HMOs are not preempted by ERISA. Patient denied reimbursement for unusual surgery, sues under Illinois law. HMO claims it is exempt under ERISA; Court says HMO subject to state law based on “common sense view” that if you manage risk , collect premiums, etc., you are like insurance; HMO is both insurance and health care.

HMOs often work through capitation payments. Though they have reduced hospital payments, they haven’t reduced overall costs, because of increased coverage. They may also negatively affect quality of care. 10-20-11: Managed Care, Pt. 2 Utility requirement 2. Medical necessity: Dominant understanding is best quality of care regardless of cost So if there are two different treatments, and the doctor chooses the more expensive one, there isn’t much the insurer can do. The only treatments denied are the ones far outside the pale; thus, doesn’t really work as a costreduction device. Insurers have the best data on weeding out medical treatment, but we prevent them from using it. Once we’ve taken them out, there’s no market force left to control costs Three payment models in medical systems 1. Capitation: patients hate this because there’s too little care 2. Salray: doctors neither over nor under treat, but go home at 5 3. Fee for service: over treatment, doctors work like dogs Additional ways to manage health costs 1. Incentives: payment schemes rarely give rise to cause of action alone 2. Manage physicians Poplin (2000): Lawsuit from a doctor who had been removed from insurance network because he had been sued for times. From the doctor’s point of view, the lawsuits are arbitrary; from the insurer’s point of view, they want to protect patiends. Court says this is okay. Common law requires - procedural fairness: he’d still be kicked out - cause - chance to be heard: can speak with insurance company - substantially rational: people who are sued are likely to be sued again Summary: We expect insurers to keep costs down, but legislate against them when they do. Now what? 10-26-11: ERISA and t...