American Health Law

American Health Law

Description

The study of health law presents a unique opportunity to apply law and legal analysis to an industry that dramatically affects all our lives, is undergoing tremendous change, and is filled with challenges that the thoughtful application of law can help us to meet constructively. Few fields of applied law match the richness of health law. Changes in medicine directly affect not just what humans can do, but how we think about what it means to be human; issues of social justice and resource allocation arise more starkly and more compellingly in the health care context than in any other; and health law introduces us to the problems confronted by another major profession, medicine. As the title of this book asserts, uniquely American values are reflected and challenged in our health care system. Human anatomy and physiology are the same worldwide, but the organization and delivery of health care reflect individual cultures. Americans, for example, are probably more health conscious than any other culture. It is thus both ironic and disturbing that, with the exception of South Africa, we remain the only industrialized country that does not have a system of national health insurance. Cost is often given as the rationale for this inhumane policy. Nevertheless, we are already inefficiently spending more than 12 percent of our gross national product on health care and seem unable to control even government expenditures on medical care. We pride ourselves on having the “best” medical care in the world, but its quality varies greatly, and even where it is recognized as first rate, measure of quality are problematic. America is the home of other paradoxes as well. For example, although human rights are a focal point of our Constitution and legal tradition, it is often extremely difficult for individual patients to exercise such basic rights as refusing treatment in the modern American hospital. As the 1990s open, there seems little doubt that this decade will witness major changes in our health care system. A 1989 national opinion poll, for example, found that 89 percent of Americans thought that the health care system needed “fundamental change.” We possess what has been accurately described as the most expensive, least well-liked, least equitable, and perhaps least efficient system of health care delivery in the world. Of course, because of continuing and dynamic change, any book on health law quickly faces at least partial obsolescence. But such change also presents unique study opportunities. Health care provides a real-world laboratory to examine how several bodies of law shape and are shaped by the organization of medical care in the United States. Bodies of doctrinal law explored in this text include: tort standards of duty and medical malpractice, traditional insurance law as well as more contemporary insurance measures to control costs and assure access, labor law, constitutional principles, FDA law, state licensing programs for people and institutions, antitrust, as well as state and federal programs for financing medical care and education. In addition to exploring the often critical issues of doctrinal detail, the book addresses the interplay between courts, legislatures, administrative agencies, lawyers representing the wide range of interests, and more general cultural forces such as technology, ideology, and social movements. This book highlights social justice and social choice in health care delivery. It provides a conceptual framework for understand the processes by which the law allocates choice to professional prerogative, free market transactions, state or federal regulatory mechanisms, courts, or others. Identifying patterns of social choice and concepts of social justice does not provide easy answers or formulas, but rather illuminates the questions that help us understand contending and often controversial concepts and social forces. New medical technologies present new legal challenges so intrinsically fascinating that they appear on the front pages of newspapers and magazines. Thus there is little trouble capturing the attention of even harassed second-year law students or hardened third-year law students. Relationships between lawyers and physicians have become increasingly adversarial, and increased knowledge of the health care field may help restore more reasonable and socially beneficial interaction. Moreover, the advice lawyers give their clients in the health care field often has a direct impact on matters of health, birth, life, and death. Professional responsibility has and immediacy in this field that is lacking in many others. Full treatment of all of these issues in one book is, of course, impossible. This book introduces all of these issues and provide the student with a framework for analyzing them, with problems to focus discussion, and references for further study. This text is designed to be used in an introductory law school course, which could be followed by specialized courses in medical malpractice law, bioethics, law and health care economics, and so forth. It draws from a wide variety of materials, not just appellate decisions, and seeks to acquaint the student with the facts of health care delivery before confronting the legal problems that dominate the field. As will be seen, although they can be separately described and discussed, issues of cost, quality, access, and human rights cannot be compartmentalized in the real world. All of them must be understood to deal adequately with any of them. The text is divided into an introduction (which outlines how our current health care system was developed) and ten chapters. Chapter 1 deals with access to care both because this is a central social justice issue and because it is perhaps the most “accessible” subject for law students. Chapters 2 and 3 detail health care financing, perhaps the most difficult material in the text, but essential for anyone who seeks to understand our changing health care system. Chapter 4 introduces what has become the central issue in health care delivery: the development and use of new medical technology. It can be followed by Chapter 5, which focuses on defining and enforcing standards of quality care, or by Chapter 9, a case study of the most expensive and seductive medical technology: organ transplantation. Chapter 6 deals with the rights of patients, and 7 with the legal issues involving health care personnel. Chapter 10, the case study on reproductive health, can be left to the end or can follow either of these two chapters. Finally, Chapter 8 presents various economic approaches to deal with the issues of cost, quality, and access and explores application of antitrust law to health care. Although we all worked on the entire book, George Annas had primary responsibility for Chapters 4, 6, and 9; Sylvia Law for Chapters 1, 7, 8, and 10; Rand Rosenblatt for Chapter 5 and Section H (value conflicts) of the Introductions; and Kenneth Wing for the Introductions (Sections A-G) and Chapters 2 and 3. We expect that after taking a course in health law, many students will agree with us that health law is perhaps the most intrinsically fascinating area of law. But even if students who take this course never advise a health care client, they will be hospitalized an average of seven times during their lives, will have almost yearly persona visits to physicians and clinics, and, as consumers and voters, will confront the problem we all share as a society: securing and financing adequate care of acceptable quality for all Americans.

Publication Date

1990

American Health Law

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