Hostname: page-component-8448b6f56d-dnltx Total loading time: 0 Render date: 2024-04-23T21:53:38.227Z Has data issue: false hasContentIssue false

Health Law 2005: An Agenda

Published online by Cambridge University Press:  01 January 2021

Extract

In 2004, the journal Health Matrix published a very interesting symposium volume titled “The Field of Health Law: Its Past and Future. As the title implies, the various commentators took both a retrospective and a prospective look at past trends and future prospects in health law. Some, including Clark Havighurst, Skip Rosoff and Walter Wadlington, wrote thoughtful essays on the development of health law over time and the implications of those trends. Others, including Rob Schwartz, Jim Blumstein, Rand Rosenblatt, and Mark Hall and Carl Schneider, wrote equally thoughtful essays that reflected on the past but focused more on future directions and prospects. And one, Kep Wing, wrote a semi-dyspeptic essay debunking the entire field of health law.

Taken together, these essays present a comprehensive view of how health law has developed so far and where its future might lie. Four themes emerge from the collected writings. First, there is considerable agreement on how and why health law has developed, but little agreement on where it is headed.

Type
Article
Copyright
Copyright © American Society of Law, Medicine and Ethics 2005

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Health Matrix 14 (2004).Google Scholar
Havighurst, C. C., “I've Seen Enough! My Life and Times in Health Care Law and Policy,” Health Matrix 14 (2004): 107–30.Google Scholar
Rosoff, A. J., “Health Law at Fifty Years: A Look Back,” Health Matrix 14 (2004): 197212.Google Scholar
Wadlington, W., “Some Reflections on Teaching Law and Medicine in Law School Since the '60s,” Health Matrix 14 (2004): 231–36.Google Scholar
Schwartz, R. L., “Where is Health Law Going? Follow the Money,” Health Matrix 14 (2004): 219–30.Google Scholar
Blumstein, J. F., “Health Care Law and Policy: Where and Whither?” Health Matrix 14 (2004): 3542.Google Scholar
Rosenblatt, R. E., “The Four Ages of Health Law,” Health Matrix 14 (2004): 15196.Google Scholar
Hall, M. A. and Schneider, C. E., “Where's the ‘There’ in Health Law? Can It Become a Coherent Field?” Health Matrix 14 (2004): 101–06.Google Scholar
Wing, K., “Letter to the Editor of Health Matrix,” Health Matrix 14 (2004): 237. This self-reflection and concern about the status of the health-care field is not limited to the legal academy. Similar concerns have also been raised about health services research. See Spitz, B. and Abramson, J., “When Health Policy is the Problem: A Report from the Field,” Journal of Health Politics, Policy & Law 30 (2005): 327.Google Scholar
Hall, and Schneider, , supra note 8, at 103.Google Scholar
I am not a supporter of caps on damages, the primary reform the AMA desires, and doubt that caps will make much of a difference to malpractice insurance premium rates.Google Scholar
For a thorough analysis of the issues at stake regarding competition policy, see the FTC/DOJ report, Improving Health Care: A Dose of Competition (July 2004), available at <http://www.ftc.gov/reports/healthcare/040723healthcarerpt.pdf> (last visited October 31, 2005).+(last+visited+October+31,+2005).>Google Scholar
See Cahill, M. T. and Jacobson, P. D., “Pegram's Regress: A Missed Chance for Sensible Judicial Review of Managed Care Decisions,” American Journal of Law & Medicine 27 (2001): 421–38; Jacobson, P. D. and Cahill, M. T., “Redefining Fiduciary Responsibilities in the Managed Care Context,” American Journal of Law & Medicine 26 (2000): 155–74. Some of the material in this article is adapted from Gostin, L. O. and Jacobson, P. D., Law and the Health System (New York: Foundation Press, forthcoming 2005).Google Scholar
See Greaney, T. L. and Boozang, K. M., “Mission, Margin, and Trust in the Nonprofit Healthcare Enterprise,” Yale Journal of Health Policy, Law and Ethics 5 (2005); 187. I agree with their characterization of fiduciary duty doctrine, but not their view of charitable trust law. Under charitable trust principles, the standard would be whether there is a change in corporate purpose that requires state attorney general or judicial approval, usually through a cy pres proceeding, a far more stringent test than the good faith and reasonable business judgment standard of fiduciary duty. Critics of applying charitable trust principles argue that it imposes too high a standard and would impede trustees' ability to respond to market changes. To date, the courts have not established either one as the dominant standard. See Peregrine, M. W. and Schwartz, J. R., “Nonprofit Health System: New Legal Developments Suggest Alternative Corporate Structures,” Health Law Digest Analyses (2004) (criticizing the use of charitable trust principles to challenge nonprofit trustee decisionmaking authority, hence in agreement with Professors Greaney and Boozang).Google Scholar
For a similar analysis, see Jacobson, P. D. and Cahill, M. T., “Redefining Fiduciary Responsibilities in the Managed Care Context,” American Journal of Law & Medicine 26 (2000): 155–74. By contrast, a Delaware court recently deferred to the business judgment rule and market discipline in a case involving a breach of fiduciary duty for permitting excessive executive compensation. See, In re The Walt Disney Co. Derivative Litigation, C.A. 15452, Del Chancery Ct. (2005).Google Scholar
715 N.Y.S.2d 575 (1999).Google Scholar
Horwitz, J. R., “Why We Need the Independent Sector: The Behavior, Law, and Ethics of Not-for-Profit Hospitals,” UCLA Law Review 50 (2003): 13451411 at 1401.Google Scholar
See, e.g., Hall, M. A. and Columbo, J. D., “The Charitable Status of Nonprofit Hospitals: Toward a Donative Theory of Tax Exemption,” Washington Law Review 66 (1991): 307 (arguing that providing a community benefit does not justify tax exemption, and that there is no causal connection between the exemption and the community benefit provided); see also Bloche, M. G., “Health Policy Below the Waterline: Medical Care and the Charitable Exemption,” Minnesota Law Review 80 (1995): 299352, at 350 (arguing that tax exemption can be retained, but proponents have failed to justify it on functional grounds because of three primary failings: “insufficient provision of charity care to the uninsured poor; reluctance to treat Medicaid patients, and inadequate provision of health promotion, clinical screening … and other outreach services to needy communities.”)Google Scholar
But see Horwitz, , supra note 17 (arguing that nonprofits provide a disproportionate array of public benefits beyond charity care than for-profits).Google Scholar
See Bethesda Healthcare Inc. v. Wilkins, 806 N.E.2d 142 (Ohio 2004) (holding that a fitness center that the plaintiff nonprofit hospital owned was not entitled to a tax exemption because few non-dues-paying members used the center); IHC Health Plans, Inc. v. Commissioner of Internal Revenue, 325 F.3d 1188 (10th Cir. 2003) (upholding the county's refusal to grant tax exempt status because the system failed to meet the community benefit standard).Google Scholar
Nevertheless, Professor Jill Horwitz has found that nonprofits still retain and offer more unprofitable services than for-profits. See Horwitz, , supra note 17.Google Scholar
Columbo, J. D., “Private Benefit, Joint Ventures, and the Death of Healthcare as an Exempt Purpose,” Journal of Health Law 34 (2001): 505539.Google Scholar
Colombo, J. D., “A Framework for Analyzing Exemption and UBIT Effects of Joint Ventures,” The Exempt Organization Tax Review 34 (2001): 187196, at 194.Google Scholar
For an excellent summary of the issues, see Hammer, P. J. and Sage, W. M., “Critical Issues in Hospital Antitrust Law,” Health Affairs 22 (2003): 88; Greaney, T. L., “Whither Antitrust? The Uncertain Future of Competition Law in Health Care,” Health Affairs 21 (2002): 185.CrossRefGoogle Scholar
This assertion is almost certainly too glib. See, e.g., Sage, W. M., Hyman, D. A., and Greenberg, W., “Why Competition Law Matters to Health Care Quality,” Health Affairs 22, no. 2 (2003): 3144. On the other hand, Clark Havighurst has expressed ambivalence, if not frustration, at the slow process of using antitrust law to facilitate more competition in health care. See Havighurst, C. C., “Health Care as a (Big) Business: The Antitrust Response,” Journal of Health Politics, Policy & Law 26 (2001): 939–41, at 943–45.CrossRefGoogle Scholar
Sage, W. M. and Hammer, P. J., “Competing on Quality of Care: The Need to Develop a Competition Policy for Health Care Markets,” University of Michigan Journal of Law Reform 32 (1999): 1069.Google Scholar
65 F.3d 1406 (7th Cir. 1995), cert. denied, 516 U.S. 1184 (1996).Google Scholar
526 U.S. 756 (1999),Google Scholar
Havighurst, , supra note 25, at 943–45.Google Scholar
See, e.g., McCarty Thornton, D., “Gainsharing: Regulatory Breakthrough, But Challenges Remain,” BNA Health Law Reporter 14, no. 24 (2005): 834.Google Scholar
Blumstein, J. F., “The Fraud and Abuse Statute in an Evolving Healthcare Marketplace: Life in the Healthcare Speakeasy,” American Journal of Law & Medicine 22 (1996): 205; Hyman, D. A., “Health Care Fraud and Abuse: Market Change, Social Norms, and the Trust Reposed in the Workmen,” Journal Legal Studies 30 (2001): 531.Google Scholar
Krause, J., “Health Care Fraud and Quality of Care: A Patent Centered Approach,” Journal of Health Law 37 (2004): 161.Google Scholar
See, e.g., Sage, W. M., “Understanding the First Malpractice Crisis of the 21st Century,” in Gosfield, A. M., ed., Handbook of Health Law (2004) (noting the historical irony that physicians argued against medical liability because errors were few while now supporting efforts to keep errors confidential).Google Scholar
See, e.g., Institute of Medicine, To Err is Human: Building a Safer Health System (Washington, DC: National Academies Press, 2000); Institute of Medicine, Crossing the Quality Chasm – A New Health System for the 21st Century (Washington, DC: National Academy Press, 2001).Google Scholar
See Joint Commission on Healthcare Accreditation, Sentinel Event Policy and Procedures, available at <http://www.jcaho.org/accredited+organizations/sentinel+event/se_pp.htm> (last visited October 31, 2005) (defining sentinel event as “an unanticipated death or major permanent loss of function, not related to the natural course of the patient's illness or underlying condition”); Liang, B. A., “Other Peoples' Money: A Reply to the Joint Commission,” Journal of Health Law 33 (2000): 657 (arguing that protecting safety information from disclosure is essential to systems improvement); Leape, L. L., “Patient Safety: Reporting of Adverse Events,” New Eng. J. Med. 347 (2002): 1633 (arguing that voluntary reporting systems can measurably improve patient safety by revealing systems failures, learning from experience, and taking steps to monitor progress).Google Scholar
See, e.g., Liang, B. A., “A Policy of System Safety: Shifting the Medical and Legal Paradigms to Effectively Address Error in Medicine,” Harvard Health Policy Review 5 (2004): 613.Google Scholar
Public Law No. 109–41.Google Scholar
This section is adapted from Jacobson, P. D. and Selvin, E., “Courts, Inequality, and Health Care,” in Morone, J. A. and Jacobs, L. R., eds., Healthy, Wealthy & Fair: Health Care and the Good Society (Oxford University Press, 2005): 235–64.Google Scholar
Grogan, C. and Patashnik, E., “Medicaid at the Crossroads,” in Morone, J. A. and Jacobs, L. R., eds., Wealthy & Fair: Health Care and the Good Society (Oxford University Press, 2005): 267–95.CrossRefGoogle Scholar
469 U.S. 287 (1985).Google Scholar
Rosen v. Goetz, 2005 U.S. App. LEXIS 9743 (6th Cir.); see also Shalala v. Grijalva, 526 U.S. 1096 (1999) (holding that a Medicare carrier was a private entity and not subject to due process requirements). Cf. Harris v. Board of Supervisors of Los Angeles County, 366 F.3d 754 (9th Cir. 2004) (holding that the county could not close a rehabilitation facility because it would result in irreparable harm to indigent community residents).Google Scholar
Cf. Hyman, D. A., “Do Good Stories Make for Good Policy,” Journal of Health Politics, Policy and Law 25 (2000): 1149–55.CrossRefGoogle Scholar
525 U.S. 249 (1999).Google Scholar
Rosenbaum, S., Markus, A., and Darnell, J., “U.S. Civil Rights Policy and Access to Health Care by Minority Americans: Implications for a Changing Health Care System,” Medical Care Research and Review 57 (Supp.) (2000): 236–59.CrossRefGoogle Scholar
Frank, M. J., “Tailoring EMTALA to Better Protect the Indigent: The Supreme Court Precludes one Method of Salvaging a Statute Gone Awry,” DePaul Journal of Health Care Law 3 (2000): 195244.Google Scholar
Rosenblatt, R. E., Law, S. E., and Rosenbaum, S., Law and the American Health Care System (Westbury, NY: Foundation Press, University Casebook Series, 1997).Google Scholar
Rosenblatt, R. E., Law, S. E., and Rosenbaum, S., Law and the American Health Care System (Westbury, NY: Foundation Press, University Casebook Series, 1997); Blumstein, J. F., “Court Action, Agency Reaction: The Hill-Burton Act as a Case Study,” Iowa Law Review 69 (1984): 1227–61; In Newsom v. Vanderbilt University, 453 F. Supp. 401 (M.D. Tenn. 1978), the court declared that indigent patients had a “constitutionally protected right … to needed uncompensated services under the Hill-Burton Act.”Google Scholar
In fairness to the judiciary, the absence of federal regulatory enforcement of the community service provision is a substantial reason why courts have not been more involved.Google Scholar
Lilli-Blanton, M., Brodie, M., Rowland, D., Altman, D., and McIntosh, M., “Race, Ethnicity, and the Health Care System: Public Perceptions and Experiences,” Medical Care Research and Review 57 (Supp.) (2000): 218–35; Rosenbaum, et al., supra note 42.CrossRefGoogle Scholar
Pegram v. Herdrich, 530 U.S. 211 (2000). For a more detailed analysis, see Jacobson, P. D., Strangers in the Night: Law and Medicine in the Managed Care Era (New York: Oxford University Press, 2002).Google Scholar
530 U.S. 211 (2000).Google Scholar
The subsequent case of Aetna Health Inc. v. Davila, 124 S. Ct. 2488 (2004), basically preempting most state tort litigation under ERISA, only compounds the problem.Google Scholar
For details, see Jacobson, P. D., “Medical Liability and the Culture of Technology,” in Sage, W. M. and Kersh, R., eds., Medical Malpractice and the U.S. Health Care System: New Century, Different Issues (Cambridge University Press, forthcoming 2005).Google Scholar
De Ville, K., “Medical Malpractice in Twentieth Century United States: The Interaction of Technology, Law and Culture,” International Journal of Technology Assessment in Health Care 14 (1998): 197211.CrossRefGoogle Scholar
Rettig, R. A., Jacobson, P. D., Farquhar, , Aubry, W. M., False Hope vs. Evidence-Based Medicine: The Failure of Bone Marrow Transplantation for Breast Cancer (New York: Oxford University Press: 2006).Google Scholar
For an expansion of this argument, see Jacobson, P. D. and Bloche, M. G., “Improving Relations Between Attorneys and Physicians, Journal of the American Medical Association (forthcoming 2005).Google Scholar
Gostin, L. O. and Jacobson, P. D., Law and the Health Care System (Foundation Press, 2005).Google Scholar
A clear exception to this is that battles over tax exemption doctrine remain disputes between market and social justice models. Under a market model, only the private sector can “save” charity hospitals by converting them to for-profit status.Google Scholar
See Peters, P. G. Jr., “The Quiet Demise of Deference to Custom: Malpractice Law at the Millenium,” Washington & Lee Law Review 57 (2000): 163205; Peters, P. G. Jr., “Empirical Evidence and Malpractice Litigation,” Wake Forest Law Review 37 (2002): 757–777 (arguing that better empirical evidence of clinical norms should guide expert testimony and the standard of care).Google Scholar
Aetna Health Inc. v. Davila, 124 S. Ct. 2488 (2004).Google Scholar
For a more detailed analysis, see Jacobson, , supra note 49.Google Scholar
For an excellent examination of why, see Agrawal, G. B., “Resuscitating Professionalism: Self-Regulation in the Medical Marketplace,” Missouri Law Review 66 (2001): 341411, at 345.Google Scholar
Bloche, M. G., “The Market for Medical Ethics,” in Hammer, P. J., Haas-Wilson, D., Peterson, M. A., and Sage, W. M., eds., Uncertain Times: Kenneth Arrow and the Changing Economics of Health Care (Durham, NC: Duke University Press, 2003): 3748, at 231.Google Scholar
Agrawal, , supra, at 381.Google Scholar
See, e.g., Jacobson, P. D., “Who Killed Managed Care? A Policy Whodunit,” Saint Louis University Law Review 47 (2003): 365–96.Google Scholar