Health Care Law and Ethics in a Nutshell

by Hall, Mark A.; Ellman, Ira Mark; Strouse, Daniel S.

• ISBN13: 9780314231703
• ISBN10: 0314231706
• Edition: 2nd
• Format: Paperback
• Copyright: 1999-06-01
• Publisher: West Academic

Summary

Medical advances have increased treatment options as well as costs, thus generating many new ethical problems. This authoritative discussion focuses on controlling medical costs while ensuring patient access; the legal structure of health care delivery; and the ethical issues in patient care decisions.

Table of Contents

Preface	v
Glossary of Acronyms	ix
Table of Cases	xxiii
PART I. THE FUNDAMENTALS OF HEALTH CARE DELIVERY AND FINANCE
Health Insurance Coverage and Regulatory Reform	3	(78)
The Crisis in Health Care Spending and Coverage	3	(19)
The Dimensions of the Crisis	3	(1)
The Spending Crisis	3	(3)
The Coverage Crisis	6	(2)
The Causes of the Spending Crisis	8	(1)
The Structure of Traditional Insurance	9	(1)
The Incentives for Patients	10	(3)
The Incentives for Providers	13	(2)
The Incentives for Insurance and Employers	15	(2)
Traditional Medicare Reimbursement	17	(2)
Managed Care and the Structure of Health Insurance	19	(3)
Insurance Coverage Reform	22	(11)
Socialized Medicine and the British System	23	(1)
Single Payer, Canadian--Style Insurance	24	(3)
Employer or Individual mandates	27	(2)
Incremental Reforms	29	(2)
Managed Competition	31	(2)
Interlude: Economic and Regulatory Theory	33	(19)
The Need for Health Care Rationing	34	(3)
The Ethics of Health Care Rationing	37	(1)
Rationing Criteria	37	(3)
Rationing Decision Makers	40	(5)
The Economics of Health Care Rationing	45	(1)
Free Markets vs. Government Controls	45	(3)
Economic Theory	48	(4)
Cost Containment Reforms	52	(27)
Reducing the Scope of Insurance	52	(1)
Practical Problems	52	(2)
Disability Discrimination and Other Legal Problems	54	(5)
Rigorously Reviewing the Necessity of Care	59	(5)
Reforming Provider Payment	64	(1)
Medicare Prospective Payment	65	(7)
Capitation Payment and HMOs	72	(6)
Public Utility Regulation	78	(1)
Recapitulation	79	(2)
The Treatment Relationship	81	(65)
Duty to Accept and Treat Patients	82	(34)
Doctors	83	(1)
The ``No--Duty'' Rule	83	(2)
Formation of the Treatment Relationship	85	(2)
Hospitals	87	(1)
The General Duty to Provide Care	88	(2)
Access to Emergency Care	90	(1)
Common Law and Statutory Rights	90	(2)
The Emergency Medical Treatment and Active Labor Act	92	(7)
Doctors Within Health Care Organizations	99	(1)
Wrongful Denials: Antidiscrimination Law and Refusal to Treat	100	(1)
Title VI: Race and Ethnicity	101	(1)
Hill--Burton Obligations	101	(1)
Disability Discrimination	102	(1)
Protected Class	103	(2)
Core Provisions	105	(4)
Other Bases for a Duty to Treat	109	(1)
Constitutional Rights of Access	109	(2)
Patients' Rights	111	(1)
Terminating the Treatment Relationship	112	(4)
The Legal Content of the Treatment Relationship	116	(30)
The Fiduciary Core of the Treatment Relationship	116	(1)
Confidentiality	117	(1)
The Duty to the Patient	118	(1)
Common Law Protections	119	(1)
Statutory Protections	120	(1)
The Duty to Protect Third Parties and the Limits of Confidentiality	121	(1)
Statutory Duties to Report	122	(1)
Common Law Duty to Protect Third Parties	123	(8)
Informed Consent	131	(1)
Classic Doctrine	132	(1)
Risk: What Information Must Be Shared?	133	(1)
Negligence: Measuring the Physician's Conduct	134	(2)
Causation	136	(1)
Exceptions to the Duty to Disclose	137	(1)
Conflicts of Interest and Fiduciary Principles	138	(1)
Emerging Applications of Informed Consent	139	(2)
Modifying the Terms of the Treatment Relationship	141	(5)
PART II. THE LEGAL STRUCTURE OF HEALTH CARE DELIVERY
Hospital Structure and Regulation	146	(48)
Hospital and Facility Regulation	147	(10)
Licensure, Certification, and Private Accreditation	147	(4)
Certificate of Need Laws	151	(6)
Hospital and HMO Medical Staff Issues	157	(28)
Medical Staff Structure and Staff Selection Process	157	(4)
Economic Credentialing, Exclusive Contracts, and Institutional Control	161	(3)
HMO Deselection and Managed Care Contracting	164	(3)
Hospital Medical Staff Disputes	167	(1)
Introduction	167	(2)
Theories of Judicial Review	169	(4)
The Scope of Judicial Review	173	(6)
Physician Membership in Managed Care Networks	179	(2)
Peer Review Confidentiality and Immunity	181	(1)
State Peer Review Confidentiality Statutes	182	(1)
Federal Peer Review Immunity	183	(2)
Labor and Employment Law	185	(9)
Labor Law	185	(1)
Patient Care Concerns	185	(3)
Physician Unions	188	(3)
Employment Law	191	(1)
Wrongful Discharge	191	(1)
Covenants Not to Compete	192	(2)
Antitrust Law and Health Care	194	(36)
Introduction	194	(1)
Antitrust Boycott Law	195	(18)
The Conspiracy Requirement	196	(2)
Medical Staff Boycotts as Restraints of Trade	198	(1)
Avoiding Per Se Illegality	198	(5)
Avoiding Trial on the Merits	203	(2)
Exclusions From Managed Care Networks and Illegal Tie--Ins	205	(3)
The Patient Care Defense	208	(3)
The Interstate Commerce and State Action Defenses	211	(2)
Price Fixing and Vertical Restraints Involving Insurers	213	(10)
Price Fixing in Provider Networks	213	(6)
Monopolization by Insurers	219	(4)
McCarran--Ferguson Exemption	223	(1)
Merger Law	223	(7)
Complex Transactions and Organizational Forms	230	(48)
The Corporate Practice of Medicine	231	(5)
The Doctrine's Rationale	232	(3)
The Doctrine's Survival	235	(1)
Insurance and HMO Regulation	236	(7)
State Solvency Laws	236	(3)
The Federal HMO Act	239	(2)
Managed Care Patient Protections	241	(2)
ERISA Preemption	243	(8)
Charitable Tax Exemption	251	(15)
The Basis for Tax Exemption	252	(1)
Hospital Services	252	(2)
Other Health Care Institutions	254	(3)
Inurement to Private Benefit	257	(2)
Unrelated Business Income	259	(2)
Hospital Reorganization, Diversification, and Conversion of Status	261	(1)
Reorganization and Diversification	261	(1)
Conversion to For--Profit Status	262	(4)
Referral Fee Prohibitions	266	(6)
Sources of Law	266	(2)
Earned Versus Unearned Fees	268	(4)
Summary	272	(6)
PART III. ETHICAL ISSUES IN PATIENT CARE DECISIONS
Defining Death and Transplanting Organs	278	(23)
Defining Death	278	(8)
Cardiopulmonary Criteria	279	(1)
Neurological Criteria: Whole Brain Death	279	(4)
Neurological Criteria: Upper Brain Death	283	(3)
Organ Procurement and Allocation	286	(15)
Procurement of Organs	287	(1)
Organ Donation	287	(2)
Donation and the Definition of Death	289	(1)
Mandates and Novel Rules for Organ Procurement	290	(5)
Allocation of Organs	295	(1)
Waiting Lists and UNOS Distribution	296	(2)
The Ethics of Allocation Policies	298	(3)
The Law and Ethics of Withholding Medical Care and Assisting Suicide	301	(104)
The Traditional Ethical Distinctions	305	(16)
Acting Versus Failing to Act	305	(2)
Withholding Versus Withdrawing Treatment	307	(3)
Active and Passive Euthanasia	310	(6)
The Doctrine of Double Effect	316	(1)
Ordinary Versus Extraordinary Treatment	317	(3)
Conclusion	320	(1)
The Competing Principles of Personal Autonomy and Beneficence	321	(3)
The Currently Competent Patient	324	(33)
Paternalism and the Limits of Autonomy	324	(2)
Determining Decisionmaking Capacity	326	(5)
Examples of Decisionmaking With the Competent Patient	331	(15)
Assisted Suicide and the Constitutional Claim Generally	346	(11)
Patients Lacking Decisionmaking Capacity	357	(42)
Patients With Advance Directives	357	(1)
Living Wills	358	(2)
Durable Powers of Attorney	360	(1)
Once--Competent Patients Without Advance Directives	361	(13)
Never--Competent Patients	374	(8)
The Seriously Ill Child, Including the Newborn	382	(1)
The General Framework of Child Protective Laws	382	(6)
The Special Case of the Newborn	388	(11)
Denying ``Futile'' Treatment to the Patient Who Requests It	399	(6)
Selected Issues in Reproductive Medicine	405	(50)
Assisted Conception	405	(27)
Artificial Insemination by Donor (AID)	405	(1)
Basic Rules	405	(2)
Use by Lesbian Couples	407	(1)
Surrogate Motherhood, Egg Donation, and In--Vitro Fertilization	408	(1)
Surrogacy Contracts Under Traditional Law	409	(9)
Gestational Surrogacy and Changing Law	418	(3)
The Status of Stored Embryos	421	(4)
Genetic Medicine	425	(7)
Maternal--Fetal Conflict	432	(23)
Forced Caesareans and Fetal Surgery	434	(8)
Fetally Toxic Maternal Behavior During Pregnancy	442	(13)
Index	455