Law Law 6842-01  Winter, 2011
American Health Care Law
Professor Vernellia R. Randall
The University of Dayton School of Law

 

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    Excerpted from, George Annas, Health Law at the Turn of the Century: From White Dwarf to Red Giant, 21 Conn. L. Rev. 551 (1989).

The evolution of star is inexorable. From the form in which we currently view our own Sun, it and similar stars eventually expand as their exteriors cool to become red giants. When a red giant runs out of fuel, its exposed core will collapse to form a degenerate white dwarf and, eventually, a dead black dwarf. Health [Care] law, as a discipline worthy of our attention, seems to have an opposite trajectory: from black dwarf to white dwarf, it is now on its way to becoming a red giant. . . . 

In the 1950's and 1960's "Law and Medicine" courses in law schools were almost exclusively concerned with issues of forensic psychiatry and forensic pathology and were properly considered as advanced courses in criminal law. In the late 1960's some "Law and Medicine" courses began concentrating on broader medico-legal issues in the courtroom, including disability evaluation and medical malpractice. The courses were properly considered either as advanced torts or trial practice courses. 

In the 1970's, the concerns of at least some law and medicine courses expanded to include public policy, including issues of access to health care and the quality of that care. At the same time, advances in medical technology created new legal issues to explore, ranging from brain death to organ donation and from abortion to in vitro fertilization. These issues were increasingly incorporated into Law and Medicine course which were themselves becoming known by the broader rubric of "Health [Care] Law".

 

    . . . Law and Medicine (a field having primarily to with medical malpractice, forensic medicine and psychiatric commitment) has become a subdivision of the new field of Health [Care] law. 

    . . .[Health Care] law. . .[has] three additional subdivisions. . ."The economics of Health Care Delivery, " Public Policy and Health Care Regulation," and "Bioethics." . . . The essence of health is a course in applied law, much the way astronomy and physics are, to a large extent, implied applied mathematics. As Clark Havighurst persuasively argue: It quickly appears that the common denominator that best unifies the study of health care law is the health care industry itself." 

But Where does a course in applied law fit in the law school curriculum? 

Obviously, it must be a second or third year course because the students need to know something about law, especially torts, contracts, constitutional law, criminal law, and administrative law, the main types of law they will be applying to the health care field. The more interesting question, however, is what distinguishes law and sometimes referred to generically as "law and a banana" courses (in an attempt to distinguish them from the "basic" or "real" law course) Such courses are often viewed as luxuries, which professors generally teach not because the course is particularly relevant to a legal career, but because the professor is personally interested in subject matter. 

Traditional law school professors worry that the proliferation of "law and..." courses might lead to the neglect of legal practice skills and make law school education even less relevant to legal practice and the legal profession than it already is. Professor Martin Redish of Northwestern University Law School said that these courses made him think of the line in the movie Dr. Strangelove: "There will be no fighting in the war room." In his words, "Now some people say there will be no law in the law schools." Others have concurred, noting that the trend in law school courses that question the underpinnings and legitimacy of current law and legal structures, including the critical legal studies movement, has the potential to turn law schools into academic graduate schools and deflect them from their traditional role of training lawyers for legal practice. 

"There is much truth to all of these comments, but even if they can be aptly applied to such courses as sports law, education law, energy law, transportation law, entertainment law, or space law (to name just a few), I do not think they have much to say about health's own merits for at least five reasons:


(1) no other field can match the "magnitude, complexity, and universality of health care; 

(2) health law introduces lawyers to the problems confronted by the other great profession in the United States, medicine; 

(3) changes in medicine can directly affect not just what humans can do, but how humans think about being human (and, therefore, what rights and obligations humans should have); 

(4) as issues of public health and safety capture center stage in American culture, the importance of prudent use of law to protect health and safety becomes central; and, 

(5) issues of social justice and resource allocation are presented more starkly in the medical care context than in any other context. 

Other reasons could, of course, be added to this list. Health care accounts for almost twelve percent of the gross national product, and costs continue to rise out of control. Legal jobs in health care exist in a wide variety of settings, including local, state, and federal regulatory agencies, private health care facilities, insurance companies, and law firms to name just the major employers. And, perhaps as important to most who teach health law, there is no more intrinsically fascinating area of law than law applied to the health care filed. In fact, whole courses in law schools have been taught around just one medical development, such a organ transplantation, and one specialized medical problem such as human experimentation. 

Not only does health law provide a uniquely critical and intrinsically fascinating field to which to apply law, but it is also a field that can be fruitfully approached from a wide variety of perspectives. Rand Rosenbaltt, for example, has suggested that health law can be approached not only from the traditional law and medicine avenue, but also from three more modern perspectives: a law and economics approach; a social justice approach; and a bioethics approach. A fourth approach would be a public health approach, and a fifth would, of course, try to integrate (or at least expose) all of these approaches. Each approach deserves comment.] . . . . 

[With Law and Economics], To over-simplify, health law is approached from the basic viewpoint that private property regimes presumptively serve to maximize social welfare; that, in a many-seller market, goods will be available at marginal cost; that private contracts should be enforced; that relationships among non-contracting parties must be governed by explicit legal rule; and that income distribution is, and should be, primarily a function of productive capabilities. 

. . . .It is extremely strained to try to apply private market principles to the medical field, since none of the classic market assumptions apply in medical care. Specifically, unlike Adam Smith's model market, in medical care individuals do not have perfect knowledge about alternatives, do not shop for the best bargains, and do not (in most cases) pay for their medical care directly (but rather through insurance). Moreover, most of the means of production (physicians, medical schools, nursing schools, and hospitals) are subsidized directly or indirectly by the government, and barriers to entry create governmental enforced monopolies in many sectors of the health care industry. Nonetheless, if these market "imperfections" are recognized, a reasonable course could be taught from this perspective; and certainly a very worthwhile course in antitrust can be taught by using the health care industry as the only example. 

. . . . [The "social justice" approach] . . . . at least implies that it will be concerned with questioning the assumptions of capitalism, or at least looking "critically" at those assumptions. . . . Such an approach to the health industry will not ignore what got us where we are and will not assume that traditional race, class, and sex power relationships are proper and deserve to be privileged and given presumptive validity. . . . There is likely to be primary commitment to social justice attained by equal access to care and equality of treatment. Cost and quality issues will certainly be considered, but it will be taken for granted that if individuals cannot afford the health care they need, income should be redistributed in a way that insures that they can. Nor will the current health care industry be privileged or seen as an inherently private domain. Instead, it is likely that much class time will be spent on addressing how the system can be made more responsive to the needs of the public, with both national health insurance and the nationalization of the health care industry examined as reasonable policy alternatives. 

Adherents of both the law and economics and the [social justice] schools are at home on the theoretical and macroeconomic levels. When it comes to dealing with the real problems of real physicians and patients, however, they each have much less to say. Perhaps that is why members of both of these politically hostile camps agree on at least one thing: issues of medical decision making, such as autonomy and the doctor-patient relationship (the natural focus, for example, of a medical school course), should be relegated to a separate course called "bioethics." 

The term bioethics itself is extremely unsatisfactory, especially when used in the context of a law course in either law school or medical school. What it really seems to denote is the old 1970's style "law and medicine" course that concentrated on medical malpractice, with the recognition that new technologies have expanded the scope of medicine and, thus, the scope of relevant legal topics including termination of treatment, new reproductive technologies, organ transplantation, and definition of death. The utility of a bioethics approach in combining factual knowledge about scientific developments (for example, clinical issues in the neonatal ICU; how genetic engineering is actually done) with a discussion of the most useful and constructive approaches the law can take to the social problems posed by new technologies. . . . 

[The public health] approach has yet to receive much attention in law schools and is currently used primarily in schools of public health. Nonetheless, as issues of public health continue to dominate the news and public policy development, such as teenage pregnancy, drug abuse, drunk driving, smoking, AIDS, nuclear energy, the quality of the environment, and worker health and safety, such courses will naturally find a home in the law school. 

Eleven years ago, it would have been difficult to predict that state of health law today. What will it be in the year 2000? . . . . Can we have it all; economic growth and clean air and water; massive military expenditures and social justice; extreme and expensive rescue medicine and adequate disease prevention programs; human dignity and ruthless human experimentation? 

". . . . Medical technology, is uniquely powerful in that it not only changes what we can do, it changes the way human life itself can be lived and, thus, can change our very of medical advances are seldom directly acknowledged, although they are profound.. . . 

"It is probably fair to say that the vast majority of law school courses also continue to be taught "as if these enormous shifts in our world had never occurred" and that traditional courses cannot take reasonable account of these shifts. What shifts are we likely to see in the coming decade? One will of necessity involve a strategy to deal with the AIDS epidemic. We will either use it to expose the underlying inequities and inefficiencies in our current health care system and take the epidemic as an opportunity to radically restructure it and provide equal access to it; or we will use it to reinforce and to "legitimize" the notion of an under-class that "deserves" to be sick and die. . . . . 

Another shift will involve trying to come to grips with the proper goals of medicine itself. We have seemed to believe that its proper goal is to keep people alive as long as possible and at any cost. This view, never a realistic one, is no longer economically or socially tenable. We will have to confront such bogeymen as "the quality of life"; the "right to die"; and meaningless political slogans, such as the "right to life," and the injunction to always "err on the side of life.". . . . 

A third shift will involve the increasing use of the state's police powers to force its citizens to live healthy lives. How far should the law go in requiring its citizens to eat healthy foods, take safety precautions, such as using seat belts, refrain from using mind-altering drugs and intoxicating beverages, and refrain from performing certain unhealthy acts, such as smoking, in public?. . . . 

A fourth major shift will occur in the "cyberpunk issues" of changing medical technology. How will we deal with new methods of human reproduction, new transplantation techniques, genetic engineering, and man-machine hybrids? . . .


 


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Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

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