Medical and Healthcare Law

This article examines the five forms of payment for healthcare that are common in the United States: out-of-pocket, charity, direct public provision, public health insurance, and private health insurance (including employer-sponsored insurance). After discussing the history of each of the five approaches, the article considers their advantages and disadvantages as well as their current status. It examines next the 2010 Affordable Care Act. Although the Affordable Care Act focuses primarily on expanding public health insurance and public financing for private health insurance, it incorporates all five approaches to financing care. Finally this chapter considers why the United States retains this patchwork of different forms of coverage rather than adopting a single coherent system of health care finance and discusses the likely future of the American approach.

This chapter describes the main features of European healthcare systems. The chapter identifies key characteristics of these systems: the organisation, financing, and delivery of health services, and the main actors. It then questions what the systems cover, who are eligible to receive healthcare, when patients receive healthcare, and the physician’s duty to provide care. In addition to highlighting the applicable regulatory framework, this chapter also describes some general trends.

This chapter examines the issue of access to healthcare, with particular emphasis on the five dimensions of the model proposed by Roy Penchansky and J. William Thomas: availability, accessibility, accommodation, affordability, and acceptability. It also discusses the constitutional powers of states and the federal government with respect to health, along with relevant health law. It outlines the three categories of law governing access to physicians and hospitals: direct obligations of physicians and hospitals to provide free care to the indigent; federal programs to provide health insurance or health services to vulnerable populations; and laws that affect the delivery of care based on the patient’s physical characteristics and immigration status. The chapter concludes by considering the United States’s failure to realize the human rights aspect of health in international treaties and suggesting that the country’s efforts when it comes to access to physicians and hospitals leave much to be desired.

This chapter examines issues arising from an aging population, particularly those affecting the population, community, family, and individuals. It considers the legal and policy challenges relating to an aging population, along with the implications of responses to such challenges for the regulation of clinical care at the individual level and the structure and financing of healthcare delivery for older persons as a group. The chapter provides a demographic background on the elderly, with emphasis on the changing epidemiology of aging and its disability consequences as well as long-term services and supports for the aged. It looks at adverse cognitive changes associated with aging and relevant law relating to older persons’ impaired medical decision-making. It also describes best practices in clinical geriatrics before concluding with an explanation of how physician perceptions of legal standards of care undermine efforts to provide more rational care to the elderly through best practices initiatives.

This chapter maps out the complex picture of access to medical care in the United States. It reflects on how variable access illustrates an American ambivalence about health solidarity. The chapter first considers healthcare financing as one critical element that defines access to medical care and describes the multifaceted US healthcare financing structure, predominated by public insurance programs for select populations and regulated private insurance for others. Next, this chapter describes how access is equally shaped by legal requirements that create treatment obligations for doctors or hospitals regardless of how someone pays for care. There is no constitutional right to health in the United States, but various layers of statutory and common law have created some guarantees. That said, despite efforts to increase access over the past decades, the United States is still extraordinary, as compared to peer nations, on the unevenness of access to medical care among its population.

This chapter explores U.S. public health law and illustrates how it works in the control and prevention of two salient epidemics: infectious diseases and noncommunicable diseases. It first presents a theory and a definition of public health law, with particular emphasis on the law’s five essential characteristics: government, populations, relationships, services, and power. It then considers the doctrinal boundaries of public health law, and why population health should be a salient public value. It also describes seven models for legal intervention designed to prevent injury and disease, encourage healthful behaviors, and promote public health more generally. Finally, it looks at the use of public health law in infectious disease surveillance and response, as well as the law’s diverse roles in noncommunicable disease prevention and control before concluding with a discussion of the major reasons for social and political opposition to noncommunicable disease interventions.

This chapter examines the role of antitrust law in the governance of healthcare competition in the United States as the Patient Protection and Affordable Care Act of 2010 (ACA) takes full effect. It provides an overview of U.S. antitrust law before turning to recent and ongoing controversies involving antitrust law and healthcare, including those relating to hospital mergers, consolidation in the health insurance industry, accountable care organizations, and generic drugs. It then steps back to consider deeper questions of competition policy in the post-ACA era that may determine the economic sustainability and quality of the U.S. healthcare system.

This article focuses on debates, both historic and contemporary, surrounding assisted reproductive technologies (ART) and abortion. After providing a historical background on ART and abortion and their integration into modern reproductive life, the article discusses the current usage of both techniques in America. It then compares the populations who avail of ART and abortion before turning to an analysis of the regulatory landscape surrounding the two procedures, along with reproduction as a fundamental right. It also examines the issue of whether the existing jurisprudence concerning the right to avoid procreation can be applied equally to the right to access parenthood through assisted conception. The article concludes with an assessment of three areas in which ART and abortion have overlapped: selective reduction of multiple pregnancy, the personhood movement, and perinatal genetic diagnosis.

This article explores the relationship between respect for individual autonomy and the law governing end-of-life treatment in the United States. It begins with a review of the law governing treatment decision-making for competent adults, incompetent adults, and children. It then turns to the issue of determining death. After that, the article discusses the limitations of the autonomy-based approach in addressing three areas of end-of-life law: “futile” treatment disputes, treatment decisions for incompetent patients, and access to physician-assisted death. It concludes that courts and other legal decision-makers will face pressure to consider the proper role of quality of life, cost, medical judgment, and patient vulnerability in determining end-of-life law.

This chapter examines biobanks as a case study of multiple legal and governance challenges that cut across conventional jurisdictional lines. The advent of large-scale biobanks—collections of biomedical samples linked to personal data and other resources such as health records—has come to represent a watershed in health research regulation in many countries. As such, this chapter stresses two features of biobanks that raise questions about the role of law and regulation. First, this chapter examines the extent to which existing legal frameworks must be adapted to accommodate particular features of biobanking (and how far this is successful). Second, it highlights examples of ways in which some biobanks have developed their own governance mechanisms—in addition to legal compliance in the local country—that are aimed at promoting engaged and ethically robust biobanking practices

This article examines federal and state laws on biomedical research in the United States. It also considers the tension among various regulatory regimes and highlights conflicting regulations that could be better harmonized. The article first describes regulatory regimes that govern protections for human subjects, with particular reference to the federal Common Rule and the Food and Drug Administration’s regulations on the protection of human subjects. The discussion then turns to state laws on informed consent; privacy laws; laws on clinical trials registration and data transparency; financial disclosure requirements; research misconduct such as fabrication, falsification, and plagiarism; and animal research requirements. The article concludes by presenting additional considerations related to federal funding of research.

This chapter discusses the most important features of EU law on infectious diseases. Communicable diseases not only cross borders, they also often require measures that cross different areas of policy because of different vectors for disease transmission. The relevant EU law cannot be attributed to one sectoral policy only, and thus various EU agencies participate in protecting public health. The key agency is the European Centre for Disease Prevention and Control. Other important agencies include the European Environment Agency; European Food Safety Authority; and the Consumers, Health, Agriculture and Food Executive Agency. However, while integration at the EU level has facilitated protection of the public's health, it also has created potential conflicts among the different objectives of the European Union. The internal market promotes the free movement of products, but public health measures can require restrictions of trade. Other conflicts can arise if protective public health measures conflict with individual human rights. The chapter then considers risk assessment and the different tools of risk management used in dealing with the challenges of infectious diseases. It also turns to the external and ethical perspective and the role the European Union takes in global health.

This chapter explores the key features of American infectious disease law. The history of health law in the United States begins with the colonial laws that responded to the epidemics of smallpox, yellow fever, and other infectious diseases that regularly devastated the North American colonies. In the twentieth century, as the fear of infection declined, courts began to provide greater protections for individuals and vulnerable populations subjected to infectious disease laws. Moreover, the federal government began to play a more prominent and complex role in the control of infectious diseases. The chapter then looks at the allocation of authority between the states and federal government with respect to infectious disease control. It also discusses the role that restraint on individual rights plays in infectious disease control and the limits that the US Constitution and civil rights laws place on such restraints. The chapter also considers some of the specific tools that jurisdictions employ in response to infectious disease. It concludes with a brief discussion of the United States' role in global public health.

This chapter focuses on key characteristics of U.S. communicable disease control law. It describes federal and state powers, reviews the relative roles of voluntary and coercive public health programs, and describes the scope and limitations of the police power. Next, it examines specific legal provisions particularly relevant to communicable disease control and explores two emerging issues: how to successfully craft legal and policy measures to reduce the negative impact of antibiotic resistance and expanded use of public health surveillance data. The chapter concludes with three ongoing dilemmas that require both technical solutions and thoughtful debate, how to: 1) balance individual rights and effective disease control when using isolation and quarantine; 2) develop legal and policy tools that will incentivize development of novel antibiotics; and 3) assess the benefits and risks of utilizing the explosion of personal data that advances in medicine, public health, and technology have made available.

This chapter examines financial incentives that might result in conflicts of interest (COIs) in treatment and research relationships, along with the regulation of those COIs. It considers financial incentives for healthcare providers to reduce spending on clinical care and incentives for researchers and their institutions to pursue commercially viable biomedical discoveries. The chapter discusses the goals that the law should attempt to achieve through the regulation of potential COIs in treatment and research relationships, such as promoting self-protection among those at risk of harm. The chapter describes the purposes of legal mandates to disclose financial interests in clinical medicine and in biomedical research and assesses the existing law with respect to COI disclosure and advocacy protections. It shows that current law does little to enable patients, insurance beneficiaries, and human subjects to protect themselves. Finally, it proposes changes to the law to prevent COIs in both clinical and research settings.

This article focuses on professional and regulatory bodies to which patients can lodge complaints and other concerns over the quality of care provided by medical practitioners and healthcare institutions. It first considers state regulation of professional licensing boards, together with the procedures employed by medical boards for patient complaints, as well as the challenges and criticisms faced by such boards with respect to their approach to complaint investigation and disciplinary enforcement. It then turns to federal regulation of providers and institutions that participate in Medicare and Medicaid, with particular reference to the Centers for Medicare and Medicaid Services. It also examines private organizations, such as the Joint Commission (formerly the Joint Commission for the Accreditation of Health Organizations) and specialty medical associations. Finally, the article looks at online consumer reviews and healthcare ratings websites as alternative mechanisms for patient reporting and complaints.

This article examines conflicts of conscience that arise between patients, healthcare providers, and institutions in the field of medicine, especially with regard to reproductive health and end-of-life care. More specifically, it considers “conscientious refusal”—a provider’s exercise of his or her conscience in refusing to perform or participate in a procedure that is deemed ethically and legally permissible. The discussion begins with an overview of the history and development of legislative and court protections for conscientious refusals of healthcare. It then turns to theoretical justifications for protecting conscience in medicine, along with proposals to strike a balance between patient access and provider conscience. It also analyzes current legislation governing refusal vis-à-vis true exercise of conscience and argues that institutional conscience poses practical and theoretical challenges to the protection of conscience. The article concludes with an assessment of future directions for research.

This chapter examines the similarities and differences between US and European legal thinking and jurisprudence regarding end-of-life medical care. In recent decades, courts and legislatures have increasingly respected the right to self-determination of patients or their families in deciding about the way people want to die. In most jurisdictions, patients may have unwanted medical treatment withheld or withdrawn, even when the treatment would be or is life-sustaining. Hospice and other palliative care are important alternatives, although in many cases, suffering may still persist. In a small but growing number of jurisdictions, patients may receive a lethal dose of medication to bring about death. Less recognized, but very important too, are cases in which patients request life-sustaining care that their health care providers consider “futile.” As with other rights, the right to make medical decisions is subject to limits. In deciding the extent of rights to make end-of-life decisions, the law has recognized that while seriously ill patients have the greatest stake in their medical care, family members, healthcare providers, and the state also have important interests. Accordingly, health law has had to balance a number of competing interests in determining when it is permissible to discontinue medical care or take other actions that will shorten life, and the scope of the right to decide has been much debated.

This chapter examines the impact of disability law on certain areas of health law and the implications for people with disabilities. It first considers a number of issues in the provider-patient relationship with respect to disability rights, including informed consent and decision-making both at the beginning of life and at the end of life. In particular, it discusses questions concerning prenatal testing and reproductive liberty, as well as the so-called “Baby Doe” regulations. It then explores the impact of the Patient Protection and Affordable Care Act on access to healthcare, along with statutory definitions of disability. Statutes employing functional definitions of disability are compared with statutes employing condition-based definitions of disability. The chapter concludes by focusing on Medicare and the obligations of providers and programs under the Americans with Disabilities Act.

This chapter explores the law’s response to conflicts between parents and medical professionals over medical treatment of children. It acknowledges that generally the law gives parents considerable leeway over how to raise children and will only allow intervention in cases where the parents cannot reach agreement over an issue or the parents are causing the child significant harm. The chapter explores why medical treatment might be seen as different from other issues concerning children—in particular because there are authoritative alternative decision-makers (doctors) who can claim to have greater expertise than parents. However, it is claimed that end-of-life cases tend to raise issues that are not solely medical and hence a dialogue between doctors and parents is essential to determine the child’s best interests.