The area of Law and academic study entitled “Health Law”  concerns  those issues where Medicine, Law, and Public Policy intersect.   The field used to be called “Legal Medicine”, but that term frequently gave rise to questions about the obvious alternative.   As with everything else in the field of Medicine and health care delivery, this  body of law and law practice has exploded in the last decade.

One useful approach to understanding the scope of this area of activity is to view it from the perspective of the physician, the central player in the field.   The issues involved concern the physician as professional, physician as businessman, and physician as ethicist.

PHYSICIAN AS PROFESSIONAL:

A physician begins his work through education, training and experience.  Education involves three or four years of college, four years of medical school, at least two years of internship and residency training (more commonly  three to six years of residency and fellowship training), and subsequent experience in the field.  Before and at every stage in the development of the physician, his progress is supervised and overseen, both by the appropriate State agencies and by his teachers and peers.  As  will be the case throughout his professional life, membership in a profession involves the critical element of peer review and oversight by one’s contemporaries in the field.  State and federal law and practice affirm to a great extent this peer review, although with  increasing limitations  on  the responsibility of physicians monitoring their own.  There are qualification exams for the M.D. degree, certification exams for admission to specialties, licensure procedures on a state-by-state basis, and  credentialing by hospitals and managed care organizations to verify the accuracy of all the above.  This process is on-going,  as is the requirement that physicians complete minimum levels of  continuing medical education (for example, 100 hours of lectures or attendance  at medical meetings every two years).

Health care involving the physician also includes issues related to his work as a member of a team including nurses, pharmacists,  technicians, and health administrators.  This is true generally, regardless of the environment  in which the physician has decided to practice: private practice as a generalist or specialist, hospital or clinic practice, hospital administration,  academic medical research, health lawyer or ethicist.

Peer review involves continuing oversight of one’s work by colleagues, other members of the team, State licensure boards, Federal National Practitioner Data Bank, and by the constant possibility that one’s alleged errors or oversights may be reviewed in a court of law for medical malpractice.
The physician as professional is also responsible for maintaining the confidentiality of his patients, and for upholding a fiduciary responsibility of trust at all times .

PHYSICIAN AS BUSINESSMAN:

A physician must place his or her  patient’s welfare  above all else.  However, “the first rule of service is survival”.  At the end of the day or year, the physician must provide for his own support and for that of those other persons who depend on him.  Thus, the physician must have some expertise regarding  the business world.  Historically, and probably to this day, that has been an area of  physician training that has been  neglected.  The advent of managed care in recent years, however, has placed a premium on the physician’s ability to cope with business issues, particularly in the area of Contracts.  The question of managed care has been discussed in another offering on this Web page (please see the entry entitled  “Managing  Managed Care”).  In addition, the physician must be conversant with issues of antitrust law and prohibited activities, including simple errors which currently are being investigated under the term “ fraud and abuse”.

PHYSICIAN AS ETHICIST:

A doctor deals with issues beginning at conception and proceeding to the grave.  He or she deals with questions of patient self-determination, including informed consent, competence,  the need for a surrogate or health care advocate,  and the use of advanced directives.  He deals with issues of withholding or withdrawal of life-support and with the concept of futility.  He deals  with issues of transplantation, definition of death, and priorities in providing medical care. Soon he will be dealing with the implications of rapidly advancing research in the field of
Genetics.  He must deal with these issues expertly and compassionately,  all under the constant watchful eyes of his professional peers, of State and federal authorities, and of his own patients.   Much is expected of the physician, and much is provided by him.

REGARDING MEDICAL ETHICS, THE ENTIRE SUBJECT IS REPRESENTED IN A CAREFUL STUDY OF THE OATH OF HIPPOCRATES.  IT IS UNFORTUNATE THAT FOR YEARS MANY YOUNGER PHYSICIANS HAVE NOT HAD TO TAKE THIS OATH.

GS

Oath of Hippocrates

I SWEAR BY APOLLO PHYSICIAN, BY ASCLEPIUS, BY HEALTH, BY HEAL-ALL, AND BY ALL THE GODS AND GODDESSES, MAKING THEM WITNESSES, THAT I WILL CARRY OUT, ACCORDING TO MY ABILITY AND JUDGMENT, THIS OATH AND THIS INDENTURE:

TO HOLD MY TEACHER IN THIS ART AS EQUAL TO MY PARENTS; TO MAKE HIM PARTNER IN MY LIVELIHOOD, AND WHEN HE IS IN NEED OF MONEY TO SHARE MINE WITH HIM; TO CONSIDER HIS OFFSPRING EQUAL TO MY BROTHERS; TO TEACH THEM THIS ART, IF THEY REQUIRE TO LEARN IT, WITHOUT FEE OR INDENTURE; AND TO IMPART PRECEPT, ORAL INSTRUCTION, AND ALL THE OTHER LEARNING, TO MY SONS, TO THE SONS OF MY TEACHER, AND TO PUPILS WHO HAVE SIGNED THE INDENTURE AND SWORN OBEDIENCE TO THE PHYSICIANS’ LAW, BUT TO NONE OTHER.

I WILL GIVE TREATMENT TO HELP THE SICK ACCORDING TO MY ABILITY AND JUDGMENT, BUT I WILL NEVER USE IT TO INJURE OR WRONG THEM. . I WILL NOT GIVE POISON TO ANYONE THOUGH ASKED TO DO SO, NOR WILL I SUGGEST SUCH A PLAN. SIMILARLY, I WILL NOT GIVE A PESSARY TO A WOMAN TO CAUSE ABORTION.  BUT IN PURITY AND IN HOLINESS I WILL GUARD MY LIFE AND MY ART. I WILL NOT USE THE KNIFE ON SUFFERERS FROM STONE, BUT I WILL GIVE PLACE TO SUCH AS ARE CRAFTSMEN THEREIN.

WHOEVER’S HOUSES I ENTER, I WILL DO SO TO HELP THE SICK, KEEPING MYSELF FREE FROM ALL INTENTIONAL WRONG-DOING AND HARM, ESPECIALLY FROM FORNICATION WITH  WOMAN OR MAN, BOND OR FREE.

IF EVER IN THE COURSE OF PRACTICE I SEE OR HEAR OR EVEN OUTSIDE MY PRACTICE IN SOCIAL INTERCOURSE THAT WHICH OUGHT NEVER TO BE PUBLISHED ABROAD, I WILL NOT DIVULGE, BUT WILL CONSIDER SUCH THINGS TO BE HOLY SECRETS.

SO LONG AS I AM TRUE TO THIS OATH AND BREAK IT NOT, MAY I ENJOY HONOR, IN MY LIFE AND ART, AMONG ALL MEN FOR ALL TIME; BUT IF I TRANSGRESS AND FORSWEAR MYSELF, MAY THE OPPOSITE BEFALL ME.

Specific federal statutes that have a direct bearing on the Law of health-care delivery include among others: the Medicare Act of 1964, the HMO  laws of 1972, the Rehabilitation Act of 1973, the ERISA Act of 1974, the  Health Care  Quality Improvement  Act of 1986, the Americans with Disabilities Act of 1990, and the Emergency Medical Treatment and Labor Act.

A few words should be added regarding the concept of “ medical malpractice”.
This does not mean a mal-occurrence or an act of God; rather, it entails five components  in American Tort law, all of which must be present and proved to sustain a charge of medical malpractice.  These include: Duty, meaning an actual then-existing  doctor-patient  relationship; a Breach of that duty, defined  by the physician’s  peers as medical negligence; Injury; Causation, defined as a direct relationship between the alleged negligence and the injury (either “but for” rule or “substantial factor” rule); and Damages.  All five components must be present and proved to sustain the charge.  Regarding injuries and damages,  they would seem obvious, if a case is been bought by a patient.  However, injuries and damages must be proven with specificity to a judge and jury.  In addition and as a threshold issue involving whether or not a law firm will take a case, injuries and damages must be of sufficient magnitude to justify  the law firm’s participation in the case.  Medical malpractice cases are long and distressing for all involved.  Such a case should be entered into with no illusions and only after careful review of all the relevant facts by a person or persons conversant with the medical and legal issues. 70 percent of such cases are won by the defendant  health-care Professional.  And although a law firm may take the case “ on contingency”, the firm is prohibited by law and by  legal ethics from absorbing the costs involved,  costs which can be substantial.  Thus, from the aggrieved patient’s  point of view, it is very helpful to know at the outset whether there is a probable case fulfilling all the above criteria.  And from the law firm’s point of view, “ the most important cases that come to us are  the cases that we don’t  take”.

The issues on which Health Law focuses are some of the most important and vexing issues facing society today.  This situation should  engender active cooperation among all members of society.  Instead, we have polarization and recrimination and playing the “blame game”, this largely resulting from the unwillingness of our elected leaders  and the public they represent to address the real challenges (see my offering referred to above).  Thus, the prognosis for improvement any time soon is guarded, at best.

GS