Introduction to Health Care Law

1
Introduction to Health Care Law

• Professor Edward P. RichardsLSU Law
  Centerhttp//biotech.law.lsu.edu/

2
Key Issues

• Scientific medicine is about 120 years old
• Technology based medicine is less than 60 years
  old
• Doctors are not scientists and many do not
  practice scientific medicine.
• There is no stable model for medical businesses,
  leading to constant change and unending legal
  problems.
• Health care finance shapes medical care and is a
  huge mess

3
Critical Dates in Medicine
4
1400s

• Birth of Hospitals
• Places where nuns took care of the dying
• No medical care against the Churchs teachings
• No sanitation assured you would die

5
Early 16th Century

• Paracelsus
• Transition From Alchemy

6
Mid 16th Century

• Andreas Vesalius
• Accurate Anatomy

7
Early 17th Century

• William Harvey
• Blood Circulation the body is dynamic, not
  static

8
1800

• Edward Jenner
• Smallpox and the notion of vaccination

9
1846

• William Morton - Ether Anesthesia

10
1849

• Semmelweis
• Childbed Fever and sanitation
• Controlled Studies

11
1854

• John Snow
• Proved Cholera Is Waterborne
• Basis of the public sanitation movement

12
1860-1880s

• Louis Pasteur
• Scientific Method
• Simple Germ Theory
• Vaccination For Rabies
• Pasteurization to kill bacteria in milk

13
1867-1880

• Joseph Lister
• Antisepsis surgeons should wash their hands and
  everything else, then use disinfectants
• Listerine

14
1880s

• Koch
• Modern Germ Theory
• Organic Chemistry
• Birth of the modern drug business
• The real starting point for scientific medicine

15
1850s - 1900s

• Sanitation Movement - Modern Public Health

16
Schools of Practice - Pre-Science (1800s)

• Allopathy
• Opposite Actions
• Toxic and Nasty
• Homeopathy
• Same Action as the Disease Symptoms
• Tiny Doses
• Less Dangerous
• Naturopaths, Chiropractors, Osteopaths, and
  Several Other Schools

17
Most Medical Schools are Diploma Mills

• No Bar to Entry to Profession
• Small Number of Urban Physicians are Rich
• Most Physicians are Poor
• Cannot Make Capital Investments
• Training
• Medical Equipment and Staff
• Physicians Push for State Regulation to create a
  monopoly

18
Legal Consequences

• No Testimony Across Schools of Practice
• Different from Medical Specialties
• Surgery, Internal Medicine, Pediatrics
• All Same School of Practice - Allopathy
• All Same License
• Cross-Specialty Testimony Allowed
• Still important with the rise of
  alternative/quack medicine

19
Transition to Modern Medicine and Surgery
20
The Business of Medicine

• Mid to Late 1800s
• Physicians are Solo Practitioners
• Most Make Little Money
• Have Limited Respect

21
Surgery Starts to Work in the 1880s

• Surgery Can Be Precise - Anesthesia
• Patients Do Not Get Infected - Antisepsis

22
Effect on Licensing and Education

• Once there are objective differences (people
  live) between qualified and unqualified docs,
  people care
• You can make more money with better training
• You can make more money with better equipment and
  facilities
• Effective Medicine Drives Licensing
• Licensing Limits Competition
• Physicians Start to Make Money

23
The Tipping Point

• About 1910, going to the doctor, and particularly
  the hospital, shifted from being more dangerous
  than avoiding them to increasing your chance of
  survival.

24
Bars on Corporate Practice of Medicine - 1920s

• Physicians Working for Non-physicians
• Concerns About Professional Judgment
• Cases From 1920 Read Like the Headlines
• Banned In Most States
• Real Concern Was Laymen Making Money off
  Physicians

25
Physician Practices

• Shaped by Corporate Practice Laws
• Sole Proprietorships
• Partnerships
• Mostly Small
• Some Large Groups
• First Organized As Partnerships
• Then As Professional Corporations

26
Impact of Corporate Bans on Institutional Practice

• Physicians Do Not Work for Non-Governmental
  Hospitals
• Contracts Governed by Medical Staff Bylaws
• Sham of Buying Practices
• Physicians Contract With Most Institutions
• Charade of Captive Physician Groups
• Managed Care Companies Contact With Group
• Group Enforces Managed Care Companys Rules
• Physicians Can Be As Ruthless As Anyone

27
Evolution of Hospital Administration

• From Nuns to MBAs

28
From Hotel to High Tech - The Evolution of
Hospitals

• Started With Surgery
• Medical Laboratories
• Bacteriology
• Microanatomy
• Radiology
• Services and Sanitation Attract Patients
• Internal Medicine
• Obstetrics Patients

29
Post WW II Technology

• Ventilators (Polio)
• Electronic Monitors
• Intensive Care
• Hospitals Shift From Hotel Services to Technology
  Oriented Nursing

30
Post World War II Medicine

• Conquering Microbial Diseases
• Vaccines
• Antibiotics
• Chronic Diseases
• Better Drugs
• Better Studies
• Childhood Leukemia

31
Hospital Liability - Old Days

• Charitable Immunity
• No professional services
• Physicians provided or supervised professional
  services
• No Independent Liability for Nurses
• No Liability for Physician malpractice

32
Reformation of Hospitals

• Paralleled Changes in the Medical Profession
• Began in the 1880s
• Shift From Religious to Secular
• Began in the Midwest and West
• Not As Many Established Religious Hospitals
• Today, Religious Orders Still Control A Majority
  of Hospitals

33
After Professionalization

• Demise of Charitable Immunity
• Liability for Nursing Staff
• Negligent Selection and Retention Liability for
  Medical Staff

34
Hospital Staff Privileges

• Physicians are Independent Contractors
• Hospitals Are Not Vicariously Liable for
  Independent Contractor Physicians
• Hospitals Are Liable for Negligent Credentialing
  and Negligent Retention
• Hospitals Can Be Liable if the Physician is an
  Ostensible Agent

35
Joint Commission on Accreditation of Hospitals

• 1950s
• Now Joint Commission on Accreditation of Health
  Care Organizations
• American College of Surgeons and American
  Hospital Association
• Split The Power In Hospitals
• Medical Staff Controls Medical Staff
• Administrators Control Everything Else
• Enforced By Accreditation

36
Contemporary Hospital Organization

• Classic Corporate Organizations
• CEO
• Board of Trustees Has Final Authority
• Part of Conglomerate
• Medical Staff Committees
• Tied To Corporation by Bylaws
• Headed by Medical Director
• Constant Conflict of Interest/Antitrust Issues

37
Medical Staff Bylaws

• Contract Between Physicians and Hospital
• Not Like the Bylaws of a Business
• Selection Criteria
• Contractual Due Process For Termination
• Negotiated Between Medical Staff and Hospital
  Board

38
Hospital Economics

• Old Days
• More Patients Meant More Money
• More Docs to Admit Patients
• Insurance Was So Generous It Cross-subsidized
  Indigent Care
• Now
• Hospital beds are being closed to save money
• DRGS- Insurance and Government Pay is Very
  Limited - No Cross-Subsidy
• Under-Insured or Over-Cared-For Patients Cost
  Money

39
Specialty Hospitals

• Complex care is safer when regionalized
• Specialty hospitals can provide better care at
  lower prices
• Do not need to provide money losing services
• Do not take uninsured patients
• Shift the most valuable patients from community
  hospitals
• Dramatically increase unnecessary surgery

40
Bottom-Line

• Health care is an industry in transition
• Key Problems
• Access
• Cost
• Distributive justice
• Quality