Overview of Health Law
Health law is the study of the law, including all legal rules and issues related to the healthcare industry, and supervision and regulation of the healthcare industry. Health law applies to anyone who provides healthcare services, including doctors, nurses, dentists, nurses’ aides, or administrators of hospitals and other medical facilities. Health law also applies to medical device producers, health insurers, and entities that maintain medical information.
Health law is a broad area of the law covering everything from patient rights to health insurance to bioethics to public health policy. It also covers the licensing and credentialing of healthcare providers, the operation of hospitals and other medical facilities, the regulation of health insurers, plus rules concerning patient confidentiality.
Healthcare facilities are also regulated by state health departments licensing healthcare facilities and providers within the facility. Federal regulations related to healthcare facilities include Medicare and Medicaid. There are various laws relating to reimbursement for services provided , the collection of unpaid bills, and health insurance. Law related to the HIPAA privacy rule, covered entities, and business associates and other privacy and security rules also fall into health law. The laws, rules, and regulations governing the payment and collection of debt are also relevant. Labor law is relevant to health law because healthcare industry employees are covered by labor law rules and are often unionized.
One way to look at the field of health law is to think of it as a way to do many things in "the law" in a way specific to the healthcare industry. State law, federal law, and common law govern how people interact with the healthcare system as patients, providers, and other stakeholders (such as family members).
It’s a field that touches every person at some point in their life through public health measures (laws concerning clean water, immunizations, maternal and infant child health, and environmental health, for example). By virtue of being a member of a community, you can be affected by health law whether you have health issues or not.
Key Health Law Cases
The most influential health law cases that have shaped the field are: Riggins v. Nevada (1992): Riggins murdered his son and was subsequently incarcerated at a state hospital. While there, he was prescribed medication to control his mental health. A few months later he was deemed competent for trial and transferred to jail until the trial was completed. At trial, he objected to the medication that was causing drowsiness and hallucinations, among other side effects. The court ruled that, while they did not doubt the state’s right to medicate those confined to prisons in certain circumstances, the circumstances of Riggins’ case did not warrant forcing him to take medication. However, the court applied a harmless error standard and hedged that the defendant’s conviction and sentence would not be overturned. Washington v. Harper (1990) 494 U.S. 210: Harper was sentenced to prison for robbery and assault, both under Washington’s version of the heightened penalty system commonly called the "three strikes" law. He was also diagnosed as a paranoid/schizophrenic. His mental illness lead to violent behavior in prison, prompting state authorities to produce a "shoot to kill" policy should he escape. Harper was administered psychotropic drugs (as opposed to psychotropic medication) at the facility. The state responded that it had the power to administer involuntary treatment over a prisoner’s objection because it is required to control violence in prison. The Supreme Court utilized a balancing test, holding that a prisoner could not be treated without his consent, except in a medical emergency or upon a showing that the prisoner was dangerous. It would appear that the ruling on treatment for dangerous prisoners may open the door to negligence claims for failure to treat, as well as intentional torts (i.e. false imprisonment) when treatment is withheld.
Basic Health Law Materials
Materials of use in studying (and practicing) health law include law school textbooks (e.g., Furrow, et al., Law and the American Health Care System (5th ed.); Robertson, et al., Health Law (7th ed.); Schwartz, et al., Law of Healthcare Administration (6th ed.); Hall, et al., Fundamentals of Health Law; Voigt, et al., Health Care Operations Law; and Post, Moses & Stowell, Health Law & Medical Practice) and treatises that may be used in conjunction with these textbooks (e.g., Abelson, et al., Health Care Law and Compliance Answer Book; Hyman, et al., Medical Malpractice Law and Litigation; Jones, et al., Malpractice and the U.S. Health Care System; and Schwartz, et al., Law of Healthcare Finance). Also, regulatory statutes (principally, the Social Security Act – including the Medicare and Medicaid statutes), are invaluable in studying and analyzing the health care system.
Typical Health Law Problems
The problems that I have seen come up again and again are in the area of privacy rights. Health care privacy rights are a strange hybrid of an individual right balanced against the need of insurance companies and (often) the government to be able to monitor the situation for broad purposes of care, fraud prevention, criminal activity, etc.
Another consistent area of dispute that crops up are medical malpractice claims. A health care provider has a broad duty to anyone who is in their care. This is an area that eats up a lot of time, primarily because there are national trends towards requiring folks to attend mediation before filing a case. So the parties spend a lot of time not litigating on purpose. Or as one attorney told me, "I’ll never see a case go to trial because of this."
A third area is the constant development of antitrust law as it applies to non-profits. There’s been a lot of effort to ensure that nonprofits are subject to the same laws on engagement in anticompetitive activity as for-profit organizations . What this means is that the evolution of this law can seriously impact a hospital system or a particular hospital. A hospital is much more likely to be subject to a lawsuit for having a relationship with another hospital than a for-profit organization is.
On the development of the telemedicine laws that apply to a particular state, I don’t see any "revolution" happening so much as a slow change in the nature of what applies and when. I’m really interested in seeing how the telemedicine laws develop, and how they will apply to vendors selling hardware, software and services remotely from remote locations. For any state that imposes a physician-patient relationship through some sort of physical presence, the "developing law" about the new practice of medicine will mean something. And if the state doesn’t impose the requirement directly through statutory and regulatory frameworks, it will be done indirectly through pressure from the payors and the market. I see this as more of a continuing evolution than a sudden change in law.
Emerging Health Law Trends
It is not difficult to imagine where this field and these cases are headed. Here are just a few of the issues I think will be increasingly prominent:
• Drug Costs: How much should drug companies be allowed to charge for their products? How big a burden do they impose on patients who need medicines? Is "pharmacy assistance" a solution to a social problem, or invitation to abuse? Maybe restructuring a pharmaceutical company’s pricing, costs, and profits should be treated as a barrier to trade? Does it make sense to undo that? Does it even need to be considered? Are there sufficient checks and balances currently in place to adequately insure that monopolies have not developed and that drug costs are not being used as a jumping-off point for price-gouging? Mull these over. Tough questions to answer.
• Access to Affordable Healthcare: If you listen carefully, you’ll hear the rumble of legislative and regulatory bodies beginning to consider how they will implement their various programs of financing access to affordable health care. Although governmental voices seem to remain predominant, here too you may hear rumblings in the private sector. Should payors battle one another with ever-more-extreme access restrictions or provider disincentives, or should they seek to improve their internal efficiencies, or obtain their efficiencies by collaborating with hospitals and providers under a new set of rules? Mull these too. Tough questions to answer.
• Continuity: In an age of ever-changing technologies, what is continuity? The ability to follow a given patient experience from increased use of electronic communications applications. Whether cooperation with patients makes sense from the standpoint of efficiency and profit maximization. Is it enough to know how much a patient has already accessed a given service? How does one best coordinate fragmented services and support integrated care platforms, especially when operationally or financially it makes more sense to treat unrelated services independently, and to build the organizational structures that will fit them into their own specialized internal divisions? Mull these too. Tough questions to answer.
Many areas of health law practice are currently stable and well-understood. Others have a good deal of uncertainty and debate attached to them. Mull these too, and fight on.
Conclusion and Implications
As we have seen in examining these health law cases, health law materials, and health law problems, a complex interplay emerges between the law and the various stakeholders in the healthcare system, including patients, providers, insurers, and society at large. The implications of these cases are far-reaching and raise significant questions about the role of law in shaping healthcare delivery, access, and quality.
The cases underscore the nuances of legal reasoning in health law, where precedents from other areas of the law must be carefully applied to the complex realities of the healthcare setting. Legal professionals must grapple with a rapidly evolving regulatory environment while ensuring that clients’ interests are protected. For policymakers, these cases highlight the need for a cohesive approach to healthcare regulation and the importance of considering how existing laws impact patient care and access to necessary services. For society as a whole, these cases raise fundamental questions about the nature of the doctor-patient relationship, the right to refuse treatment , and the state’s interest in protecting its citizens’ health.
In addition to the cases, the materials we have examined provide a valuable perspective on the challenges faced by those in the field. Whether it is the difficulty of interpreting complex regulatory schemes like the Stark law or the challenges of managing compliance with vast and arcane federal regulations, the complexity of health law cannot be overstated.
Moreover, the problems we discussed and the suggested solutions illustrate the real-world implications of the law for healthcare professionals. Whether it is the contractual issues that arise in clinical trials or the legal considerations that come into play when billing Medicare or Medicaid, these problems highlight the intersection of law and everyday clinical practice.
In summary, the field of health law is a constantly evolving area of legal practice, with far-reaching implications for key stakeholders. By examining the cases, materials, and problems in health law, this article aims to provide a guide to the most important developments in the field, as well as the challenges faced by those who work in it.