1. © 2008 Delmar Cengage Learning. Chapter 6 The Courts Rand Rosenblatt

2. © 2008 Delmar Cengage Learning. 2 The Role(s) of the Courts Legislatures pass laws –Wording is often left (deliberately) vague –To serve competing interests It is the role of the judiciary to clarify legislation –To assist in the implementation of laws

3. © 2008 Delmar Cengage Learning. 3 Three Models of Health Law Used to conceptually describe the overarching legal climate that shape important court decisions at a given time

4. © 2008 Delmar Cengage Learning. 4 Three Models of Health Law Some, or all, might be present at a single point in time –Nonetheless, one has tended to dominate during the historical periods outlined in the slides that follow

5. © 2008 Delmar Cengage Learning. 5 Model of Professional Authority (1880-1960) During early period –Health law seemed to exist for the sole purpose of supporting and enhancing the authority of the professional physician

6. © 2008 Delmar Cengage Learning. 6 Model of Professional Authority (1880-1960) During early period –Supported doctors in their quest to determine the terms under which they were to practice –Difficult for patients to collect malpractice damages during period

7. © 2008 Delmar Cengage Learning. 7 Model of Professional Authority (1880-1960) Key case: –Schloendorff v. Society of New York Hospital Involved the complaint of a patient, on whom a surgeon in hospital performed an operation without consent

8. © 2008 Delmar Cengage Learning. 8 Model of Professional Authority (1880-1960) New York Court of Appeals ruled that the hospital could not be held liable for the operation –As it did not exercise control over the medical professionals who happened to work there

9. © 2008 Delmar Cengage Learning. 9 Model of Professional Authority (1880-1960) Major shortcomings: –Precedents established under model could not effectively provide for those who could not afford care under fee-for-service model –Doctors could not always regulate themselves Provided no mechanism by which medical costs could be controlled

10. © 2008 Delmar Cengage Learning. 10 Model of the Egalitarian Social Contract (1960-’70s) Rather than simply reinforcing discretion of the medical profession –Stressed importance of broad “contract” between doctor and patient governed by fairness and justice

11. © 2008 Delmar Cengage Learning. 11 Model of the Egalitarian Social Contract (1960-’70s) Decisions abolishing medical discrimination on the basis of race, gender, etc. established under this model

12. © 2008 Delmar Cengage Learning. 12 Model of the Egalitarian Social Contract (1960-’70s) Key case: –Rosado v. Wyman Not directly related to health care Aligned more broadly with social welfare programs

13. © 2008 Delmar Cengage Learning. 13 Model of the Egalitarian Social Contract (1960-’70s) Court held that: –a) Federal statutes ensuring beneficiary protections were to be taken seriously, enforced –b) Administrators should exercise (limited) discretion when implementing law, ensuring that values, conditions of the beneficiary are taken into account

14. © 2008 Delmar Cengage Learning. 14 Model of the Egalitarian Social Contract (1960-’70s) Court held that: –c) In cases in which the law was directed to states, the individual beneficiary could bring legal action against the State if he/she had a grievance under the law

15. © 2008 Delmar Cengage Learning. 15 Model of the Egalitarian Social Contract (1960-’70s) Major shortcomings: –Failed to control rapid upward spiral in health care costs –No meaningful guidance on how to regulate/ration the use of expensive medical technology –Failed to broaden access to (particularly public) health coverage

16. © 2008 Delmar Cengage Learning. 16 Model of Market Competition (1970s-???) Proposed addressing the twin problems of cost containment and rationing –Allowing the “invisible hand” of the market to send appropriate cost signals to “consumers” Assumed that the bulk of the health care consumed was actually discretionary –Not a life-or-death proposition

17. © 2008 Delmar Cengage Learning. 17 Model of Market Competition (1970s-???) Key case: –McGann v. H.& H. Music Company AIDS patient claimed benefits under company insurance plan –Company capped lifetime benefits for AIDS patients alone –Employee claimed discrimination under statute of ERISA law

18. © 2008 Delmar Cengage Learning. 18 Model of Market Competition (1970s-???) Court ruled that ERISA only protected employees under a specific plan –Allowed firms to change plans at any time –Ruled against H. & H. employee

19. © 2008 Delmar Cengage Learning. 19 ERISA (1974) Explainer Employee Retirement Income Security Act –Sought to expand employee protections vis a vis company-provided pension schemes and health plans –Providing means by which employees who felt they were the victims of discrimination under a play could seek recompense

20. © 2008 Delmar Cengage Learning. 20 ERISA (1974) Explainer Made acceptable to large firms by simultaneously voiding prior state regulation statutes –Law thus conflicted in tone/intent

21. © 2008 Delmar Cengage Learning. 21 Model of Market Competition (1970s-????) Major shortcomings: –Limited success in cost containment –Rationing has come at the cost of decreasing legitimacy being accorded the health care sector by those for whom legal protection is sparse

22. © 2008 Delmar Cengage Learning. 22 Model of Market Competition (1970s-????) Redistribution of resources has occurred under model –But from the poor to the (already) wealthy

23. © 2008 Delmar Cengage Learning. 23 Emergent Fourth Model(?) of Health Law Many now seek middle ground between unrestrained market forces, social solidarity Emergent recognition that forces of globalization must be tempered if they are to have purely positive effects

24. © 2008 Delmar Cengage Learning. 24 Emergent Fourth Model(?) of Health Law Advances in biotechnology provides further wrinkle to a market competition model already under considerable stress

25. © 2008 Delmar Cengage Learning. 25 Chapter 6 Summary Judiciary assists in process of implementing laws once they have been enacted by legislatures Three legal models helped shape direction of health policy over time

26. © 2008 Delmar Cengage Learning. 26 Chapter 6 Summary Model of professional authority held sway from around 1880-1960 –Schloendorff v. Society of New York Hospital the paradigmatic case 1960 through the 1970s –Model of the egalitarian social contract prevailed Rosado v. Wyman the paradigmatic case

27. © 2008 Delmar Cengage Learning. 27 Chapter 6 Summary Model of market competition reigned from the 1970s through the very recent past –McGann v. H. & H. Music Company illustrates this model –Fourth model in health law may be emerging