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 Church’s 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. Surgery Starts to Work in the 1880s • Surgery Can Be Precise - Anesthesia • Patients Do Not Get Infected - Antisepsis

21. 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 • Licensing starts to make sense when there is a reason to differentiate between practitioners

22. The Business of Medicine • Mid to Late 1800s • Physicians are Solo Practitioners • Most Make Little Money • Have Limited Respect • Effective Medicine Drives Licensing • Licensing Limits Competition • Physicians Start to Make Money

23. Hospital-Based Medicine • Started With Surgery • Medical Laboratories • Bacteriology • Microanatomy • Radiology • Services and Sanitation Attract Patients • Internal Medicine • Obstetrics Patients

24. 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.

25. 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

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

27. Impact of Corporate Bans • 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 Company’s Rules • Physicians Can Be As Ruthless As Anyone

28. Post WW II Technology • Ventilators (Polio) • Electronic Monitors • Intensive Care • Hospitals Shift From Hotel Services to Technology Oriented Nursing

29. Post World War II Medicine • Conquering Microbial Diseases • Vaccines • Antibiotics • Chronic Diseases • Better Drugs • Better Studies • Childhood Leukemia

30. The Evolution of Hospitals From Nuns to MBAs

31. Old Days • Charitable Immunity • 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 were closed to save money • 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. Managed Care Pressures on Docs • When is Denying Care Cheaper? • What is the Timeframe Issue? • Insurers Now Control the Patients • Employee Model • Contractor Model • De-selection • Financial Death • No Due Process