Health Care Law and Ethics in a Nutshell

, by Hall, Mark A.; Ellman, Ira Mark; Strouse, Daniel S.

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ISBN: 9780314231703 | 0314231706
Cover: Paperback
Copyright: 6/1/1999

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Medical advances have increased treatment options as well as costs, thus generating many new ethical problems. This authoritative discussion focuses on controlling medical costs while ensuring patient access; the legal structure of health care delivery; and the ethical issues in patient care decisions.

Preface

Glossary of Acronyms

Table of Cases

xxiii

PART I. THE FUNDAMENTALS OF HEALTH CARE DELIVERY AND FINANCE

Health Insurance Coverage and Regulatory Reform

(78)

The Crisis in Health Care Spending and Coverage

(19)

The Dimensions of the Crisis

(1)

The Spending Crisis

(3)

The Coverage Crisis

(2)

The Causes of the Spending Crisis

(1)

The Structure of Traditional Insurance

(1)

The Incentives for Patients

(3)

The Incentives for Providers

(2)

The Incentives for Insurance and Employers

(2)

Traditional Medicare Reimbursement

(2)

Managed Care and the Structure of Health Insurance

(3)

Insurance Coverage Reform

(11)

Socialized Medicine and the British System

(1)

Single Payer, Canadian--Style Insurance

(3)

Employer or Individual mandates

(2)

Incremental Reforms

(2)

Managed Competition

(2)

Interlude: Economic and Regulatory Theory

(19)

The Need for Health Care Rationing

(3)

The Ethics of Health Care Rationing

(1)

Rationing Criteria

(3)

Rationing Decision Makers

(5)

The Economics of Health Care Rationing

(1)

Free Markets vs. Government Controls

(3)

Economic Theory

(4)

Cost Containment Reforms

(27)

Reducing the Scope of Insurance

(1)

Practical Problems

(2)

Disability Discrimination and Other Legal Problems

(5)

Rigorously Reviewing the Necessity of Care

(5)

Reforming Provider Payment

(1)

Medicare Prospective Payment

(7)

Capitation Payment and HMOs

(6)

Public Utility Regulation

(1)

Recapitulation

(2)

The Treatment Relationship

(65)

Duty to Accept and Treat Patients

(34)

Doctors

(1)

The ``No--Duty'' Rule

(2)

Formation of the Treatment Relationship

(2)

Hospitals

(1)

The General Duty to Provide Care

(2)

Access to Emergency Care

(1)

Common Law and Statutory Rights

(2)

The Emergency Medical Treatment and Active Labor Act

(7)

Doctors Within Health Care Organizations

(1)

Wrongful Denials: Antidiscrimination Law and Refusal to Treat

100

(1)

Title VI: Race and Ethnicity

101

(1)

Hill--Burton Obligations

101

(1)

Disability Discrimination

102

(1)

Protected Class

103

(2)

Core Provisions

105

(4)

Other Bases for a Duty to Treat

109

(1)

Constitutional Rights of Access

109

(2)

Patients' Rights

111

(1)

Terminating the Treatment Relationship

112

(4)

The Legal Content of the Treatment Relationship

116

(30)

The Fiduciary Core of the Treatment Relationship

116

(1)

Confidentiality

117

(1)

The Duty to the Patient

118

(1)

Common Law Protections

119

(1)

Statutory Protections

120

(1)

The Duty to Protect Third Parties and the Limits of Confidentiality

121

(1)

Statutory Duties to Report

122

(1)

Common Law Duty to Protect Third Parties

123

(8)

Informed Consent

131

(1)

Classic Doctrine

132

(1)

Risk: What Information Must Be Shared?

133

(1)

Negligence: Measuring the Physician's Conduct

134

(2)

Causation

136

(1)

Exceptions to the Duty to Disclose

137

(1)

Conflicts of Interest and Fiduciary Principles

138

(1)

Emerging Applications of Informed Consent

139

(2)

Modifying the Terms of the Treatment Relationship

141

(5)

PART II. THE LEGAL STRUCTURE OF HEALTH CARE DELIVERY

Hospital Structure and Regulation

146

(48)

Hospital and Facility Regulation

147

(10)

Licensure, Certification, and Private Accreditation

147

(4)

Certificate of Need Laws

151

(6)

Hospital and HMO Medical Staff Issues

157

(28)

Medical Staff Structure and Staff Selection Process

157

(4)

Economic Credentialing, Exclusive Contracts, and Institutional Control

161

(3)

HMO Deselection and Managed Care Contracting

164

(3)

Hospital Medical Staff Disputes

167

(1)

Introduction

167

(2)

Theories of Judicial Review

169

(4)

The Scope of Judicial Review

173

(6)

Physician Membership in Managed Care Networks

179

(2)

Peer Review Confidentiality and Immunity

181

(1)

State Peer Review Confidentiality Statutes

182

(1)

Federal Peer Review Immunity

183

(2)

Labor and Employment Law

185

(9)

Labor Law

185

(1)

Patient Care Concerns

185

(3)

Physician Unions

188

(3)

Employment Law

191

(1)

Wrongful Discharge

191

(1)

Covenants Not to Compete

192

(2)

Antitrust Law and Health Care

194

(36)

Introduction

194

(1)

Antitrust Boycott Law

195

(18)

The Conspiracy Requirement

196

(2)

Medical Staff Boycotts as Restraints of Trade

198

(1)

Avoiding Per Se Illegality

198

(5)

Avoiding Trial on the Merits

203

(2)

Exclusions From Managed Care Networks and Illegal Tie--Ins

205

(3)

The Patient Care Defense

208

(3)

The Interstate Commerce and State Action Defenses

211

(2)

Price Fixing and Vertical Restraints Involving Insurers

213

(10)

Price Fixing in Provider Networks

213

(6)

Monopolization by Insurers

219

(4)

McCarran--Ferguson Exemption

223

(1)

Merger Law

223

(7)

Complex Transactions and Organizational Forms

230

(48)

The Corporate Practice of Medicine

231

(5)

The Doctrine's Rationale

232

(3)

The Doctrine's Survival

235

(1)

Insurance and HMO Regulation

236

(7)

State Solvency Laws

236

(3)

The Federal HMO Act

239

(2)

Managed Care Patient Protections

241

(2)

ERISA Preemption

243

(8)

Charitable Tax Exemption

251

(15)

The Basis for Tax Exemption

252

(1)

Hospital Services

252

(2)

Other Health Care Institutions

254

(3)

Inurement to Private Benefit

257

(2)

Unrelated Business Income

259

(2)

Hospital Reorganization, Diversification, and Conversion of Status

261

(1)

Reorganization and Diversification

261

(1)

Conversion to For--Profit Status

262

(4)

Referral Fee Prohibitions

266

(6)

Sources of Law

266

(2)

Earned Versus Unearned Fees

268

(4)

Summary

272

(6)

PART III. ETHICAL ISSUES IN PATIENT CARE DECISIONS

Defining Death and Transplanting Organs

278

(23)

Defining Death

278

(8)

Cardiopulmonary Criteria

279

(1)

Neurological Criteria: Whole Brain Death

279

(4)

Neurological Criteria: Upper Brain Death

283

(3)

Organ Procurement and Allocation

286

(15)

Procurement of Organs

287

(1)

Organ Donation

287

(2)

Donation and the Definition of Death

289

(1)

Mandates and Novel Rules for Organ Procurement

290

(5)

Allocation of Organs

295

(1)

Waiting Lists and UNOS Distribution

296

(2)

The Ethics of Allocation Policies

298

(3)

The Law and Ethics of Withholding Medical Care and Assisting Suicide

301

(104)

The Traditional Ethical Distinctions

305

(16)

Acting Versus Failing to Act

305

(2)

Withholding Versus Withdrawing Treatment

307

(3)

Active and Passive Euthanasia

310

(6)

The Doctrine of Double Effect

316

(1)

Ordinary Versus Extraordinary Treatment

317

(3)

Conclusion

320

(1)

The Competing Principles of Personal Autonomy and Beneficence

321

(3)

The Currently Competent Patient

324

(33)

Paternalism and the Limits of Autonomy

324

(2)

Determining Decisionmaking Capacity

326

(5)

Examples of Decisionmaking With the Competent Patient

331

(15)

Assisted Suicide and the Constitutional Claim Generally

346

(11)

Patients Lacking Decisionmaking Capacity

357

(42)

Patients With Advance Directives

357

(1)

Living Wills

358

(2)

Durable Powers of Attorney

360

(1)

Once--Competent Patients Without Advance Directives

361

(13)

Never--Competent Patients

374

(8)

The Seriously Ill Child, Including the Newborn

382

(1)

The General Framework of Child Protective Laws

382

(6)

The Special Case of the Newborn

388

(11)

Denying ``Futile'' Treatment to the Patient Who Requests It

399

(6)

Selected Issues in Reproductive Medicine

405

(50)

Assisted Conception

405

(27)

Artificial Insemination by Donor (AID)

405

(1)

Basic Rules

405

(2)

Use by Lesbian Couples

407

(1)

Surrogate Motherhood, Egg Donation, and In--Vitro Fertilization

408

(1)

Surrogacy Contracts Under Traditional Law

409

(9)

Gestational Surrogacy and Changing Law

418

(3)

The Status of Stored Embryos

421

(4)

Genetic Medicine

425

(7)

Maternal--Fetal Conflict

432

(23)

Forced Caesareans and Fetal Surgery

434

(8)

Fetally Toxic Maternal Behavior During Pregnancy

442

(13)

Index

455

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Health Care Law and Ethics in a Nutshell

Summary

Table of Contents

Supplemental Materials