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Introduction to Health Care Law. Professor Edward P. Richards LSU Law Center 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.

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introduction to health care law

Introduction to Health Care Law

Professor Edward P. RichardsLSU Law Center

key issues
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
  • 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
early 16th century
Early 16th Century
  • Paracelsus
  • Transition From Alchemy
mid 16th century
Mid 16th Century
  • Andreas Vesalius
  • Accurate Anatomy
early 17th century
Early 17th Century
  • William Harvey
  • Blood Circulation – the body is dynamic, not static
  • Edward Jenner
  • Smallpox and the notion of vaccination
  • First important preventive treatment
  • William Morton - Ether Anesthesia
  • Semmelweis
  • Childbed Fever and sanitation
  • Controlled Studies
  • John Snow
  • Proved Cholera Is Waterborne
  • Basis of the public sanitation movement
1860 1880s
  • Louis Pasteur
  • Scientific Method
  • Simple Germ Theory
  • Vaccination For Rabies
  • Pasteurization to kill bacteria in milk
1867 1880
  • Joseph Lister
  • Antisepsis – surgeons should wash their hands and everything else, then use disinfectants
  • Listerine
  • Koch
    • Modern Germ Theory
  • Organic Chemistry
    • Birth of the modern drug business
  • The real starting point for scientific medicine
1850s 1900s
1850s - 1900s
  • Sanitation Movement - Modern Public Health
  • Sewers
  • Clean drinking water
  • Land use laws to protect against industrial dangers in residential neighborhoods
schools of medical practice pre science 1800s
Schools of Medical 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
most medical schools are diploma mills
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
  • Courts and legislatures see no reason to favor one group
    • Physicians unsuccessfully push for state regulation to create a monopoly
legal consequences
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
    • In many states, there are no legal protections if you go to an alternative medical practitioner
the business of medicine
The Business of Medicine
  • Mid to Late 1800s
    • Physicians are Solo Practitioners
    • Most Make Little Money
    • Have Limited Respect
surgery starts to work in the 1880s
Surgery Starts to Work in the 1880s
  • Surgery Can Be Precise - Anesthesia
  • Patients Do Not Get Infected - Antisepsis
  • First time there is an objective benefit to going to a doctor and hospital
licensing and education
Licensing and Education
  • Once there are objective differences (people live) between qualified and unqualified docs, people care about licensing and credentialing
  • Licensing starts to make sense when there is a reason to differentiate between practitioners
  • Limits market entry and competition
  • Licensing and credentialing has market value
    • You can make more money with better training
    • You can make more money with better equipment and facilities
hospital based medicine
Hospital-Based Medicine
  • Started with surgery
  • Medical laboratories
    • Bacteriology
    • Microanatomy
  • Radiology
  • Services and sanitation attract patients
    • Internal medicine
    • Obstetrics patients
the tipping point

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.

corporate practice of medicine 1920s
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
physician practices
Physician Practices
  • Shaped by corporate practice laws
  • Sole proprietorships
  • Partnerships
  • Mostly small
  • Some large groups
    • First organized as partnerships
    • Then as professional corporations
impact of corporate bans
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
post ww ii technology
Post WW II Technology
  • Ventilators (polio)
  • Electronic monitors
  • Intensive care
  • Hospitals shift from hotel services to technology oriented nursing
post world war ii medicine
Post World War II Medicine
  • Conquering microbial diseases
    • Vaccines
    • Antibiotics
  • Chronic diseases
    • Better drugs
    • Better studies
    • Childhood leukemia
old days
Old Days
  • Charitable immunity
  • No independent liability for nurses
  • No liability for physician malpractice
reformation of hospitals
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
after professionalization
After Professionalization
  • Demise of charitable immunity
  • Liability for nursing staff
  • Negligent selection and retention liability for medical staff
hospital staff privileges
Hospital Staff Privileges
  • Physicians are usually 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
joint commission on accreditation of hospitals
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
contemporary hospital organization
Contemporary Hospital Organization
  • Classic corporate organizations
    • CEO
    • Board of trustees has final authority
    • Part of conglomerate
  • Medical staff committees
    • Tied to corporation by bylaws (contract)
    • Headed by medical director
  • Constant conflict of interest/antitrust issues
medical staff bylaws
Medical Staff Bylaws
  • Contract between physicians and hospital
    • Not like the bylaws of a business
  • Terms of the contract
    • Selection criteria
    • Contractual due process for termination
    • Limits on privileges
  • Negotiated between medical staff and hospital board
hospital economics
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
managed care pressures on docs
Managed Care Pressures on Docs
  • When is denying care cheaper?
  • What is the timeframe issue?
  • Insurers increasingly control the patients
  • Employee model
  • Contractor model
  • De-selection
    • Financial death
    • No due process
specialty hospitals
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
drugs and medical devices
Drugs and Medical Devices
  • Covered later in the course