1、Health Care Law -W2002,Health Care Law-W2001,Questions about Syllabus? Website syllabus slides problems for class? No class Monday Jan. 28.,History of Malpractice,Follows changed in Health Care Industry A Moving target 1880: “professional” model 1950-80s: becoming big business 1990s: cost controlman

2、aged care 2010?,1. Early Professionalism,Leaving leeches behind No health insurance: self-pay or charity Social and legal deference to Marcus Welby,Legal Deference=Self-Regulation,Tort lets medicine sets its own standard of care No informed consent requirement Antitrust law not applicable to profess

3、ions Corporate practice prohibition,Hospital Status,Little effective treatment A place for poor to die Not-for-profit with tort immunity Power resides in the MDs,Malpractice Litigation?,Most medical care did no harm (and no good either!) Favorable law: MDs duty was to comply with local customary pra

4、ctices Result: very little litigation botched surgeries MD is the target,Era #2. Post World War II,Antibiotics! Better antiseptics, anaesthesia Hospitals become locus of treatment Specialists emerge Blue Cross insurance arrives (pre-War) and private insurers copy (post-War) Theres big $ in medicine

5、now. Early cost control measures (see hidden slide),(H) Law Changes,Too,Physicians losing some of their privileged status. Antitrust immunity lost Early HMO-enabling legislation erodes “corporate practice” bar so do “hospital-based” physicians Informed consent doctrine In tort, Ps expert need not be

6、 local,(H) Early Cost Control Measures,Certificate of Need Legislation Hospital Rate Setting (a few states) Medicare Prospective Payment lump sum for each patient based on diagnosis called DRGs (“Diagnosis Related Groups”) No serious pressure on MDs to cut costs yet.,Hospital Role Changes,Most serio

7、us patients are hospitalized Physicians must have privileges Hospital is involved in care,Hospital as Malpractice Target,Vicarious liability Employees (nurses, techs, etc) provide medical care. Some hospital-based MD get exclusive access Direct liability Hospital decides whether to grant or renew “p

8、rivileges” to MDs Hospitals have protocols to follow.,Malpractice Litigation Grows,By 1970s, first “malpractice crisis” number of cases up informed consent action born In mid-1980s a second. Both result in legislative law reform. Cause of litigation growth? Patients more willing to sue? More favorab

9、le law? Ps lawyers more sophisticated or more game? Ds still win great majority of trials,3. The Managed Care Era,Health care inflation surges in 1980s “Average folks” worry about access to affordable health insurance. National Health Insurance seems possible. Clinton Health Plan flames out badly In

10、surers then move to cut costs offer employers managed care (HMO, PPO, etc),Traditional Indemnity Insurance,INDEMNITY INSURER,PATIENT,MD,premium $,Hospital,Traditional Indemnity Insurance,INDEMNITY INSURER,PATIENT,MD,P seeks medical care,Traditional Indemnity Insurance,INDEMNITY INSURER,PATIENT,MD,MD

11、 sends bill,“hands off”,INDEMNITY INSURER,PATIENT,MD,P sends bill and Insurer pays,(H)Traditional Health Insurance,Called “Indemnity” insurance Insurer does not select MD or Hospital Insurer does not direct clinical decisions of MD or Hospital NO TORT LIABILITY for bad care.,Staff Model HMOs,HMO sal

12、es and finance dept. health care team,PATIENT,P. pays premium HMO agrees to provide CARE,Staff Model HMOs,HMO sales and finance dept. health care team,PATIENT,co-pay,P receives care,IPA HMOs,HMO (sales & finance),HMO contracts with Hospital,HMO contracts with group of MDs (IPA) or with individual MD

13、s,PATIENT,IPA HMOs,HMO (sales & finance),HMO contracts with Hospital,HMO contracts with group of MDs (IPA) or with individual MDs,PATIENT,Customer still pays premium for CARE.,IPA HMOs,HMO (sales & finance),HMO contracts with Hospital,HMO contracts with group of MDs (IPA) or with individual MDs,PATI

14、ENT,care,HMO cost-control measures,patient is limited to HMO physicians primary care doctor is paid salary (staff model HMO) capitation (IPA model),primary care doctor is often a gatekeeper patient cannot “self-refer” to specialist. prospective utilization review for some expensive treatments or dru

15、gs HMO has policies/guidelines for some treatments (e.g. # days in hospital for hip replacement),“Managed Care”,Indemnity insurers borrow from HMOs better coverage for using plan physicians (PPO) prospective utilization review capitation HMOs respond with some plans that relax HMO restrictions. E.g.

16、 POS plans partially cover non-HMO MDs. “Managed Care” refers to all these plans.,Malpractice Implications,Is MCO vicariously liable for negligence of MDs on the panel? Is MCO directly liable when utilization review wrongly denies authorization? Any legal duty to inform subscribers of cost control measures? Will federal ERISA law preclude tort liability of employer-sponsored health plans? Impose its own duties?,Thats our roadmap,MD liability Hospital