LESSON 1.2

History of Health Care and the Law

Modern health care has come a long way from battlefield amputation and the abuse or neglect of mental health patients. Health care as a discipline has evolved over the centuries. It has been affected by social, religious, and political advancements. The concept of the hospital dates back to the early advanced civilizations of the Egyptians and Romans. Various religions provided health care through religion-based hospitals. Hospitals also evolved through military action. Many modern medical advancements were created out of need to address wounded soldiers, and return them to battle as quickly as possible. As warfare advanced, so did the need for hospitals to treat the wounded.

As we fast forward to modern times, we, as a global society, still need health care and all the advances of medicine. As society moved through time and health care evolved, so did the application of the legal system to health care. Modern health care and its amazing advances also bring new hazards, including the evolution of disease and infections. New diseases require new medicines. With the enthusiasm to create new medicines, there are legal and ethical limitations. Should we permit cloning if it saves lives? Should we rush drugs to market to treat invasive diseases without proper testing?

One area of debate in modern health care is access. Laws such as the Patient Protection and Affordable Care Act (PPACA or ACA) were designed and enacted to increase access to health care for everyone. This law is very controversial, however, because it requires everyone to find and pay for their own health care. You must have health care or pay a fine every year until you enroll in a plan. This is the nation’s first steps into national healthcare reform.

As greater numbers of lower- and moderate-income patient’s access health care, a different type of healthcare plan is on the rise. Boutique health care caters to the rich and ultra-rich in this country. Boutique health care assigns doctors to a limited number of patients for a fee, and, in exchange, the patients get expedited and almost limitless access to the physicians. This type of customized health care is out of reach for most people and was the original model of healthcare delivery before private health insurance was developed and implemented nationwide.

As more patients access the healthcare system, there is increased potential for medical errors. This has led to a significant number of malpractice and negligence claims against healthcare providers. The alarming increase of human errors in medicine will be discussed in later units.

The result of all these potential errors is patient injury. When patients are injured as a result of a healthcare provider, they will bring a legal claim to seek damages and compensation for their injuries.

This is the beginning of the intersection of health care and the law in our society.

Government, Law, and Ethics

Does the government have a right to interfere in our healthcare system? Does it have an obligation to do so? These two questions are always present in our nation as various political groups fight over the answer.

We must also look at the foundation of the U.S. legal system to understand the intersection of health care and the law. The law that is the basis of our legal systems comes from three sources: common law, statutory law, and administrative law. Common law is law created from legal cases brought before a judge and is often referred to as judge-made law. When a judge issues rulings on legal cases, these new rulings become new common law. Statutory law is law created from legislation passed by our congress or other governmental bodies. The third source of law is administrative law. This is law created through rules and regulations of government agencies. The U.S. healthcare system has many administrative agencies that create rules and regulations to optimize health care in this country.

These basic sources form the foundation of our legal system. When we focus on the legal aspects of the healthcare system, we will mostly examine the principles of common law with a few exceptions.

We derive basic principles from common law. Precedent and stare decisis are legal terms that provide consistency throughout the law. Precedent and stare decisis require that once a point of law has been decided, all other points of law on the same topic must follow the previous decision.

We can see these principles in action in every part of our legal system. The concept of negligence was created and refined using the doctrine of precedent. Patients that feel wronged by their healthcare providers can today bring a claim of negligence, but this was not always the case. To prove a claim of negligence, a plaintiff must prove four specific elements. He or she must prove that the defendant owed him or her a duty, that the duty was breached, that the breach of that duty caused the harm he or she is alleging, and that he or she suffered a compensable harm as a result of these combined elements. This definition of negligence was created through historical legal cases, and, due to the principle of precedent, it is still the requirement today to prove negligence. Any plaintiff who brings a claim of negligence must still prove these elements exist in his or her case. Negligence will be reviewed and discussed in depth later in the course.