© 2008 delmar cengage learning. chapter 6 the courts rand rosenblatt

© 2008 Delmar Cengage Learning.

Chapter 6

The Courts

Rand Rosenblatt


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The Role(s) of the Courts

• Legislatures pass laws– Wording is often left (deliberately) vague– To serve competing interests

• It is the role of the judiciary to clarify legislation– To assist in the implementation of laws


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Three Models of Health Law• Used to conceptually describe the

overarching legal climate that shape important court decisions at a given time


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Three Models of Health Law• Some, or all, might be present at a single

point in time– Nonetheless, one has tended to dominate

during the historical periods outlined in the slides that follow


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Model of Professional Authority (1880-1960)

• During early period– Health law seemed to exist for the sole

purpose of supporting and enhancing the authority of the professional physician


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• During early period– Supported doctors in their quest to determine

the terms under which they were to practice– Difficult for patients to collect malpractice

damages during period


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• Key case:– Schloendorff v. Society of New York Hospital

• Involved the complaint of a patient, on whom a surgeon in hospital performed an operation without consent


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• New York Court of Appeals ruled that the hospital could not be held liable for the operation– As it did not exercise control over the medical

professionals who happened to work there


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• Major shortcomings:– Precedents established under model could not

effectively provide for those who could not afford care under fee-for-service model

– Doctors could not always regulate themselves• Provided no mechanism by which medical costs

could be controlled


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Model of the Egalitarian Social Contract (1960-’70s)

• Rather than simply reinforcing discretion of the medical profession– Stressed importance of broad “contract”

between doctor and patient governed by fairness and justice


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• Decisions abolishing medical discrimination on the basis of race, gender, etc. established under this model


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• Key case: – Rosado v. Wyman

• Not directly related to health care• Aligned more broadly with social welfare programs


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• Court held that: – a) Federal statutes ensuring beneficiary

protections were to be taken seriously, enforced

– b) Administrators should exercise (limited) discretion when implementing law, ensuring that values, conditions of the

beneficiary are taken into account


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• Court held that: – c) In cases in which the law was directed

to states, the individual beneficiary could bring legal action against the State if he/she had a grievance under the law


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• Major shortcomings:– Failed to control rapid upward spiral in health

care costs– No meaningful guidance on how to

regulate/ration the use of expensive medical technology

– Failed to broaden access to (particularly public) health coverage


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Model of Market Competition (1970s-???)

• Proposed addressing the twin problems of cost containment and rationing– Allowing the “invisible hand” of the market to

send appropriate cost signals to “consumers”

• Assumed that the bulk of the health care consumed was actually discretionary– Not a life-or-death proposition


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• Key case: – McGann v. H.& H. Music Company

• AIDS patient claimed benefits under company insurance plan– Company capped lifetime benefits for AIDS

patients alone– Employee claimed discrimination under statute

of ERISA law


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• Court ruled that ERISA only protected employees under a specific plan– Allowed firms to change plans at any time– Ruled against H. & H. employee


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ERISA (1974) Explainer

• Employee Retirement Income Security Act – Sought to expand employee protections vis a

vis company-provided pension schemes and health plans

– Providing means by which employees who felt they were the victims of discrimination under a play could seek recompense


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ERISA (1974) Explainer

• Made acceptable to large firms by simultaneously voiding prior state regulation statutes– Law thus conflicted in tone/intent


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Model of Market Competition (1970s-????)

• Major shortcomings:– Limited success in cost containment– Rationing has come at the cost of decreasing

legitimacy being accorded the health care sector by those for whom legal protection is sparse


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Model of Market Competition (1970s-????)

• Redistribution of resources has occurred under model– But from the poor to the (already) wealthy


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Emergent Fourth Model(?) of Health Law

• Many now seek middle ground between unrestrained market forces, social solidarity

• Emergent recognition that forces of globalization must be tempered if they are to have purely positive effects


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Emergent Fourth Model(?) of Health Law

• Advances in biotechnology provides further wrinkle to a market competition model already under considerable stress


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Chapter 6 Summary

• Judiciary assists in process of implementing laws once they have been enacted by legislatures

• Three legal models helped shape direction of health policy over time


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Chapter 6 Summary

• Model of professional authority held sway from around 1880-1960– Schloendorff v. Society of New York Hospital

the paradigmatic case

• 1960 through the 1970s – Model of the egalitarian social contract

prevailed• Rosado v. Wyman the paradigmatic case


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Chapter 6 Summary

• Model of market competition reigned from the 1970s through the very recent past– McGann v. H. & H. Music Company illustrates

this model– Fourth model in health law may be emerging

© 2008 delmar cengage learning. chapter 6 the courts rand rosenblatt

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