MC Health Law Notes

Health Law

Relationship between people & providers that ultimately borrows laws from different areas (contracts, torts, etc)

Access & Affordability

Access & Affordability are major barriers to healthcare. Rates are unconscionably high even though office’s already have negotiated fees with insurance companies.

Ambiguous terms in insurance policies

Construed in favor of the insured

Illness

Any deviation from or interruption of the normal structure or function of any part, organ, or system, of the body that is manifested by a characteristic set of symptoms and signs and whose etiology (theory of origin or cause), pathology (origin or cause), and prognosis may be known or unknown

Inpatient

Someone who stays in the hospital

Outpatient

Someone who comes to visit their doctor then leaves

The ability to give out medical licenses

Determined on a state by state basis which derives from their constitutional policing power

1893

When NY first had authority to give medical licenses

Office of professions

Oversees over 50 licensed professions

Section 6530- NY education law

Concerns licensing and looks to misconduct- very specific rules

Licensing - Inquiries

Inquiries are reported to and investigated by office of professional medical conduct (OPMC) Inquiries can be regarding practicing without a license, making guarantees about certain care, marketing, etc.

These inquiries can lead to no finding, finding of suspension, supervision upon return after suspension, or license revocation

Licensing - Discipline

If you need to get disciplined, it means you go in front of the board with a trial because the physician deserves the right to be heard. 

At the trial: i. the medical board is not required to bring in any experts because they themselves are medical experts since boards are comprised of doctors in that field ii. A Hearing Officer gets a lot of deference in deciding whether the charges are valid

Licensing Boards

Boards write standards to improve outcomes & efficiency. They also make standards because they know any deviations from the norm will cause harms to occur as harm has become predictable.

Medical Practitioner Database

Contains information about providers to see their past and is used to determine if they are a risk for malpractice

Doctor/Patient Relationship

A relationship must exist between physician/patient in order for the physician to have a duty and to then bring malpractice suit.

Doctor/Patient Relationship - Establishment

1. Relationships must always be established first and can be shown through knowledge, trust, and loyalty. 

2. It also requires a factual inquiry into the words and conduct of the pt & physician

3. Sometimes jurisdictional licensing boards or employee contracts will define the relationship

Doctor/Patient Relationship - Consent

Need to consent to being treated by the doctor, in the manner the doc has proposed

Need to talk about benefits of proposed treatment, risks, alternatives, etc.

Doctor/Patient Relationship - Duties

4 Duties:

-       Can’t abandon patients

-       Duty to obtain informed consent (Risks, benefits, alternatives

-       Confidentiality

-       Comply with standard of care

Doctor/Patient Relationship - On-Call Physicians

On-call physicians establish relationship via contract once they take affirmative actions to begin treatment

Termination of Doctor/Patient Relationship

i. Pt discharging doctor; or

ii. Doctor providing timely notice for pt to find a new doctor

• If a doctor is mid-care on the pt, they have a duty to finish that care

Informed Consent

Informed consent is a liberty granted by the Constitution for personal autonomy. Doctors have duties to obtain informed consent to start or end treatment

Informed Consent - How To Explain

They must do their best to explain in lay terms so pt can understand and should explain all relevant risks that would be a concern for a reasonable person

Informed Consent - Who can obtain consent?

Physicians are the only appropriate people to have the conversation since they are the most knowledgeable

Informed Consent - Consent Forms

Though consent forms exist, signatures on them can not automatically assume that the consent conversation has wholly occurred

Informed Consent - Penalties 

Failure to get informed consent with operation is a battery

Doctrine of Informed Consent

i. Protects autonomy (pt has liberty to control their body)

ii. Protects state of human beings (pt doesn't have to be used as a test dummy)

iii. Protects from fraud & duress

iv. Protects from doctors being negligent & encourages doctors to make decisions appropriate for illness present

v. Protects from the pt making irrational decisions

vi. Protects the public (not a weighty consideration)

Common Categories of Disclosure

i. Diagnosis & Prognosis

ii. Risk of treatment

iii. Alternatives to treatment

iv. Consequences of the pt refusing treatment

v. Disclosing tradeoffs of treatment vs waiting & watching

Confidentiality 

Confidentiality is important to protect the pt’s personal sensitive information. The duty to stay confidential extends to medical professionals and employees who are within the scope of their employment. Institutions will be held liable for their employees breaches 

• NY has no cause of action for it. You have to file a grievance with office of social services who will investigate to see how material the breach was

Medical Malpractice - Purpose

Checks and balance systems. To prevent errors and make sure ALL doctors/nurses/surgeons are on the same page

Medical Malpractice - Negligence vs Recklessness

In a medical malpractice case, you only need to show negligence to recover damages

Medical Malpractice - Negligence

Accident. ex: Nicked an artery

Medical Malpractice - Recklessness

Knew it was wrong, did it anyway. ex: Carving initials into abdomens

Medical Malpractice - Cause of Action

1. Duty (Doctor/Patient Relationship)

2. Breach (Deviation from accepted standard of care)

3. Proximate Cause 

4. Damages 

Medical Malpractice - Standard of Care

Standard of Care is set by reasonable application of medical knowledge and skill to the particular clinical circumstances presented to the physician 

• Basically did they act up to the standard of an average doctor in the field 

Medical Malpractice - Complaint

Complaint must be cognizable (taken as true until proven otherwise) by showing that the physician departed from applicable standard of care

Medical Malpractice - Customary vs Reasonable Care

This identified the difference between conforming to professional custom and complying with the standard of care. 

Medical Malpractice - NY SOL

2 and half years from date of injury

Medical Malpractice - Lavern’s Law

Exception to SOL saying that people with cancer have 30 months from date of injury or date injury was discovered

Medical Malpractice - Locality Rule

Overturned. Rule is now that it does not matter where the expert witness if from, the treatment should be the same nationally

Medical Malpractice - Battle of Experts

Expert witnesses in a medical malpractice case should be:

1. Another physician who is similarly situated (dentist to dentist)

2. Someone still practicing & publishing (which is peer reviewed) 

3. Someone with more time in practice than in court as an expert

Medical Malpractice - Factors for impeaching an expert

How often do they practice vs testify, any lawsuits of their own, licensing, denial of federal program participation, if they’ve had hospital privileges taken away 

• Ultimately, a judge decides whether the expert is appropriate for this case based on a scientific connection to the issue

• If they are qualified, you want to attack the credibility of their testimony

Medical Malpractice - Contributory Fault 

If harm is self caused, even 1%, P is barred from recovery

Medical Malpractice - Comparative Fault

If harm is self caused, even 1%, P can still recover the other 99% from the physician

Medical Malpractice - Loss of Chance Doctrine

A doctor can be held liable for causing the patient's loss of a chance to be cured if the doctor negligently fails to diagnose a curable disease, and the patient is harmed by the disease.

Medical Malpractice - NEEDED FOR EXAM HYPO

1. Have a cognizable complaint

2. Prove the physician departed from a national standard of care

3. Bring in experts who are similarly situated physicians

4. Assess damages

Institutional Liability - Bylaws

Set forth the conditions that staff have to follow like a code of conduct. Also contains grounds for termination and opportunity for a hearing

Institutional Liability - Agent

Someone acting on behalf of a principal (employer aka hospital).

Institutional Liability - Agency Elements

1. Principal must consent, explicitly or impliedly, to A acting on their behalf; and 

2. Agent must be within the subject of Principal’s control

Institutional Liability - Vicarious Liability

Not all employees are agents under all circumstances but employers can still get in trouble for their actions under vicarious liability 

• Vicarious Liability- hospital can be held liable under the acts of an independent contractor physician if a reasonable person believes the physician is an agent and then relied on that agency relationship

Institutional Liability - Physicians with Privileges

Physicians who have privileges are not necessarily employed but rather take shifts in the ER in exchange for being able to use the facilities for their own work for their own patients

Institutional Liability - Physicians with Privileges Background Checks

Hospitals giving privileges need to do background checks and go through letters of recommendations to make sure new doctor conforms to hospital standards 

• Admitting Privileges- physician has right to admit pts under their authority

• Clinical Privileges- physician can use facility to treat their pts there

Institutional Liability - Voluntary Attending Physicians

Physicians that are not employed by the hospital. They have privileges and delineations, but no employee relationship. They can get sued directly, if the injuries are strictly caused by the physicians.  

• If other/additional causes, then both doc and hospital can get sued

Institutional Liability - Professional Services Agreement

Ex: Hospital X has a Pro Services Agreement with Tri-State emergency physicians, this means that providers are not actually part of the hospital

Institutional Liability - Types of Agency

1. Implied/Apparent Authority- hospital committed an act that would cause a reasonable person to believe that physician in question was an agent or by failing to take action, created a circumstance where a reasonable person would believe in agency and the P relied on the agency 

2. Actual Agency- physician has explicit authority given by hospital

Institutional Liability - Failing to Report

Institutions can pick up liability from failing to report a negative change in a patient’s condition and/or failing to question a doctor’s order that deviates from the standard of care

Institutional Liability - Corporate Negligence

4 duties owed by hospital": 

1. Maintenance of safe facilities & equipment

2. Selection & retention of competent doctors 

3. Supervise all persons who practice medicine under their roof 

4. To formulate, adopt, and enforce adequate rules

Tort Liability and Reform - HMO

Health Maintenance Organization - Health insurance plan with its own network of healthcare providers (Shannon)

• When a benefits provider, like an HMO, involves itself with medical decisions affecting a subscriber’s care, it must do so in a medically reasonable manner

Tort Liability and Reform - EMTALA

Emergency Medical Treatment and Labor Act - Created for the purpose of preventing patient dumping: if it was determined that a patient was under/uninsured, private hospitals would put them back in an ambulance and shipping them off to city or municipal hospitals 

Essentially requires that any person seeking emergency treatment gets treated, regardless of their insurance status or their ability to pay 

EMTALA is generally limited to facilities that contain emergency departments that take Medicare/aid

Tort Liability and Reform - EMTALA Duties

1. Medical Screening to identify condition or emergency affecting patient at that point in time. They must do a normal screening in line with their standards to all similarly situated patients

2. Stabilizing treatment - extends outside of emergency dept. 

• Restricting transfers until individual is stabilized 

• Give best treatment possible based on the facilities limits

Tort Liability and Reform - EMTALA Emergency Definition

A condition manifesting itself by creating symptoms of sufficient severity that an absence of immediate treatment could reasonably be expected to put health in serious jeopardy

Tort Liability and Reform - EMTALA Stabilize Definition

Providing enough treatment, with reasonable medical probability, to assure that no material deterioration will result during the transfer

Tort Liability and Reform - EMTALA Violation

If a hospital transfers an unstable patient to a separate facility, and the patient’s condition worsens while in transit, the hospital could be liable, unless:

1. The patient is fully informed and consents to the transfer; or 

2. Doctor signs document indicating that medical treatment at another facility outweighs the risks of a transfer 

Creates a private right of action against only the hospital, not the specific doctor

Tort Liability and Reform - EMTALA Violation Consequences

Failure to comply with EMTALA can result in:
   1. Fines for provider

2. Removal from medicare/aid federal programs

Discrimination - Doctor/Patient Relationship

Relationship between pt/physician is grounded in either an express or implied contract 

No duty to treat without the pt/physician relationship 

• Making an appointment but never being seen could still create a relationship

If a doctor agrees to see a person at a certain time to treat a specific issue, the doctor knowingly accepts the person as a patient and forms a physician-patient relationship.

Discrimination - Title VII

Title VII of 1964 CRA makes discrimination of people based on race, color, or national origin for federal funded institutions illegal 

• Guide dogs are permitted in hospitals

Affordable Care Act - Definition

Act passed because there were a lot of uninsured people too young for medicare and too wealthy for medicaid but not wealthy enough to afford their own insurance.

Affordable Care Act - 10 Factors Insurance Must Include to Qualify Under ACA

1. Ambulatory

2. Emergency services

3. Hospitalization

4. Maternity & newborn care

5. Mental health

6. Prescriptions

7. Rehab services

8. Lab services

9. Preventative care

10. Pediatrics

Medicare - Definition

Federal health insurance service only for people 65+ and younger people with certain disabilities. Individuals contribute through social security tax on paychecks

• Beneficiaries have copays for each visit as well as a deductible which they must pay out of pocket before Medicare starts to kick in

Medicare - Coverage

Medicare typically pays 80%ish of the costs of healthcare

• So consumers will often buy commercial coverage to get this other 20%

Medicare - History/Purpose

Originally was created for individuals who were in the military and their families. In 1965 congress enacted medicare under title 18 of the social security act. It is now imbedded in title 42 of the USC. Qualifier initially is to give medical insurance to any person over 65 years old no matter the income level

Medicare - Part A

Covers hospitals, skilled nursing care in nursing homes, and hospice

Medicare - Part B

Covers outpatients, professional services (doctor and professional related fees), and wellness 

• Traditional Medicare includes Parts A and B

Medicare - Part C/Medicare Advantage

Offered by commercial insurance companies who contract with medicare to combine Parts A, B, D, with additional services like dental & vision

Medicare - Part D

Prescription drug program covering pharmacy costs

Medicare - Claim Denial

If a medicare plan is denied, or if there are any issues concerning benefits. there is a five step appeals process

Medicare - Appeal Step 1

Get a new redetermination by someone different from original denier 

• Auditing and looking at invoices 

• First 120 days

Medicare - Appeal Step 2

Reconsideration by a qualified independent contractor

• Different from the people who did the first appeal

• No money requirement

Medicare - Appeal Step 3

Present case in front of a CMS Administrative Judge 

• Employees of the centers for medicare and medicaid

Medicare - Appeal Step 4

Seek review by the Medicare Appeals Council

• Comprised of a panel of providers and administrators to determine if any errors have been made 

• Looking to see if there has been egregious applications of the law or if there are arbitrary or capricious rules

Medicare - Appeal Step 5

File action in US District Courts since Medicare is a federal program so it goes to federal courts

• Should be the last resort

Medicare - Who can Appeal?

Beneficiaries and providers

Medicare - How Does it get Financed?

• Part A is payed through a payroll tax 

• Parts B and D are funded through premiums and US treasury revenue  

• Affordable care act also applied a surtax 

• These monies that get contributed go into trust funds, which earn income and appreciate 

Medicaid - Definition 

Welfare program for the poor. Funded by a joint effort between Federal and States, but primarily administered by each State 

• States know their people best and as a result each State has slightly different regulations 

• States can expand Medicaid but they cannot take away benefits

• Codified in Title 42 of USC (Sec 1396)

Medicaid - Who Qualifies?

Medicaid is typically for lower income adults, pregnant women, and children in need of various services. It’s a pathway to allow those with little resources to be able to have access to healthcare. To become eligible, applicants have to meet a means test (looks at assets vs income).

Medicaid - Means Test

1. Has to be an actual need 

2. Need to possess a certain amount of assets in their name (this is amended on an annual basis by state legislation), need to meet a certain threshold of monthly income

Medicaid - Homestead Exemption 

The value of your home won’t interfere with your ability to get Medicaid

Medicaid - Institutionalized Medicaid

Usually applied to nursing homes

• Deficit Reduction Act - people who seek institutional medicaid will need to show all their finances & asset transfers for the last 5 years 

• Assets will be things up to $30,185 for 2023 barring 1 car 

• Monthly income is $1600

Medicaid - Community Medicaid

People who will receive benefits in their own home (like live in aids)

Medicaid - Pooled Income Test

Only available for community and usually created by charitable organizations which applicants may join. Applicants give income to the trust to hold on to and then requests it when they need it for anything except gifts, alcohol, or pet food

• It essentially acts as the medicaid person donating money to a charitable organization since they are exempt from medicaid exams

• If you die before you lose your PIT money then you lose it all

Medicaid - Emergency Nursing Home Services

If emergency nursing home services are required: you can convey all the assets into a living trust or transfer all the assets into well spouses name

Medicaid - Spousal Refusal

Non-applicant spouse can send a letter to social services saying they do not want to pay any money towards their spouse’s care and then social services will respect that wish by leaving them alone 

Medicaid - Provider’s Interest

Provider’s reimbursements are on the lower side, and providers can choose to opt out of seeing medicaid patients.

BUT Hospitals that see medicaid patients can file reports and get fees adjusted accordingly.

A provider could become licensed in NY under article 28, which qualifies the provider to receive a more bolstered facility fee if they see medicaid patients. NY sets minimum staffing requirements for these facilities

Medicaid - Deficit Reduction Act

In 2006, Congress passed the deficit reduction act. In order to protect your assets from creditors and apply for nursing home benefits, you would need to start putting your money in a trust at least 5 years in advance.

Medicaid - IRAs

If you have an IRA, you are typically supposed to liquidize it at 59 (but can delay it). You must maximize any and all IRAs under Medicaid, and if you don’t take assets out of it by a certain time, it is viewed by itself as an asset.

Medicaid - Adult Daycare

2 types of adult daycare:

1. A social daycare, where elderly ppl can hang out and do activities (not reimbursable under Medicaid) 

2. A medical daycare, where elderly can attend and get help w activities and daily living, can see the doctor, nurses, therapists, etc. on a daily basis (this is reimbursable under Medicaid and usually transportation provided as well)

Medicaid - Chevron Deference Defintion

A legal doctrine requiring federal courts to defer to a federal agency's reasonable interpretation of an ambiguous statute.

Medicaid - Chevron Test 

1st Prong: ambiguous regulation or congress never addressed direct issue 

2nd Prong: Whether fed agency interpreting regulation used reasonableness to do so

Medicaid - Chevron Now

Overturned. Court found two prong test may be unduly burdensome AND inability to reconcile the suggestion that the fed courts themselves do not have a duty and obligation to interpret fed law/regulation 

Now: deference is not necessarily given to fed agencies, courts will interpret 

Professional Relationship - Corporations Running Hospitals 

1. Can get a license to hire physicians to provide care; or 

2. They can hire a PC (professional/private corporation) to run a whole department for them. The PC would do all hiring and offering of benefits 

Either way, the hospital has broad deference in determining who gets privileges but the standards need to be ascertainable and afford due process to the physicians 

Unions help employees via collective bargaining and are present during any type of discipline

Professional Relationship - Staff Privileges

Delineations - applying for specific clearance to perform specific tasks/duties within your specialty