Health Law and Policy Commons^™

Primum Non Nocere: The Expanding "Honest Services" Mail Fraud Statute And The Physician-Patient Fiduciary Relationship, Gregory D. Jones

Vanderbilt Law Review

In one case, a physician refers a patient to a certain hospital in return for an undisclosed referral fee from the hospital. In another, a physician decides not to refer a patient to a specialist for further examination. The physician, however, does not disclose to the patient that part of the cost of sending the patient to the specialist would come out of the physician's potential earnings. In the previous examples, has the physician breached her fiduciary duty to the patient by not disclosing her own financial interest in the patient's treatment? If so, the physician could be guilty of …

Tax Exemption And The Health Care Industry: Are The Challenges To Tax-Exempt Status Justified?, Kevin B. Fischer

Vanderbilt Law Review

The provision of health care has traditionally been deemed a charitable function.' Therefore, hospitals and other health care institutions have been afforded the benefits of tax exemption. As a standard for determining which entities merit the tax exemption and which do not, the Internal Revenue Service ("IRS" or "Service") developed what has come to be known as the community benefit test. At the federal level, this test has been the basis for awarding tax- exempt status to hospitals and other health care entities State legislatures have traditionally followed the federal government's standards for tax exemption and have thus allowed health …

Firing The First Lady: The Role And Accountability Of The Presidential Spouse, Carl D. Wasserman

Vanderbilt Law Review

The First Lady is asked by her husband to head a task force to assist him in developing health care policy. The fear of outside influence sparks the task force to meet in secrecy. The Federal Advisory Committee Act, however, forbids closed meetings of this type unless all members of the committee are officers or employees of the federal government. May the meetings be kept secret despite the First Lady's presence?

Immediately after leaving the White House, the First Lady is hired to lobby for Columbia/HCA, a major health care corporation. Illegal?

The chairman of a large corporation meets with …

Reverse Informed Consent: The Unreasonably Dangerous Patient, A. Samuel Oddi

Vanderbilt Law Review

Latrogenic injuries'-those caused by health care professionals (HCPs) in the course of treating patients-raise significant ethical, legal, and public policy issues.' With the advent of the AIDS epidemic, these issues become even more difficult when the iatrogenic injury results not from the patient's having received treatment below the professional standard of care (which is the usual grist for the malpractice mill) but from an infectious condition of the HCP. Considerable public attention has been directed to patients who have been exposed to the risk of AIDS by HIV-positive HCPs.6 It is difficult to be unmoved by the tragic example of …

Help! We've Fallen And We Can't Get Up: The Problems Families Face Because Of Employment-Based Health Insurance, Jeffrey R. Pettit

Vanderbilt Law Review

Steve Tilghman of Birmingham, Alabama knows first-hand the health insurance problems American families face.' Steve's family had adequate health insurance until Steve decided to change careers. After expiration of the eighteen-month extension period COBRA provides, Steve's family could not afford the one thousand dollar monthly premiums necessary to maintain their policy. Steve's epileptic son further complicated his ability to find adequate health insurance. After having no insurance for two months, Steve ultimately was able to find health insurance for only part of his family. Steve had to acquire a separate, unrated policy for his epileptic son. Steve is uncertain about …

The Oregon Basic Health Services Act: A Model For State Reform?, Eric L. Robinson

Vanderbilt Law Review

Americans currently spend $733 billion, or 12.3 percent of the Gross National Product (GNP), per year on health care. This is nearly twice what Americans spent on health care just seven years ago. Health care is also one of the fastest growing major items in the federal and state budgets. Not surprisingly, governments, businesses, and individuals all are having difficulty finding resources to meet the increasing costs of health care. As a result, the health care delivery system has cut costs by denying some people access to adequate health, care services. Currently, an estimated thirty-seven million Americans are uninsured. In …

Medicaid, State Cost-Containment Measures, And Section 1983 Provider Actions Under "Wilder V. Virginia Hospital Association", Michael D. Daneker

Vanderbilt Law Review

After the Civil War, Congress enacted a statutory private right of action to ensure the protection of an individual's federal civil rights." This right of action, now codified at Title 42, Section 1983 of the United States Code, creates liability for anyone who, acting under a state law, program, or policy, infringes on an individual's federal rights. Although the authors of Section 1983 intended the statute to serve primarily as a mechanism for the protection of federal constitutional rights, the United States Supreme Court has recognized that Section 1983 is a valid tool for enforcing a wide variety of statutorily …

Redefining Government's Role In Health Care: Is A Dose Of Competition What The Doctor Should Order?, James F. Blumstein, Frank A. Sloan

Vanderbilt Law Review

Throughout the 1970s, the two major political parties espoused some form of national health insurance. Faced with a fiscal squeeze, however, the Carter Administration gave national health insurance a relatively low priority.The political movement for comprehensive national health insurance rests on an ideological commitment that the federal government should underwrite the cost of providing universal access to medical services. The objective is essentially redistributive in nature: equitable concerns for the disadvantaged loom as the major focus. The selective expansion of coverage to encompass those identified as needy and worthy, but only those so identified, is anathema to those who traditionally …

Health Care, Markets, And Democratic Values, Rand E. Rosenblatt

Vanderbilt Law Review

Proposals to restructure the health care industry by increasing market competition currently have much political and academic momentum. Whether such proposals will work necessarily depends in part upon the criteria for success that are applied. Viewed from the market perspective, the question is whether procompetitive reforms will achieve their stated goals of containing costs, increasing efficiency, and enhancing consumer sovereignty over health care decisions. From a broader perspective, other questions are also of concern: whether increased competition in health care will actually improve people's health, and whether the operations and effects of health care competition are consistent with important values …

Relative Value Guides And The Sherman Antitrust Act, David R. Simonsen, Jr.

Vanderbilt Law Review

The skyrocketing costs of health care services for the American people constitute a crisis of national importance.' The seriousness of this crisis is reflected in the attention that antitrust enforcement agencies of the federal government are giving to the health care industry. The agencies are responding, at least in part, to the common perception that these skyrocketing costs result as much from the restrictive trade practices of the health care industry as from the growing use of sophisticated technology and inflation. Competition is viewed as an antidote to increasing prices and antitrust laws as the vehicle by which federal agencies …

Due Process For Hill-Burton Assisted Facilities, Margaret L. Huddleston

Vanderbilt Law Review

The need to make health care available to all Americans does not justify the impairment of governmental contracts with Hill-Burton grantees. When substantial rights are greatly impaired by retroactive legislation, the need for a strong governmental justification becomes more acute. The impairment caused by the post-1947 Hill-Burton regulations, particularly the 1979 regulations, is neither reasonable nor necessary in light of the nature and extent to which they impair substantial private rights. The recent Hill-Burton regulations attempt to make health care more available to Americans,but the Government seeks to do this without additional financial expenditure on its part. Although the goal …

Alternative Proposals For The Regulation Of An Emergency Strike In The Health Care Industry, Susan A. Jones

Vanderbilt Law Review

In order to give approximately 1,400,0001 health care employees the protection enjoyed by employees under the National Labor Relations Act (NLRA), Congress amended the Act in 1974 to make health care institutions "employers. Recognizing the public's dependence upon the unique services provided by health care facilities, Congress was hesitant, however, to extend coverage under the Act to health care employees without providing additional safe-guards. These safeguards are embodied in the following special provisions: (1) the extension of the sixty-day notice requirement for modification of an expiring contract to ninety days; (2) the creation of a thirty-day notice requirement of a …

The Patient Rights Advocate: Redefining The Doctor-Patient Relationship In The Hospital Context, George J. Annas, Joseph M. Healey, Jr.

Vanderbilt Law Review

To change the traditional doctor-patient relationship in the health facility context, one must begin with a complete statement defining the rights, both those legally recognized and those granted as a matter of hospital policy, that should be afforded to all patients. This document should then be made available to all patients and hospital staff and to members of the community in general. Its first purpose is educational. To perform its second purpose-the assurance that rights are afforded--a patient rights advocate system should be adopted in the hospital. The advocate must have the power to exercise, on behalf and at the …