Law Commons^™

A Jurisprudential Analysis Of Government Intervention And Prenatal Drug Abuse, Susan Saab Fortney

Faculty Scholarship

This article addresses the serious public health problem of substance abuse among pregnant women. Part I of this article introduces the national problem of prenatal drug abuse. Part II discuses the appropriateness of government intervention. The article explains the medical consequences of prenatal drug abuse, and then, describes the justification of government intervention. The article details both existing criminal law and new legislation regarding prenatal drug abuse. Part III addresses constitutional concerns and the conflict between a woman’s right on the one hand and the state interest and “fetal rights” on the other. Part IV considers the moral and legal …

Antitrust, Health Care Quality, And The Courts, Peter J. Hammer, William M. Sage

Faculty Scholarship

Antitrust law represents the principal legal tool that the United States employs to police private markets, yet it often relegates quality and nonprice considerations to a secondary position. While antitrust law espouses the belief that vigorous competition will enhance quality as well as price, little evidence exists of the practical ability of courts to deliver on that promise. In this Article, Professors Hammer and Sage examine American health care as a vehicle for advancing understanding of the nexus among competition, quality, and antitrust law. The Article reports the results of a comprehensive empirical review of judicial opinions in health care …

Regulating Through Information: Disclosure Laws And American Health Care, William M. Sage

Faculty Scholarship

Efforts to reform the American health care system through direct government action have failed repeatedly. Nonetheless, an alternative strategy has emerged from these experiences: requiring insurance organizations and health care providers to disclose information to the public. In this Article, Professor Sage assesses the justifications for this type of regulation and its prospects. In particular, he identifies and analyzes four distinct rationales for disclosure. He finds that the most commonly articulated goal of mandatory disclosure laws-improving the efficiency of private purchasing decisions by giving purchasers complete information about price and quality- is the most complicated operationally. The other justifications-which he …

Competing On Quality Of Care: The Need To Develop A Competition Policy For Health Care Markets, William M. Sage, Peter J. Hammer

Faculty Scholarship

As American health care moves from a professionally dominated to a marketdominated model, concerns have been voiced that competition, once unleashed, will focus on price to the detriment of quality. Although quality has been extensively analyzed in health services research, the role of quality in competition policy has not been elucidated. While economists may theorize about non-price competition, courts in antitrust cases often follow simpler models of competition based on price and output, either ignoring quality as a competitive dimension or assuming that it will occur in tandem with price competition. This unsystematic approach is inadequate for the formulation of …

Physicians As Advocates, William M. Sage

Faculty Scholarship

The principal theme of this Article is that many dimensions of physicians' advocacy in managed care remain to be established, and those dimensions may turn out to be inconsistent with one another or with normative goals for the health care system. Specifically, attempting to map physician behavior onto an advocacy template created for lawyers raises three difficult questions. First, given the undisputed importance of clinical expertise to an efficient health care system, should physicians' primary role be to advocate for causes or to direct the provision of care? Second, would the medical professions' reputation for independent competence withstand the adversarial …

Judicial Opinions Involving Health Insurance Coverage: Trompe L'Oeil Or Window On The World?, William M. Sage

Faculty Scholarship

This essay offers a few thoughts about using judicial decisions as the dataset for research into health insurance coverage. Part I offers a general overview of insurance coverage law. Part II considers why students of health insurance coverage gravitate toward studying published opinions. Part III then discusses what is wrong with the approach, and suggests alternatives. Finally, Part IV turns to what may be right with the approach, concluding that judicial opinions in coverage litigation may reveal the functionality (or dysfunctionality) of the coverage process in managed care. Although the basic critique which the essay presents applies to areas other …

Enterprise Liability And The Emerging Managed Health Care System, William M. Sage

Faculty Scholarship

“Enterprise medical liability” is a term used to describe a system in which health care organizations bear responsibility for medical malpractice in addition to or instead of individual health professionals. Enterprise liability is in many senses a natural outgrowth of the increasing dependence of medical practice on institutional resources and expertise. Proposals for enterprise liability surfaced briefly from the academic literature into the political spotlight during the 1993-94 health care reform debate. At that time, objections to the concept as a basis for medical malpractice liability, even in a restructured health care system, were nearly universal.

Just five years later, …

Funding Fairness: Public Investment, Proprietary Rights And Access To Health Care Technology, William M. Sage

Faculty Scholarship

In her accompanying Article, "Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research," Professor Rebecca Eisenberg suggests that federal technology transfer policies should be reexamined in light of actual experience with patented technologies. Indeed, the relationship among federal research funding, patent law, and medical innovation has become more complicated in the years since the passage of the Bayh-Dole Act. Rising health care spending despite slowing overall economic growth has fostered the development of private sector managed care, has led to cutbacks in government support for both research and clinical services, and has increased the percentage of uninsured …

A World That Won't Stand Still: Enterprise Liability By Private Contract, William M. Sage, James M. Jorling

Faculty Scholarship

The purpose of this article is to help health care providers and insurers create such an approach by explaining the benefits and risks of voluntarily reassigning liability for medical injury along an enterprise liability model, and by outlining the legal and contractual elements that are required to do so successfully.

Staffing National Health Care Reform: A Role For Advanced Practice Nurses, Linda H. Aiken, William M. Sage

Faculty Scholarship

Expanding access and coverage while containing costs can only be accomplished by getting more health care value for our money. Two facts about our current system make this seem possible. First, the currently uninsured are not costless. Providing stop-gap health care to those who lack health insurance is extremely expensive -- people without formal coverage cannot afford preventive services, delay treatment of illness and face substantial barriers to reaching appropriate providers. When they receive care, it is often degrading, usually complicated and costly, and more than occasionally too late. The cost of this "uncompensated" care is borne by all of …

Drug Product Liability And Health Care Delivery Systems, William M. Sage

Faculty Scholarship

This note will use the principles of law and economics to examine the interaction of market structures and product liability rules in a world of imperfect information. The goals of the analysis are to create incentives for optimal care by producers and consumers, induce the socially appropriate amount of consumption of each product (often referred to as the "activity level"), and minimize the costs of bearing the risk of injury. The note will conclude that the existence of health maintenance organizations ("HMOs") and similar prepaid providers with superior information capacity and total patient care responsibility may create a context in …