Law Commons^™

Regulating For Efficiency In Health Care Through The Antitrust Laws, Thomas L. Greaney

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The need to evaluate the competitive consequences of cooperation among rivals has long posed a dilemma for antitrust enforcement. Collaboration can reduce rivalry, raise prices and otherwise reduce consumer welfare; at the same time cooperation among rivals carries the promise of creating cost savings, correcting market failures and producing other benefits. In many cases antitrust doctrine requires a balancing of the positive and negative effects of coordination. In health care, federal antitrust enforcement agencies have increasingly turned to regulatory tools including policy statements, advisory opinions, speeches and regulatory decrees settling cases to strike this balance. However, the agencies have paid …

Managed Care As Regulation: Functional Ethics For A Regulated Environment, Sandra H. Johnson

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Institutional context plays a substantive role in ethical analysis. Accordingly, efforts to apply the principles of bioethics generally and without regard for institutional context may prove difficult.

This article first addresses the aspects of two non-hospital settings - the managed care organization (MCO) and the nursing home - that make the application of hospital-derived principles of bioethics particularly difficult.

The article then considers health care providers’ complaints that extensive MCO regulations impede ethical decisionmaking and adequate care. MCO standards and regulations are value-based. Thus after identifying four categories of providers’ MCO complaints, this article evaluates the complaints under ethical norms. …

Managed Competition, Integrated Delivery Systems And Antitrust, Thomas L. Greaney

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A central question confronting proponents of managed competition during the health reform debate in 1994 was whether competitive networks or integrated delivery systems would emerge. Under reformers’ vision, controlling costs depended on the emergence of a sufficient number of efficient and viable integrated delivery systems. Conversely, if one or a few integrated networks dominate the market for physician or hospital services, rivalry on the main issues of health care cost control would likely dissipate. This article argues that vigilant and sensible antitrust enforcement was also a prerequisite for the success of the managed competition model. Despite the considerable emphasis on …

The Changing Nature Of The Bioethics Movement, Sandra H. Johnson

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Commemorating the thirtieth anniversary of the field of bioethics, this article analyzes the future of bioethics by identifying its role in intellectual history and classifying stages of its development.

Part I considers the formative role of Quinlan, where the New Jersey Supreme Court held that the withdrawal of medical treatment is legally permissible under some circumstances. Quinlan and its progeny established a legal framework for life-sustaining treatment decisionmaking, affirming the use of substituted judgment or best interests standards.

In Part II the article documents the framework shift brought by Cruzan, a high-profile case challenging a family’s authority to make medical …

Health Care In The Inner City: Asking The Right Question, Sidney D. Watson

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MIAMI-June Kirchik, fifty-eight years old, discovered a large lump in her breast. When she went to a private hospital, she was denied treatment because she was indigent and her case was not considered an emergency. A public hospital performed a biopsy, which was positive, and gave her an appointment for treatment three weeks later. When Mrs. Kirchik arrived for treatment, however, the public hospital turned her away because she had not yet applied for Medicaid. Mrs. Kirchik tried another public hospital, but was turned away because she was not a resident of the hospital's service area. When Mrs. Kirchik's story …

The Fear Of Liability And The Use Of Restraints In Nursing Homes, Sandra H. Johnson

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In nursing homes, restraints are intended to protect residents with mental or physical disabilities from avoidable injuries. However, dangers inherent in the use of restraints on elderly patients - including strangulation, agitation, and unnecessary immobility - weigh strongly against restraints’ protective effects. This article identifies the risk of liability as a factor contributing to the overuse of restraints and argues against such defensive practice on legal, regulatory, and ethical grounds.

The article first considers liability sourced in negligence/malpractice litigation on restraints and highlights the often inflated and unreasonable perception of risk here. An examination of the reported cases involving restraints …

Reinvigorating Title Vi: Defending Health Care Discrimination—It Shouldn’T Be So Easy, Sidney D. Watson

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... Mrs. Carolyn Payne, a 21-year-old black resident of Holly Springs, Mississippi, delivered her own baby in the front seat of a truck after the emergency room of the Marshall County Hospital had refused admission.'¹

... Ysidro Aguinagas, an 1 1-month-old Hispanic baby, died... after being denied admission to a public hospital in Dimmitt, Texas, despite the fact that the hospital was ... publicly financed. The baby would not be admitted without a $450 deposit.²

... an Hispanic man, conscious and speaking Spanish, arrived at an emergency room at 7 p.m. for treatment of stab wounds suffered in …

Quality Of Care And Market Failure Defenses In Antitrust Health Care Litigation, Thomas L. Greaney

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This article considers quality-based justifications for antitrust challenges to collaboration among health care professionals. It first examines doctrinal developments resisting such justifications and, with a skeptical eye, analyzes attempts to interject quality of care and worthy motive defenses into antitrust appraisals of horizontal restraints of trade. Next the article assesses the economic basis and the risks and benefits of a market failure defense that would allow some quality-enhancing restraints of trade to escape antitrust challenge. Its principle recommendation is that courts recognize a narrow, market failure defense subject to several limiting principles to cabin its reach. The article concludes by …

Quality-Control Regulation Of Home Health Care, Sandra H. Johnson

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This article examines the comparability of nursing homes and home health care with respect to the quality-control effects of private litigation and state licensure. It explains that the false assumption of broad comparability between nursing homes and home health care could hamper effective regulation of quality in the delivery of home health care.

This article has two main sections, the first of which compares nursing homes and home health care in the context of private litigation. Points of comparison in the litigation context include the barriers to private litigation in long-term care, issues in institutional liability, applicable standards of care, …

From Medicalization To Legalization To Politicization: Cruzan, O'Connor And Refusal Of Treatment In The 1990s, Sandra H. Johnson

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End-of-life decisionmaking is very often accompanied by high stakes and human drama, as evinced in the 1988 decisions of In re Westchester County Medical Center (O’Connor) and Cruzan v. Harmon. This article analyzes these two legal battles both for their place in the jurisprudence of medical treatment decisionmaking of the 1980s and foreshadowing of 1990s conflicts.

The article begins with a discussion of the O’Connor and Cruzan decisions. In O’Connor, the New York Court of Appeals ordered treatment of a significantly brain damaged patient over and above the wishes of the family, requiring “clear and convincing evidence” of the patient’s …

Competitive Reform In Health Care: The Vulnerable Revolution, Thomas L. Greaney

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This article, written at the dawn of the era of "competitive reform" in health care examines the case and prospects for the introduction of competition in health care delivery and financing. It observes the failures of the ancienne regime of fee for service payment and professional sovereignty and discusses the benefits of market-oriented policy. Its contribution, still salient today, is the lesson that competition cannot succeed without regulation. It identifies legislative, professional, and cultural hurdles to effective implementation of competitive norms and policies that have impeded the success of competition policy in health care.

The Death-Prolonging Procedures Act And Refusal Of Treatment In Missouri, Sandra H. Johnson

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Missouri’s Death-Prolonging Procedures Act of 1985 represents an effort to ensure that an individual’s choices regarding medical treatment will be honored, even if the individual becomes incompetent. This article considers the Act’s limiting structure and examines the effect of these limits on the effectiveness of the Act in providing a legal right to refuse medical treatment.

Following an introduction, Part II describes the limiting structure of the Act. Part III considers the way in which the Act’s limitations relate to its binding effect.

First, an individual’s declaration applies only to "death-prolonging procedures" and only if the individual is terminally ill. …

State Regulation Of Long-Term Care: A Decade Of Experience With Intermediate Sanctions, Sandra H. Johnson

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The use of intermediate sanctions to enforce nursing home regulations marks a revolutionary and innovative legislative step to achieve, in addition to punishment, also rehabilitation and deterrence goals. This article evaluates the implementation of intermediate sanctions by the states, highlighting the ways in which similarities and differences in state statutes impacts effective implementation.

The article begins by considering legal challenges to state intermediate sanctions, including a constitutional challenge to the power of states to specify general standards for nursing homes and a notice challenge in light of statutory vagueness.

Next the article considers specific intermediate sanctions and makes recommendations to …

Nursing Home Receiverships: Design And Implementation, Sandra H. Johnson

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The enforcement of legal standards governing nursing home care and safety involves complex determinations due to the precarious conditions of most residents and the vast shortage of nursing home beds. This is particularly true when residents must be transferred. This article advocates the interim measure of statutory nursing home receiverships to protect the health and safety of residents and the nursing home property while determinations regarding sanctions or compliance are being made.

Section II examines the statutory receivership provisions of four states and explains why such an approach is best suited for the effective enforcement of standards while also protecting …