Health Law Final

Partial Birth Abortion Ban Act

-"Partial birth abortion": birthing part of the baby and then committing an act that kills it -Doesn't include an exception for the health of the mother -In Stenberg v. Carhart, US SC found that significant medical authority supports the idea that in some circumstances, partial birth abortion necessary for the health of the mother & just as safe as other types of abortions -Congress claims that significant evidence at the trial shows that it is never necessary to preserve health of the mother & more dangerous than regular abortions -Woman cannot be charged under this section, only the physician -Accused physician can seek a trial with the State Medical Board on whether it was necessary for preserving health -Congress decided that even though many states had laws banning partial-birth abortions, there was likely to be a greater level of weight if there was a federal law -This law technically violates Planned Parenthood v. Casey, doesn't mean Congress can't pass it

How cases get picked for the SC

-4 judges have to want to pick it -"Important fed. question": is it something important to the whole country? -circuit split: if fed laws are being handled differently across the country

ACA

-Ban on exclusion based on health status/pre-existing conditions -New protections from annual/lifetime caps -New state marketplaces

Compulsory vaccination

-Constitutionality not upheld by SC until 1905 Jacobson v. Massachusetts -Virtually all states permit religious exemptions

3 US SC reporters

-L. ED (lawyer's edition) -S. Ct. -U.S. (final version)

For OR Death with Dignity statute: "Informed decision" means a decision made by a qualified pt. Must be fully informed by attending physician of

-Medical diagnosis -Prognosis -Potential risks associated w/ the medication -Probable result of taking the medication -Feasible alternatives including hospice, comfort care, and pain control

Brown v. Board of Education (1954)

-Overturned Plessy v. Ferguson -Integration of public schools had to happen with "all deliberate speed"

Two greatest powers at govt's disposal

-Police power -Parens patriae: state's ability/responsibility to care for individuals who do not have decision making capabilities (children, people w/ mental disabilities, and prisoners)

4 state interests in banning physician-assisted suicide

-Unqualified interest in the preservation of human life -Interest to protect the integrity and ethics of the medical profession. SC argues that PA-S would result in blurring the line of the physician's role -Interest in protecting vulnerable groups -Interest in preventing a "slippery slope" situation. If we make it accessible in this instance, it could become available to everyone & have widespread complications

Vicarious liability

-theory premised on hospitals' relationship w/ doctors -One party can be held legally accountable for the actions of another party based solely on the type of relationship b/w the two parties -Premised on the principles of "agency" law (one party serves as the agent of another party) -Doctors usually seen more as individual contractors working in hospitals than as employees who employers are responsible for

Corporate liability

-theory premised on the actions and decisions of hospitals themselves -Ex: failure to screen out incompetent providers, failure to maintain high-quality practice standards, failure to maintain supplies & equipment -Darling most famous case of this

Two theories that act as exceptions to the rule that you cannot hold an employer responsible for the negligence of an independent contractor

1. Actual agency: Have to prove two elements. Control and supervision. If you can prove the employer has sufficient control and supervision over the "contractor," the law can treat them as an employee. 2. Ostensible/apparent agency: "looks to" and "holds out." Two things that could lead the person who was harmed to believe that the contractor was an employee. If the person who was harmed "looks to" the institution for a service (healthcare in our case) AND the institution "holds out" the contractor as though they were an employee. Example of getting in a car accident. You'd "look to" the hospital to help you (not a specific provider).

Two of the types of negligence

1. Corporate/institutional liability (Idea that the negligence was caused by a corporation's own behavior) 2. Vicarious liability Liability predicated on a third party's actions for which the hospital can be found liable simply b/c of the relationship they have w/ the third party)

four elements of negligence

1. Duty: individual has a duty 2. Breach: duty was breached 3. Cause: the breach was the proximate cause of the harm 4. Harm: harm resulted

5 essential characteristics of PH law

1. Government (Primarily responsible for protecting PH Non-profit, for-profit sectors also play a role, but govt most responsible) 2. Populations (Thinking upstream to large populations rather than individuals) 3. Relationships (addresses relationship b/w the State and some population) 4. Services: (Provision of services is grounded in scientific methodologies. Ex of new field called legal epidemiology: studies how legal changes affect health. Does passing a law actually address the target and change health outcomes?) 5. Coercion (Regulators have the ability to coerce us to perform or avoid certain behaviors)

4 elements that are the required at minimum for coercive police measures

1. Must be a public health necessity (there has to be an avoidable harm that can be prevented by the coercive measure) 2. Reasonable means 3. Proportionality: burden of the coercive measure should be proportionate to the threat 4. Harm avoidance: The coercive measure itself cannot be harmful

4 variables that a court will take into account when considering whether a person can give informed consent

1. Pt's mental competence (legal mental competence, not medical) 2. Has there ever been a formal or informal statement about how the individual wanted to be treated at the end of their life 3. Physical condition of the patient at the time the decision needs to be made 4. Whether the treatment (or lack thereof) is passive or active

Three categorizations for types of individual rights associated w/ the healthcare system

1. Rights related to receiving services explicitly provided under healthcare, health financing, or health insurance laws (ex: EMTALA and the ACA) 2. Rights concerning freedom of choice & freedom from govt interference when making healthcare decisions (ex abortion) 3. Right to be free from unlawful discrimination when accessing or receiving healthcare (ex Civil Rights Act)

5 ways law serves as a social determinant of health

1. We use law to build systems/structures that can have negative physical, mental, emotional effects 2. Can serve as a way for people's biases to affect the way public health is carried out (ex enforcement of controlled substances act) 3. Underenforcement (ex housing codes) 4. Interpretations of the law (ex striking down Medicaid expansion) 5. Use of law to improve health (medicare, medicaid, CHIP, EMTALA, food inspection standards)

4 elements of the legal system

1. Words on the page -Statutes -Constitutions -Regulations -Case law/common law 2. Constitutions -Charters (set up & design govts) -1 fed & every state has one 3. Statutes -Laws created by legislatures (local, city, state, fed (Congress)) -Very flexible, broad, open-ended -Left flexible to allow for varied instances, individual cases -Ex: ADA or statute for the official dinosaur of DC (the Capitolsaurus) -Statutes can override court opinions (on statutes, not on constitution) by changing the wording 4. Regulations -Implement statutes rather than providing new rights -Have to go through Fed. Procedures Act -Fine-tune broad statutes 5. Common law -Court opinions -Constitution incredibly difficult to amend, statutes take a lot of time/effort to get through, regulations can be changed w/ each admin -Case law seen as the best way to keep up w/ changes in society -updated constantly

marked a major switch from a physician-focus to pt-focus

Canterbury v. Spence

established that the govt has no affirmative duty to protect citizens

DeShaney v. Winnebago County Dept. of Social Services

Bragdon v. Abbott

Facts: -Abbott went to the dentist, disclosed she was HIV positive, Bragdon told Abbott he would not fill her cavity in his office. Have to go to hospital, she'd be responsible for cost of using hospital's facilities -Sued under state law, alleging discrimination on the basis of her disability, although her HIV was asymptomatic -Reproductive ability identified as the major life activity that is impaired Procedural history: -District Court in favor of plaintiff, holding that an HIV infection satisfies ADA's definition of disability & the petitioner raised no genuine issue as to whether Abbott's infection would have posed a direct threat to anyone -The Court of Appeals affirmed this ruling, relying on the CDC's guidelines that asserted that it is safe for dentists to treat pts w/ HIV as long as they follow an outlined safety protocol -Case remanded (sent back) to the Court of Appeals by SC for further risk assessment based on objective medical evidence whether treating an HIV-positive person poses a direct threat to health Legal issue/question: -Whether asymptomatic HIV infection satisfies the Americans with Disabilities Act's definition of a disability -Whether reproduction qualifies as a major life activity under the ADA -Can a physician refuse or alter care of an HIV-positive patient without violating the equal treatment stipulations of the Americans with Disabilities Act of 1990 (ADA)? Holding: -Yes -Yes -No Reasoning: -HIV impairs ability to reproduce, considered a major life activity (major b/c of its significance). Limits reproduction b/c of the substantial risk of infecting a male partner and/or the fetus -List of impairments covered by ADA meant to be illustrative, not exhaustive. No evidence that it only covers aspects of a person's life that have a public, economic, or daily character -No need to address whether HIV infection is a per se disability under the ADA once it's been established that it impairs a major life activity Notes: -Doesn't matter whether Abbott ever intended to reproduce, the law just states that is has to limit a major life activity, the plaintiff doesn't have to prove that they ever intended to take part in the MLA -Much more of a monumental case now than when it was passed b/c, at the time, would only cover people w/ HIV who are asymptomatic for a short period of time. But now, people w/ HIV can remain asymptomatic for decades, so this is way more pertinent that they can't be discriminated against, even when asymptomatic

Whole Woman's Health v. Hellerstedt

Facts: -Challenging 2 provisions of a Texas House Bill 1. That "admitting privileges requirement": physician performing abortion must have admitting privileges at a hospital less than 30 miles away 2. "Surgical center requirement": requires abortion facility to meet the minimum standards for ambulatory surgical centers -Suit claiming that both provisions violated the 14th Amendment, as interpreted in Casey -Claim that abortion procedures safer than other procedures not facing this level of regulation Procedural history: -Fed District Court for TX: ruled that both provisions posed an undue burden -US Court of Appeals: reversed the decision significantly. Concluded that res judicata (claim preclusion, is the Latin term for "a matter [already] judged") barred the challenge on both provisions. Found that both provisions were related to the state's interest in protecting the health of the woman and were not an undue burden. SC: reversed, claim both requirements pose an undue burden Legal Issue(s)/Questions(s): -Does the requirement of abortion clinics being located within 30 miles of a hospital with which physicians performing abortions have admitting privileges pose an undue burden for women and violate the Constitution? -Does the requirement of abortion clinics meeting the minimum standard for ambulatory surgical centers present an undue burden and violate the Constitution? Holding: -Yes & yes Reasoning: -extremely low rates of serious complications before H. B. 2's passage, found no significant health-related problem for the new law to cure. -Increased driving distances do not always constitute an "undue burden," but they are an additional burden, which, when taken together with others caused by the closings, and when viewed in light of the virtual absence of any health benefit, help support the District Court's "undue burden" conclusion -the new provision imposes a number of additional requirements that are generally unnecessary in the abortion clinic context Notes: -SC believes Court of Appeals incorrectly applied the precedent set by Casey, there has to be some sort of medical benefit to institute an obstacle, you can't just prove that it isn't an undue burden. There should be a purpose -not solely up to the legislature to decide what's medically accurate if there's controversy amongst medical professionals, still up to the Court to do an analysis

Gonzalez v. Carhart (constitutionality of the Partial Birth Abortion Act)

Facts: -Considering the validity of the Partial Birth Abortion Act. Sustained. Compared to the state statute at issue in Stenberg v. Carhart, this Act is more specific. -The District Court granted a permanent injunction that prohibited the AG from enforcing the Act in all cases except when there was no dispute that the fetus was viable -Planned Parenthood also filed a complaint, District Court of Northern California also granted injunction, the Court of Appeals for the 9th Circuit reaffirmed -Most common method in 1st trimester is vacuum aspiration/suction curettage (physician vacuums out embryonic tissue) Alternative is medication early on -Dilation & evacuation is the most common form in the 2nd trimester -Congress decided that they did not have to accept the "questionable findings" the SC was "required to accept" in Stenberg v. Carhart -District court in Carhart found the Act unconstitutional b/c it lacked an exception for the health of the mother & bc it covered not only intact D&E but also other D&Es -District Court in Planned Parenthood decided the act was unconstitutional b/c it 1. Posed an undue burden on women seeking 2nd trimester abortions 2. Was unconstitutionally vague (docs uncertain about which acts were unconstitutional) and 3. required a health exception Procedural history: -District Court of Nebraska & District Court of Northern California (granted injunction) -Certiorari to the US Court of Appeals 8th Circuit & 9th Circuit (upheld need for medical exception) -Supreme Court Legal issue/question: -Is the Partial-Birth Abortion Ban Act an unconstitutional violation of personal liberty protected by the Fifth Amendment because the Act lacks an exception for partial-birth abortions necessary to protect the health of the mother? Holding: -No Reasoning: -not unconstitutionally vague and did not impose an undue burden on the right to an abortion. -The Court held that, under the most reasonable interpretation, the Act applies only to the intact D&E method (also known as "partial-birth abortion") and not to the more common D&E procedure. -SC agrees, that if certain "anatomical landmarks" are not met (entire fetal head outside the body of the mother or any part of the fetal trunk past the navel outside of the body of the mother," the Act has not been violated. Or if these anatomical landmarks have been passed inadvertently or by accident, the Act has not been violated (have to deliver them intentionally. So can't be considered a trap for those of good faith) -For criminal liability, the doctor must perform an "overt act" killing the fetus after passing one of these anatomical landmarks -Does not prohibit the D&E procedure where the fetus is delivered in parts -Different from the statute at issue in Stenberg. Gives specific anatomical markings & requirements of the doctor's intention. -Concerns w/ the effects on the medical community and on its reputation caused by the practice of partial-birth abortions Notes: -Biggest thing about this case is passing a law that doesn't include a health exception. -While their stated intent is to protect human life, seems like another intent was to take a very rare form and highlight it to make it seem outrageous and try to chip away at the health exception -Because the language was loose in Casey, they can use their own holes to uphold these later decisions that violate Roe and Casey -In Roe and Casey, led to believe that you must always have a health exception when limiting abortion. But in this case, they say it's up to the discretion of the doctor, not an absolute right to have a health exception -Congress uses the fact that the utility of partial birth abortions to protect the health of the mother is controversial amongst experts as allowing Congress to rule on it -SC giving Congress more freedom than they would to lower federal courts. Allowing them to judge the facts, even though their facts seem to be incorrect -Says a lot about intent b/c this would be almost impossible to enforce

Darling v. Charleston

Facts: -Darling broke his leg, went to Charleston Memorial Hospital where he was treated by Dr. Alexander, the ER physician on call -Applied traction, placed leg in a cast. Darling was in great pain and his toes became swollen & dark, then cold & insensitive. Next day, Dr. Alexander notched the cast open slightly and then full split the cast several days later, cutting Darling's legs on both sides -After 2 weeks, transferred to an orthopedic surgeon who had to amputate the leg below the knee. Surgeon believed the dead tissues was caused by the cast interfering w/ blood flow -Plaintiff contends the hospital was negligent in 3 instances 1. allowing Dr. Alexander to perform orthopedic work of this kind and not requiring him to review his operative procedures to bring them up to date. 2. failing, through its medical staff, to exercise adequate supervision over Darling's condition. 3. not requiring consultation at the time of the complications -Plaintiff argues that the licensing regulations, accreditation standards, and the hospital's own bylaws define the hospital's duty, which was breached -Defendant argues that "only an individual properly educated and licensed, and not a corporation, may practice medicine" So the hospital is powerless to forbid or command any act by a physician in the practice of his profession Procedural history: -Trial court: darling wins -Appellate court: affirmed -Illinois SC: affirmed Legal issue/question: -Can hospitals be liable for negligent care? Holding: -Yes Reasoning: -could reasonably conclude that the nurses did not test for circulation in the leg as frequently as necessary, skilled nurses would have recognized that the condition would become irreversible in a matter of hours. Was the nurses' duty to inform the physician, and if he failed to act, to advise the hospital authorities so that appropriate action might be taken -No dispute that the hospital failed to review Dr. Alexander's work or require a consultation. The only issue is whether its failure to do so was negligence. Based on the evidence, the jury could reasonably have found that it was -The Standards for Hospital Accreditation, the state licensing regulations, & the defendant's bylaws demonstrate that it is regarded as both desirable & feasible that a hospital assume certain responsibilities for the care of the pt Notes: -landmark opinion that inaugurated the doctrine of corporate liability for hospitals -Illinois SC rejected the hospital's argument that hospital duties should be defined solely by the local customary practice of similarly situated hospitals & rather could be defined by state licensing regulations & natl accreditation standards -"custom cannot be conclusive."

Lane v. Candura

Facts: -Daughter of pt filed petition seeking appt as pt's temporary guardian w/ authority to consent to operation on behalf of pt -In a case for the appt of a guardian, burden is on the petitioner to prove that the proposed ward is incompetent -77-year-old Mrs. Rosaria Candura, suffering from gangrene in her foot & lower leg -Physicians recommended amputation, Candura went back and forth but ultimately refused -Candura claimed that she refused b/c she had been unhappy since her husband died, did not want to be a burden to her children, did not believe the surgery would cure her, does not want to be an invalid in a nursing home, and that she did not fear death -In her testimony, expressed a desire to get well but refused the operation, lucid on some matters but confused on others. Train of thought sometimes wanders, sometimes hostile/combative, sense of time distorted Procedural history: -Probate court appointed daughter temp. guardian -Appeals Court of MA: Held that irrationality of pt's decision not to have leg surgically amputated, which would result in her death, pt's vacillating in her resolve, and choosing not to discuss the decision with certain persons did not justify conclusion that pt's capacity to make decision was impaired to the point of legal incompetence. Order and judgment reversed, petition dismissed Legal Issue/Question: -Does a pt's refusal of a life saving procedure make them legally incompetent and allow a guardian to give consent on their behalf? -Does the pt have the legally requisite competence to make the choice for herself? Holding: -No -Yes Reasoning: -Right of a pt in most circumstances to decline treatment recognized under protection of privacy -Certain interests of the State that may in some cases outweigh the right of a competent individual to refuse life-saving or prolonging treatment, this case does not include those circumstances -testimony shows that there are strong emotional factors, but not that she doesn't recognize the consequences of her decision -Psychiatrist's testimony may show that she's not making a medically competent choice. Doesn't mean it isn't a legally competent choice -The law protects her right to accept or refuse treatment, whether or not it is a wise decision

Lassiter v. Department of Social Services

Facts: -District Court of Durham County, NC adjudicated William Lassiter to custody of Durham County DSS -Mother, Abby Gail Lassiter found to have not provided her infant son William w/ proper medical care -Mother charged w/ murder, began 25-40 yr prison sentence -In 1978, the Department petitioned the court to terminate her parental rights b/c, DDS claimed, she had no contact w/ the child since 1975, willfully left the child in foster care for 2 years, has not shown a positive response to DDS's efforts to strengthen her relationship w/ the child -Ms. Lassiter came to the hearing w/o counsel and the court decided that since she had ample time to get one, she would not be appointed a lawyer -Grandmother claimed that she could not raise the child & that her daughter often left her alone w/ her 3 children for days at a time w/o money or food -On the witness stand, Ms. Lassiter's mother denied having filed a complaint against her daughter, claimed she had seen the child several times, and denied saying she could not care for the child -"willfully failed to maintain concern or responsibility for the welfare of the minor" the court terminated her status as William's parent -On appeal, Ms. Lassiter claimed that b/c she is indigent, she should have been provided counsel Procedural history: -North Carolina Court of Appeal decided that legal counsel was not constitutionally mandated in this case -Supreme Court of NC denied Ms. Lassiter's application for discretionary review Legal issue/question: -Are indigent defendants entitled to be appointed legal counsel in child custody cases? Holding: -No Reasoning: -Due process is not precisely defined, expresses the requirement of fundamental fairness -Generalization from the court's precedent on an indigent's right to appointed counsel is such that a right has only been recognized when the litigant may lose his physical liberty if he loses the litigation -as a litigant's interest in personal liberty diminishes, so does his right to appointed counsel. -Other argument that since the State has an interest in the welfare of the child, it shares he parent's interest in an accurate and just decision. For this reason, the State may share the indigent parent's interest in the availability of appointed counsel. -Here, the trial court had previously found that Ms. Lassiter had expressly declined to appear at the 1975 child custody hearing, Ms. Lassiter had not even bothered to speak to her retained lawyer after being notified of the termination hearing, and the court specifically found that Ms. Lassiter's failure to make an effort to contest the termination proceeding was without cause. In view of all these circumstances, we hold that the trial court did not err in failing to appoint counsel for Ms. Lassiter.

Hurley v. Eddingfield

Facts: -Hurley, on behalf of Charlotte Burke's estate, sued Dr. Eddingfield for wrongful death. Pt died in childbirth after family called Eddingfield, her family physician. Gave no reason, refused to come treat her Procedural history: -Indiana SC upheld Circuit Court's decision, favored defendant -Sustained appellee's demurrer(defense asserting that even if all of the factual allegations in a complaint are true, they are insufficient to establish a valid cause of action) Legal issue/question: -Do licensed physicians have a duty to treat? Holding: -No Reasoning: -Obtaining a license to practice medicine does not make the provider obligated to practice medicine or to practice it on anyone's terms but their own -Purpose of the licensing act is to regulate the practice of medicine, not to require licensed physicians to practice -Defendant (appellee)'s defense is that the licensing act provides standards for qualification and penalties for practicing w/o a license. The act is a preventive, not a compulsive, measure. In obtaining the state's permission to practice medicine, the state does not require that he will practice at all or on anyone's terms but his own. The licensing act is a health quality law, not a health access law Notes: -No duty to treat law has origins in Common Law back to 14-1500s -No right to healthcare -Only two groups w/ constitutional right to healthcare: inmates (b/c they're the state's responsibility) and people committed to institutions (wards of the state). Both cases where the state is keeping people from getting insurance for themselves -"Spell of illness rule": The patient-physician relationship does not extend over time from the first point of contact. They are broken up into spells of illness. Once the spell of illness ends or the pt & physician decide to part ways, the legal rights/responsibilities related to that relationship no longer apply -The fact that Charlotte Burke & her baby died in childbirth is not included in the court opinion for two reasons. One reason is to avoid upsetting the public (people don't want to hear that their doctor has no responsibility to treat them, including when they're giving birth), another is that it's irrelevant to the legal outcome.

Jacobson v. Massachusetts Validity of State Mandatory Vaccine Law

Facts: -Ordered that those who have not been vaccinated against smallpox since 1897 must be vaccinated/revaccinated -Exceptions for children who have doctor's notes that they are unfit for vaccinations -Jacobson refused to be vaccinated. Pleaded not guilty -Pleaded that the MA law violated his Constitutional rights (14th amendment) "no state shall make or enforce and law abridging the privileges or immunities of citizens of the US..." -Plaintiff argues that the state has the right to police powers Procedural history: -Defendant found guilty -MA SC sentenced to have Jacobson stand committed until he paid the $5) Legal issue/question: -Can the government's police powers be used to require that an adult be vaccinated? Holding: -Yes Reasoning: -Constitution does not guarantee that citizens must be wholly w/o restraint --"Even liberty itself... is not unrestricted license to act according to one's will" "it is liberty regulated by law" -Cannot be proven to be in direct conflict w/ the Constitution. Can't be argued that the govt is requiring vaccinations for any reason other than the protection of public health -Not arguing that there can't be exceptions for adults who can prove that vaccines might significantly affect their health, but that's not the case here. Defendant appears to be in perfect health, no proof vaccines would be detrimental to him Notes: -Considered most important PH case -Jacobson also has some religious arguments against being vaccinated

Gonzalez v. Oregon (PAS)

Facts: -Oregon 1st state to legalize assisted suicide in 1994 -Drugs prescribed in Oregon are regulated under a fed statute, the Controlled Substances Act (CSA) -The drugs are typically prescribed in smaller doses for pain alleviation -A 2001 Interpretive Rule issued by the AG determines that using controlled substances to assist suicide is not a legitimate medical practice & dispensing/prescribing them for this purpose is illegal under the CSA -CSA's main objective: combating drug abuse & controlling the legitimate and illegitimate traffic in controlled substances (Places substances in one of five schedules based on their potential for abuse or dependence, their medical use, and their accepted safety for use under medical supervision) -Congress asked the DEA to prosecute or revoke the CSA registration of Oregon physicians who assisted suicide, AG concluded that the DEA could not b/c the CSA did not authorize it to displace the states as primary regulators of the medical profession or override state decisions as to what constitutes medical practice -Next AG issued the Interpretive Rule, which would effectively stop ODWDA Procedural History: -US District Court for the District of Oregon: Entered a permanent injunction against the Interpretive Rule -US Ct. of Appeals: Affirmed -US SC Legal issue/question: -Does the Controlled Substances Act allow the US AG to prohibit doctors from prescribing regulated drugs for use in P-AS, notwithstanding a law permitting the procedure? -Who decides whether a particular activity is in "the course of professional practice?" -Is the Interpretive Rule a permissible interpretation of the CSA? Holding: -No - -No Reasoning: -The CSA allows the prescription of drugs only if they have a "currently accepted medical use" -1984 amendment to the CSA gives the authority to register & deregister physicians based on the public interest -AG not authorized to make a rule declaring illegitimate a medical standard of care specifically authorized under state law. The AG can promulgate rules relating only to "registration" and "control," and "for the efficient execution of his functions" -The Interpretive Rule does not concern the scheduling of substances and was not issued after the required procedures of rules regarding scheduling, so it cannot fall under the AG's "control" authority -The Interpretive Rule purports that PA-S is a crime, which is beyond the AG's statutory power to register or deregister -The does not explain why the AG has the authority to decide what constitutes an underlying violation of the CSA in the first place -Would give the AG an unrestrained power to criminalize physicians -Would give him the power to deregister any physician using a controversial practice or make the use of drugs for any controversial practice illegal -Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing. Beyond this, the statute manifests no intent to regulate the practice of medicine generally -If Congress wanted the AG to be able to regulate medical practice, would have stated so more explicitly in the CSA Notes: -This is an example of federalism: state govt disputing w/ fed govt -Chevron deference not given: referring to the doctrine of judicial deference given to administrative actions. judicial deference is appropriate where the agency's answer was was not unreasonable, so long as the Congress had not spoken directly to the precise issue at question.

DeShaney v. Winnebago County Social Services Dept (Public Welfare and the "Negative Constitution")

Facts: -Petitioner is a boy who was beaten & permanently injured by his father, w/ whom he lived -Respondents are social workers & other local officials who received complaints that the petitioner was being abused but did not act to remove petitioner from father's custody -Petitioner sued respondents, claiming their failure to act deprived him of his liberty in violation of the Due Process Clause of the 14th Amendment of the Constitution -Joshua admitted to the hospital w/ multiple bruises & abrasions. Physicians suspected child abuse, reported to DDS who obtained an order from a WI juvenile court & placed Joshua in the temporary custody of the hospital -county convened an ad hoc "child protection team" consisting of a pediatrician, psychologist, police detective, the county's lawyer, several DDS workers, & various hospital personnel. Decided there was insufficient evidence of child abuse for the court to retain custody. But, recommended several measures to protect Joshua: enroll him in preschool, counseling for the father, and encouraging his new girlfriend to move out of the home -On the 2 visits following another ER visit, case worker told that Joshua was too ill to be seen. She didn't report anything -Randy DeShaney beat Joshua so badly that he fell into a life-threatening coma -Joshua suffered brain damage so severe that he is expected to spend the rest of his life in an institution for the profoundly retarded. Randy tried & convicted of child abuse Procedural history: -US District Court for the Eastern District of WI granted summary judgment for the respondents -Court of Appeals for the Seventh Court affirmed -SC found respondents not guilty Legal issue/question: -Is the government responsible for protecting its citizens from private violence? Holding: -No Reasoning: -Due Process Clause of the 14th Amendment does not require a state or local govt entity to protect citizens from private violence or other mishaps not attributable to the conduct of its employees. Forbids the govt from imposing upon these rights w/o due process, not an affirmative to protect them -Court rejects the argument that a "special relationship" had been formed b/w the State & Joshua since they were aware of the abuse. In cases where the State provides certain populations unique protections, it's not for the sake of affording them help, but to assume some responsibility for the safety and well-being of people held under govt custody against their will -May be that the State acquired a duty under state tort law to protect him from danger, but not under the Due Process Clause -A state may, through its courts and legislatures, impose affirmative duties of care and protection on its agents, but doesn't make it constitutionalized Notes: -Dissent: if a state cuts off private sources of aid and refuses aid itself, it cannot wash its hands of the harm that results from inaction. WI law directs citizens & other govt entities to rely on local depts of social services to protect children from abuse. So if social services doesn't do anything, no one will.

Jones v. Chicago (Managed Care Liability for Institutional Negligence)

Facts: -Plaintiff, Sheila Jones, mother of the minor Shawndale Jones, brought this malpractice action against the defendants, Chicago HMO Ltd. of Illinois, Dr. Robert A. Jordan, and another party -The Joneses were members of the HMO, Dr. Jordan was Shawndale's PCP -Shawndale became ill, Jones called Dr. Jordan, as instructed by her HMO -Dr. Jordan advised her to give the baby castor oil -Next day, Jones took Shawndale to the ER b/c her condition had not improved. She was diagnosed with bacterial meningitis (secondary to an ear infection) and is permanently disabled -This case only concerns the counts filed against Chicago HMO 1. assigning Dr. Jones as Shawndale's PCP while he was serving an overloaded patient pop 2. Negligently adopting procedures that required Jones to call first for an appt before going to the dr's office or obtaining emergency care 3. Breach of contract (contract w/ the Department of Public Aid) -Dr. Jordan was the only doctor serving two HMO populations after one physician's partnership with the HMO was terminated Procedural history: -Circuit court awarded summary judgment in favor of Chicago Ltd. on all three counts (institutional negligence, vicarious liability for Dr. Jordan's alleged negligence, and breach of contract) -Appellate court affirmed summary judgment on counts I & III, but remanded count II -This case was only addressing counts I & III -SC of Illinois affirmed summary judgment for count III, but reversed decision for count I and remand that claim for further proceedings to the circuit court Legal issue/question: -Can an HMO be held liable for institutional negligence? (not specific to this one) -Is expert testimony required for cases of institutional negligence? -Does case overload fall into the purview of institutional negligence? -Is it the responsibility of HMOs to track the pt load of providers? Holding: -Yes Reasoning: -Summary judgment should only be granted when there is no genuine issue as to any material fact. It's a drastic remedy that should only be allowed when the right of the moving party is clear & free from doubt -Crucial difference b/w ordinary negligence and professional malpractice is the necessity of expert testimony to establish the standard of care & that its breach was the cause of the plaintiff's injury -Darling and subsequent cases also proved that the standard of care applicable to a hospital can be proved via a number of sources, expert testimony not always required -Still, Jones bears the burden of establishing the standard of care required of an HMO through other proper, evidentiary sources -Court disagrees with the claim that Jones cannot prove Dr. Jordan was exceeded his patient cap. Chicago's HMO reports and Dr. Jordan's estimations place his patient number well over the cap. -Chicago HMO had a duty to refrain from assigning so many pts to Dr. Jordan -Chicago HMO entitled to summary judgment for the claim that their procedures were negligent for requiring pts to call before getting an appt or obtaining ER care. No evidence of standard of care on this -Summary judgment granted on claim that Chicago HMO breached their contract b/c Jones is not a party of the contract Notes: -Contractual agreement to take on pts through an HMO can act as an exception to the "spell of illness" law. In this case, he's responsible for all of these 6K pts unless he offloads any of them

Roe v. Wade (Constitutional Right to Abortion)

Facts: -Texas statutes make it a crime to "procure an abortion" or to attempt one except for an abortion to save the life of the mother -Jane Roe, a single woman living in Dallas County, instituted the federal action in March 1970 against the DA of the county. She sought a declaratory judgement that Texas abortion statutes are unconstitutional & an injunction restraining the defendant from enforcing the statutes -Unmarried & pregnant, wanted an abortion under safe, clinical conditions performed by a competent, licensed physician. Her life was not threatened by the pregnancy and she could not afford to travel to another jurisdiction -Claimed that the statutes were unconstitutionally vague and abridged her right to personal privacy, protected by the 1st, 4th, 5th, 9th, and 14th Amendments -Dr claimed it violated the privacy of the dr-pt relationship and his own right to practice medicine, rights he claimed are guaranteed by the 1st, 4th, 5th, 9th, and 14th Amendments -John and Mary Doe, a married couple, also filed. Mrs. Doe suffering from a neuro-chemical disorder for which she was advised to stop taking birth control and advised not to get pregnant until her condition improved Procedural history: -US District Court for the Northern District of Texas: Issued declarative relief, held that the statute was vague and overbroad, Injunctive relief denied -Court of Appeals: same -US SC: Declaratory relief, does not issue injunction (assumes TX will stop enforcing it based on the decision) Legal issue/question: -Does the constitutional right to privacy protect a woman's right to procuring an abortion? -Are Texas' laws unconstitutional by violating woman's right to privacy in seeking an abortion? Holding: -Yes Reasoning: -District Court held that the abortion statutes were unconstitutionally vague & infringed upon 9th amendment rights -Supreme Court claims that the court erred in providing Dr. Hallford declaratory relief. SC reverses, dismisses the Dr's complaint -3 reasons to historically explain the enactment of criminal abortion laws in the 19th century no longer relevant (Victorian social concern to discourage sexual conduct, Concern w/ abortion as a medical procedure (abortion mortality was high), State's interest in protecting prenatal life (Early pregnancy abortions have lessened this concern)) -Constitution does not explicitly mention a right to privacy, but the Court has recognized a right of personal privacy due to the 4th & 5th amendments -"Fundamental rights" can only be limited by a "compelling state interest" -The word "person" used in the 14th amendment does not include the unborn -Judiciary not in a position to speculate when life begins -Texas' statute violates the Due Protective Clause of the 14th Amendment -For the 1st trimester, abortion decision must be left to the medical judgment of the woman's attending physician -2nd trimester: the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health -3rd trimester (stage of viability): the State, in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary for the preservation of life of the mother -Grants Roe declaratory relief but does not issue an injunction against enforcement of the statutes (assumes Texas officials will stop enforcing based on this judgment) Notes: -Trimester differentiation was used for convenience, no Constitutional backing, needed some kind of framework to go off of -Right to privacy not explicitly given in the Constitution. 14th Amendment: Due Process Clause, right to privacy considered to be gleaned from the right to liberty -Only rights that are considered "fundamental" can be considered covered by this ephemeral right to privacy -State interests are potentiality of human life and health and welfare of the mother -Trimester framework gone after Planned Parenthood v. Casey -At the end of the second trimester (week 26-27), point of viability is reached (at the time), and state has compelling interest in potentiality of human life. States can prohibit abortions at this point, except, in the case of the life or health of the mother. "Life or health" has been a big point of debate b/c the court has used this to include mental/emotional health, in addition to physical. So if Roe v. Wade isn't overturned, getting rid of the "or health" language would effectively make it banned for 3rd term

Washington v. Glucksberg (PAS)

Facts: -Washington's Natural Death Act (1979) states that withholding or withdrawing life-sustaining treatment at a pt's direction does not constitute a suicide -Petitioners: State of WA & its AG -Respondents: 4 WA MDs who work w/ terminally ill pts & declare that they would help these pts end their lives in not for the ban Procedural history: -US District Court: Agreed ban unconstitutional, "places an undue burden on the exercise of that constitutionally protected liberty interest and violated the Equal Protection Clause" -US Court of Appeals: Reversed, then heard the decision en banc and reversed, affirming the district court -SC: granted certiorari, reversed (unanimous) Legal issue/question: -Does Washington's prohibition against "causing" or "aiding" a suicide offend the 14th amendment of the US Constitution? Holding: -No Reasoning: -Harsh punishments for suicide done away w/ not b/c the govt approves, but b/c it was deemed unfair to punish in ways that would only affect the innocent family members -Respondents claim that Cruzan shows the court supports individual liberty to refuse life-saving treatment, but assisted suicide does not enjoy the same legal protection as refusing treatment -Assisting in suicide not part of the physician's role of healing -State has an interest in protecting vulnerable groups from abuse, neglect, and mistakes. Real risk of subtle coercion and undue influence in end-of-life situations. Greatest risk of harm is for individuals whose autonomy and well-being are already compromised by poverty, lack of access to good care, old age, or being part of stigmatized social group -Fear the permitting assisted suicide will start down the path to voluntary, and possibly involuntary, euthanasia -Can't argue that suicide is a Constitutional right, otherwise anyone could make use of it

Planned Parenthood v. Casey (Validity of Pennsylvania Abortion Statute)

Facts: -At issue are provisions of the PA Abortion Control Act of 1982 1. Requires a woman seeking an abortion give her informed consent & specifies that she be provided w/ info at least 24 hours in advance 2. Minors must have parental consent 3. Except in certain circumstances, woman must sign document affirming that she told her husband -Petitioners: 5 abortion clinics and one physician representing himself and a class of physicians who provide abortion services Procedural history: -US Court of Appeals upheld all regulations except for the husband requirement -SC: Reaffirmed Roe but upheld most of the PA provisions. Legal issue/question: -Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify their husbands, and, if minors, obtain parental consent, without violating their right to abortion as guaranteed by Roe v. Wade? Holding: -Upheld everything except having to tell husbands Reasoning: -SC concluded that the essential holding of Roe v. Wade should be retained & reaffirmed (but reread the 3 essential parts) -2 circumstances where overruling previous cases would be harmful 1. Overruling so frequently that legitimacy of the Court would fade 2. cases that should provide resolution on what the Constitution says to end a national controversy/division (perhaps only true of Roe and Brown) -Adhere to the principle of allowing the woman to choose until the point of viability for 2 reasons: stare decisis, time at which there is a possibility of fetus living outside the womb -Though the woman has the right to choose in the 1st trimester, doesn't prevent the state from taking steps to ensure that the choice is thoughtful & informed -SC rejects the trimester framework: (Misconceives the nature of the pregnant woman's interests Undervalues the state's interest in protecting potential life) -The fact that a law allowing for state interests in protection of potential life before viability would make abortion more expensive or difficult doesn't make it illegal, only if it puts an undue burden on the woman's ability to make the decision ( v different from what Roe said...) -Upheld statute for 24 hour waiting period, did not agree that exception only for life-threatening emergencies was limiting -Ruled against having to inform husbands Notes: -Court claims there were 3 aspects of the Roe v. Wade ruling 1. Recognition of the woman's right to obtain an abortion w/o undue interference from the state (inaccurate because the ruling bars any state interference in the first trimester, not just undue interference) 2. Confirmation of the state's power to restrict abortion after the point of viability that affect the woman's life or health (correct) 3. State has legitimate interest from the outset of pregnancy in the potential life of the fetus (not true. Only says there's an interest after the point of viability). No reason given for this decision, no explanation for what has changed since Roe v. Wade - Viability at 24 weeks at this point -Now, state's have interest in woman's health from moment of conception ("from the outset") until viability (24 weeks), and interest in potentiality of human life (and ability to regulate) after 24 wks -This ruling changes it from "no regulation" to "some regulation" during 1st trimester -Very paternalistic qualifier that the state can try to make sure that the decision is "thoughtful and informed" -"Life or health" language survives for point beyond viability

Boyd v. Albert Einstein Medical Center

Facts: -Husband joined HMO group plan through employer, chose Dr. Rosenthal & Dr. Perry as PCPs -Wife contacted Dr. Rosenthal about lump in her breast. Mammogram ordered, pt referred to Dr. Cohen (also covered by HMO) for a biopsy -Dr. Cohen perforated the decendent's chest wall w/ biopsy needle, causing a hemothorax. Pt hospitalized for 2 days at Albert Einstein. -Weeks following, pt complained of chest wall pain, diagnosed w/ inflammatory condition, sent home to rest, tests ordered -Pt called later that day complaining of vomiting, chest pain, & belching. Prescribed a pain med, pt died of an MI that evening -Pt must receive a referral from a PCP to see a specialist (gatekeeper) -PCPs paid through capitation Procedural history: -Trial court granted summary judgment -PS Supreme Court: trial court erred in granting summary judgment, case remanded to trial court Legal issue/question: -Are participating physicians ostensible agents of HMO? Holding: -Yes, kick it back to find out whether it is in this case Reasoning: -Appellant paid the HMO, not the physician, and was limited in physician choice by the providers included in the HMO network -Appellant's decedent could not see a specialist w/o the PCP's referral -Thus, we can infer that the appellant looked to the institution for care, not solely the physicians -Patient submitted herself to the care of the physicians at the invitation of the HMO

Cruzan v. Director, Missouri Dept of Health (Constitutional Right to Withdraw Life-Sustaining Treatment)

Facts: -Petitioner Nancy Beth Cruzan rendered incompetent as a result of severe injuries sustained during an automobile accident (anoxia) -Nancy's parents & coguardians, sought a court order directing withdrawal of Nancy's artificial feeding & hydration equipment after it became clear she had virtually no chance of recovering cognitive fxn -Missouri Living Will Statute: surrogate cannot make decision to refuse care w/o "clear and convincing" evidence of the pt's desires -Court found that Nancy expressed to a housemate friend that, if sick or injured, she would not want to continue her life unless she could live at least halfway normally Procedural history: -MO trial court: Found that a person in Nancy's state has a fundamental legal right under the State & Fed Constitutions to refuse or direct the withdrawal of "death prolonging procedures." Approved removal of care -SC of MO: Reversed the decision. Recognized a right to refuse treatment in common law doctrine of informed consent, but expressed skepticism about applying it to this case. Expressed doubt as to whether a right of privacy supports a person's right to refuse treatment in every circumstance. Decided that the Missouri Living Will Statute embodied a state policy strongly favoring the preservation of life. Found that Cruzan's statement to her roommate was not "clear and convincing" evidence. -SC: Granted certiorari & affirm. Ex of how (rarely) a case can go straight from a state SC to the US SC if the case poses a federal question Legal issue/question: -Does the US Constitution allow the right to refuse treatment? -Is it constitutional for states to require evidence of an incompetent person's wishes to have treatment removed before allowing a surrogate to make that decision? Holding: -The Court has assumed that it does, but never explicitly said so -Yes Reasoning: -At common law, even touching a person w/o their consent= battery -Right to privacy in the Fed. Cons. is not absolute, state can have an interest -Must focus on pt's expressed intent, not the court's role to decide what quality of life would be considered worth living by the incompetent individual -State entitled to safeguard against abuses of surrogates -An erroneous decision that keeps the pt alive can be corrected or mitigated (medical advancements, death of pt despite treatment, etc), but an erroneous decision to stop treatment cannot be reversed Notes: -The Court has historically assumed that the right to refuse treatment exists in the US Constitution and ruled that way, but they have never explicitly said that it does -Majority of SC agrees that while right to refuse care by a competent adult is a legal right, it is NOT a fundamental legal right. Thus, it is okay for the state to set a higher standard before allowing it -SC dissent claims that right to refuse care IS a fundamental right. Also refutes the idea of the state's interests taking precedent b/c there is no good to be obtained in Nancy's situation. MO does not and could not claim that any benefit will come from Nancy being kept alive. Her "aliveness" is essentially an abstraction, she is not alive and can never return to life in the way life is valued. Her self-determination must take precedence

Summers v Baptist Medical Center Arkadelphia

Facts: -Summers taken to hospital after falling out of tree -Claims he had chest pain & heard popping noise when he breathed. Dr. conceded this but says he did not complain of pain in front part of his chest. Only did x-rays on spine. Found an old break, sent Summers home -2 days later, Summers taken to a medical center. CT revealed vertebral break, broken rib, broken sternum -Claims that if chest x-ray would have been done, could have saved 2 days of pain/anxiety -Plaintiff claims that Baptist failed to provide an appropriate medical screening exam, as required under EMTALA (negligent exam not an appropriate one) -Pt claims he was treated differently, b/c the hospital has admitted that any pt who complains of chest pain would receive a chest x-ray and he claims to have complained of chest pain Procedural history: -Fed. District Court (8th circuit) granted Baptist's motion for summary judgment, dismissed the complaint -Summers appealed, a panel of the Court reversed and remanded for trial, one judge dissenting -Baptist's suggestion for rehearing en banc granted -Plaintiff loses, Court upholds that something more than, or different from, ordinary negligence in the ER screening process must be shown to make a federal claim under EMTALA Legal issue/question: -Does performing an inadequate or negligent screening process put a provider in violation of EMTALA? Holding: -No Reasoning: -The purpose of EMTALA was to address a narrow problem, the "dumping" of pts by hospitals who didn't want to treat them. It is obvious that Baptist's motivation in this case was not to dump an uninsured or indigent person. This fact defeats the plaintiff's case -Pt claims he was treated differently, b/c the hospital has admitted that any pt who complains of chest pain would receive a chest x-ray and he claims to have complained of chest pain. Court does not accept this b/c this is really just a claim of negligence. To construe EMTALA this expansively would be inconsistent w/ its goals/principles -Appropriate medical screening does not mean accurate diagnosis -Lack of uniform treatment would be required to violate EMTALA -It is up to the hospital to determine what its screening procedures will be. Having done so, it must apply them alike to all pts Notes: -Congress could set EMTALA b/c hospitals participating in Medicare receive govt funding (spending power). Medicare chosen over other federal health programs (ie Medicaid) b/c more hospitals participate in Medicare (the reimbursement rates have traditionally been higher). Gives EMTALA the widest reach -Congress has powers over spending, taxing, and regulating interstate commerce -Two basic responsibilities under EMTALA (known as the screen & stabilize statute): Have to give the person an appropriate medical screening and stabilize the pt if an emergent condition is uncovered. If an emergent condition is not found, the pt can be dumped -Distinction b/w EMTALA and negligence law. EMTALA is an access law, negligence law is related to quality -Would have to show that the pt received different treatment from other pts with the same condition -Must screen & treat the life-threatening conditions that the physician perceives. Summers is not considered to have been treated differently b/c the physician did not perceive that he required a chest x-ray

Canterbury v. Spence

Facts: -Canterbury sought care for back pain, underwent surgery performed by Dr. Spence -Mother signed consent, told no more risk than any other surgery -Fell after surgery, couldn't move legs. Still required crutches & penile clamp for incontinence & had paralysis of the bowels -Canterbury sued Spence for negligence Washington Hospital Center for negligent post-op care in leaving him unattended & failing to maintain a side rail on his bed Procedural history: -District Court ruled that he could not prove negligence or that his paralysis was caused by Spence, Canterbury appealed -US DC Court of Appeals reversed, remanded to the District Court Legal issue/question: -does the physician-pt relationship require that physicians disclose possible risks of treatment? Holding: -Yes, in so far as the risk could affect the pt's care decision -measured by what a reasonable physicians would do in the same/similar circumstance -four things that must be disclosed for a pt to provide informed consent: 1. all potential risks/hazards 2. alternatives 3. what happens if you do nothing 4. conflicts of interest (this one came from a later case) -Exceptions for needing informed consent: pt is unconscious or unable to provide consent (minor, not of sound mind, etc). If risk disclosure would pose such a threat that it would prevent a pt from receiving needed care (exception to the rule. An ex would be if treating a pt for psychosis. May not disclose what you're doing b/c the psychosis might cause the pt to not follow treatment, even though in their best interest) -Based on canterbury & his mother's testimony, Dr. Spence violated physician's duty to disclose. But breach has to result in harm to prove negligence. Can't prove he caused the harm) -Jury should be allowed to decide whether negligence was causally related to the paralysis -Full disclosure not necessary: impossible to cover & most pts don't feel the need -Pt's right to self-decision shapes the boundaries of the duty to reveal, so all risks that could affect pt's decision must be unmasked -Canterbury was over the statute of limitations for claims of battery, w/in the statute for negligence -Decided that the case deserves to be heard by a jury. For the jury to weigh in on whether the injury can be causally linked to Dr. Spence's negligence, whether Spence met his obligation to reasonably disclose risks, and whether the hospital is liable for Canterbury's fall

EMTALA

Only universal legal right to health in the US, right to emergency services

no govt obligation to provide services- in this case medical services- to the poor

Webster v. Reproductive Health Services

Standards of care

What the law considers appropriate care

certiorari

a writ or order by which a higher court reviews a decision of a lower court. Must apply to be heard, no right to appeal at this level

Substantive due process

govt must provide sound reasons for invading personal freedoms

3 elements of a contract

offer, acceptance, consideration

Public accommodations

privately-owned spaces that are open to the public (restaurants, offices, universities, etc)

Due process

protects individuals from arbitrary & unfair treatment @ the hands of the govt. 5th & 14th amendments

Public services

spaces owned by the govt (parks, govt buildings, etc)

stare decisis

the legal principle that prior case decisions should be given great deference & not overturned frequently "let the decision stand)

Negligent standard

to act as a reasonable person would in a given situation