Health Care Law and Ethics in a Nutshell
Authors:
Hall, Mark A. / Orentlicher, David
Edition:
4th
Copyright Date:
2020
21 chapters
have results for health care law and ethics in a nutshell
Preface 4 results
- Scholars debate whether health care law is a coherent intellectual field. Some call it a “chaotic, dysfunctional patchwork” of doctrine, whereas others believe the field coheres around the essential features of medicine and how they systematically shape and change generic law. Despite this unresolved debate, there is a good deal of consistency about the content of health care law courses taught not only in law schools, but also schools of medicine, public health, and health care administration. Typically, these courses divide into three or four distinct subject areas. Historically, “law and medicine” courses were dominated by the subject of medical malpractice and public health law. These subjects remain important, and are the topic of other books in the Nutshell series. But they no longer are the dominant focus of the field. Modern health care law courses also include two areas that developed rapidly and extensively over the past generation (or two): the corporate, regulatory, and...
- Part I of this book contains foundational chapters that are relevant to any course in health care law. It capsules the legal and policy issues of health care funding, access, and reform, and it explores the legal structure and content of the doctor-patient relationship. The dramatic growth of health care spending and efforts to contain spending lead to both innovations and tensions in the business of health care. Part II addresses the legal issues that result from these structural and economic forces. Part III moves from these “macro” issues to the ethical dilemmas that arise in individual patient decisions, and covers most of the topics addressed by law school courses in bioethics.
- Most schools teach the financial and structural issues of health care delivery in a separate course from the bioethical puzzles, often through different instructors. Other instructors are more generalists who combine elements of both these areas with the traditional medical malpractice topics into a successful overview course. To maximize our respective talents, we have divided primary authorship responsibilities along these same lines (Hall—Chapters 1–5; Orentlicher—Chapters 6–8). Also, we owe a large intellectual debt to our colleague, Ira Mark Ellman, who had primarily responsibility for the bioethics chapters in prior editions. Working together on this book has persuaded us, however, that this tripartite field of law has many common themes that can and should be integrated into a more coherent whole. To that end this book is a small step.
- Mark A. Hall
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- These are exciting but challenging times in which to study health care law. Traditionally, the exclusive focus of health care policy was on advancing the state of medical science. Over the past generation, however, two new concerns have begun to dominate the health care policy agenda: the cost of and access to medical treatment. Limiting incessant inflation in health care spending for the bulk of the population covered by insurance and finding ways to afford health care coverage for the medically indigent are issues of paramount importance in the decisionmaking of law makers, medical practitioners, and health care institutions. These issues were brought to a head a decade ago in Congress’ enactment of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act or ACA). Over that decade, the ACA survived repeated challenges both in Congress and in the courts, yet pressing issues of medical costs and access remain acute in health care public policy, law, and ethics.
- So that the reader may acquire a deeper understanding of these new legal challenges, Chapter 1 explores the policy and economic environment that shape the agenda for contemporary health care law and ethics. Chapter 2 then looks at the areas of legal doctrine that directly affect a patient’s right to receive health care, and the structure and content of the doctor-patient relationship.
- The fundamental reorientation in perspective caused by the shift in focus from advances to restraints demands a thorough rethinking of traditional legal doctrine from the ground up. Legal precedents rooted in the expansionist medical care system of the post-war era sometimes no longer make sense in an era when the controlling public policy is to limit or allocate governmental and private health care spending. For example, perhaps malpractice law should take account of the economic costs as well as the medical risks of treatment decisions. Or perhaps antitrust, tax and corporate law should be take more account of health policy concerns in determining how medical institutions are structured and operated. In the field of bioethics, perhaps the law still has not found the right balance among patient autonomy, professional prerogative, and institutional integrity.
- THE FUNDAMENTALS OF HEALTH CARE DELIVERY AND FINANCE
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Chapter 2 The Treatment Relationship 135 results (showing 5 best matches)
- Any treatment of health care law faces the daunting task of deciding which topics to present and in what order. Health care law, as it has developed over the past four decades, has become an unwieldy collection of disparate areas of doctrine and public policy. Accordingly, some lawyers and scholars maintain there is no unifying structure or core set of ideas that qualifies this as a coherent and integrated body of legal thought and professional practice, other than the happenstance that each topic involves doctors, hospitals, or health insurance in some way. We agree this field has not yet jelled in the way that classic first-year subjects have, but we nevertheless see interlaced throughout these disparate topics several organizing principles or themes that potentially explain not only what makes these disparate parts cohere, but also why that coherence distinguishes health care law from other bodies of law.
- One of these of organizing themes, and perhaps the most prominent, is the set of attributes that make the medical enterprise uniquely important or difficult in the legal domain. Health care law is about the delivery of an extremely important, very expensive, and highly specialized professional service. If anything distinguishes health care law, it must be the unique aspects of the treatment encounter viewed from both sides of the doctor-patient relationship. Health care law in each of its branches must take account of the phenomenology of what it is to be ill, to seek treatment, and to be a healer. These human realities are permanent features that distinguish this field from all other commercial and social arenas and alter how generic legal doctrine and conventional economic and political theories respond to its issues and problems.
- So basic is the expectation of confidentiality in medical treatment that patients and health care providers alike generally assume it will be honored, without ever specifically discussing it (though clinical psychologists routinely announce at the outset of therapy that certain information may require its breach). Confidentiality is a foundational principle of medical ethics, recognized in both the Hippocratic Oath (“Whatsoever I shall see or hear in the course of my profession . . . if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets”) and the AMA Principles of Medical Ethics (“A physician shall . . . safeguard patient confidences within the constraints of the law”).
- Two closely related laws, both of which apply to a wide range of activities beyond health care, are of rapidly growing importance in this field: Section 504 of the Rehabilitation Act of 1973 (and the Americans with Disabilities Act of 1990 ( ). HIV/AIDS first drew attention to the application of disability law to health care and HIV cases continue to arise and receive coverage, but the application of disability discrimination law to health care is considerably broader.
- These pragmatic accommodations have created a degree of uncertainty in abandonment law. Because this body of law is based on an implied contractual undertaking and on notions of fiduciary responsibility, its precise limits are not firmly set. Consequently, the case law in different states offers conflicting indications of whether simple notice of treatment termination is sufficient, or whether instead the law requires health care providers to arrange for a substitute source of care.
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Chapter 3 Hospital Structure and Regulation 103 results (showing 5 best matches)
- A more specialized regulatory regime that exists in most states requires hospitals and other health care institutions to obtain a certificate of need (“CON”) from a government agency before constructing new facilities, purchasing major medical equipment, or instituting new health services. CON laws arose from the National Health Care Planning and Development Act of 1974, which required states to adopt CON regulation in order to receive certain federal health care funding. In 1987, though, Congress became disenchanted with the CON regulatory approach (for reasons explained below) and repealed the federal mandate, leaving states free to depart from the federal model. Consequently, a number of states have scrapped their CON laws entirely and a number of others have substantially loosened their regulatory reigns. Still, CON has a significant presence in the majority of states and is expected to remain as a permanent fixture in the health care regulatory apparatus for some time to come.
- The prototypical health care institution is the general, acute care, medical-surgical hospital. Hospitals come in many shapes and sizes. Most are private and non-profit, although many are run by government entities or owned by investors. Some are quite small, with 50 beds or less; others are 1000-bed behemoths. Community hospitals offer more basic services such as routine child birth and simple operations while major medical centers and teaching hospitals strive to have the most comprehensive and state-of-the-art programs and technology available. Other hospitals specialize in only a limited range of medicine, such as mental health or cancer. Nevertheless, hospitals of all types share important common features. There are also common features among all medical institutions. Although we seldom mention nursing homes, home health agencies, diagnostic clinics, and ambulatory surgery facilities in this book, often times when we refer to hospitals we could equally well include these other...
- CON laws are designed to curb these excesses by requiring hospitals and other health care facilities (such as nursing homes, ambulatory surgery clinics, and home health agencies) to demonstrate a need for new projects that involve a substantial expenditure. The exact expenditure thresholds and project descriptions vary widely from state to state, but generally speaking the amounts involved must be $1 million or higher.
- For these and other reasons, several studies have demonstrated that CON regulation has virtually no effect on health care investment or expenditures. This failure is due primarily to several shortcomings in the design and implementation of CON laws. Even as designed, CON laws are very limited in scope. First, they address only the major capital of health care; hospitals are still free to whatever they want, and they are free to release their spending pressures in other directions such as salaries and other operating costs. Second, “need” for new facilities is usually measured in terms of current— inflated—treatment patterns. Therefore, CON laws at best remove only the outer layer of fat, that is, the existing excess capacity; they are inherently incapable of reversing the built-in inflationary base of treatment intensity caused by the “Roemer cycles” of past decades. Moreover, CON laws are constitutionally incapable of eliminating increases in service intensity. With “need” as the
- This chapter explores the basic legal environment in which traditional hospitals and other health care facilities are organized and operated. It addresses the bodies of law that are most familiar to health care lawyers, and for the most part it regards these facilities in their simplest structure. Although this chapter considers the obvious extensions of this basic legal doctrine to HMOs and other more complex ventures, most of the cutting-edge legal developments that respond to these innovative structures are taken up in the subsequent chapters.
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Chapter 7 End-of-Life Medical Decisions 251 results (showing 5 best matches)
- For more discussion, see Hall, Orentlicher, Bobinski, et al., Health Care Law and Ethics (9th ed. 2018) and Meisel and Cerminara, The Right to Die (3rd ed. 2010).
- As we saw in Chapter 2, patients possess the basic right of informed consent: Physicians and other health professionals may not provide care to a patient without first informing the patient about the care and its alternatives and obtaining the patient’s voluntary and competent consent to the treatment. If the patient must consent to treatment, it follows that the patient also has a right to withhold consent and refuse the treatment.
- States have begun to recognize a right to palliative care in their legislatures and courts. Florida, California, New York, and other states have passed statutes requiring physicians to advise terminally ill patients of their options for end-of-life care, including hospice care, and treatment to relieve pain and other symptoms. In addition to these statutory rights, patients may be able to recover damages from doctors and other health care providers for the failure to provide adequate pain relief.
- Many states provide exemptions in their child abuse and neglect laws for parents who refuse medical treatment on religious grounds. In some of these states, the exemptions excuse parents from liability when their children suffer from the denial of care, though generally not when the child’s life is endangered. In addition, the exemptions typically apply to child and abuse laws but not so often to other laws under which parents may be held accountable, such as involuntary manslaughter statutes. And of course, the exemptions speak to the ability of the state to punish parents. Even if a court cannot sanction the parents, it still may order that treatment be provided to the child. Indeed, the federal regulation that led to the adoption of the religious exemptions explicitly drew a line between holding parents liable and ensuring access to care for children. The regulation, which no longer is in effect, ...the exemptions “shall not preclude a court from ordering that medical... ...health...
- Despite years of ethicists and courts rejecting the distinction between withholding and withdrawing, health care providers may feel very differently about the two acts. Some physicians believe it is less acceptable to withdraw care than to withhold it. These feelings are not surprising. It is hard not to feel responsible for a patient’s death when you turn off a ventilator and the patient dies within minutes. Accordingly, while patients have a right to refuse treatment, health care providers generally can decline to participate in the withdrawal of care and arrange for other providers who are comfortable with the withdrawal to carry out the patient’s wishes.
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Chapter 1 Health Insurance Coverage and Regulatory Reform 151 results (showing 5 best matches)
- The vertical scale is the dollar value of health care (either its benefits or its costs). The horizontal scale represents abstract units of health care (days in hospital, doctor visits, drugs, x-rays, etc.). The “Benefits” curve shows the increment in societal health benefits that result from changes in the quantity of health care provided. Thus, at point A, when little health care is being provided, health care is very productive: there is a large return on each additional resource devoted to medical treatment. At some place down the line, though, we reach a point (B) of diminishing returns where additional health care expenditures rapidly become much less productive. As the line crosses the horizontal axis (point C), we reach the area of totally unproductive care, and below the axis is counterproductive treatment that produces a net medical harm (D).
- These increases in spending might be celebrated as a great American success story if we believed they produced commensurable benefits. After all, nothing is more treasured than our health; why shouldn’t we spend as much as possible to enhance it? There are three responses to this observation. First, all spending is inherently a trade-off because we can always spend on something else instead. While our health is surely an important priority, it simply is not true that people always treat health as more important than competing values. We see this every day, not only when we smoke, drink, or eat excessively, but also when we drive to work or we read a book rather than exercise. Second, even if we focus on our health as the overriding value, we must realize that there are other ways to promote health than through medical care. In the words of one prominent health policy analyst, “once a reasonable minimum level of care is provided, factors other than medical care—diet, lifestyle,...health
- control cost in such a system. One of the main answers is deductibles and coinsurance. Make the patient pay the first $200 of each year’s medical bills and 25 percent of the cost above that, and he will be cost-conscious and go to the doctor only when necessary. . . . This principle has been applied in most health insurance in the United States.” A. Enthoven, Health Plan 32–33 (1980). This cost-sharing principle has not worked well, even when used, because most people base medical decisions on what their doctors recommend, and they lack the knowledge and expertise to competently evaluate their doctors’ treatment recommendations. It is a perverse market that places purchasing decisions in the hands of sellers rather than buyers, but this phenomenon of “supplier-induced demand” is what characterizes the traditional market for health care services. Thus, as a generalization, it is probably more accurate to view the health care system as driven by the decisions of physicians than by...
- Our starting premise is that any successful reform effort must in some measure ration health care resources, that is, set limits on spending that deny some beneficial care, and in so doing allocate the limited resources among competing treatment needs. “Rationing” is a scare term used by those who oppose government involvement in health care. Therefore, law often prohibits government programs from openly or explicitly rationing care, pretending as if resources are limitless. But we know they are not, plus denying that they are simply leads to covert rationing. “Rationing” may seem an excessively harsh term for this inevitable reality, since allocation is inherent in society’s use of resource (given that all resources are limited to some degree), but explicitness is necessary here in order to shake us from the romanticism that sometimes clouds the reality that even life-saving resources are not available in endless quantities. This is a disturbing reality because Americans have come...
- Second, many people have a fundamental philosophical opposition to pursuing a market-oriented mentality in health care. These critics maintain that such a mentality tends toward excessive commercialization and routinization of what should be a caring, individualized service. They view the hard-edged market as incompatible with the “soft,” intangible values that we treasure in the healing arts, and they maintain that competition is incompatible with health care “as a caring rather than purely a curative activity, the goal of which is to reduce pain and anxiety and increase the patient’s sense of self-determination and quality of life.”
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- The pressures of the cost, coverage and reform described in Chapter 1 are pushing the health care industry to develop organizational forms and relationships that do not fit easily into preexisting legal categories. As a consequence, health care corporate and regulatory law remains a flourishing practice area that requires sophistication in subjects as diverse as antitrust, tax, licensure, and insurance regulation. The materials in the second part of this book examine these and other private and public law doctrine that have the greatest relevance to the unique legal problems presented by the structure and functioning of the contemporary health care delivery system.
- HEALTH CARE DELIVERY
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Title Page 5 results
Chapter 4 Antitrust Law and Health Care 72 results (showing 5 best matches)
- This chapter explores four branches of health care antitrust law; group boycott challenges to a hospital’s or HMO’s exclusion of physicians from the medical staff; the price-fixing ramifications of health insurance and provider networks; vertical restraints and monopolization charges against HMOs; and merger doctrine as applied to various health care ventures.
- Each of these contested issues reveals that courts are taking an active role in setting antitrust policy for the health care industry. By doing so, courts for a time were much less deferential to the FTC and DOJ than they typically are in antitrust matters. During the 1990s and 2000s, there were repeated expressions of judicial annoyance at treating health care just like any other industry, and insistence that the enforcement agencies recognize the unique attributes of health insurance and medical care rather than rely on general economic theories. More recently, however, courts have started to recognize the competitive harms that may be resulting from consolidation in the health care industry.
- The cloudy law on this question might appear to place hospitals and doctors in an intolerable dilemma: tort law forces them to review the competence of medical staff members, but antitrust law’s opaqueness regarding non-economic justifications for physician exclusions appears to make quality-of-care defenses legally risky. This appearance is misleading, however. It is patently wrong to conceive of economic motives and quality of care as mutually opposed considerations in hospital staffing decisions. Indeed, from the hospital’s perspective, the two are
- The federal antitrust laws have prompted one of the most burgeoning areas of health care litigation in modern times. Prior to 1980, antitrust challenges to the health care industry were almost unheard of. It was thought that the antitrust laws did not apply to the learned professions and that health care is an inherently local activity not subject to federal jurisdiction. The Supreme Court exploded both of these myths in the mid-1970s. In , a case concerning the legal profession, the Court held that “the nature of an occupation, standing alone, does not provide sanctuary from the Sherman Act.” A year later, the Court reinstated an antitrust suit against a hospital, ruling that its operations have a substantial impact on interstate commerce by virtue of the purchase of equipment and supplies and the receipt of insurance reimbursement from out of state.
- firms at the same level within the marketplace) concerning the price or quality of their products, usually, an agreement not to undercut each others’ price. The per se illegality of price fixing presents a danger in the establishment of various innovative forms of health insurance. The clearest example comes from preferred provider organizations (PPOs), but this analysis applies to other types of provider networks that enter into managed care arrangements. PPOs are groups of health care providers that agree to sell their services at a discount in exchange for receiving a large supply of business, say, all the employees covered by a large group insurance policy. PPOs are sometimes initiated by insurance companies or employers, who contact health care providers individually and negotiate discounts one by one. Such “consumer-based” PPOs raise no price fixing concern because the consumer group establishes a separate bilateral contract with each provider. More typically, though, PPOs...and
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A Glossary of Terms and Acronyms 18 results (showing 5 best matches)
- HMO: Health Maintenance Organization—A health care organization that combines insurance and treatment functions in the same entity by providing all needed care for a lump sum annual payment.
- The literature of health care law, and especially health care financing, is filled with acronyms and specialized terminology. We have avoided these where possible, but they are sometimes necessary, for many concepts and agencies are better known by their acronym or specialized phrase than by their full name. To ease the burden on the reader new to the subject, the following list gathers the major acronyms and terms of art used in this book primarily in the first five chapters:
- ERISA: Employee Retirement Income Security Act of 1974—A federal statute that primarily regulates private pension plans, but also encompasses other employee benefits such as health insurance. It has tremendous importance for the regulation of health care delivery because of a sweeping provision that preempts many traditional sources of state law.
- Managed Care: Any system of health service payment or delivery arrangements in which the health plan or provider attempts to control or coordinate health service use to contain health expenditures, improve quality, or both. Arrangements often involve a defined delivery system of providers having some form of contractual relationship with the plan.
- Managed Competition: A system for choosing and paying for health insurance in which subscribers have a choice among a variety of different plans, but they must pay the most or all of the difference in price between the plan they choose and the least expensive one. Insurers in turn are required to accept all applicants and to not charge sick people more. In theory, this will force insurers to compete by managing the cost of care rather than on their ability to select only the best risks.
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Chapter 5 Complex Transactions and Organizational Forms 86 results (showing 5 best matches)
- of insurance” discussed above and it limits the extent of state regulation of health insurance to a significant extent. However, it cannot be overly stressed that ERISA preemption permeates the landscape of health care law and public policy. It has major impact in at least three distinct places: (1) malpractice actions against health insurers; (2) contract claims for the denial of payment under health insurance; and (3) state regulation of how health insurance is structured and sold. The focus here is primarily on the third component, but this section also provides an overview that is useful for the other two topics. Moreover, it cannot be overemphasized that ERISA preemption is capable of cropping up almost anywhere in health law. For instance, each of the following are potentially preempted: physicians’ contract actions against managed care plans that drop them from their networks; taxation of firms that assist self-insured employers in administering their health benefits; and state
- Under these rulings hospitals no longer have to provide any specific amount of health care free of charge to the poor in order to qualify under . This result is not entirely unprecedented. To be considered “charitable” under the tax code an organization need not necessarily be a charity in the everyday sense of assisting the poor. Many educational and scientific organizations exempt from tax and supported by tax deductible contributions provide no or few services to the poor; serving the poor has never been the only activity accepted as “charitable” under either the tax code or the traditional law of charitable trusts. The IRS consulted precedents from the law of charitable trusts to determine that advancing health provides a separate and sufficient basis for favorable tax treatment, apart from charity care. In essence, hospital care is treated like education—as being a
- Hospitals are not the only health care institutions concerned with tax exempt status. Nonprofit health maintenance organizations (HMOs), outpatient clinics, and pharmacies have also sought to maintain exempt status. When confronted with these nonhospital health care services, federal and state tax policy tends to take a distinctly less welcoming attitude.
- The sharp dichotomy between exemption for hospitals and exemption for other health care services reflects the reality that neither state nor federal taxing authorities actually accept the proposition that health care is a per se charitable purpose, just as they would be unlikely to exempt a nonprofit bookstore despite the per se exemption for “education” that is explicit in the statute. Instead, these authorities are searching for an alternative exemption rationale to differentiate between those health care services that deserve a tax subsidy and those that do not. Although the basis of individual rulings may (or may not) be fairly clear, the overarching theory of charitable exemption remains elusive.
- The tax consequences of hospital diversification are especially important in the modern business climate. The rampant excess hospital capacity and shrinking patient service revenues have caused hospitals to venture into all sorts of new enterprises. Some are directly related to health care, such as nursing homes and home health services. Others are far afield, such as athletic clubs, real estate development, and day care centers. Sophisticated hospital counsel, in deciding how to structure these ventures, must not only consider the tax problems surveyed here but also the potentially countervailing effects of government reimbursement regulations and certificate of need requirements. Tax law might prompt a hospital to internalize a new venture in order to claim it as related business income, but doing so might necessitate a certificate of need or might adversely affect reimbursement under Medicare, Medicaid, or state rate regulatory programs (topics addressed elsewhere in this book).
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Chapter 8 Selected Issues in Reproductive Medicine 163 results (showing 5 best matches)
- That said, there will be ways to promote the future child’s health that would entail a more onerous burden than that which the law would require of a woman with regard to her born children. In those cases we might reject a duty of care for the pregnant woman even if we believe that she owes some duty of care to her fetus for lesser burdens.
- Of course, the lack of a duty to aid is qualified in special relationships, such as the parent-child relationship. People do assume duties of care to their children. But even then, legal duties stop short of aid that would impose a risk to the parent’s health. So, for example, while parents must provide food and shelter to their children, they do not violate the law if they refuse to donate a kidney or stem cells from bone marrow or blood to save their child’s life. Carrying a pregnancy poses risks to the woman’s health and therefore goes beyond the level of duty that the law imposes on parents.
- Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.
- Feminists have been of two minds. Some believe that allowing surrogate motherhood is consistent with ensuring all women full individual freedom of choice in making use of their own reproductive 16 L. Med. & Health Care 78 (1988) (surrogacy is a “predictable outgrowth of the feminist movement”). Others worry about the commodification of women’s reproductive capacities. E. Anderson,
- As indicated, three principles tend to drive the cases in this area: (1) pregnant women, like other persons have a right to refuse unwanted medical treatment, (2) if pregnant women choose to carry their fetuses to term, they have some obligation to ensure good health for their children, and (3) one person’s health should not be sacrificed for the benefit of another person’s health. In reconciling these principles, courts generally will not impose treatment on a pregnant woman unless it provides health benefits for her as well as for her fetus, and some courts will not impose treatment even when it provides a health benefit to the pregnant woman.
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Chapter 6 Defining Death and Transplanting Organs 59 results (showing 5 best matches)
- Can organs not essential to a competent person’s life ever be taken against the person’s wishes? In the limited circumstances in which the question has arisen, the law has consistently prohibited such a step, even where the tissue is renewable and the procedure may be lifesaving. E.g., (discussed in Chapter 8.D.1). It is not permissible to risk one person’s health even to save another person’s life. Thus, for example, as discussed in Chapter 8, the government must permit abortion after fetal viability when necessary to protect the health of the pregnant woman. For an interesting argument defending the ethics of a law that would both compel everyone to be potential donors of renewable and non-essential tissues, and assure universal to such tissues by all donees in need, see
- Laws and public policies that seek to procure more transplantable organs must balance the interests of donors, recipients, and the public health. In doing so, they confront a number of important and recurring dilemmas, including the proper role of financial incentives in motivating donations, the definition of death, the proper role of consent, and obligations to donate organs.
- the likelihood of a successful transplant, including the expected length of the benefit (which in turn may depend, in part, on the recipient’s age and general health status);
- Legally, many different things may turn upon a determination of death: whether a homicide has been committed; when organs can be harvested for transplantation; when burial, cremation, or autopsy can occur; the sequence in which wills should be probated; when a spouse can remarry; whether people have standing to bring a lawsuit in their own right. In theory, one might look to varying criteria for the definition of death, depending on the legal purpose for which the inquiry is made, for example, to determine whether to remove a heart versus whether a homicide has been committed. The law, however, has ordinarily accepted the medical diagnosis as dispositive for all purposes. In the 1970s, a change in the medical view of death was widely and rather quickly adopted by the law. This has prompted an ongoing debate over the proper standard and its implications.
- The legal prohibition against selling, during life, a vital organ whose removal is survivable (e.g., single kidney), against contracting for the sale of a heart, lungs, liver, or both kidneys upon death, is justified on several theories. Supporters of the ban argue that a market approach would “commodify” the body in objectionable ways, undermine altruism, and (in the context of organ removal during life) encourage needy persons to take inappropriate risks for pay. Advocates of a free market approach argue in response that the current system inhibits needed expansion in the supply of organs, and that it is unjust to donors since recipients, physicians, and others all derive concrete benefits from the donors’ largesse, yet donors remain uncompensated in material terms. Some proposals would provide payment to family members of people who agree while alive to organ donation after their deaths, to avoid the concern of people putting their health at risk for money.
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- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- In Part III we shift our focus to issues that arise in individual patient care decisions. This Part addresses certain recurring ethical dilemmas that confront physicians and hospital administrators. We begin in Chapter 6 by looking at the problem of defining death, which is related to how organs are harvested and distributed for transplantation since the dead are a critical source of organ donations. A clear grasp of the definition of death is also important to understanding issues that arise in the termination of life-sustaining treatment, which is the subject of Chapter 7. Chapter 8 then shifts our attention to the beginning of life, examining the ethical dilemmas arising in two selected areas of reproductive medicine: advanced reproductive technologies, and maternal-fetal conflict. While Part III provides a comprehensive overview of the relevant law, it often goes beyond the law to survey the philosophical and policy debates that permeate these questions.
- ETHICAL ISSUES IN PATIENTCARE DECISIONS
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- Dean and Joseph L. Rauh, Jr. Chair of Public Interest LawUniversity of the District of Columbia David A. Clarke School of Law
- Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law
- Hostetler Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Professor of Law and Dean Emeritus
- Robert A. Sullivan Professor of Law Emeritus
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- Publication Date: February 24th, 2020
- ISBN: 9781684676422
- Subject: Health Law
- Series: Nutshells
- Type: Overviews
- Description: Public policy responses to escalating medical costs and constrained access pose fundamental challenges to health care law. Profound medical advances also generate many ethical dilemmas. This authoritative discussion considers how law and ethics respond to these driving social, economic, and political forces of innovation, crisis and reform. Topics include health insurance reform, health care finance and delivery structures, treatment relationships, facility and insurance regulation, corporate and tax law, refusal of life support, organ donation, and reproductive technologies.