Medical Care Law

Preface

Medical Care Law is written for health care practitioners, executive personnel who oversee patient care, and attorneys who work with health care clients and need guidance in areas outside their expertise. The authors are a unique team of a practicing physician with extensive experience in medical administration and a law professor with a background in medical education and law practice. The result is a book written in plain language that addresses the theoretical and practical legal issues facing health care practitioners.

The book discusses both legal theory and practical strategies for recognizing and avoiding legal problems. While Medical Care Law discusses the traditional medical legal problems such as malpractice litigation, it stresses the changes in the legal and medical landscapes that pose new risks to health care practitioners. The most important medical change is the shift from health care practitioners working for small, physician-controlled businesses or hospitals to practitioners working for large corporations, either as direct employees or as contractors who are tightly tied to the corporations. The major legal change is the shift in the primary legal concern from medical malpractice to a broad range of legal issues, including antidiscrimination laws and federal administrative and criminal law. Many health care providers, administrators, and even their lawyers have been prosecuted for health care–related crimes. More than a billion dollars in fines have been paid, health care businesses have been closed, and several physicians and health care administrators have gone to jail.

The primary goals of Medical Care Law are to improve health care practitioners’ peace of mind about the law and to encourage better medical-legal decision making. Many people involved in health care, including some attorneys, have begun to see the law as a random force that punishes without reason. This fosters anxiety and leads to practices that increase legal risks, rather than decreasing them. Most troubling, this anxiety can poison the relationship between health care practitioners and their patients, thereby impairing the quality of care. The authors believe that a better knowledge of the law will make health care practitioners more comfortable with their legal duties and help them avoid legal problems, while better serving patients. Even in areas where the law is not always fair, understanding the process can make a stressful experience more bearable.

Medical Care Law is extensively indexed and cross-referenced to allow it to be used as a reference. However, the book will be most valuable when it is read as a whole, starting at the beginning. Many concepts that are introduced in the early chapters on the law are developed in more detail later for specific practice areas. Most important, reading the entire book will give health care practitioners a comprehensive picture of the law and of how it is applied by lawyers and the courts. This is important because lawyering and the legal process are very different from providing medical care and working with health care institutions. Many conflicts and misunderstandings between health care practitioners and lawyers are due to these different ways of approaching problems. Medical Care Law explains the basis for these differences and illustrates them with examples drawn from real situations.

Medical Care Law is not a self-help legal guide or a substitute for an attorney’s advice when health care practitioners face specific legal problems. However, health care practitioners must learn basic legal principles themselves. They cannot rely exclusively on attorneys to guide them, in the same way that it is now recognized that patients must learn about their own medical conditions and take personal responsibility for decisions about their health. This has been emphasized in recent criminal prosecutions where defendants have been convicted despite the defense that they were following an attorney’s advice. The final responsibility for complying with these laws always rests with the health care practitioner. The book’s objective is to help health care practitioners develop legal common sense and the ability to understand when they can safely act on their own knowledge and when they must get expert help. The basic lesson of Medical Care Law is that it is better to get help before you are in legal trouble. While this has always been true, it takes on special significance now that trouble means more than being a defendant in a medical malpractice lawsuit and includes possible criminal prosecution and imprisonment.

No work of manageable length can claim to be comprehensive on a subject as broad as medical law. Medical Care Law provides a general introduction to the subject and extensive annotations and bibliographies for readers who want to explore given areas in more depth. Since Medical Care Law is an interdisciplinary work, these references include both medical and legal sources, including health care practice materials. Medical Care Law does not provide guidance on specific state law issues. While much of the law that governs health care is federal, and thus applies uniformly in all states, there are significant variations between states on matters such as the standards for negligence, materials protected from discovery in court proceedings, and laws on the delegation and scope of medical practice. In some areas, such as drug laws, states differ so much that behavior that is encouraged in one state may be illegal in another. Medical Care Law identifies many situations where health care practitioners must seek specific state law advice.