Health Law 2010: It's Not All about the Money
Jacobson, Peter D., Mathur, Soniya Keskar, American Journal of Law & Medicine
It would be naïve to argue that money isn't the driving force motivating health care delivery in 2010. At nearly 17% of GDP, health care delivery is a large and growing industrial enterprise that is the largest employer in many communities. Save for free clinics, generating revenue is fundamental to every aspect of the delivery system. From insurance reimbursement rates to the cost of purchasing the latest technology, the surest explanation for understanding changes in the health care system and concomitant development of legal doctrine is, indeed, to "follow the money."
Determining who controls the money flows usually explains who the dominant players are, and how they are able to organize and change the delivery system. Unquestionably, the most straightforward way to understand how the system functions, where its vulnerabilities lie, and why it is so difficult to institute significant reforms is to identify who controls the money.
On-going debates regarding the provision and financing of health care in the United States evidence the growing importance of health law to patients, physicians, health care administrators, and other stakeholders. Financial considerations, such as medical malpractice and reimbursement rates, continue to dominate health law. Yet there are important aspects of health care where money does not dominate, or is subordinate to other social goals. In fact the future development of health law doctrine depends on integrating the fundamental non-financial issues inherent in the health care enterprise that are too often overlooked given the intense competitive pressures in the industry.
In this paper, we offer a contrarian (and somewhat aspirational) analysis that focuses attention on important areas in health care delivery and health law that do not depend on how the money flows through the system. Increasingly, the emphasis on money obscures some fundamental values of the health care mission that remain essential if the industry is to meet its basic obligations to patients and other stakeholders. Given that the provision of high quality patient care is the core mission of most health care providers, it is astonishing that the overwhelming majority of discourse in the field of health law is dominated by monetary concerns rather than quality of patient care matters.
Thus, the purpose of this paper is to discuss some health law doctrinal issues that are not necessarily dependent on the financial aspects of health care delivery. After a brief discussion of competing values in health care, we will consider the role of developing fiduciary duty legal doctrine as a mechanism to advance the health care mission. Second, we will examine a range of conflicts of interest that do not involve financial conflicts, but are equally important for understanding the social context of health care delivery. Third, we will examine the importance of regulatory reform as an aspect of improving health care delivery. Finally, we will discuss the importance of health law to health care delivery.
II. COMPETING VALUES
While it is popular in health care management programs (including our program) to use the phrase "no margin, no mission" to indicate the need to generate revenue, it does not mean that mission can or should be ignored. True, those of us in academic settings can all too easily extol the health care mission as a nobler calling than the gritty compromises necessary to raise revenue and sustain a complex enterprise- witness the economic struggles of many public, inner city, and rural hospitals. Administrators, especially in the current economic environment, must be cognizant of the financial bottom line.
At the core of the competing values animating health care delivery is whether health care is different from any other market commodity. If it is no different, then basic market rules and attendant legal principles should apply. But if health care is more akin to a public good, then a different set of moral values must be considered. …