AMERICAN HEALTH CARE AND THE LAW
Clark C. Havighurst
Once upon a time, the U.S. health care industry was not beset on all sides by law and lawyers. Indeed, when I first surveyed the field of health law in the late 1960s, the list of emergent legal issues in health care was quite short. In addition, the salient issues arose within relatively few fields of law, principally medical malpractice (including the area of informed consent), occupational licensure, the tort liability of hospitals, abortion, prescription drug development, human experimentation, and several other aspects of what we now call bioethics. Although the federal Medicare and Medicaid legislation had recently been enacted, those programs did not yet present major legal problems, largely because they were still operating under widely accepted principles borrowed almost intact from private, nonprofit health insurance—which itself had not yet become controversial or raised high-profile legal questions. Scholars and practitioners in the field did not anticipate an explosion of new laws and of legal attacks on time-honored institutions and industry practices. Health care was generally viewed as a charitable or public service and not as a business requiring a sophisticated legal regime to ensure that it performed responsibly. In short, the health care industry was largely left alone by the law and lawyers, and nearly everyone expected that it would always be so.
This chapter offers some observations concerning the disorderly state of health care law today, suggesting in the process some possible answers to such questions