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by Robert Gatter Professor of Law

Professor Gatter has written on a variety of health law topics, including informed consent, end-of-life treatment disputes, medical mediation, conflicts of interest in drug development and the role of trust in health regulation. His work has been published in the Boston University Law Review, Emory Law Journal, Notre Dame Law Review, Wake Forest Law Review, among other journals. Professor Gatter is the former chair and current executive committee member of the AALS section for Law, Medicine & Health Care and a current member of the Links with Academia Advisory Group for the American Health Lawyers Association. Before joining the SLU LAW faculty in 2008, Professor Gatter taught at Penn State University, Dickinson School of Law. He earned his bachelor’s degree from Johns Hopkins University and went on to earn a master’s degree from the Medical College of Wisconsin and a law degree from the University of Pennsylvania Law School. In 2010, Professor Gatter will join Professor Thomas L. Greaney, Chester A. Myers Professor of Law, as joint Co-Director of the Center for Health Law Studies in 2010.

What is Health Law?

What is health law? If you don’t practice in the field, this is a question, in all likelihood, you have never considered. For health lawyers, however, it is a common question. And I suspect lawyers practicing in other uniquely regulated industries have been asked a similar question.

As a new lawyer, I had a standard answer: “Health law is not really a kind of law,” I would explain, “as much as it is law applied to a particular kind of client: a health care professional or institution working in a highly regulated and yet primarily commercial environment.”

As I gained more experience, I recognized this was not a complete answer. Health law is more than the practice of applying traditional forms of law (tort, contract, corporate law, administrative law, etc.) to players in a large industry. It also involves reinterpreting traditional law to account for the unique attributes of health care delivery.

For example, we are accustomed to the tort doctrines that regulate the doctor-patient relationship: medical malpractice, abandonment, breach of confidentiality and breach of the duty to obtain informed consent to treatment. In fact, we may be so accustomed to them as to forget that they reflect more than generic negligence principles designed to enforce reasonable professional conduct and to compensate the injured.

They also suggest physicians have fiduciary responsibilities to their patients and the public generally. Abandonment, for example, limits the ability of a physician to exercise his or her contractual right to terminate a treatment relationship to prevent undue disruption of medical care to a patient in need. Meanwhile, informed consent laws obligate physicians to respect the personal integrity of patients by not only seeking consent prior to treatment but also by providing relevant information to enable more informed choices. Likewise, exceptions to the duty to keep a patient’s medical information confidential, including the obligation to report communicable disease infections, arise from the view that even private physicians are officers of the public’s health.

Concern for the ever-increasing cost of medical care has led to a commercialization of health care delivery in the name of promoting economic efficiency. In response, we have witnessed political and social pushback, which reflects a view that basic health care is fundamental to human existence, thus access to it should not be subject to the uncertainty of a free market.

This sense that health care delivery should not be commercialized (at least not completely) is imbedded in the law as well. For example, state laws prohibiting corporations from employing physicians or otherwise practicing medicine (the “Corporate Practice of Medicine” doctrine) neared extinction in the late 1980s and early 1990s as evermore exceptions to the doctrine were recognized in pursuit of lower health care costs.

Yet, the doctrine refused to die, and it continues to be enforced today, suggesting that we are not ready to lay down legal tools that could rein in market forces if we don’t like their effects on medicine. Federal antitrust laws provide another example. Their application to promote competition in the health care sector required special guidance from the Department of Justice (DOJ) and the Federal Trade Commission (FTC) in the 1990s to account for distinctive characteristics of the health care market. Even still, the DOJ, the FTC and ederal courts are criticized regularly for prohibiting conduct that could improve the quality of health care or better account for the complexity of medical information.

Academics have also recognized that health law involves not only the application of traditional fields of law in the health care setting but also the reinterpretation of traditional law to account for special characteristics of health care. Emerita Professor Sandra H. Johnson, for example, has written that health law is unique because of its commitment to incorporating the cultural and normative context of medicine into the law.

Several recent works attempting to develop comprehensive theories of health law have picked up on Professor Johnson’s theme and identified norms in health care delivery that define health law. For example, Mark Hall, the Fred. D. and Elizabeth Turnage Professor of Law at Wake Forest School of Law, argues that health law can be organized around notions of vulnerability and trust. He recognizes that individuals are vulnerable to disease and injury as well as to the uncertainties of medical care, and he posits that health law promotes varying degrees of trustworthiness of health care professionals and institutions as a policy response to such vulnerability.

While Gregg Bloche, professor of law at Georgetown Law, also recognizes vulnerability as a core attribute of health care delivery, he also argues that norms of rescue and respect for individual dignity are at work as well. He believes, for the moment, health law is defined by an unresolved clash among these norms as well as between these norms and the need to provide universal access to affordable medical care. He concludes society must confront these normative clashes openly on a case-by-case basis in the hope that clear principles of health law might emerge in the long run.

Meanwhile, Nan Hunter, professor of law at Brooklyn Law School, argues that allocating risks — both financial risks and clinical risks — is the common thread that runs through health law. She argues that the law should govern health care risks through the implementation of democratic procedures in the design and function of health insurance plans, which have become the locus for the allocation of both financial and clinical risks in health care.

I recommend these and other descriptions of health law to anyone who practices in the field or who practices in other highly regulated fields because they suggest a practical role for the law and legal professionals working in health care. For example, I have written that, if health law should be designed to promote the trustworthiness of physicians, hospitals and insurers, then we must be careful to choose legal tools that are consistent with promoting trustworthiness.

Given that health law involves the interpretation of law to account for the special attributes of health care delivery, the role for legal professionals is to seize those moments when a health care case turns on an interpretation of law. The lawyer prepared, in such a case, to hold the law accountable to the unique attributes of health care delivery is likely to prevail and, along the way, to turn law into health law.

Recommended Reading:

• Sandra H. Johnson, “Five Easy Pieces: Motifs of Health Law,” Health Matrix (2004).
• Mark A. Hall, “Law, Medicine and Trust,” 55 Stanford L. Rev. 463 (2002).
• M. Gregg Bloche, “The Invention of Health Law,” 91 California L. Rev. 247 (2003).
• Nan D. Hunter, “Risk Governance and Deliberative Democracy in Health Care,” 91 Georgetown L.J. 1 (2008).
• Robert Gatter, “Faith, Confidence, and Health Care: Fostering Trust in Medicine through Law,” 39 Wake Forest L. Rev. 395 (2004).