What is health law? Who makes it and who enforces it?
Health Law is the therapeutic relationship between the doctor, and the nurse, and other medical providers and the patient who's ill In conjunction with the legal rules that both structure that relationship, govern its relationship, and then situate that relationship in a broader world of institutional practice, hospitals, insurance companies, our insurance structure.
Its about that key relationship that's very special and very old between the healer and the human being who's ill. Now, in the way I just described it, of course, this is a relationship that's far older than the American legal system, of course older than the United States itself, stretching back thousands and thousands of years, even into our prehistory, for as long as people have been getting ill and seeking help from somebody relatively more expert, or at least who claims relatively more expertise to help them with their illness. In that sense, this core therapeutic relationship even predates law or health law itself, although not by much. Because as long as we've observed recorded history and we've seen that people have sought treatment, we've usually seen efforts by societies at the time to regulate who gets that preferred status as healer to regulate how that therapy is given. And perhaps even to punish or somehow disincentivize medical care that is viewed as bad medical care. These are values and even legal structures that go back several millennia and far predate anything in the American legal system.
The way our legal structures have developed in the US, even today, well into the 21st century, have roots and echoes in our original constitutional design in the sense that power is divided up. Regulatory authority doesn't sit just in the national capital, but sits in various state and local governments. And we see that even today in the shape of health law rules. Health law is complicated and nuanced, sometimes frustrating, precisely because so many governmental and institutional actors are involved in our legal system.
Health law includes legal rules made by multiple legal institutions at different levels of government, and includes multiple forms of law, statutes, regulations, case law. This makes it tremendously dynamic, tremendously complex, and occasionally tremendously difficult, both for lawyers and medical professionals working in the system, even to identify the relevant legal rules working at any given time.
The different institutions involved in the creation and application of health law in the United States include legislatures, who pass statutes that look very much like Classical law, major federal statutes or state statutes. It also includes a panoply of expert agencies, and involves courts, juries, and judges at both the federal and state level who operationalize law one case at a time in ways that sometimes bind the rest of us through the precedential effect of cases. But it's a very different law-making regime than the way we think of legislatures or bureaucrats making law. What's important to understand about health law, is that all of these regimes operate at once and simultaneously.
It's such an important interest that, characteristic of health law, we don't trust any single law or any single institution to protect it. As most of you who work in the health care system know, the most important single law in the US protecting health care privacy is HIPAA, a statute passed by Congress, which sets the broad rules that apply to covered entities all over the country. But HIPAA doesn't say much on its statutory text about exactly how health care providers are supposed to protect in their daily business patient privacy. For that, we have to look at something called the HIPAA Privacy Rule and other administrative regulations, which are never passed by Congress, but under the statute, are passed by the expert federal agency, Health and Human Services, charged wit interpreting and applying the HIPAA statute. These are the key federal law premises that protect federal privacy, but even that is not the full panoply of privacy protections.
Every single state, through its common law doctrines of fiduciary duty and confidentiality imposes on health care providers additional duties that would be enforced one case at a time through the health care system, further buttressing the basic privacy right. Importantly and very typically for health law, even when Congress passed a major statute such as HIPAA, they specifically said that state law remained good law as long as it didn't directly conflict with HIPAA.And we need to ask not just what the right rule is, but who's applying that rule, how it's being applied, and does it apply simultaneously with other restrictions on providers. The key feature of law in its essence is that it's a very human endeavor, created and operationalized by human beings, in order to achieve some kind of human behavior that we want to encourage or optimize, while at the same time discouraging other forms of behavior.
The law assists medicine with achieving high quality healthcare, regulating access to healthcare and protecting patient privacy. The legal regime seeks to accomplish this through interventions at different points of time. In some cases, the law intervenes very early, before we engage in the behavior at all, by giving us a license or permission to do a certain thing. Physicians, nurses, and other health care providers need to be licensed at the start of their careers. This is the ex-ante regulation.
In other times, legal and governmental actors monitor our behavior while we're doing it to make sure we comply with the basic standards. Increasingly, through private entities, health care institutions, maybe private payers, occasionally government actors, physicians, nurses, and other medical professionals are monitored while they're practicing medicine. This is contemporaneous legal enforcement.
And in other cases, the law intervenes after the fact. When something goes wrong, courts or other actors attempt to adjudicate who was at fault, who should pay damages, and who should go to jail even? Where a bad result has occurred, where we can identify a breach in the standard of care, the law intervenes after the fact, imposes money damages on the person judged to have committed malpractice. This is ex post regulation. Importantly, though, even that ex post intervention, even though it only comes in after the fact, the goal of that legal regime is to incentivize present behavior. The idea is any of us practicing medicine, practicing law, driving down the street, we should be more careful. And we will be more careful if we know that our conduct will be held to a certain standard of care.
So all of these interventions, ex ante, contemporaneous, and ex post seek to improve the quality of medical care. All of them are incomplete, standing alone. But together, what the legal system seeks to achieve is the best values of patient care, medical authority, medical autonomy, a relative degree of efficiency.
Does our current health law regime do a good job institutionally of operationalizing the right rule, and do so in a way that promotes the kind of values that we want to promote in the medical system? In that inquiry, it's really important to think not just what kind of law or legal rule is involved, but what kind of institution and what kind of legal form is being used to operationalize it.