American Health Care And The Law—We Need To Talk!

PROLOGUE: More than most industries, American health care is in the uncomfortable position of carrying out its core mission—making people healthy—in a legal environment featuring irrational rules and doctrines, conflicting paradigms, multiple policy-making authorities, and inconsistent public policies. The reigning legal confusion complicates the delivery and financing of care as well as the making of incremental reforms, which some view as the only politically feasible policy moves. Because the complexity of the industry and the sensitivity of affected interests make legal confrontations inevitable, this paper argues that the industry has a right to clearer guidance and more freedom. Duke University's Clark Havighurst describes the evolution and current confused state of the law governing the health care enterprise and its directions. Important changes in health care law often occurred more by chance than by design, and policy incoherence is the rule rather than the exception. Moreover, without a single entity exercising plenary authority over health care law and policy, the legal system cannot easily set a constant, clear, or wisely charted course. A possible next step is a private, independent forum to focus high-level, policy-oriented attention on the many complex, interconnected legal issues associated with health care. Havighurst is a well-known author, lecturer, and scholar in the areas of health care law and policy, antitrust law, and economic regulation. He is the William Neal Reynolds Professor of Law at Duke, where he has taught since 1964. He recently was a scholar-in-residence at RAND, addressing the relationships between legal liability and quality of care. ABSTRACT: The first section of this paper highlights five critical legal developments over the past half-century that, while not reflecting considered policy judgments about how the health care industry should operate, put American health care on some surprising paths. The second part then observes five fundamental policy contradictions discernible in health care law today, each of which reflects severe ambivalence in public attitudes toward health care. Although such confusion in the law is interesting in itself, the main purpose of the paper is to propose, in section three, the creation of a permanent high-level forum, perhaps in the Institute of Medicine, where leaders from the health and legal worlds could meet regularly with a view to helping the legal system resolve some of the policy confusion that exists.