Playing Doctor: Corporate Medical Practice and Medical Malpractice

Although health plans once existed mainly to ensure that patients could pay for care, in recent years managed care organizations (MCOs) have attempted to limit expenditures by exercising significant influence over the kinds and levels of care provided. Some commentators argue that such influence constitutes the practice of medicine, and should subject MCOs to the same medical malpractice torts traditionally brought against physicians. Others hold that MCOs engage only in contract interpretation, and do not literally practice medicine. This Article begins by arguing that traditional common law doctrines governing corporate practice of medicine do not precisely apply to the current situation because, whereas the traditional focus is on whether the corporation employs the physician, in the current setting corporations use many devices, not just employment, to influence medical care. Because an employment relationship is not the central question in determining whether an MCO is practicing medicine, a better definition is needed of what it is for a corporation (or a physician) to practice medicine. This definition will show that MCOs can and sometimes must practice medicine, thus opening the need to explore what sort of liability they should incur when they practice negligently. Toward answering that question, the Article argues that the proper scope of medical malpractice and other tort liability for MCOs can only be discerned after it is determined what duty of care MCOs owe their subscribers. This question, in turn, should be guided by a focus on how to deliver good health care rather than by deciding, ex ante, whom we wish to hold liable when care has gone badly. In the quest to discern which tasks are best done by MCOs and which are best done by physicians, a reasonable division of labor between MCOs and physicians will be proposed. This division of labor acknowledges that MCOs must sometimes practice medicine, but will also show that MCOs currently practice medicine more than they should, primarily because contractual reliance on the concept of medical necessity requires them to practice medicine virtually every time they make a benefits determination. For a variety of reasons, the concept of medical necessity should be dropped entirely from health plan contracts. Finally, where MCOs do practice medicine, they should be subject to classic medical malpractice liability of the same sort to which physicians are subject. Applying these reforms in the context of corporate practice, however, requires some special analysis

How Digital Formative Assessment Increases Student Achievement and Motivation

Technology in the classroom has changed the way teachers teach and students learn. In this ever­changing field, a continual examination of the most effective methods to use technology to benefit student learning is essential. The research question addressed in this project was: what is the impact of formative assessment using iPads on student achievement and motivation? The review of the literature explored formative assessment, motivation, and technology in the classroom. In this study, qualitative and quantitative data was collected using pre­ and posttests, student surveys, and field notes over two curriculum units; in one unit, exclusively traditional formative assessment was implemented, and in the other, exclusively digital formative assessment was used. It was found that digital formative assessment, while initially requiring extra class time devoted to student mastery of the digital app itself and also requiring a shift in teacher pedagogy, increased student achievement and motivation levels

High-Deductible Health Plans: New Twists on Old Challenges from Tort and Contract

In just a few decades American health care financing has, in a sense, come full circle. After being largely patient-financed in the early twentieth century, generous insurance coverage in mid-century largely permitted providers to do as they wished and charge what they pleased-an Artesian Well of Money that left patients and physicians well-insulated from the costs of care. That system\u27s inevitable explosion of costs spurred urgent efforts to contain health care expenditures, as payors sought to control or at least influence medical decisions. In many ways this managed care was clinically vexatious and economically disappointing. Its medically intrusive tactics have now largely though not entirely faded, and-back to the future-the current trend is to place economic responsibility back in patients\u27 hands via Consumer-Defined Health Plans ( CDHPs ) that couple catastrophic insurance coverage with large deductibles. Across this trajectory of financial changes, the focus of health care litigation has evolved right alongside. When physicians largely controlled both care and costs, medical malpractice occupied center stage. Then, as managed care entities exerted greater financial and clinical control, they too became litigation targets, sometimes via direct corporate liability for their own financial and medical decisions, and sometimes under ostensible agency for alleged missteps of physicians with whom they associated. And now, as patients regain financial responsibility, the focus will shift yet again. This Article explores that shift. After further surveying history and the current transition to CDHPs, I will examine three kinds of litigation that are especially likely to arise where patients pay for their own care. Torts questions will arise: when physicians do not disclose the projected costs of care, is this a breach of informed consent? Further issues may arise from the fact that, although physicians have a confidential relationship with patients, their financial interests can create significant conflicts of interest. Where physicians\u27 medical recommendations are too cozy with their own financial interests, can this be a breach of fiduciary duty? Finally, contract questions will emerge around price tags. Where prices are not agreed on in advance, they must generally be reasonable. And yet price structures in health care are often too incomprehensible to discern what reasonableness might mean. When patients complain providers\u27 charges are too high, jurors may be asked to address important questions of health care pricing. Many of these potential litigation issues are not inherently novel. But they may arise with surprising force and frequency. When large numbers of middle income people begin paying directly for substantial procedures out of pocket, they will likely begin scrutinizing more closely the ecomonic as well as medical wisdom of their health care. This Article explores some of the directions that scrutiny may take

Dumping the “Anti-Dumping” Law: Why EMTALA Is (Largely) Unconstitutional and Why It Matters

EMTALA—the Emergency Medical Treatment and Active Labor Act requiring hospital emergency departments to screen and stabilize emergency patients, regardless of ability to pay— has played a pivotal and peculiar role in American health care, as the only assured access to care for millions of people. Curiously, although EMTALA imposes enormous costs on hospitals, neither the Supreme Court nor any circuit courts have addressed its constitutionality. This Article argues that, particularly in the paradigm case of an indigent patient at a for-profit hospital, EMTALA violates the Fifth Amendment’s Takings Clause: the government takes property for public use without just compensation. All the elements of a taking are readily established: property, taking, and public use. Here, the property is not the hospital as such—this is not a case of land use regulation. Rather, the hospital is the “person” from whom property is taken, including: [1] personal property such as costly pharmaceuticals, medical devices, and paid staff time; and [2] physical invasion of spaces such as the emergency room, operating suites, and intensive care beds. Such destruction or transfer of personal property and invasion of physical spaces constitute per se takings. Regulatory takings analysis, ordinarily invoked for regulating real property, is inapplicable. These takings’ public use is to ensure immediate emergency care, regardless of ability to pay. All three elements of a taking are thus satisfied. As this Article further argues, EMTALA’s broad economic coercion of hospitals cannot be justified as simply a condition of participation in Medicare. In the end, the problem is not that EMTALA mandates takings, but rather that it fails to provide adequately for just compensation. For-profit hospitals often receive no compensation whatever. Even not-for-profit hospitals can quickly cross the threshold from “compensated” (e.g., via tax exemption) into uncompensated care. Where compensation is insufficient, EMTALA’s takings are unconstitutional. The substantial constitutional impairment of EMTALA could trigger an interesting predicament. Historically, EMTALA has been a “fig leaf” obscuring the nation’s less-than-universal access to care. After all, the uninsured can always go to the emergency room. Going forward, EMTALA may be an “enabler,” encouraging healthy people to forego insurance until they become ill. The Affordable Care Act (ACA) permits anyone, even those with preexisting conditions, to buy insurance at the same cost as anyone else and, although it mandates that everyone be insured, the “tax” for noncompliance is modest and not strongly enforceable. Refusal to buy insurance until after one is ill may thus be attractive because, after all, the emergency room cannot demand advance assurance of payment. If the cost of insurance thereby spirals out of control because too few healthy people buy it, the Fifth Amendment’s Takings Clause could actually salvage the ACA’s mandate. Although this Article neither endorses nor disparages the idea, the individual mandate could be re-cast as a constitutionally proper act of eminent domain: the “property” being taken is the citizen’s money; the “just compensation” is a health insurance policy; and the “public use” is to save private health insurance as Congress’ chosen avenue for broadening access to care. Perhaps most interestingly, the mandate as an exercise of eminent domain need not satisfy the Commerce Clause. Per a long line of Supreme Court rulings, acts of eminent domain need only satisfy the rational basis test