Wing, Ken

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Case Western Reserve University School of Law

Health Matrix: The Journal of Law-MedicineVolume 14 | Issue 12004Letter to the Editors of Health MatrixKen WingFollow this and additional works at: https://scholarlycommons.law.case.edu/healthmatrixPart of the Health Law and Policy CommonsThis Symposium is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Health Matrix: The Journal of Law-Medicine by an authorized administrator of Case Western ReserveUniversity School of Law Scholarly Commons.Recommended CitationKen Wing, Letter to the Editors of Health Matrix, 14 Health Matrix 237 (2004)Available at: https://scholarlycommons.law.case.edu/healthmatrix/vol14/iss1/20LETTER TO THE EDITORS OF HEALTHMATRIXKen WingtOVER THE LAST FEW DECADES (and, apparently, begin-ning in 1953 at Case Western Reserve University) a lot of people inmedicine and other health-related professions have developed a stronginterest in legal issues, and a lot of lawyers have taken a comparableinterest in health and health care-related issues. That's good. I hopethey continue to do so. There are any number of health-related andlegal problems that need to be attended to and taught and addressedthrough improved professional practice. Yet, have these activitiesproduced a special or unique field or something that should be cele-brated as such? I think not.If there is something identifiable as health law, it certainly is notfound in the wide and diverse range of academic activities that getoffered under that label. People who teach law students about health-related topics claim to teach health law. People who teach publichealth students about law teach health law they say. As do peoplewho teach medical students and nursing students and public policystudents and anyone else who will sign up for Health Law 101. Arethey teaching the same thing? No. Teaching law to health students isteaching mostly-surprise-law; teaching a health-related course tolaw students can be any one of a number of very different things, butit is a very different activity than teaching law to health students. (Infact, the people teaching law to health students would be betterserved, and provide better service to their students, if they entirelydivorced their activities from those of people who teach health-relatedtopics to law students.)Even if you overlook the differences between these different tar-get audiences, I do not think you can define something called healthlaw by the topics or issues that are addressed in these courses either.In fact, if everything that gets taught in classes labeled "health law" isa field, it almost would be easier to answer the question "what's nothealth law?" If you need some visible evidence, consider the range oftextbooks and the range of other materials that get used under the ae-t J.D., Harvard 1971; M.P.H., Harvard 1972; currently Professor of Law,Seattle University.HEALTH MA TRIXgis of teaching health law. The syllabi for the health law coursetaught by a Chicago-school antitruster and that developed by a formerpoverty law attorney have nothing in common, save the title. Thereare health law textbooks that are almost entirely concerned with medi-cal malpractice and others that are organized around traditional publichealth activities. Some at least claim to offer a cafeteria of health lawtopics from which one can selectively choose, but even these havesurprisingly little in common with one another. Much of this diversityhas to do with turf, but that's another story. But there is not much herethat looks like a unified field.And I surely don't think there is something called health law thatis defined by the nature of its professional practice. To the contrary,the practitioners who claim to be doing so would be the first witnessesfor their own prosecution. Imagine empanelling this group of law-yers: one who does malpractice, one who does the business transac-tions for physicians and other providers, and one who helps prospec-tive nursing home patients qualify for Medicaid. Each might wellclaim that to be a practitioner in the "dynamic" (and, in two of thethree cases, lucrative) field of health law. Do they or their work haveanything in common? If each is a specialist in health law, why is itthat none of them would have any idea about what the other is doingor even talking about? Add some other health law wannabes to yourpanel: a physician who really wanted to go to law school (or, worseyet, one who did and became one of those delightfully odd joint-degree people), or a bioethicist, or someone who works in forensics.It begins to sounds like one of those "three guys are stuck in a life-boat" jokes, doesn't it? What it does not sound like is a group of ex-perts from the same field talking about the same thing. To the con-trary, it sounds like, well, most of the conferences and symposia thathave been put on during the last few decades under the title of "healthlaw." Some of these conferences have been interesting and some havebeen educational or at least worth the several hundred dollar registra-tion fee. Most have been somewhat disjointed and none should haveconvinced anyone that a separate field called health law has been dis-covered and defined.There just is not enough that is unitary here. There is no sever-able body of principles, or even a set of issues, defined by either cir-cumstances or type of controversy. Health law involves the legal is-sues that arise in the delivery of patient care? Well, that begins todefine the subject, but that is only part of what's called health law.Legal issues related to health care? To health? I suppose those defi-nitions work, but what is the point of such a broad and meaninglessdefinition - and what makes the field special?[Vol. 14:237LETER TO THE EDITORS OF HEALTH MATRIXContrast some things that are discrete fields: contracts, or torts, oreven constitutional law. There are some knotty borderline problemsin sorting them out, but most of us can roughly describe what they areand what they are not. There are specialty areas of law that derivefrom their unique statutory bases: tax law, antitrust law, or, arguably,welfare law. Is health law a severable body of principles? Is it de-fined by some set of health laws or statutes? No and no. There aresome specialized statutory schemes involved in the pursuits of thosewho would be health lawyers, the Medicaid or Medicare statutes, or,perhaps the best example, the federal fraud and abuse laws, but theyare only one small part of what gets called "health law." As themembers of that eclectic panel will quickly remind you, my health lawstatute is not your health law statute. More importantly, to the extentthat I understand what I was told at the last health law conference Iattended, as a good, up-to-date health lawyer, I have to know not onlywhat's happening with Medicaid and Medicare and the federal fraudand abuse laws, but also the recent shifts in antitrust law and somenew cases in malpractice law and some new things about contractsand torts and constitutional law. Message received. Effort made.Does that make me a specialist? Is it helpful, let alone accurate, tothink of myself as a specialist when trying to do what I need to do inacademia or in my practice?Arguing about whether or not health law is a discrete field mightbe simply academic if there were some unique contributions or nota-ble accomplishments that had been made under the banner of healthlaw. But frankly, I can't find much that would qualify. Have therebeen any great works produced by this emerging field of health law?Check those health law teaching materials again. Ask around at thenext conference or get-together for the "must reads" of health law.The answers you will get will be ambivalent and unconvincing. TheSocial Transformation of American Medicine' will come up a lot, a1982 work written by a sociologist (who, I am fairly sure, hates law-yers, specialized or otherwise). There are some oldies but goodies thatyou may hear about, such as The Dance of Legislation2 or A SacredTrust,3 to pick a couple of likely examples. Shouldn't a new field pro-I PAUL STARR, THE SOCIAL TRANSFORMATION OF AMERICAN MEDICINE(1982) (discussing the evolution of health care in the United States).2 ERIC REDMAN, THE DANCE OF LEGISLATION (1973) (using the NationalHealth Service Corps bill to illustrate the interaction between the staff and the legisla-tors in the lawmaking process).3 RICHARD HARRIS, A SACRED TRUST (1966) (describing the thirty yearbattle for the passage of health care legislation, culminating in the passage of Medi-care).2392004]HEALTH MATRIXduce something that is new? There are God's own quantity of specialreports about law and health care and the nation's health and what iswrong with any or all of them. Some people still read those tomesproduced by the President's Commission on Bioethics back in the1970s. In the last few years the Institute of Medicine has issued someinteresting reports on the quality of health care.4 I've read them andtaught from them and I may do so again, unless I find something bet-ter in the annual report from the Medicare Payment Advisory Com-mission or the final report on of the National Bipartisan Commissionon the Future of Medicare or the latest GAO study documenting hor-rible things happening in nursing homes. Lots of good people havewritten about lots of important things. Is there anything among themthat could be the called the great works of health law, or of healthlawyers, or provide evidence of the existence of either? Will you berereading any of these five years from now?The journals, law reviews, and other offerings of what could becalled health law scholarship are more notable for their number thantheir contribution; they have not provided articles that every healthlaw student ought to read. Is it possible to name even one crucial arti-cle? Many have been called to write; few have answered in anymemorable way. Quick, can you name three law review articles thatevery health law student ought to read? Name two. One? I have myfavorite works and favorites authors. Deborah Stone has written acouple of terrific essays on health care financing 5 and I highly rec-ommend them. I'll read anything written by Bruce Vladeck or SarahRosenbaum. I think Robert Evans' stuff on health economics is terri-fic and very readable.6 (Say that about another economist!) Otherswill say comparable things about the writings of Lucien Leape or EweReinhardt or any one of a number of other talented people. But thereis no evidence among these works and these people of the burgeoningof a distinguished or distinct field. Most of these people aren't evenlawyers let alone some subspecies called health lawyers.The closest thing I can think of to a health law "must read" thathas been written in the last decade is the book Ashes to Ashes.7 Un-4 E.g., COMMITTEE ON THE QUALITY OF HEALTH CARE IN AMERICA,INSTITUTE OF MEDICINE, TO ERR Is HUMAN: BUILDING A SAFER HEALTH CARE SYSTEM(Linda T. Kohn et al. eds., 1999).5 Deborah Stone, The Struggle for the Soul of Health Insurance, 18 J.HEALTH POL. POL'Y & L. 287 (1993); Deborah Stone, Managed Care and the SecondGreat Transformation, 24 J. HEALTH POL. POL'Y & L. 1213 (1999).6 E.g., Robert G. Evans, "We'll Take Care of it for You": Health Care in theCanadian Community (1988); Robert G. Evans, Canada, 25 J. HEALTH POL. POL'Y &L. 889 (2000).7 RICHARD KLUGER, ASHES TO ASHES: AMERICA'S HUNDRED-YEAR[Vol. 14:237LETTER TO THE EDITORS OF HEALTH MATRIXfortunately, it is already out-of-date and, more to the point, I wouldn'tcharacterize it as health law, and, I believe, neither would its author.Indeed, most of the good writing that might be called great health lawis not law at all, health or otherwise, but is rather a mixture of eco-nomics, history, political science, and journalism. There are goodwriters who have written materials that concern health and law, but ifthere is a discrete health law field, it has not produced a Richard Klu-ger, or even a Bruce Vladeck or a Robert Evans. Some field.This field which is not a field has not produced any statesmen orpoliticians either. In the last several decades Congress and, on occa-sion, a few upstart state legislatures have considered various large-scale health care reform measures. You would think that if there werea growing cadre of specialized health lawyers out there-people withunique "health law" skills or special "health law" knowledge or justenhanced enthusiasm for the subject-their contributions to these de-bates would be the ultimate proof of why they deserve to be treated asdenizens of a separate and notable field. But again I think the evi-dence is more than lacking and it points in the other direction. Healthlawyers, collectively or individually, failed to distinguish themselvesin the debates over Carter's plans for national health care reform, orGeorge Bush, Sr.'s short-lived effort to establish catastrophic healthinsurance, or whatever it was that Hillary Clinton didn't manage to dofor us. The principles of health law were not a helpful part of the de-bates in Vermont, Washington, or any of the other states that couldnot wait for national reform. Those political moments and opportuni-ties came and went without a visible health law sighting, despite allthat was written for and against reform, and about the process of itsconsideration, and in memoriam to its failure. Nothing, among all thatwriting, made the case that health law lives and thrives or that thevoice of health law is extant and should be even more prominent inthe next debate. And I don't even want to talk about the contributionsof health law and health lawyers to the public debates that have beenspawned by the AIDS epidemic or to the more recent debates con-cerning national security and the threat of bioterrorism. 8 Indeed, thebest work and the most significant contributions to these issues havecome from scientists and public health workers and people who havelittle or nothing to do with something called "health law."CIGARETTE WAR, THE PUBLIC HEALTH, AND THE UNABASHED TRIUMPH OF PHILIPMORRIS (1996) (chronicling the history of the American tobacco industry and theimpact, or lack thereof, from lawsuits, legislation, and public health initiatives).1 have talked about this before. See Ken Wing, Policy Choices and ModelActs: Preparing br the next Public Health Emergency, 13 HEALTH MATRIX 1, 71(2003).20041HEALTH MATRIXProfessionals and their organizations often do things to enhancetheir own status, at least in their own eyes. We have our professionalsocieties and annual get-togethers. We take turns giving each otherawards of recognition and leadership and dramatically declare whatwe did first or best. We claim we are leaders of specialties and sub-specialties, in part because, after all, it is easier to be among the lead-ers in a small field than in a big one. When someone asks me aboutthe past and future of health law, my fear is that what is driving thatinquiry is the kind of lets-admire-ourselves-in-the-mirror mentalitythat drives the Seattle Chamber of Commerce and the NorthwestAcademy of Dance Instructors and the National Association of Dep-uty Sheriffs. Why can't we just be lawyers and teachers? Isn't thatenough? What we do as lawyers and teachers is create opportunitiesfor people to sit and talk and think about important problems relatingto health and health care. We do so as lawyers and teacher, not ashealth law specialists. If the Law-Medicine Center began it all, that'sgreat and that's enough. Let's celebrate that. But let's not worryabout what it's called. The important thing is that we all do it welland try to get better at it in the future. The truth of the matter is that Ido not think there is much out there that deserves to be called healthlaw, let alone a whole field of it. So as to where health law hasbeen--or is going-I do not have much of an answer because I do notthink it is much of a question.[Vol. 14:237

Letter to the Editors of Health Matrix

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