Chapter 6. The Organization and Management of a Corporate Healthcare Institution...181

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1 BRIEF CONTENTS Preface...xv Chapter 1. The Anglo-American Legal System...1 Chapter 2. A Brief History of Medicine...27 Chapter 3. Health Reform, Access to Care, and Admission and Discharge...61 Chapter 4. Contracts and Intentional Torts Chapter 5. Negligence Chapter 6. The Organization and Management of a Corporate Healthcare Institution Chapter 7. Liability of the Healthcare Institution Chapter 8. Medical Staff Privileges and Peer Review Chapter 9. Health Information Management Chapter 10. Emergency Care Chapter 11. Consent for Treatment and Withholding Consent Chapter 12. Taxation of Healthcare Institutions Chapter 13. Competition and Antitrust Law Chapter 14. Issues of Reproduction and Birth Chapter 15. Fraud Laws and Corporate Compliance Glossary Case Index Index About the Author v

2 DETAILED CONTENTS Preface...xv Chapter 1. The Anglo-American Legal System...1 Some History...1 Anglo-American Law...2 The Definition of Law...4 Types and Sources of Law...4 The Court System...10 Alternative Dispute Resolution...15 Legal Procedure...15 Summary...19 Discussion Questions...19 The Court Decides...21 Simkins v. Moses H. Cone Mem. Hosp...21 Planned Parenthood of S.E. Pennsylvania v. Casey...24 Notes...25 Chapter 2. A Brief History of Medicine...27 Introduction...27 Early History...28 Health Reform Arrives at Last (Apparently)...49 Conclusion...50 Summary...51 Discussion Questions...51 Notes...52 Appendix 2.1 A Select Timeline of the History of Medicine...56 Chapter 3. Health Reform, Access to Care, and Admission and Discharge...61 The Right to Healthcare...61 The Affordable Care Act...62 vii

3 viii Detailed Contents Traditional Principles on Access to Healthcare...70 Admission and Treatment of Mentally Ill Patients...79 Discharge from the Hospital...84 Utilization Review: Controls on Admission and Discharge...87 Summary...91 Discussion Questions...92 The Court Decides...93 King v. Burwell...93 Statutory Provisions Referred to in King v. Burwell Hill v. Ohio County Notes Appendix 3.1 History of Health Reform Efforts Appendix 3.2 Select ACA Reform Provisions Chapter 4. Contracts and Intentional Torts Think Like a Lawyer Contracts and Intentional Torts as Bases of Liability Elements of a Contract The Physician Patient Relationship Liability for Breach of Contract Liability for Breach of Warranty Intentional Torts Summary Discussion Questions The Court Decides Stowers v. Wolodzko Notes Chapter 5. Negligence Introduction Duty Breach of Duty Injury and Causation Defenses Liability for Acts of Others: Vicarious Liability Countersuits by Physicians Reforming the Tort System Summary...168

4 Detailed Contents ix Discussion Questions The Court Decides Helling v. Carey Perin v. Hayne Notes Chapter 6. The Organization and Management of a Corporate Healthcare Institution Introduction Formation and Nature of a Corporation Responsibilities of Management Piercing the Corporate Veil Multi-institutional Systems and Corporate Reorganization: The Independent Hospital as Anachronism Alternative Corporate Strategies Collaborative Strategies with Physicians Summary Discussion Questions The Court Decides Charlotte Hungerford Hospital v. Mulvey Stern v. Lucy Webb Hayes National Training School for Deaconesses and Missionaries Woodyard, Insurance Commissioner v. Arkansas Diversified Insurance Co Notes Chapter 7. Liability of the Healthcare Institution Introduction Respondeat Superior Versus Independent Contractor Status Erosion of Physicians Independent Contractor Status Erosion of Captain-of-the-Ship and Borrowed-Servant Doctrines Doctrine of Corporate Liability Liability of Managed Care Organizations Summary Discussion Questions The Court Decides...240

5 x Detailed Contents Norton v. Argonaut Insurance Co Johnson v. Misericordia Community Hospital Notes Chapter 8. Medical Staff Privileges and Peer Review Introduction The Medical Staff Organization Relationships Among Board, Management, and Medical Staff Appointment of the Medical Staff Standards for Medical Staff Appointments Peer Review, Discipline, and the Health Care Quality Improvement Act Quality Issues and Accountable Care Organizations Summary Discussion Questions The Court Decides Kadlec Medical Center v. Lakeview Anesthesia Associates Notes Appendix 8.1: Healthcare Quality Improvement Act of 1986, as Amended Chapter 9. Health Information Management Introduction Covered Entity, Protected Health Information, and De-identification Form and Content of Records Access to Health Information Use of Health Records in Legal Proceedings Federal Government s Access to Personal Health Information State Open Meeting and Public Records Laws Summary Discussion Questions The Court Decides Opis Management Resources, LLC v. Secretary, Fla. Agency for Healthcare Admin Tarasoff v. Regents of the University of California Notes...340

6 Detailed Contents xi Chapter 10. Emergency Care Introduction The Need for Emergency Care Facilities Duty to Treat and Aid Duty to Exercise Reasonable Care Good Samaritan Statutes Summary Discussion Questions The Court Decides Moses v. Providence Hospital and Medical Centers, Inc Beller v. Health and Hospital Corp. of Marion County Notes Chapter 11. Consent for Treatment and Withholding Consent Introduction Types of Consent and Recommended Procedures The Healthcare Institution s Role in Consent Cases How Informed Must Informed Consent Be? Consent of a Spouse or Relative Life-or-Death Decisions Consent Issues for Incompetent Adults Consent Issues for Minors Legislation and Protocols on End-of-Life Issues Summary Discussion Questions The Court Decides Cobbs v. Grant Bush v. Schiavo Notes Appendix 11.1: Sample Advance Directive Form Appendix 11.2: Sample POLST/MOST Form Chapter 12. Taxation of Healthcare Institutions Introduction Nature of a Charitable Corporation What Is a Charity? Federal Tax Issues State and Local Property Taxes...448

7 xii Detailed Contents Coming Full Circle Summary Discussion Questions The Court Decides Greater Anchorage Area Borough v. Sisters of Charity Barnes Hospital v. Collector of Revenue Provena Covenant Medical Center v. Department of Revenue Notes Chapter 13. Competition and Antitrust Law Introduction The Sherman Act The Clayton Act The Federal Trade Commission Act Jurisdiction, Exemptions, and Immunity Sanctions and Enforcement of Antitrust Statutes Rule-of-Reason Analysis and Per Se Violations Summary Discussion Questions The Court Decides Federal Trade Comm n v. Phoebe Putney Health System North Carolina State Bd. of Dental Exam rs v. Federal Trade Comm n Notes Chapter 14. Issues of Reproduction and Birth Introduction Sterilization Wrongful Birth and Wrongful Life Other Reproduction Issues Abortion Hospitals Role in Reproduction Issues Summary Discussion Questions The Court Decides Skinner v. Oklahoma ex rel. Attorney General Notes Chapter 15. Fraud Laws and Corporate Compliance Introduction...547

8 Detailed Contents xiii The Enforcement Climate False Claims Act Antikickback Statute Stark Self-Referral Law Foreign Corrupt Practices Act Corporate Compliance Programs Summary Discussion Questions The Court Decides United States v. Greber United States v. McClatchey United States ex rel. Baklid-Kunz v. Halifax Hospital Med. Ctr Notes Glossary Case Index Index About the Author...595