Essay on "Health Care Laws"

Essay 12 pages (3391 words) Sources: 1+ Style: APA

[EXCERPT] . . . .

The rule came about as the result of demands for the protection of privacy, and was written with consumer protection in mind. The law was revisited with public consultation in 2002, and there have been many suggestions for improvements from the different stakeholders, as a means of refining and improving the law going forward. The privacy rule is subject to further changes as the health care industry adapts to the implementation of electronic medical records, something that is slowly progressing within the industry.

Another patient's rights law is the ACA, which contains several patient's rights provisions. The most important of these is the right to obtain health insurance despite a pre-existing condition. This concept is known as guaranteed issue. This form of insurance basically enshrines the right to health care coverage for all Americans, a right that did not exist previously. Guaranteed issue does not offer explicit guarantees with respect to cost or quality of the insurance, but the government has provided a variety of programs and subsidies by which the cost of guaranteed issue insurance is offset.

Prior to the ACA, some patients were simply unable to obtain insurance because of pre-existing conditions. Insurance companies used such conditions as a means of rejecting coverage with a high rate of frequency. The net result was that many Americans were either without coverage entirely, or were de facto without coverage, their claims being rejected for tangential issues. The ACA provided the right, in essence, for someone to become a patient, where they previously would have had to pay cash, something many people cannot afford.

The concept of this right is new to American law, having only been recently introduced. At the heart of the idea of guaranteed issue is that all Americans should have the right to purchase insurance. No further claims with respect to the terms and conditions attached to that right are established in the ACA, but there is a minimum quality level for insurance under the plan. This move has helped many people obtain insurance for the first time, dramatically improving access to the health care system. As a new law, there are not yet strong enforcement mechanisms to ensure that insurance can be obtained, but there does appear to be a high level of compliance in the insurance industry to this point.

D. There are five basic elements to a contract. These are offer, acceptance, consideration, meeting of the minds and capacity (UNM, 2015). The underlying principle of contract law is that contracts are mutual agreements between two or more parties, and that these parties have agreed to enter into the contract. Contracts are legally enforceable in the court system, but only when all of the elements of a contract are present. Many contract law cases arise in situations where there is some dispute about whether or not the elements of a contract have been fulfilled.

Contracts are agreed upon by two or more counterparties. One of the counterparties is the offeror. One counterparty needs to make an offer of a future action in exchange for some future consideration. An offer is the first step to the creation of a contract. The second step is acceptance. The offer is accepted outright, and the consideration is legal, then there is likely to be a binding contract. There is often issue as to whether offer and acceptance exist in a contract dispute. Oral contracts are one issue, because it is much more difficult to prove that there was offer and acceptance. Oral contracts are usually valid, though they are more difficult to prove in court. Offer and acceptance can be demonstrated, however, through actions. If the counterparties fulfills their part of an oral agreement, that is usually taken by the courts as evidence that an agreement exists.

Consideration is another element of a contract. The consideration is what is being exchanged. For example, if a person agrees to buy a boat, the cash and the boat represent the consideration in that contract. The consideration can be a service. In a written contract, the consideration needs to be spelled out. It is worth noting a couple of other things about consideration. The first is that the consideration has to be legal in order for the contract to be enforceable. If someone gets ripped off in a drug deal, that is still not an enforceable contract because the consideration is not legal. Thus, there was never a legally-binding contract for that drug sale, and thus no court remedy available.

The other thing about consideration is that there is no provision in law for the value of the consideration. It is the job of the counterparties to ensure that the deal is fair, not the job of the courts. The only issue here is when the consideration has knowingly been misrepresented. A situation might arise during a used car sale if the seller knows about a defect but does not disclose this defect. In that situation, the misrepresentation of the consideration may well be grounds for the contract to be nullified. But otherwise, just because a deal is a bad one, that does not invalidate a contract. The person who made the bad deal takes legal responsibility, and the courts will not nullify a bad deal on these grounds.

Meeting of the minds must occur. When working with a written contract this usually refers to when the counterparties sign. At that point, they can be said to have reached an agreement on the terms of the deal. The meeting of the minds thus occurs when the offer is accepted. Again, there are sometimes issues with respect to oral contracts and whether there was truly a meeting of the minds, but this is not typically in dispute in a written deal.

Lastly, there is capacity. Under law, minors do not have the legal capacity to enter into contracts. The mentally ill receive legal protection with respect to their entering into contracts -- those may not be enforceable if the person's illness precludes them from understanding the terms and conditions of the contract. People also cannot enter into a contract under a state of duress. Thus, people cannot be coerced through threat or force into entering into a legally-binding agreement.

When these different elements are in place, however, there is usually an enforceable contract, under contract law.

E. In malpractice cases, one of the key issues is the concept of standard of care. Malpractice is when a health care provider fails to provide, for whatever reason, an adequate standard of care. There are tests that are used in law to determine whether an adequate standard of care was utilized. The legal definition of standard of care needs to be understood, however, has something that is somewhat flexible in most situations, and there is reliance on judgment in determining what the appropriate standard of care would be, when in a malpractice case.

In a malpractice case, the elements for making a successful case are duty, breach of duty, harm and causation (Moffett & Moore, 2011). The standard of care concept applies specifically to the breach of duty, and what the standard of care is in a given situation is defined by that duty. In the Hall v. Hilbun decision, the justice explained standard of care as thus: "an obligation enforceable at law to use minimally sound medical judgment and render minimally competent care" and further constrains standard of care: "A competent physician is not liable per se for a mere error of judgment, mistaken diagnosis or the occurrence of an undesirable result" (Moffett & Moore, 2011). This view was supported and refined in McCourt v. Abernathy, which affirmed: "The mere fact that the plaintiff's expert may use a different approach is not considered a deviation from the recognized standard of medical care" (Moffett & Moore, 2011). This was critical in developing the idea of standard of care that is applied in malpractice suits today.

It is worth noting that the standard of care in a case may be derived from clinical practice guidelines. This is not universal, and the clinical practice guideline is likely to be subject to scrutiny to ensure its validity before it will hold weight in court, but as a matter of practice they are considered to be an important tool in determining what an acceptance standard of care looks like. While cases like Hall v. Hilbun provide some guidance for determining standard of care, it is important to remember that each patient and each condition are unique. When clinical practice guidelines are used to determine the standard of care, they are subject to testing. The tests will evaluate them against the literature and the guidelines used elsewhere, to ensure that the guidelines are medically sound -- they are not usually taken at face value. The underlying theory is that if the physician has guidelines from which he or she is supposed to work with, then failure to follow those guidelines is more likely to constitute a… READ MORE

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