Public Health Law Map - Beta 5 - Medical and Public Health Law Site

Introduction
Medicine and law are uncomfortable bedfellows. Traditionally, it was the acrimonious
nature of medical malpractice litigation that shaped the views of medical care
practitioners toward law and lawyers. Now this is mixed with the hostility they feel
toward government agency regulators who are often seen as making reimbursement and
facility management overly complex. More fundamentally, the professions are similar in
that both deal with intensely personal and life-affecting matters, but very different in
their professional paradigms. This leads to tension whenever they come into conflict, and
requires considerable effort for medical care practitioners and attorneys to work together.
The result of this uneasy relationship is that medical care practitioners do not make
effective use of legal services and take unnecessary legal risks. On the legal side,
attorneys often give advice that does not properly address the special nature of medical
practice.
Medical care practitioners must understand the basics of the law if they are to avoid legal
problems. They do not need to become lawyers, or to understand the law in the same
way that lawyers understand the law. In some narrow areas, such as Medicare
reimbursement, they must know more law than all but the most specialized medical care
lawyers do. In most areas, medical care practitioners just need a well- informed
layperson’s knowledge of the law as it regards medical practice in general and their
practice area in specific. The goal is not to have medical care practitioners act as
lawyers. They should be able to recognize when there is a potential legal problem and
whether they need expert legal advice to manage the problem.
This section introduces the basic legal relationships involved with providing medical
care services. These are important to understanding the subsequent materials because
legal rights and duties depend on the context of the legal relationship between the
parties. For example, the legal relationship between a physician and a nurse depends on
whether the physician employs the nurse, whether the physician and the nurse are
employed by the same corporation, whether they have separate employers, and, if so, on
the legal relationships between their employers.
Medical care practitioners must also understand how to work with lawyers. As
professions, law and medicine share many characteristics: the expectation of
confidentiality; a fiduciary duty to put the client/patient’s interests first; and a concern
with matters of great personal and societal importance. The professional norms of law
and medicine are very different, however, and health care practitioners must understand
this difference if they are to work successfully with lawyers.
A. Legal Relationships
In medical care, the basic legal relationships are between medical care practitioners
and patients, between individual medical care practitioners, between individual
professionals and their employers or contractors, and between medical care
practitioners and the state. Some legal rules apply equally to all relationships; others
depend on the particulars of the relationship. The rules that apply equally to all
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