National health insurance and the new health occupations: nurse practitioners and physicians' assistants

This article considers a number of issues which might arise in formulating policy for new health occupations. Its particular focus is on nurse practitioners and physicians' assistants and their treatment under potential national health insurance arrangements. The development and expansion of these occupations are described, as is the evidence on their performance with respect to the quality of medical care provided, the impact on the cost of such care, and changes in access to care. We then discuss several issues which might arise in the context of national health insurance legislation, including reimbursement rates and methods, certification and licensure, training subsidies, deployment incentives, and compatibility with an increased supply of physicians.     

Medical liability and health care reform

We examine the impact of the Affordable Care Act (ACA) on medical liability and the controversy over whether federal medical reform including a damages cap could make a useful contribution to health care reform. By providing guaranteed access to health care insurance at community rates, the ACA could reduce the problem of under-compensation resulting from damages caps. However, it may also exacerbate the problem of under-claiming in the malpractice system, thereby reducing incentives to invest in loss prevention activities. Shifting losses from liability insurers to health insurers could further undermine the already weak deterrent effect of the medical liability system. Republicans in Congress and physician groups both pushed for the adoption of a federal damages cap as part of health care reform. Physician support for damages caps could be explained by concerns about the insurance cycle and the consequent instability of the market. Our own study presented here suggests that there is greater insurance market stability in states with caps on non-economic damages. Republicans in Congress argued that the enactment of damages caps would reduce aggregate health care costs. The Congressional Budget Office included savings from reduced health care utilization in its estimates of cost savings that would result from the enactment of a federal damages cap. But notwithstanding recent opinions offered by the CBO, it is not clear that caps will significantly reduce health care costs or that any savings will be passed on to consumers. The ACA included funding for state level demonstration projects for promising reforms such as offer and disclosure and health courts, but at this time the benefits of these reforms are also uncertain. There is a need for further studies on these issues.     

Health care cost-containment regulation: prospects and an alternative.

Regulation of the health care system to achieve appropriate containment of overall costs is characterized by Professor Havighurst as requiring public officials to engage, directly or indirectly, in the rationing of medical services. This rationing function is seen by the author as peculiarly difficult for political institutions to perform, given the public's expectations and the symbolic importance of health care. An effort on the part of regulators to shift the rationing burden to providers is detected, as is a trend toward increasingly arbitrary regulation, designed to minimize regulators' confrontations with sensitive issues. Irrationality and ignorance are found to plague regulatory decision making on health-related issues, even though it is the consumer who is usually thought to suffer most from these disabilities. The author argues that consumer choice under some cost constraints is a preferable mechanism for allocating resources because it better reflects individuals' subjective preferences, has a greater capacity for facing trade-offs realistically, and can better contend with professional dominance of the resource allocation process. In view of the unlikelihood of regulation that is both sensitive and effective in containing costs, the author proposes that we rely primarily on consumer incentives to reform the system. A simple change in the tax treatment of health insurance or other health plan premiums, to strengthen consumers' interest in cost containment while also subsidizing needy consumers, is advocated. Steps to improve opportunities for innovation in cost containment by health insurers, HMOs, and other actors are outlined briefly.     

An analysis of congressional health policy voting in the 1970s

This paper analyzes nine health policy votes in the U.S. House of Representatives. The votes all occurred between 1973 and 1980 and include such issues as health planning, health maintenance organizations, cost containment, and professional standards review organizations. The objective of this analysis is to examine the independent contribution of variables indigenous to health issues while controlling for party identification and ideology. The influence of health providers, measured by the effect of the number of state medical association members in each state, is significant in the findings. The state and local share of Medicaid expenses is also significant in explaining several votes. Contributions from political action committees were not important until 1979, when the rising costs of campaigns gave them more influence, and when our measures of their influence improved. By the time Congress voted in 1979 on hospital cost containment legislation, the PAC variable surpassed even the AMA variable in importance.     

公共政策、医疗行为与责任配置——关于医疗损害责任制度绩效的观察和评论

从法政策学的角度对侵权责任的制度绩效进行观察和验证,是后侵权责任立法时期中国民法学的重要学术使命之一。本文以医疗损害责任为分析对象,竭力展示公共政策与责任配置之间的微妙关系。研究表明,现阶段公共卫生政策的实质是通过加强管制约束来提高医疗服务的质与量。在此背景下,医疗损害责任的功能定位只能是激励而非补偿;且由于医疗服务自身的特性,相关责任配置的隐性激励作用更加突出。我国现行医疗损害责任在归责原则、责任形态和损失分摊方面分别存在激励不足、不当管制和风险无关的缺陷,极有可能导致制度失灵、立法目的落空,亟需加以改进。     

Administrative compensation of medical injuries: a hardy perennial blooms again

Periods in which the costs of personal injury litigation and liability insurance have risen dramatically have often provoked calls for reform of the tort system, and medical malpractice is no exception. One proposal for fundamental reform made during several of these volatile periods has been to relocate personal injury disputes from the tort system to an alternative, administrative forum. In the medical injury realm, a leading incarnation of such proposals in recent years has been the idea of establishing specialized administrative "health courts." Despite considerable stakeholder and policy-maker interest, administrative compensation proposals have tended to struggle for broad political acceptance. In this article, we consider the historical experience of administrative medical injury compensation proposals, particularly in light of comparative examples in the context of workplace injuries, automobile injuries, and vaccine injuries. We conclude by examining conditions that may facilitate or impede progress toward establishing demonstration projects of health courts.     

State Medicaid managed care enrollment: understanding the political calculus that drives Medicaid managed care reforms

The objective of this article is to understand the political motivations underlying Medicaid managed care reforms by examining the determinants of enrollment of beneficiaries in managed care plans in the fifty states. To highlight the role of the model variables, including measures of the political environment, public interest, and special interests, a distinction is made between capitated and fee-for-service managed care enrollment. The results show that cost containment within the context of the Medicaid program is perceived as strongly favored by voters. Accordingly, the relative cost and tax price of providing Medicaid services are important factors in states' decision to enroll Medicaid beneficiaries in managed care plans, particularly capitated ones. The results also indicate a surprisingly significant influence by labor unions that generally oppose managed care enrollment for fears of lost jobs. The recipient population and provider groups also play an important role in shaping the Medicaid managed care landscape. The influence of variables measuring states' ability and willingness to pay and median voter preferences suggest that, within the context of Medicaid managed care enrollment, the public's interests are being served; however, the results also point toward inequities within the program and implications concerning financing arrangements between states and the federal government.     

Patient Compensation Funds: legislative responses to the medical malpractice crisis

Fifteen states have created Patient Compensation Funds in response to the increased cost and reduced availability of medical malpractice insurance associated with the so-called "medical malpractice crisis." Patient Compensation Fund statutes limit health care providers' liability to a specified amount, and establish state-administered funds to compensate victorious malpractice plaintiffs for damage awards in excess of that amount. This Note examines the Patient Compensation Fund mechanism, evaluates its effectiveness as a compensation system for malpractice victims, and recommends particular provisions that might enhance its effectiveness. The Note concludes that the Patient Compensation Fund mechanism is an effective means of increasing the availability and of reducing the cost of medical malpractice insurance, and should be adopted by other states experiencing a "medical malpractice crisis."     

The schizophrenia of physician extender utilization

The Patient Protection and Affordable Care Act of 2010 provides incentives for healthcare to be delivered by Affordable Care Organizations (ACOs). The public face of many, if not most, ACOs is likely to be the Patient Centered Medical Home (PCMHs), a business structure that evolved from Retail Medical Clinics, which made greater use of physician extenders (PAs). Accordingly, this paper examines the evolution and structure of PCMHs as well as how the PCMH is regulated. As neither legal or market regulatory mechanisms are ideal for policing business structures that employ PAs, this paper concludes that the tort reform most appropriate for PCMHs is the introduction of either no-fault or enterprise liability coverage.     

Taking fundamental rights seriously in the Digital Services Act's platform liability regime

This article highlights how the EU fundamental rights framework should inform the liability regime of platforms foreseen in secondary EU law, in particular with regard to the reform of the E-commerce directive by the Digital Services Act. In order to identify all possible tensions between the liability regime of platforms on the one hand, and fundamental rights on the other hand, and in order to contribute to a well-balanced and proportionate European legal instrument, this article addresses these potential conflicts from the standpoint of users (those who share content and those who access it), platforms, regulators and other stakeholders involved. Section 2 delves into the intricate landscape of online intermediary liability, interrogating how the E-Commerce Directive and the emerging Digital Services Act grapple with the delicate equilibrium between shielding intermediaries and upholding the competing rights of other stakeholders. The article then navigates in Section 3 the fraught terrain of fundamental rights as articulated by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) under the aegis of the European Convention on Human Rights and the EU Charter. This section poses an urgent inquiry: can the DSA's foundational principles reconcile these legal frameworks in a manner that fuels democracy rather than stifles it through inadvertent censorship? Section 4 then delves into the intricate relationship between fundamental rights and the DSA reform. This section conducts a comprehensive analysis of the key provisions of the DSA, emphasising how they underscore the importance of fundamental rights. In addition to mapping out the strengths of the framework the section also identifies existing limitations within the DSA and suggests potential pathways for further refinement and improvement. This article concludes by outlining key avenues for achieving a balanced and fundamental rights-compliant regulatory framework for platform liability within the EU.     

Cost-effectiveness analysis in the courts: recent trends and future prospects

This article provides an initial look at how managed care organizations (MCOs) might incorporate cost-effectiveness analysis (CEA) into their decision-making process and how the courts might respond. Because so few medical liability cases directly involve CEA, we must look at other areas of the law to assess potential MCO liability for applying CEA. In general negligence cases, courts rely on a risk-benefit test to determine customary practice. Likewise, in product liability cases, courts use a risk-utility calculus to determine liability for product design defects. And in challenges to government regulation, courts examine how agencies use CEA to set regulatory policy. The results have been mixed. In product liability cases, CEA has led to some punitive damage awards against automobile manufacturers. But courts have integrated it in negligence cases without generating juror antipathy, and generally defer to agency expertise in how to incorporate CEA. The article discusses the implications of these cases for MCO use of CEA and outlines various options for setting the standard of care in the managed care era.     

Negotiating authority: a comparative study of reform in medical training regimes

Recently the medical profession has faced increased outside pressure to reform postgraduate medical training programs to better equip young doctors for changing health care needs and public expectations. In this article we explore the impact of reform on professional self-governance by conducting a comparative historical-institutional analysis of postgraduate medical training reform in the United Kingdom and the Netherlands. In both countries the medical training regime has shifted from professional self-regulation to coregulation. Yet there are notable differences in each country that cannot be explained solely by diverging institutional contexts. They also result from the strategic actions by the actors involved. Based on an assessment of the recent literature on institutional transformation, this article shows how strategic actions set negotiating authority processes into motion, producing new and sometimes surprising institutional arrangements that can have profound effects on the distribution and allocation of authority in the medical training regime. It stresses the need to study the interactions among political context, the properties of institutions, and negotiating authority processes, as they are crucially important to understanding institutional transformation.     

论医疗损害责任抗辩事由及其法律完善

《中华人民共和国侵权责任法》第60条规定了医疗损害责任的抗辩事由,但法律规定不够完善,难以完全应对实践需要。因此,需要对第60条进行法律解释,并需丰富医疗损害责任抗辩事由体系,增加规定无因管理、医疗特权、意外事件、自甘冒险、损益相抵和并发症等抗辩事由。此外,结合我国医疗卫生事业体制和医学科学特点以及比较法的经验,应适当限制医疗损害责任赔偿。     

Top‐up Payments for Expensive Cancer Drugs: Rationing,Fairness and the NHS

This article examines the implications for patient care, and for the future of rationing within the NHS, of the recent decision to permit NHS patients to supplement their care by paying for medicines — mainly expensive new cancer drugs — which are not available within the NHS. The starting point is the recommendations of the Richards' Report and their implementation through new guidance issued by the Department of Health and the National Institute for Health and Clinical Excellence. Practical challenges arise from the insistence upon the ‘separate’ delivery of self‐funded medicines, and more flexible cost‐effectiveness thresholds for end of life medicines may have repercussions for other patients. While undoubtedly part of the trend towards explicit rationing, top‐up fees might also represent a significant step towards regarding the NHS as a core, basic service. Finally, the issue of top‐up fees is located within the broader context of current cancer research priorities and persisting health inequalities.     

Report from Germany: current conditions and controversies in the health care system

This paper presents a structured survey of the West German health care and health insurance system, and analyzes major developments of current German health policy. In order to make the analysis more accessible to a largely American audience, brief historical remarks, comparisons with U.S. experience, and considerable data and tabular information are provided. The German statutory health insurance scheme is known as a very comprehensive and generous one. However, under the pressure from rapidly expanding health care expenditures and a severe economic recession, the German governments under Helmut Schmidt and his successor Helmut Kohl imposed a number of cost-containment measures, namely a change in the mode of remuneration for physician services, certain regulations of the drug market, and increased cost-sharing. Cost-sharing is especially favored by the new conservative-liberal government. The article concludes with a summary of striking similarities between the American and German health care schemes, and an outlook on proposals for reform which are currently under investigation by the German government.     

Finding the levers, finding the courage: lessons from cost containment in North America

"Learning" is broader and more complex than simply the orderly acquisition of new knowledge. At least as important is the evolution of the background of assumptions and beliefs held by the community, or its principal decision makers, and implicit in its institutions and policies. These may bear only a loose relation to evidence or knowledge narrowly defined. The pressures of cost escalation over the past twenty years, and the attempts at containment in the U.S. and Canada, have added substantially to our knowledge of how the health care system works. Containment is possible, and the successful mechanisms, thus far, are quite specific. But the results of these attempts and (in the U.S.) the continued escalation have also significantly shifted the broader set of assumptions in the community about appropriate priorities and policies in health care. Attitudes towards physician supply, variations in practice patterns, capitated practice, and for-profit organization, for example, have changed radically, although the supporting evidence has not. But cost pressures have created an audience which wants to hear, whose background assumptions provide a different "fit" for the evidence.     

Renovating the Commons: Swedish health care reforms in perspective

Recent reform experience in Sweden supports the premise that key dimensions of a country's health care system reflect the core social norms and values held by its citizenry. The fundamental structure of the Swedish health system has remained notably consistent over the past half century, that is, tax-based financing and publicly operated hospitals. Yet on other, nearly as important, parameters, there has been substantial change, for example, the persistent pursuit for thirty years of a stronger primary care framework and the effort to allow patient choice of doctor, health center, and hospital within the publicly operated system. This particular combination of continuity and change has occurred as traditional Swedish values of jamlikhet (equality) and trygghet (security) have been challenged in an environment shaped by an aging population, changing medical technology, and Sweden's integration into the European Single Market. This article explores the ongoing process of health system development in Sweden in the context of the country's broader social and cultural characteristics.     

Health care in Canada: patterns of funding and regulation

During the 1970s the share of health care expenditure in Canadian GNP remained roughly stable, in the range of 7-71/2 percent of GNP, in marked contrast to its escalation in most other countries (the U.S. in particular) and to previous Canadian experience. The shift to a stable pattern coincided with the completion of the Canadian system of universal comprehensive public hospital and medical care insurance. This paper explores how and why the public insurance system served to contain cost escalation. It then discusses the inadequacy of expenditure experience per se as a basis for health system evaluation--the same data will support claims of both "underfunding" and "spiralling costs." More serious questions involve the influence of alternative patterns of health care funding and delivery on the effectiveness and efficiency of care provision, and the resulting distributional patterns of care and income. A brief sketch is given of the present situation and future possibilities of Canadian health care under these heads.