[MUSIC] Welcome to this health law elective. My name is Ted Ruger, I'm Dean of the Penn Law School here in Philadelphia, as well as a teacher and scholar in the area of health law. And I'm very glad to be going with you on this introductory journey through a number of key topics in health law as it applies to the provision of medical care in the United States. This is designed as a broad survey course, intended to give you a basic vocabulary of the key issues that involve the legal interaction with the healthcare system. As well as a basic understanding of the core structures and institutional dynamics that generate the health law regime in the United States, and that help shape and sometimes complicate the provision of medical care in the US. Let me start with a big question which has an ambiguous answer, is what is health law? The broadest possible answer to that is broader than this course will be. We know that the determinants of health, as it affects our population health or our individual well-being, are quite broad. So we might say that labor law, or environmental law, or housing law, all might be considered a form of health law. In that those determinants, the way we live, the way we work, the way our environment is fundamentally affects us from a health perspective. We, of course, might also say that medical research on new therapies, drugs and medical devices is quintessential health law and, of course, it is key to what goes on in the healthcare system. For purposes of this course, however, I take a more parsimonious and focused goal on an incredibly important relationship, the therapeutic relationship between the doctor, and the nurse, and other medical providers and the patient who's ill. And look at the legal rules that both structure that relationship, govern its relationship, and then situate that relationship in a broader world of institutional practice, hospitals, insurance companies, our insurance structure. But really, we do start with this key relationship that's very special and very old between the healer and the human being who's ill. Now, in the way I just described it, of course, this is a relationship that's far older than the American legal system, of course older than the United States itself, stretching back thousands and thousands of years, even into our prehistory. As long as people have been getting ill and seeking help from somebody relatively more expert, or at least who claims relatively more expertise to help them with their illness. In that sense, this core therapeutic relationship even predates law or health law itself, although not by much. Because as long as we've observed recorded history and we've seen that people have sought treatment, we've usually seen efforts by societies at the time to regulate who gets that preferred status as healer to regulate how that therapy is given. And perhaps even to punish or somehow disincentivize medical care that is viewed as bad medical care. These are values and even legal structures that go back several millennia and far predate anything in the American legal system. I say that only to discuss the deep roots that both medical authority and legal authority have. This course focuses on health law within the US legal context, and so we look back only a couple hundred years for the roots of these key legal features. But in many ways, we do look back a couple hundred years. And so one important point that I'll make in this introductory course, and make throughout all the other course sessions, is the way medical authority has developed. And the way our legal structures have developed in the US, even today, well into the 21st century, have roots and echoes in our original constitutional design framed in 1789 here in Philadelphia, in the sense that power is divided up. Regulatory authority doesn't sit just in the national capital, but sits in various state and local governments. And we see that even today in the shape of health law rules. One of the things that I'll elaborate more on is that health law is complicated and nuanced, sometimes frustrating, precisely because so many governmental and institutional actors are involved in our legal system. Let me introduce five major themes that will come back to throughout other courses in this overall introductory course. The first I've already alluded to, but this is that health law in the United States has a fundamentally symbiotic relationship with medical authority. Here we have one of the most interesting features, in my view, of studying the legal interactions with the medical system. We have two very old, very distinguished professions, both who make very distinct claims to a kind of expert authority. And so what we'll see in a lot of the legal rules we study, that governing structure in medical practice, we can see the interrelationship between lawyers and judges exercising one form of professional authority. And the way that those legal rules that are structured prioritize structure, even, in my view, subsidize certain forms of medical authority and medical practice. So in my view, lawyers and doctors over the centuries have largely had a symbiotic professional relationship. Legal rules have been very important to the growth of medical authority. Although we'll certainly study doctrines where it seems as though lawyers and doctors are on opposite sides. Second, from a legal perspective, what's notable about health law is how many forms of health law draws upon. Law in the US is made in multiple kinds of ways. Legislatures can pass a statute. Expert agencies can issues rules, or decisions, or approvals. Judges and juries can decide legal rules one case at a time through jury verdicts or common law precedental rules. Certain areas of law embrace only some of those institutional forms, but health law embraces all of them. So we will study doctrines that are laid down by judges, we'll study cases where juries were very important. And we'll also study issues where a statute passed by legislature is really the most important law in the area. Third point about healthcare in the United States is whatever we say health law is at a given point in time, we can expect it to change. Because what history has shown is that health law is among the most dynamic forms of law in the United States. At bottom, what the health law regime tries to achieve is a very human form on incentive effects trying to create better practice of medicine, better access for patients, privacy rules. It's in a sense a very imperfect way of operationalizing the values that we as citizens want out of our medical system. As such, as our values change over time, and they have over the past decades and centuries, we would expect, Indeed we would hope the laws that govern the provision of medical care to change with that time. One short example of that, that we'll study in much more detail in a future course, is the law of patient autonomy and informed consent has changed dramatically over the past 50 years. A half century ago, many physicians and researchers would have regarded it as not essential, maybe even desirable, not to tell a patient what was wrong with him or her, the full extent of their illness. Today, of course, that would be anathema both to professional medical norms, as well as illegal under both state and federal law. So that notion of patient autonomy is just one of many examples where a change in our values about what we want out of the medical system has driven a change in the legal rules we study. A fourth area that's very unique about US law in the health context is not just that it has different forms, statutes, cases, agencies, but that those forms operate vertically within our federal system at the national, state, and local level. It is false to say that health law in the US is nationalized, even after the Affordable Care Act. But it would also be false to say that states control all of the most important issues in health law. Indeed, as we'll see, all three levels of government, Washington, DC, the 50 different state capitals, and indeed many major cities are starting to operationalize very important changes in health law. Finally, to knit all four of those together, all of these foundations of health law, all of these characteristics of health law that are going on in the United States are operating concurrently and simultaneously. We don't wait in the states to see what the national government does. National government doesn't wait to see what state and local governments do. Courts are hearing cases all the time, even while legislatures are considering healthcare reforms. What this means is that all of these themes of change, institutional pluralism, dynamism are happening all at once. This means that health law is a tremendously interesting field of study. It's got a lot of dynamism to it, it's got a kind of dynamic of new human values being brought to bear to our legal debates. And it's just fundamentally even hard to tell at any given point in time what a given health law rule is. So this makes it sometimes challenging, even frustrating for both lawyers and medical professionals who work in the system. But it also makes it incredibly important, incredibly interesting as we collectively look ahead and ask the big question for this course, is what kind health law regime do we want for the future? And how does that regime help us achieve what we really want in a fair, just, efficient medical care system? Thank you.
