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Abstract:
This paper explores a new approach to health care regulation, referred to generally as new governance. New governance is not a unitary theory of law but rather is a collection of approaches to regulation which lie between an open market system and a very prescriptive regulatory regime, often characterized as command and control regulation. Originally developed in Australia, the various approaches to new governance have been implemented in Europe and North America as well, generally in highly technical arenas in matters concerning safety and the environment The paper considers the application of new governance in health care, primarily in the context of medical errors, but also considers application so this doctrine to licensure as well.

new governance, health care regulation, regulatory reform, responsive regulation, meta-regulation

Abstract:
Feng Shui is the eastern art and science of being in harmony with your environment. Feng shui is a structural system designed to align an internal environment with the outside world. The concept of feng shui can be applied to institutions, as there is a need for an organization to be properly structured to meet internal and external objectives. In particular, the American hospital has undergone significant structural changes to both facilitate internal operations and to meet the demands of external constituencies. While the average hospital is now far more complex than in the past, the fundamental corporate model, the so-called "three legged stool," board, administration and medical staff, has remained much the same for many years.

This essay considers the continuing viability of the basic legal structure of hospitals - the three legged stool - and to determine whether or not this legal framework retains its effectiveness in the current environment in which acute care institutions must function. The article considers whether hospitals can respond to pressures in the areas of patient safety and quality if they are locked into the traditional triad corporate legal model. The question can be framed as an analysis of whether the three legged stool allows hospitals to achieve the necessary internal efficiencies to face the external pressures being placed on the hospital. The discussion will examine major trends in hospital law that relate to quality of care concerns, and the ways hospitals have responded to quality pressures. The article will explore the implications of medical errors on hospital operations, and will consider the inadequacies of the three legged stool. The article will end with a consideration of how the hospital corporate legal model might be altered to improve current and future quality of care challenges.

hospital efficiency, quality health care, hospital quality, legal structure of hospitals, hospital structure

Abstract:
Few biblical stories capture the American penchant for individualism better than that of David versus Goliath. The American experience is inextricably linked to the celebration of individuals, who, like David, triumph against all odds. Virtually all aspects of American law are highly affected and shaped by a legal commitment to the principles of individualism. The United States Constitution, for instance, is heralded as the linchpin of American jurisprudence. This belief is based largely on the Bill of Rights and its commitment to protecting individual liberties. Beyond constitutional law, other fundamental areas of law also manifest a strong tradition of individualism. For example, tort law is rooted in concepts of equity, which demand that the wronged individual be provided with a remedy. Most American lawyers are staunch advocates of a legal system that extols, protects, and empowers the individual, and would view our commitment to personal liberties as the hallmark of American democracy. This principle is best reflected in American jurisprudence that supports the concept of justice through individual right. At the risk of being labeled a legal heresy, this essay posits the notion that our conception of individual rights may not be compatible with a broader vision of justice as a principle of social justice using the framework of public health. This essay argues that a community oriented enterprise, such as public health, is illustrative of how American views of individualism and justice compete. This piece utilizes two examples from public health to illustrate the tension between individualism and community: (1) drawn from the domestic arena: childhood immunizations; and (2) drawn from the international sector: defining the right to health. These vehicles show how an individualistic vision of justice may not easily equate to a broader notion of collective justice.

health care and justice, justice and community, american justice, health care law

Abstract:
In the realm of Constitutional Law, federalism can be classified as a perennial issue, its history predating the adoption of the constitution itself. Federalism conveys both a sense of structure and a sense of mandate, and while it is not as constant a presence in constitutional jurisprudence as issues affecting individual rights, it is a concept, nevertheless, which is a deeply rooted one, fundamental to government operations. This article is written to reflect on federalism in health care, and to suggest that the balance between Washington and the states has been skewed in ways that are counter productive to effective governance of this sector, and that such imbalances must not be tolerated as the status quo. The core argument driving the analysis in this piece is that the current regulatory frenzy in managed care presents a picture of uncoordinated, and short sighted efforts, often motivated by political gains which only serve to proliferate intergovernmental conflict, duplication of efforts, spawn unnecessary costs, and move us further away from a coordinated vision of government health care policy. The constitutional purists of the world who may stumble across this article should recognize that it is written by a health law academic who believes that constitutional doctrine underpinning federalism is fungible doctrine that should be changed when it no longer serves the public interest, and that the first step in a journey of a thousand miles may be a slippery one.

federalism, health care, federalism in health care

Abstract:
This article is written as a companion piece to the article, "Public Interest Lawyers and New Governance: Avocating for Health Care" by Professor Louise Trubek. The article first examines the core theme of health care quality, and reviews the key strategies in adddressing quality issues, namely structure, process, outcome and consumerism. The piece juxtaposes the quality efforts with the current realities of patient safety and medical errors, and calls into question the viability of past quality initiatives. It is pointed that while quality efforts may have resulted in certain successes, there is a clear need for renewed advocacy in this area, including local alliances recommended by the Institute of Medicine and the model of community advocacy, suggested in the piece by Professor Trubek.

The article explores, in a critical fashion, the Trubek analysis of health care governance, which is characterized by movements, "outward", "downward" and "outside the regulatory box". The author notes that while the movements noted by Trubek are real, they maybe not be so novel or deliberate as is suggested. For example, this article views health care federalism, the movement downward, as a reflection of a void in federal policy, a process of deliberate delegation, and a means by which state governors have tapped into national funding.

The piece concludes with a recognition that advocay efforts will have to be increased, if areas such as quality, are to remain priorities in the post September 11th world. The article supports the Trubek model, but calls for advocay efforts to continue at federal levels, and at points of interface between federal and state government. While certain decisions in health care policy have drifted downward, this piece argues that health care policy at the local level is still in many ways a creature of policies forged at higher levels of government, a lesson advocates should not ignore.

Abstract:
This section of the Annals of Health Law represents a compilation of materials concerning the state regulation of managed care. The following materials were first presented at the annual meeting of the American Association of Law Schools ("AALS") Section on Law, Medicine and Health Care in January 1999. Chairman John Blum introduces the subject and questions the dual role assumed by the state and federal authorities in regulating managed care.