19 Pages Posted: 2 Jun 2006 Last revised: 5 Dec 2016
Date Written: 2006
Health law in the U.S. coalesced intellectually and academically roughly 25 years ago as the doctrinal and public policy study of law that applies to the health care industry. Many scholars, are dissatisfied, however, with the state of the field. What existed for centuries as a field defined by physicians' encounters with courts is now defined in essentially the same fashion, only much more broadly, as the judicial, legislative, market, and regulatory systems' encounter with all facets of the health care industry. The field is much richer and more sophisticated than in its origins, but a hodgepodge it still is. Each of the four major branches stands apart from the others and is thought to be dominated by distinct themes.
For a body of substantive law to emerge as a distinctive field of intellectual inquiry, it must be more than just the assortment of rules that result from applying other bodies of substantive law to a particular economic sector or human activity. Such a field is not intellectually distinctive unless there are one or more attributes of the economic or social enterprise in question that make it uniquely important or difficult in the legal domain. For medicine, surely this is the case. Medical law is about the delivery of an extremely important, very expensive, and highly specialized professional service delivered in situations of tremendous personal vulnerability. This is what has attracted scholars to the field. For this simple reason, I propose an essentialist view approach: what are the essential features of health care delivery that distinguish its legal issues from those of other related fields.
Of course, any applied body of law should take some stock of its particular subject matter. But, this need to contextualize is much more compelling in health care law than in many or most other economic and social arenas. That is why its defining characteristics include the special features of medicine. Under this essentialist approach, when ethics, or law, regards patients, it tends to regard them as patients, rather than as people who happen to be patients. And the same is true for people who are physicians and for services that are medical care. Sometimes, it matters fundamentally, even profoundly, that a legal matter involves physicians caring for patients rather than providers servicing generic consumers. When this is so, general law becomes health care law. In sum, the core of academic health care law consists of those aspects of law for which the unique features of medicine are central to the analysis or inquiry, rather than medicine simply being an incident of generic law's subject matter.
Suggested Citation: Suggested Citation
Hall, Mark A., The History and Future of Health Care Law: An Essentialist View (2006). Wake Forest Law Review, Vol. 41, p. 347, 2006; Wake Forest Univ. Legal Studies Paper No. 905889. Available at SSRN: https://ssrn.com/abstract=905889