Saturday, February 9, 2008
Hall on The Legal and Historical Foundations of Patients as Medical Consumers
Posted by Mary L. Dudziak
The patient as a figure in American legal history is considered in Mark A. Hall's (Wake Forest) new essay, The Legal and Historical Foundations of Patients as Medical Consumers. It is forthcoming in the Georgetown Law Journal. Here's the abstract: Rich academic debate has emerged over multiple competing views of health care law. Under one view, termed essentialism, health care law is a distinctive academic field because the particular attributes of medicine and treatment relationships matter fundamentally, not just incidentally, to how law governs this field. The competing conceptualization, which has been denigrated as the law of the horse view, is that much of health care law consists of nothing more than conventional rules from other legal fields as they apply to the services, actors, and institutions that happen to populate the medical arena. This essay supports the essentialism view by demonstrating that the legal system sees individuals who receive medical care more as patients than as consumers, even in the most commercial of settings - the payment for services. Normal rules of contract do not apply between providers and patients. Instead, like family law, medical law is as much about status as it is about contract. Patients' and physicians' contractual obligations are forged in the context of someone who is sick and vulnerable seeking care in a therapeutic relationship that entails special responsibility for the patient's welfare. This Essay documents how this contextualized view has affected law's treatment of medical transactions throughout history.