INFORMATION ABOUT
HEALTH CARE ISSUES

The questions and answers that follow discuss some of the current issues involving Health Care.

We hope that the questions and answers presented here will assist you in familiarizing yourself with Health Care Law issues and terms. While the material below attempts to answer common questions in this area, State and local laws may significantly modify the facts set forth. Because all legal problems are unique, nothing provided here is a substitute for the advice of competent counsel. We strongly urge you to consult with an attorney licensed to practice in your state about any particular legal problem you may have.

WHAT IS MANAGED CARE?

"Managed care" is a method of providing health care coverage to patients at reduced costs to employers and others. Under the managed care system, both the patient and the doctor are managed through rules imposed by the managed care company. These rules generally limit the patient's choice of both doctors and other health care providers such as labs, x-ray facilities, hospitals, visiting nurse service, etc. The managed care rules also limit a doctor's options in treating you. The managed care system controls costs by limiting the amount of money spent on diagnosing and treating a patient's problem. Health maintenance organizations (HMOs) and preferred provider organizations (PPOs) are two most common types of managed care entities.

WILL MY HEALTH CARE BE AS GOOD AS IT IS NOW UNDER MY REGULAR HEALTH PLAN IF I JOIN AN HMO OR PPO?

Yes. Both HMOs and PPOs use a variety of approaches to change and limit your doctor's decision-making powers and limit the amount of money spent on providing your medical benefits. HMOs and PPOs use two major techniques to limit the tests and treatment to the patient. The first technique uses nurses to act as "case reviewers." The nurses or other reviewer can tell your doctor how to handle your case. The second technique uses your primary doctor as a "gatekeeper." Your primary doctor, the gatekeeper, is responsible for limiting referrals to specialists, x-rays, and lab tests, among other benefits.

WHAT IS THE DOCTRINE OF INFORMED CONSENT?

The doctrine of informed consent imposes on your doctor a "duty to disclose" certain information to you before any surgery or potentially dangerous test is performed. While the standard varies from state to state, in Pennsylvania the standard is whether "the physician disclosed all the facts, alternatives, and risks that a reasonable person in the situation, which the physician knew or should have known to be the patient's, would declare significant in making a decision to undergo the recommended treatment." So if you are mentally and physically able to discuss your condition, in the absence of an emergency, your informed consent is required before any surgery or test can be completed by the physician. If your doctor performs surgery, etc., without your informed consent, he or she has committed an "assault and battery" upon you and is liable for any resulting injuries, regardless of whether the treatment was performed negligently. Whether you would not have gone through with the operation if warned of a particular danger is irrelevant in this situation.

WHO CAN I SUE IF I AM HURT BY MY HEALTH INSURANCE COMPANY, DOCTOR, OR OTHER PARTY?

A lawsuit brought by an injured patient against a physician to recover for injuries sustained from a medical malpractice claim has always been an accepted type of claim. Health insurance companies that provide your health insurance coverage as a benefit through your employer are given special privileges which allow them to be exempted from many lawsuits. This is slowly changing, to allow more and more lawsuits. Certain states have enacted statutes requiring that health insurers disclose all of the insurance terms to their insureds.

DO I HAVE A RIGHT TO DIE?

Medical technology has evolved over the past twenty-five years to the point that patients with terminal diseases can be kept alive at times, through the administration of treatments and life support. A series of cases over the past thirty years has established your right to control crucial aspects of your care. Patients with irreversible medical conditions have gained permission to decline treatment that will "sustain" their lives. Under the Patient Self-Determination Act, health care facilities must inform patients of their right to prepare advanced directives and authorize doctors in advance to let the patient die by withdrawing or withholding life-prolonging procedures. Protecting your rights should be done in writing in advance with an advance health care directive, with the assistance of an attorney who is experienced with these issues.

IS IT TRUE THAT A "WHISTLE BLOWER" CAN COLLECT A PORTION OF ANY RECOVERY FROM DOCTORS, LABORATORIES, HMOS OR OTHER HEALTH CARE PROVIDERS WHO DEFRAUD THE FEDERAL GOVERNMENT?

Yes. The False Claims Act, 31 U.S.C. §§3729-3733, imposes liability on any company or individual doing business with the federal government, for fraudulent acts. The qui tam (pronounced "key tam") provision of this Act allows any employee of these companies, with knowledge of the fraud, to bring suit on behalf of the United States to recover the fraudulent payments. Some settlements in qui tam actions against health care providers have run into the hundreds of millions of dollars. Because the statute is complex, you should consult with an attorney before proceeding. Remember, the Act applies to all businesses doing business with the federal government, not just health care providers.

DESSEN, MOSES & ROSSITTO is happy to assist you in any legal matter that involves either Pennsylvania or New Jersey, the two states in which our attorneys routinely practice. If you wish to contact us for more information concerning this field of law or any other in which we practice, please send us an E-mail message and we will be happy to assist you.

LINKS TO OTHER INTERESTING INFO

Autoimmune Liver Disease Group
Department of Justice
Health Care Finance Administration (Medicare/Medicaid)
Health Care Resources on the Internet
Living Wills: Common Questions and Answers National Institutes of Health
PBC Liver Disease Group
Social Security Administration (SSA)

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