Frequently Asked Questions: Health Law

Health law is a generic term covering a wide variety of legal issues, including hospital administration and regulation, licensure, physician-patient relationships, patient privacy, Medicare and Medicaid funding and payment reimbursement, health insurance providers and their relationships with hospitals and physicians and drug and medical device regulation. Most attorneys practicing in the area of health law work with industry players rather than with patients.

The Health Insurance Portability and Accountability Act (HIPAA) was passed by Congress in 1996. The Act seeks to protect the confidentiality of patient information by requiring hospitals and other health care providers to follow certain procedures in transmitting and storing patient information. Additionally, HIPAA provides patients with the right to view and have copies made of their confidential patient information and requires patient consent prior to using patient information for anything other than for treatment, payment or health care operations.

Providers must appoint a privacy official to oversee the administration of their HIPAA policy. They must train their employees on HIPAA requirements, adopt privacy safeguards for patient information and develop a complaint procedure for handling HIPAA violations as well as a system of sanctions for those found in violation of the privacy policy.

No. HIPAA does not create a private cause of action. Rather, to address a possible violation, the patient must submit his or her complaint to the Office of Civil Rights (OCR), which is part of the US Department of Health and Human Services. A HIPAA violation, however, may give rise to other state law claims against a hospital, physician or other health care provider as a result of wrongful disclosures.

The Stark laws prohibit doctors from making referrals to any designated health services if the doctor or an immediate family member has a financial relationship with the referral entity. These financial relationships include ownership or investment interests or compensation arrangements. Designated health services include most care services, such as physical therapy and some radiology services. The laws also provide safe harbor exceptions that protect certain types of referrals made by physicians.

No. EMTALA prevents hospitals from dumping patients without insurance on other hospitals. Under federal law, hospitals have a duty to treat patients who come to their emergency room without regard to their ability to pay for the services.  Before the patient may be discharged or turned away, he or she must be medically stable.

If no previous agreement exists, or if one does and one of the parties has changed his or her mind about the disposition of the embryos, the courts will determine what should happen with the embryos. If one of the parties would like to use the embryos to have children and the other party does not want to be a parent, the court generally will decline to force parenthood on the party. However, if the party wishing to become a parent does not have any other reasonable means to have a child, the court may be more willing to find in favor of the parent desiring parenthood.

Did the patient have a living will or advance care directive that provides guidance as to the patient’s wishes for medical treatment in this situation?  If nothing exists, health care providers will frequently turn to the patient’s next of kin (spouse, children or parent) to determine which family member will have the authority to decide what is best for the patient. Where there are disputes among family members, or in some instances disputes between healthcare providers and family members, court intervention may be necessary.