A Restatement of Health Care Law

Abstract

This article was written for a symposium on potential Restatements that the American Law Institute might prepare.

While the value of a health care law Restatement may once have been uncertain, that is no longer the case. With advances in research and technology, health care has become an increasingly important factor in the economy and legal system of the United States. National spending has risen to more than 2.7 trillion dollars a year (about 18% of GDP), and health care law now encompasses a broad range of key doctrines, from medical malpractice and end-of-life decision making to health care financing and food and drug regulation. As health care and the laws that govern it have increased in importance, the value of a Restatement of Health Care Law has grown as well. There would be much to be gained from a health care law Restatement. It could:

• Serve the traditional Restatement roles of describing the landscape for central doctrines in the field and shaping doctrinal reform (e.g., treatment withdrawal from incompetent persons or the scope of physician disclosures for informed consent) (Part I of this article), • Untangle complicated doctrines and indicate how the law could be streamlined (e.g., ERISA) (Part II), and • Indicate when health care exceptionalism makes sense (e.g., public health regulations or health care antitrust law) (Part III).

A health care law Restatement would enhance its contributions substantially by considering not only legal principle and doctrine but also empirical evidence. Many legal issues in health care can be better understood by considering how health care decisions are actually made, whether by patients, physicians, hospitals, or other participants in the health care system. By incorporating the lessons of empirical studies, authors of a health care law Restatement would place their analyses on much firmer ground.