Rethinking Health Law

A specter haunts health law, the specter of exhaustion. Our field was once vibrant with new issues and fresh ideas. Today, scholarship routinely recycles old proposals about recurring problems. The dominant paradigms - patient autonomy and market theory - have largely done their work and run their course. And while new perspectives are struggling to be born, they are tentative and incomplete. The time has come to rethink health law's paradigms broadly and boldly. To that end, a small group of leading health law scholars and other academics convened at Wake Forest University in December 2005 to reflect on three questions:  Does health law have a core set of concerns?  What new paradigms can best help us reconceive health law?  How can health law accommodate the special psychological, emotional, and moral aspects of its subject? This symposium publishes the results of that discussion. Some of the articles address our three questions at the broadest level. Others tackle more specific issues in health law in a way that suggests the merits of newer paradigms and better methods. Our conference prospectus proposed a patient-centered approach to reconceptualizing the field. Under that rubric, lines of inquiry that are now under-developed might profitably be pursued. We offered three possibilities: a relational perspective, patient-centered professionalism, and patient-centered empiricism. While none of the symposium articles proposes a comprehensive patient-centered health law, most of the articles offer promising insights into the concept. Mark Hall offers an essentialist definition of health care law that emphasizes the centrality of the patient. He hopes that making the patient central will force the law to acknowledge and accommodate crucial features of the medical arena, such as the social and psychological realities of treatment encounters and the essential ingredients of medical practice and professionalism. Einer Elhauge endorses a different relational perspective on health care. He prefers a comparative analytic method that uses interdisciplinary insights to craft the best accommodations of four competing and often contradictory paradigms - the moral, professional, market, and political. Roger Dworkin applies such an approach in his article on medical malpractice. In designing a medical malpractice system that maximizes institutional competencies, he takes on the challenging task of assessing ways to integrate morality, professionalism, market forces, and politics. Carl Schneider uses the law of bioethics to explore the argument for a patient-centered health law. He argues that the contemporary law of bioethics has foundered on its preoccupation with the autonomy principle and suggests that the policies that law has instituted have, on empirical examination, apparently failed substantially. He notes that the agenda of bioethics has been set by the intellectual interests and ideological preferences of bioethics and asks what the agenda would be like were it set by patients. Lois Shepherd and Carol Heimer each explore a different strand of patient-centered health law, one that develops what might be called patient-centered professionalism. In this vein, Shepherd urges that we consider not simply the duties of professionals, but also those of insurers, governments, family members, the individual patient, and others. Heimer asks how the law - viewed broadly to include institutional guidelines and other kinds of 'rules' that form the penumbra of law - can produce responsible and responsive health care, a goal that requires both that professionals be morally competent and that social incentives encourage them to assume responsibility for patients' welfare. Finally, several of the symposium articles illustrate or advocate patient-centered empiricism: attending more closely to what actually happens to patients and to how public policy initiatives actually affect patients. For instance, Timothy Jost examines the entire system of health care laws and regulation from an evidence-based perspective that asks how well several ideological approaches actually advance their policy objectives. In commentary, Hank Greely questions the utility of proposing new paradigms in a field that is vibrant with different strands of scholarship. He concludes aptly, noting that all of our contributions can be both real and important. We should get back to them. There is work to be done.