Law vs. Health Law Fundamentals
Written by: Rachel V. Rose, JD, MBA
When was the last time you thought about what the “law” actually is and how it differs from what is commonly known as “health law”?
Black’s Law Dictionary (2nd Ed.) provides two definitions:
- That which is laid down, ordained, or established. A rule or method according to which phenomena or actions coexist or follow each other.
- A system of principles and rules of human conduct, being the aggregate of those commandments and principles which are either prescribed or recognized by the governing power in an organized jural society as its will in relation to the conduct of the members of such society, and which it undertakes to maintain and sanction and to use as the criteria of the actions of such members.
It should come as no surprise that law and legal systems stem back to ancient civilizations including: The Code of Hammurabi (Mesopotamia); The Ten Commandments (Israel); Roman Law (civil law based on complying with enacted law); and English Common Law (based on precedent and court rulings). Interestingly, as an article in Harvard’s The Quarterly Journal of Economics states:
The common law tradition originates in the laws of England and has been transplanted through conquest and colonization to England’s colonies, including the United States, Australia, Canada, and many countries in Africa and Asia. The civil law tradition has its roots in the Roman law, was lost during Dark Ages, but rediscovered by the Catholic Church in the eleventh century and adopted by several continental states, including France.
While both systems of law have both laws and regulation, what truly separates them is law enforcement and adjudication in terms of control exercised by judges by the sovereign. England’s court proceedings are presided over by a judge or judges and at the trial level, independent juries play a crucial role. This is similar to the United States.
Just as the law is broad and covers a variety of civil and criminal topics (e.g., property, contract, tort, murder, theft), so is the definition of health law. Health law has been described as “a multidisciplinary field that focuses on the regulations and policies governing the health care industry and healthcare itself.” Examples include pharmaceutical and device approval regulations, public health, HIPAA and fraud, waste and abuse laws. I would also add that it includes the fiduciary relationship between a physician and a patient, as well as bioethics.
As I recently wrote, my definition of “bioethics” is “the convergence of clinical medicine, law, religion and philosophy, any one item or combination of items may be utilized to address a situation arising in a clinical or health policy setting.” This complex area involves multiple disciplines and situations may arise where the “law”, “health law” and “religious law (or cannon law)” do not always align.
Non-lawyers may be asking, “where do I begin?” First, begin with the United States Constitution and appreciate our three separate branches of government and how they are meant to function independently. Second, understand what “federalism” means and when federal laws superseded state laws. An example in health care law is HIPAA, a federal law regarding patient privacy and the security requirements to maintain the confidentiality, availability and integrity of individually identifiable health information (IIHI) of which protected health information (PHI) is a subset and Texas HB 300. Federal HIPAA forms the floor and state laws, such as Texas HB 300 (Sept. 2012) cannot go below what is required by HIPAA. The states have the latitude for heightened requirements or broader application. Lastly, read relevant federal and state laws and health care laws. For example, property law and Stark Law often arise together. In sum, both the law and health law are highly specialized. Like medicine, just because a person is a doctor does not mean that they are qualified to answer questions or address every specialty of medicine.
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About the Author: Rachel V. Rose, JD, MBA
Rachel V. Rose, JD, MBA is a disciplined, empathetic, & tenacious attorney advocating for & winning desired legal outcomes for national & international clients. Ms. Rose’s practice includes compliance, transactional, & litigation matters primarily related to healthcare, cybersecurity, securities, the False Claims Act, and Dodd-Frank. She is also affiliated with Baylor College of Medicine where she teaches bioethics.
