A Property Right to Medical Care

LEGAL STUDIES RESEARCH PAPER SERIES

Working Paper Number 08-10 March 20, 2008

A Property Right to Medical Care

Dayna Bowen Matthew University of Colorado Law School

Mark Earnest University of Colorado Health Sciences Center

29 Journal of Legal Medicine 1 (2008)

This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract=1111763

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Matthew, Bowen Dayna Ph.D. M.D., Earnest, Mark AP elhcr nti onr a eevdltl attention. little received has to right country a this compels in that care ground legal health colorable this and over concrete debate most cyclical the protracted, question, the despite Yet, decades. for question this 5 4 3 2 1 † ∗ soit rfso,Dvso fGnrlItra eiieadDrco fteGnrlItra Medicine Internal General the of Director and Medicine Internal General of Division Professor, Associate rfso n soit enfrAaei far,Uiest fClrd colo Law. of School Colorado of University Affairs, Academic for Dean Associate and Professor eia nhoooyadscooy n sDrco fCLas hscas doaytraining advocacy physicians’ a CULeads, [email protected]. of at Earnest Director Dr. to is correspondence and Address program. sociology) holds and Earnest Dr. anthropology Center. medical Sciences Health Colorado of University a the at Program Humanities Medical oto nEfrebeRgtt elhCare Health to Right Enforceable an of Cost in e,e.g. See, generally See generally See e.g. See, e.g. See, n htpst eonzn ih ohat aewl ii h rpryrgt fothers). of rights property the limit will care health to right a recognizing posits that one 6 19)(ttn h ntdSae eonzsn osiuinlrgtt elhcare); health Tr to right constitutional no recognizes States United the (stating (1993) 163 .Parmet, E. l d. 2002); eds., al. h cnmcagmn hta niiulrgtt elhcr ol fail). would care health to right individual an that argument economic the &P fhat ae u aln a hr fteoealpoet ihsagmn rsne nti article); this in presented argument rights property overall the forms of transplantation short with also far connection in falling tissue but and care, parts, health body of organs, in rights property of recognition hD nHat n eairlSine a nedsilnr erecmiigpbi elhand health public combining degree interdisciplinary (an Sciences Behavioral and Health in Ph.D. eatment M HIL T DCN AND EDICINE HOMAS . R 1 , 2 (1983). 329 ,K , rse ese le Buchanan, Allen & Hessler Kristen ethicists, OPERTY ,15T oiAndrews, Lori C nehR Wing, R. enneth T 08Tyo rni ru,LLC Group, Francis & Taylor 2008 riadKtia ouainBsdPrpcieo h osiuinlRgtt Reject to Right Constitutional the on Perspective Population-Based A Katrina: and erri .B J. R akA sn Note, Ison, A. Mark e also see ICHARD EMP OLE S OCIAL .P , I,R III, 2 OL .E A. onC Moskop, C. John economists, J .&C USTICE yBd,M Property My Body, My GT TO IGHTS PSTEIN R h ih oHat aei h ntdStates United the in Care Health to Right The IV :E .R GTTO IGHT ,M SY NTHE ON SSAYS * TS H Tw ORTAL .L.R EALTH † oW 3 alinJsieadaHmnRgtt elhCare Health to Right Human a and Justice Rawlsian P lawmakers, r EV C ERIL nsDntMk ih:Mdci,Scin18 n the and 1983 Section Medicaid, Right: a Make Don’t ongs ARE ,56V pcfigteCneto h ua ih oHat Care, Health to Right Human the of Content the Specifying . 9,43(2006). 403 395, :O D 65 8(91 poiigasml fagmns including arguments, of sample a (providing (1991) 28 SRBTO OF ISTRIBUTION ,H UR AND M I ASTINGS NALIEN .L.R EDICAL 4 ABLE n teshv gnzdover agonized have others and EV C . EN H 47(2003). 1497 R .R EALTH GTTO IGHT EP ,Ot 96 t2 agigfor (arguing 28 at 1986, Oct. ., C 5 ARE H hsatceattempts article This C ,2A EALTH 4(oaodRoe et Rhodes (Rosamond 84 ARE NNALS C ARE e also see 19)(making (1997) H EALTH ,8J. .161, L. W M endy see ED . Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 ewe ain n physician relationship and economic patient direct a between requires relationship therapeutic healthy a that r h nhr oacs n ult nmdclcare. medical in quality and access legal to a that anchors traditions with the professional beneficence and are autonomy of physician undermine obligation medical thus professional to and duty right the a replace recognizing would that care been has position Association’s Medical 10 66 rtcswe n ucae rbcmstelwu eiin fatigof thing a of recipient lawful the becomes or v purchases one when protects the against right.” “property defend a and call convey, we sell, interest any control, of own, deprivation respect to heightened a rights reflect individuals’ sources all complex for from to laws Constitution our commit- provisions, States specific firm United and the a of broad share the proscriptions From law society. and our American in prescriptions individuals of of rights sources property the five protect to United These ment the party. which a to agreements is or States treaties in applica- contained when law and, and international agencies; ble, regulatory interpretation by the established from rules arising of promulgation laws administrative precedent; future rulings judicial legisla- set where law, a judge-made or by common enacted government; of laws branch statutory tive constitutions; state or Constitution States a as medicine in good. interest public property funded public socially a creates investment This and delivery. infrastructure, research, training, medical in investment public massive the duty” our as this requires (“Fairness grounds moral teUie ttsi h nydvlpdnto htde o eonz such recognize not does that nation developed only a the is States United (the ethlsta uhargtisrstesaeit nohriefe economic free otherwise an argu- into state philosophical cost the Libertarian inserts the all. right e afford for a cannot such care nation that health holds this to ment prudence right economic a of recognizing matter of a as that or 9 8 7 6 cag,rpaigfe hiewt oenetlcoercion. governmental with choice free replacing xchange, le rpryrgt xs otceryweee h a rtcsaperson’s a protects law the whenever clearly most exist rights Property alue. right). eursfi nnigaddistribution). and financing fair requires oetSade, Robert (1994). 129 E R.S. Pont, E.A. World? and Nation e.g. See, Care Health Driven sumer See (2000). ..Rs 1,at 5 ..Dc /1 Dc 0 98 dcaighat aeahmnright). human a care health (declaring 1948) 10, (Dec. A/810 Doc. U.N. 25, art. 217, Res. G.A. eeihRsnhl&Nra Daniels, Norman & Rosenthal Meredith ral end rpryrgt r h ea neet httelaw the that interests legal the are rights property defined, Broadly United the in expressed rights law: of sources five from arise rights Legal We on advanced been have care health to right a for arguments Historically, PSTEIN , 7 lao .Kinney, D. Eleanor rps htrcgiigargtt eia aesol mnt from emanate should care medical to right a recognizing that propose ruet poigsc ih r iernig h American The ranging. wide are right a such opposing Arguments h utr fPyiinAtnm:10 oPresent to 1900 Autonomy: Physician of Culture The ,K eia aea ih:ARefutation A Right: a as Care Medical EEPING ,34I B OUNDARIES ND ,31J.H .L.R h nentoa ua ih oHat:Wa osTi enfrOur for Mean This Does What Health: to Right Human International The EV :M . EALTH 47(2001); 1457 AINTAINING 9 P OL htwudb nemndb uharight, a such by undermined be would that .P eodCmeiin h omtv mlctoso Con- of Implications Normative The Competition: Beyond OL S FT AND AFETY ’ e also see Y &L , 8 N 285 . 7,67(06 agigargtt elhcare health to right a (arguing (2006) 677 671, h nvra elrto fHmnRights, Human of Declaration Universal The I EW TGIYI THE IN NTEGRITY E ,9C NG .J.M 6 )o AMBRIDGE r ED 8 oprtv grounds comparative . P teshv argued have Others 28(1971). 1288 SYCHOTHERAPEUTIC E ARNEST .H Q. 10 EALTHCARE &M A P TTHEW E R TH OCESS .98 Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 aoe ocreate to labored e AP 12 11 rsnr,freape aeacntttoal rtce ih oreceive to right protected state. the constitutionally of a control and have custody the example, under for those for Prisoners, only care health to right THEORIES LEGAL CURRENT OF LIMITATIONS I. care, health has. to industry right medical a the created in most directly investment the not public claim has simple terms, Americans’ law The economic be. American can in although certainly that, good services is public and goods a medical as of forms described basic be can care health individuals, by held is state. claim medical the we basic against interest to enforceable property access The provide Americans. to all power for spending care owed its care. obligation exercise an to health creates state the create fisc the public from by to the arises makes into individuals care society by investment health of This to property member of right each forms property investment other individual enormous all This as law. privileges the and under protections same the to subject a erdfns n rmsdepomn.Aeia a rvdsaqualified, populations; select a for care provides health trans- law to right American electronically limited employment. income, in promised future held and airspace, funds, rights clear ferred property as protects such law goods States intangible United goods. tangible to limited pcaino en bet rwa datg rmwa htpro has person that what from advantage an draw to able being of xpectation eea rpryrgtt elhcare. health to right property general Fo Zemer, Lior T care. medical adequate to odto oaporaemdclsreigi optleegnydepartment). emergency hospital a in screening medical appropriate to condition e also See h rat fLceslbrter fpoet nmdr rprylaw). property modern in property of theory labor Locke’s of breadth the etetadAtv ao c,4 U.S.C. 42 Act, Labor Active and reatment R re OPERTY h urm or a edteUie ttsCnttto ensa defines Constitution States United the held has Court Supreme The all not Although good.” “public a called property, of form unique a is It We aeargtt htta soc ondt,a es hr hr seog,ada odlf in left good as and enough, is there where can least he at other but to, of Man joyned right no once others. Labourer, common is for the the that common of what excludes to Property that and right unquestionable it, own, a the to his placed have being annexed is Nature Labour something state that this labour common something For the this it from Men. by to removed hath joined him it and by in, being with, it It Labour Property. his his provided, mixed it no hath makes hath Nature This thereby that he say, Person. State may in, we the own Hands, it of his his out left of from Work in and removes the Property and he Body then, a Whatsoever, his of his. has Labour properly Man The are him. every but to yet Right any Men, has all Body to common be Creatures Second Locke’s John from derives property of T theory labor Lockean influential and famous The ape h ihhAedett h ntdSae osiuingaate rsnr right a prisoners guarantees Constitution States United the to Amendment Eighth the xample, ets fGvrmn,i hc h hlspe rus huhteErh n l inferior all and Earth, the Though argues: philosopher the which in Government, of reatise dmMossoff, Adam ru eeta h ih ohat aei,i at rpryright, property a fact, in is, care health to right the that here argue h aigo e oyih Lockean Copyright New a of Making The R GTTO IGHT 11 ok’ ao Lost Labor Locke’s rcnrce oon oevr rpryrgt r not are rights property Moreover, own. to contracted or M See EDICAL sel .Gml,49US 7(1976); 97 U.S. 429 Gamble, v. Estelle C ARE ,9U.C §§ 35d(03 ettigali neegnymedical emergency an in all (entitling (2003) 1395dd HICAGO ,29H .S L. ARV CHOOL .J.L.&P 12 oee,n a recognizes law no however, R OUNDTABLE UB e also see .P OL ’ 5 20)(explaining (2002) 155 Y mrec Medical Emergency 9,971 (2006). 907-10 891, 67 Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 HSi sec salse neulrgto cest optl o minority for hospitals to access of patients. right equal an established essence in DHHS htrgtwsetne oidvdaswt morpi aea sclerosis lateral Medicare- became amyotrophic diseases with those conditions. qualifying when individuals failure to renal dialysis-dependent extended and was right that h ih ohat ae yrfsn opyfrtecs fcr eiee in delivered care of cost the dollars, for construction pay federal with to expanded refusing or built By expanded hospitals care. (DHHS) segregated Services health Human to and right Health the of Department For equitably. the of more runner care health deliver to obligation e the impose that lations membership individual’s an citizens. of of because class arise protected that a and to rights in Congress protect relative by to created status states were and the entitlements disability, These parenthood. assets, or financial pregnancy citizenship, age, income, 20 19 18 17 16 15 14 13 right this protected. precisely constitutionally defines Amendment, is nor care care Eighth medical health what comprehensive the to by access guarantees Established neither care. medical adequate 68 ae oeyo hi aeo cnmco iaiiystatus. disability or economic or race their on solely based and privacy e her protect As and prisoner. pregnancy a a interests. terminate liberty to access to care to right procedures woman’s medical a medical require protects adequate also to Constitution and read the interpreted, reasonable been currently has of punishment provision unusual the and cruel against prohibition ao,rgrls fteptetsfiaca tts htrgtetnsutlthe until extends right active that stabilized. including status; is condition,” financial condition patient’s medical patient’s “emergency the of an regardless in labor, person any for care T rg o h aeoial needy. categorically the for erage uac programs. surance fhat aefrcranedryaddsbe individuals. disabled and elderly certain for care health of ape nte16sad17s eiso euain sudb h fore- the by issued regulations of series a 1970s, and 1960s the in xample, ape nidsrmnto aspoii h eilo elhcr opatients to care health of denial the prohibit laws anti-discrimination xample, etetadAtv ao c ETL)etbihdtergtt medical to right the established (EMTALA) Act Labor Active and reatment optlSre n osrcinAt(ilBro c) 2U.S.C. 42 Act), (Hill-Burton Act Construction and Survey U.S.C. 42 Hospital 1965, of 110-27, Act No. Security L. Pub. Social 1965, of Act Security Social U.S.C. 42 89-384, No. L. Pub. 1965, of Act Security Social U.S.C. 42 Id. Act, Labor Active and Treatment Emergency Estelle See aulSse,Pb 0-,c.1/20.2. ch. 100-1, Pub. System, Manual Ws 2003). (West h eea oenetcnas s t pnigpwrt su regu- issue to power spending its use also can government federal The eea tttsdfieanme fqaie ihst elhcr.For care. health to rights qualified of number a define statutes Federal h oilScrt c f16 rae h eiaeadMdci in- Medicaid and Medicare the created 1965 of Act Security Social The § , 1395 2 ..a 97. at U.S. 429 tseq. et 16 eiaeetbihdtergtt oenetfinancing government to right the established Medicare 18 eiadetbihdargtt elhisrnecov- insurance health to right a established Medicaid § 15 1396 19 tseq. et oeaevre ysaedpnigon depending state by varies Coverage oie at codified oie at codified (2003). § 35d)(et2003). (West 1395(dd) 2U.S.C. 42 2U.S.C. 42 13 oee,teConstitution’s the However, § 9 Ws 2001); (West 291 § § 2 Ws 2007). (West 426 1395 E 14 ARNEST tseq. et 17 h Emergency The Subsequently, n 1396 and &M e also see A TTHEW 20 tseq et CMS the . Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 neteti eerh dcto,fiacn,addlvr ytm hteach that systems delivery and financing, education, research, in investment arguments. three least at by supported public. is American conclusion the of This property the is deliver, providers other and physicians, CARE HEALTH TO RIGHT PROPERTY A MODEL: NEW A II. model. new entirely an from here than offer We rather investments. status, monetary or such their relationships create private to individuals’ failed from com- has emanating a law of The short care. far a health fall to and right narrow Thus, universal are grounds. prehensive, any that on protections protected provides been law not unquali- has current an care privacy, However, health to rights, grounds. right civil general fiduciary fied, on or based contractual, circumstances, reliance, limited statutory, in care health receive national or color, race, of regardless care health origin. to constitutional rights citizens’ civil recognized statutory case and landmark under not, This and could facilities. equal” and patients care but “separate care health to minority relegated health or excluded that to be Constitution, access recognizing States United equal the in to right nation the the have physicians led Appeals of Court AP 22 21 eia ae o example, For care. medical rvdrgvsteptetaraoal hnet aeatraearrangements alternate make care. to the for chance when reasonable satisfied a patient are the contract gives the provider under obligations and physician’s physician The between patient. relationship founded quasi-contractual is or right op- fiduciary this a an because upon provided, and only are notice care alternative reasonable obtain once to however, portunity ceases, from care provider health to right particular The abandoned. that be to not right the have provider a rights. with or interests reliance patient’s a of protection for basis law turn av not may provider a that proposition aw common-law the for stands case This aw SAPBI GOOD PUBLIC A AS 2 .d99(t i.1963). Cir. (4th 959 F.2d 323 1969). (Mo. 558 S.W.2d 447 ih eas h a otne orgr h ih ohat aea one as care health to right the regard to continues law the because right ial otetalmdclemergencies. medical all treat to ailable yaptetwohsrle pntepoie’ ersnainta tis it that representation provider’s the upon relied has who patient fee. a $25 a ay pay to unable was patient the because gangrene with patient a ay R OPERTY is,hat aei udmnal h rdc ftehg financial huge the of product the fundamentally is care health First, hospitals, that services and goods medical the as viewed care, Health to right individual’s an recognize legislatures and courts summary, In omnlwhsas enue odfiecranrgt eaieto relative rights certain define to used been also has law Common In relationship continuing and established an have who patients Similarly, ikn .MssH oeMmra Hospital Memorial Cone H. Moses v. Simkins R GTTO IGHT M EDICAL tnufv Sipes v. Stanturf C ARE 21 Stanturf edapoie ibefrturning for liable provider a held salse h common- the establishes , 22 h orhCircuit Fourth the 69 Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 sd h oa dctoa ot fprun nMD erei 97ranged year. 1997 per in student degree per M.D. $93,000 model an to pursuing accounting $72,000 of the from costs on educational total Depending the funding. used, public on dependent point the heavily to cost. training entire of the cost cover the longer no increased could also tuition it that but training, and quality ter 25 24 23 with sentinel universities libraries. the in and laboratories, of consolidated faculties, years completely full-time 10 was Within education schools. medical proprietary report, in training and ucation the in seen easily be can physicians. trend for This training good. of public financing a as care goods investments health private funded produce publicly producing of that result interactions, the is private that activity of an toward product services, and a is that care Care” “Health health Called Right Property a in Investment Public The A. ownership turn. property in public’s discussed the are of care aspects health socially a of three as These recognized good. be substantial must public also shares readily created care it economists medical goods, that because public public interests Finally, as the property recognize citizens. serves discrete all other that of with institution good characteristics an the in is, interest that health ownership good, in an investment in massive public’s results the care Second, makes. citizen American 70 e o negaut eia dcto.Teefnscm rmavariety a from come funds These education. medical undergraduate own for their get of costs direct total the of 21% would and without practice education. 2.3% tuition entering between of physicians only price loans, paid full subsidized have the publicly paid or trainee grants the Depending any assuming $1,142,000. and and completing school $1,057,000 surgeon the between general on fell a residency fell of of residency cost of years years The five three $883,000. completing and internist $792,000 an between training of cost total the see oeepnie ta siae 1083i ietcssprtanein trainee per costs direct in dollars. $130,843 1997 estimated an at expensive, more even is ON N THE AND C L Korn, David & Jones R.F. P 6A 76 ietCssfrGaut eia dcto nTahn Hospitals Teaching in Education Medical Graduate for Costs Direct n lwt tal., et Blewett ynn AUL OMMISSION G eia dcto oa sa nrosyepnieetrrs and enterprise expensive enormously an is today education Medical ro ote11 lxe eot otpyiin uddteroned- own their funded physicians most report, Flexner 1919 the to Prior delivering from away evolved slowly has States United the in Medicine h asters?AlAeia eia col aeaseicbud- specific a have schools medical American All rest? the pays Who CAD RADUATE S T ARR M .M KN FA OF AKING ,T ,P ED HE HYSICIAN M . 25 4,49(2001); 449 446, EDICAL S obnn hs siae n dutn o nain n2003 in inflation, for adjusting and estimates these Combining OCIAL esrn h ietCsso rdaeMdclEuainTann nMinnesota in Training Education Medical Graduate of Costs Direct the Measuring V P AST E YMENT N E M AY T DUCATION ASOMTO OF RANSFORMATION nteCs fEuaigaMdclStudent Medical a Educating of Cost the On I NDUSTRY R e,e.g. see, EVIEW ,F 1-3(1982). 112-13 IRST C OMMISSION , R ae .Boex, R. James PR FTHE OF EPORT A MERICAN (1988). M EDICINE C OUNCIL 23 F 24 cosCnrbtn oteVraiiyof Variability the to Contributing actors hsdvlpetldt bet- to led development This rdaemdcleducation medical Graduate :T :P ,67A HE ROSP ,72A R S FA OF ISE CAD ECTIVE E .M CAD ARNEST ED .M S P OVER .8 YMENT N E M AY ED 0 . 19) C (1992); EIGN &M 0 (1997). 200 A P SSESSMENT ROF A TTHEW OUNCIL ESSION , Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 27blini ietadidrc amnsfrGE rruhy$750per which $27,500 roughly for or contributed GME, year for Medicaid, last payments resident. medical indirect through the and direct taxpayers, 2002, in state In billion $2.7 available, share. are greater data much national a funds taxpayer the falciia aei nsm a uddb a dollars. tax by funded way 60% some nearly in NHE), is of care (9.1% of clinical insurance (5.4% private all employees for of federal subsidies and di- as state well Including of as (NHE). costs NHE), insurance expenditures the health for payment national rect Service total Health of Indian the 45% programs and in constitutes for Affairs, Veterans care state, Medicaid, and clinical Medicare, federal of as both bulk such funding, public the Direct underwrite States. dollars United the physicians tax between Today, directly patients. negotiated their were payments and care health all that, to eia dcto hog aut rciepas hc otiue3.%of 34.2% contribute undergraduate revenue. which to plans, total contributor practice largest faculty rev- through the total education is of medical medicine 32.7% of profession constitute The contracts enue. and grants appropriations government-funded government federal average and and the state For direct well. school, as medical school American by vary sources income Those center. monies medical these uniformly yet a school, by tremendously f varies tuition, funds funds, these contribution general public to The state income. including endowment and education, contributions, philanthropic for earmarked sources of AP 30 29 28 27 26 ilo nidrc n 23 ilo ndrc amns,o ogl $76,530 roughly or payments), direct in resident. billion per $2.31 and indirect in billion eeu.Ec fteervnesrascnrbtst h oto riiga training of cost the to contributes streams revenue physician. these of Each revenue. ihtesrtg fcletn ene a rmaeaefamilies. average from day a pennies collecting of organizations strategy non-profit the private, through with 1920s the in appeared plans physicians. surance training of cost the of share largest the underwrites taxpayer l a hr ftettlcsso eia ere h eane represents remainder The degree. medical a of costs total the of short far all FTHE OF cesdJn 5 2007). 25, June accessed tf olade ai .Himmelstein, U. David & Woolhandler Steffi D E in Year, C Fiscal 2000-2001 Schools, T Medical Colleges, US Medical All of at Association American It a evcs2004), Services man http://www.aamc.org/data/finance/2001tables/finance otsitaa rmohrrvnegnrtn ciiisa h academic the at activities revenue-generating other from away shift cost DUCATION IM ,21H UCLON OUNCIL A R VID OPERTY .H M. Fo h udn o lnclcr a vle swl.Tefis elhin- health first The well. as evolved has care clinical for funding The .R J. S EALTH A S E TAT r ENDERSON OTHM :I rdaemdcleuain(M) h conigi ipe and simpler is accounting the (GME), education medical graduate G NNOVATIONS AND R A 6 RADUATE GTTO IGHT 28 AN FF (2003). 26 . ,B h xc otiuini lsv,btceryteAmerican the clearly but elusive, is contribution exact The 8 2(2002). 92 88, ,M rvt hlnhoyadidsr rnsacutfr1%of 11% for account grants industry and philanthropy Private 27 EGINNINGS vial at available EDICAID M ntesm er eiaecnrbtd$.5blin($5.25 billion $7.55 contributed Medicare year, same the In M EDICAL EDICAL I PIAIN FOR MPLICATIONS D C RC AND IRECT E OUNT DUCATION tp/wwcgegvMngdaeMngdaeeotpf(last http://www.cogme.gov/ManagedCare/ManagedCareReport.pdf C —T ARE HE I ,S NDIRECT S T A E TAT A E TAT P ECHNOLOGICAL yn o ainlHat nuac—n o Getting Not Insurance—And Health National for aying P AND eeusSpotn rgasadActivities and Programs Supporting Revenues OLICY G RADUATE M al1pf(atacse ue2,2007). 25, June accessed (last table1.pdf ANAGED 7 Uie ttsDprmn fHat n Hu- and Health of Department States (United I PRTV IN MPERATIVE M EDICAL C ACD AAMC ARE S E POTFOR UPPORT DUCATION H 30 EALTH ATA B P C OOK YME M AY G ARE RADUATE , 82 (1997). 18-29 NTS vial at available :AS 29 M Prior EDICAL URVEY 71 Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 acigo oa n tt funds. state hospital federal and in of local billion cost hospital $9.1 of additional annual matching all an the generated of also of program 30% 10% The to for construction. contributing accounting and funds, projects federal construction in billion $3.7 disbursed optl cone o h eann 16%. For-profit remaining improvements. the capital for subsidy and accounted public hospitals operations of a for 61% received exemptions additional thus tax An and through not-for-profit governments. as local classified and were state hospitals through hospitals all of cec eerhta ul e ratruh hnteidsre htprofit that industries the taxpayer than discoveries. breakthroughs those the basic new from the on fuels research, more that 25% spends research biomedical still science Health) of to Institutes steadily National have the contribution share (through market expand industry’s and market increased to products bring to designed 37 36 35 34 33 32 31 72 ht6%o hi eerhwsfdrlyfunded. federally was research their of 61% that urn ulcfnigfrcii ae tamnmm h ulcssubstantial public’s the minimum, a the At without care. Americans clinic medical most for for funding most reach public of to current out be leads would services that entities medical status. tax-exempt research Most private their any, without open-ended exist if not could Few, of hospitals Many training. risk breakthroughs. their the they of if assume cost trained full could be the would physicians underwrite Few to existence. had its to essential is funding Hill- (the Act Construction and Program) Survey Burton Hospital the health from for came funds facilities construction care of source single largest The medicine. American which costs. for research of institutions majority academic research the clinical or pay monies of sources public 79.7% government and from articles come research articles biomedical of 82.7% Fully no to little public—with some private, e universities—some in occurred a taua funding. xtramural Ta Act), S (Hill-Burton Act Construction and Survey Hospital Zinner, Darren Moses, H. I T A (1999). 30-39 K saeeto h mrcnHsia Association). Hospital American the of (statement ulcyfne oe.Oehnrdyasao otmdclresearch medical most ago, years hundred One model. funded publicly SIUIN AND NSTITUTIONS T ECHNOLOGY SCAINOF SSOCIATION ENNETH ARR x xmtStatus Exempt vntog mrcnmdcn sntwol ulcyfne,public funded, publicly wholly not is medicine American though Even of infrastructure the underwritten heavily also has investment Public output. research of terms in seen be also can funding public of impact The into evolved also has development and research for support Financial , supra .L M. F nnilAaoyo imdclResearch Biomedical of Anatomy inancial L oe2,a 348-51. at 23, note ICENSING UDMERER Medica T P ECHNOLOGY A : TENT ern eoeteHueCmiteo asadMeans and Ways on Committee House the Before Hearing 35 lR&DattheTurnofthe ,T ( htbgni 96 ewe 97ad17,ti program this 1970, and 1947 Between 1946. in began that AND 31 M M TO IME ANAGEMENT y19,asre ftprsac ntttosindicated institutions research top of survey a 1999, By R M 33 ELATED ANAGERS H EAL )P :A F ,A IRMS ROMNEFOR ERFORMANCE MERICAN T L UTM 36 9 (2000). y20,tepbi ietyond23% owned directly public the 2002, By Millennium M ICENSING EDICAL , 9 ....13,13 (2005). 1333 1333, J.A.M.A. 294 U.S. 37 oie at codified E S ,20H URVEY UAINFO THE FROM DUCATION AND 34 32 C ,F EALTH ANADIAN 2U.S.C. 42 Y lhuhciia trials clinical Although 99 S A 1999: A FF E . A 0,24(2001). 204 202, ARNEST AEI AND CADEMIC § T 9 Ws 2001). (West 291 , R FTHE OF URN 0t og (2005) Cong. 109th URVEY &M S MAYOF UMMARY N A C ONPROFIT TTHEW ENTURY Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 evsapbi ups n steeoedee ulcgo ne h law. the under good public a deemed therefore is and purpose public a serves e hrfr ulcyfiacdfrcmo s ytepbi.Freape in example, For public. the by from excerpt use following common the and necessary for publicly financed is publicly property the therefore where applies term The itself. property e Care Health in Interest Property Cognizable Legally A good.” “public a in B. of interest characteristics an and as nature understood the best has is that as care property viewed health be in interest must ownership that public’s stake ownership of an al construction purchases the facilities underwriting care and health research, care care health health financing funding providers, delivery, care health educating in investment financial AP 40 39 38 n etlhat fornto’ iiesaepbi od o transcendent “of goods public are citizens nation’s importance.” our of health mental and giigta h eia od n evcsrqie odlvrgo health good deliver to required services and goods medical the that ognizing saPbi Good Public a as pan h ogetbihdcneto ulcivsmn npoet that property in investment public of concept long-established the xplains pestesoeo h eetpoie ycranpoet n odfiethe define to and property certain by provided benefit the of scope the xpress odo hsclhealth). physical of good See Id 1871). (Ala. 696 Ala. 45 90 hligwtrok ytmt rdc lcrclpwri ulcgood). public a is power electrical produce to system waterworks (holding 1900) eg .a R OPERTY af .Rdod 1 ..1 19)(qaigteiprac fmna elhwt h public the with health mental of importance the (equating (1996) 2 1, U.S. 518 Redmond, v. Jaffe lypoetdpoet neet nbt ea n cnmctrs the terms, economic and legal both In interest. property protected ally t rdtfrta n,tog ti o etta uhwrssol ecrido ythe by on carried be should works such that best not such. is as its it state pledging though by aid end, should that State for the credit which good,” of “public character construction. a are the their improvement authorizing internal affirmed legislatures of the have aid of who acts in of those validity taxation the with and institutions, found public is as expense. railroads America public among the of distinguished at name judiciary every made nearly of the be Kent, welfare and to the Marshall them promote with and cause beginning commerce country, or the making, advance by to people, State the the of duty and right the to open equally benefit. is a road, It derives modern. public or the terms. ancient which same or road, the rivaled, of upon not kind people degree whole other a the any to good by public be, the to of proposed promotive is particulars, important all mrcncut aehsoial sdtetr pbi od ohto both good” “public term the used historically have courts American aebe eonzdb h a stefis fpbi eeste,adfrtheir for and public necessities, the taxing public of of power first the discretion exercised the its has at as legislature the law repair the and construction by immemorial recognized time from been water, over have roads but are which bridges, including Highways, nsvrlcss h orshv eonzdbt h hsclhealth physical the both recognized have courts the cases, several In 700; e also see ... R GTTO IGHT 40 alod r o rvt far;te r ulcipoeet,adi is it and improvements, public are they affairs; private not are Railroads oee,teedcsoshv alnsoto xrsl rec- expressly of short fallen have decisions these However, ie ekPwrC.v iyo ooaoSrns 0 .1 4CCA 3 8hCir. (8th 333 C.C.A. 44 1, F. 105 Springs, Colorado of City v. Co. Power Peak Pikes 39 ... M EDICAL stemasfracmlsigteobject the accomplishing for means the as xPreSla&Gl alodCo. Railroad Gulf & Selma Parte Ex C ARE ...... h ulchsa neeti h s fthe of use the in interest an has public The hsi nefc elrn htwrsof works that declaring effect in is This alod r ulcipoeet from improvements public are Railroads ... Terira,in railroad, .The , 38 ... n court one nthis In 73 Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 nKnuk,freape h tt tonygnrlscesul rudthe argued successfully of general doctrine attorney the under revenues. state law, tax the past example, forgave for who Kentucky, taxpayers In by purchased asset, public’s the for state. charter public’s original the employ the to outside seeks to assets entity status the non-profit whenever or from entities, change for-profit to become seek organizations exerted invest- health have financial whenever their states on ment why return a is receive This and revenues. oversight government tax for significant foregone pays community with care—and the good health public charitable words, of that other benefit In good—the expected public organization. its a invests charitable purchases community the the in as revenues assets, long the tax public as on community, holds rest the organization statutes by care These purchased health good. non-profit public a a that protect understanding to enacted statutes as stood utg ute orcgieamr eea ocp fhat aeisl as itself care health of concept law general the more suggests a model recognize a our to good, further public go a must constitute care health charitable care. health charitable by provided aecr hti rvnaieadta rtcstepbi elhoeal(for overall health public the protects that and preventative is that care—care be cannot that intervention. benefits government of societal level and some individual without both efficiently delivered confer to created is also ot aoaadSuhDkt hlegdBne elhssl ofor-profit to sale Health’s Banner companies. challenged Dakota South and Dakota North 44 43 42 41 institutions; charitable in their investment made the have entities. recover citizens to care statutes conversion health enacted non-profit have public’s states by 30 the provided Over protect benefit to community for-profit designed the to laws in state interest non-profit under from challenged insurers been have and status involving organizations, cases care in managed good tals, public entities. a for-profit as to organizations care care health health of non-profit of benefits conversions prop- the a implied to has right law American erty Nonetheless, good. public a constitute also 74 rs hni egdwt h o-rfi nue nhm n.o Indiana. of of valuation Inc. conversion. requiring upon statute organizations Anthem, non-profit a by insurer held enacted assets for-profit Assembly public General the the with Colorado, merged In it when trust See C Fremont-Smith, M.R. e.g. See, (2003). ulcgo.Ntol shat aepeoiaeypbil udd u it but funded, publicly predominately care health is only Not good. public OLO anrHat y.v tnhe,20 L512 DND 2003). (D.N.D. 501821 WL 2003 Stenehjem, v. Sys. Health Banner ncneso ae,tegvrmn’ rprrl st banpayment obtain to is role proper government’s the cases, conversion In oee,ee eodtelwsipidrcgiinta h eet of benefits the that recognition implied law’s the beyond even However, h otovoscs npiticue h otbscfrso health of forms basic most the includes point in case obvious most The ic 96 ueostascin novn h ovrino hospi- of conversion the involving transactions numerous 1996, Since .R , EV opotHsia aeAt N Act, Sale Hospital Nonprofit .S 44 TAT . l fteesae ce opoetpoet ihsi benefits in rights property protect to acted states these of All §§ -9&4147(2002). 401-407 & 6-19 h hleg fFrPotHatcr Conversions Healthcare For-Profit of Challenge The ypres cy EB .S , 42 TAT eurdBu rs ofn conversion a fund to Cross Blue required . § 12,12(06;A (2006); 102 71-20, 41 hs asmybs eunder- be best may laws these Z .R EV ,31J.L.M E .S ARNEST TAT 43 . § h ttsof states The 810 (2006). 48-1907 &M ED .&E A TTHEW TH .49 Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 oilgo.Teebodbnfisaepstv xenlte n arn the warrant that and for society. externalities of pays positive protection anyone are and not investment benefits or or full broad indigent whether These the all, for on good. care good social Even health social status. providing a payment from confers their comes uninsured of that regardless a benefit in patients, public standards all the like by other shared and benefit hygiene are The enforcing hospital immunity. from the population patient by increased one shared of by received is form vaccination the via in receives population advances. person entire these one from benefit immunity to measles ability The person’s single any depleting without investment. artists, the and from journalists, edu- benefits scientists, society an well-trained entire in produces the results education or public force, labor When thereby cated community. managers, entire and the creators, to consumers, benefiting contribute to laborers, equipped as citizenry care, a resources health form society’s to education, to improving access access with well-being, with Individuals of prosper. those like to status and a function to to society capacity its a elevates education public and iuladcletv benefits. collective and vidual Education Public to Analogy An public C. to care health pub- comparing the in defense, seen national readily pro- most and education. fire are water, as analogies and such good air goods, lic clean public roadways, acknowledged Although safe other whole. like tection, a is as extend society care that by health shared benefits basic are produce and they patient individual because the goods beyond public as defined properly e AP 47 46 45 ota hspbi odmyb rtce sa setal non-excludable essentially an as law. the protected care under health be right basic may property to non-rivalrous good access and to public right this must the government that regulating and the so financing Similarly, in good. and role public finance a a to play helping as system or education legal providing public American in regulate the role care, government’s medical we the receive investment recognized to the has support right that a those to not rise are gives education argue public to right a to rise ape acntoso ueclsstetet.Teefrso aeare care of forms These treatment). tuberculosis or vaccinations xample, See T Chandler, Brad 6-4(1985). 663-64 rs Gillen, eresa R OPERTY T iial,bnfisfo ulcyfne eia eerhacu oall to accrue research medical funded publicly from benefits Similarly, iepbi dcto,acs o l ohat aepoie ohindi- both provides care health to all for access education, public Like lhuhi utb ditdtesaecntttoa rvsosta give that provisions constitutional state the admitted be must it Although HOMAS J R EFFERSON GTTO IGHT AP tt a n ulcHealth Public and Law State r psdMdlo h oeeg/rpitr Distinction Sovereign/Proprietary the of Model oposed ,T M HE EDICAL W IIG OF RITINGS C ARE 45 T HOMAS rvdn ra cest ohhat care health both to access broad Providing ,90K J EFFERSON ENT 46 .L .J . 1 RcadHladJhso d,1904). ed., Johnston Holland (Richard 316 1,86(2002). 816 815, 47 , 3 .P U. 133 A .L.R EV . 661, 75 Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 elhCare Health rcdr a rtdvlpd hsmdlo ulcyfne eerhand research funded the publicly Since of non-excludable. model is itself this needed developed, system is the first public that was the so procedure operations, system bypass that sustain artery to coronary provides that care and successfully could procedure. teams the surgical few perform of that safely low volume so the be for pro- investment, would of pay procedure public number the could Without the individuals dramatically. pools few drop insurance that would private to high cedures patients. left so and these is directly, of procedure procedure number single the significant a a of to cost provided The care reimbursed financ- that the provided ing ultimately funds public patients; of volume high a requires public funds, of forgiveness construction the institutions, public charitable taxes. of by case the created in part, and, debt professionals in public these were, all They Additionally, hospitals. procedure. needed the sur- provide whom facilitated without not staff also could ancillary public and geons perfusionists, The nurses, procedure. the of surgeons the training of refining the community and a procedure. collabo- mastering of training first of of the capable the supported years public in 50 the culminating way, were the research Along there funded, First, publicly funding. largely required rative, public procedure (CABG) ongoing graft capacity of bypass the artery decades developing coronary single example, a For itself perform outcome. to by same initiative or the entity accomplish private could No participation. public requires services American of Delivery the Sustains Use Public of Volume The 1. and highways, safe security, national goods. that public reasons are air same clean the way of same the many much in for goods and public public are classic therefore, other services, of care cases the Health in goods. exist they that way same the much in services category this the define Third, to good. essential public is a property. good is of public that the property of the nature characterized non-excludable of are nature nec- goods non-rivalrous infrastructure public the Second, an society. of by to scope goods and the or deliver scale good to the essary reliance the maintain essential to in the resources occur first, public include, also on characteristics goods These public question. in all service in present classically acteristics D. 76 eonzn elhCr sa cnmcPbi Good Public Economic an as Care Health Recognizing hrfr,oc h ulcsivsmn a rae ytmo health of system a created has investment public’s the once Therefore, procedure available widely quality, high safe, consistently a Ensuring medical modern provide to capacity the maintaining and Developing care health of majority the in present are characteristics three These char- shared several when good public a as property define Economists E ARNEST &M A TTHEW Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 ramn,bcuehat aei odta,i oesne,w onot do we senses, some in medical some that, get good care distribution. a market health the to is for even trust care wholly pay States, to health United unable because the are In treatment, who pay. services people to and million goods inability basic 46 person’s and essential single most any the least despite unwilling at be to must access we and withhold education, to and health like goods public Good of Public provision a as Care Health of Distribution and Allocation E. characteristics. economic because essential, centrally distributed its and of collectively fairly. produced public be and recognized must other equitably than too, ways It, essential good goods. these in public different no the is care distribute Health to ensure to ability protections extended government’s traditionally the has law the that way essential and investment. societal collective of product the typically are goods public mar- no generating the in, intervention, education, ke stake public public sufficient collective, and a without Therefore, or protection, efficiently. of, goods fire means and the has such police individual goods air, public single goods and recognized these of water case allocate clean the to as In fairly. insufficient or prove efficiently suf- services alone a and to markets characteristics that these degree possess services, However,ficient care non-excludable. health like and goods, non-rivalrous public unequivocally CABG and a wholly perform are to the ability for the pay that to not led using did that from today. they research patients because in future investment simply tech- original knowledge CABG exclude avail- the and not of practitioners technology does use same of patient’s knowledge number one and operation, sufficient CABG nology a the are is perform depleted. there to patients op- not able as additional are CABG long to capability the technological so service and Moreover, of same knowledge themselves this The provide avail depleted. not to patients capacity non-excludable many the and how technol- non-rivalrous eration, a and matter on science No patients reliable, the all basis. became patient, trained to one available procedure fully became to CABG a ogy available the by safely Once performed and instructive. surgery reproducible, is CABG surgeon a heart of example The rivalrous. Care Health of Nature Non-Excludable Non-Rivalrous, States. The United the across available 2. widely and routinely improve, is continually it to today procedure that the such of safety the allowed has development AP t R ln ilntpouecenaro ae rfiepoeto.Tu,public Thus, protection. fire or water or air clean produce not will alone OPERTY hte rntaypriua niiulcnpy oit net nthe in invests society pay, can individual particular any not or Whether fundamental a such in whole a as society benefit goods public Moreover, that goods public pure of examples few are there recognize Economists non- are care health provide to capacity and knowledge underlying The R GTTO IGHT M EDICAL C ARE 77 Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 r n oiepoeto,sf odas ainlsft,o ulceducation public water, or and safety, air national roadways, clean safe withhold protection, we police than and more fire any services, and goods goods medical public other with case the commonly intervenes. by is government increasingly as unless and class, under-privileged, and middle poor working the individual the by the care in health of participation benefits excludes good. allocation common the market-based of Moreover, expense the at over-produced highly is care as elective such specialized care beneficial privately while under-produced, predictably are blt opy ai elhcr hudb vial oalAeiasbe- Fo public Americans this all in interest to property a available own therefore be and good. should it create care to pay health individual’s they cause basic any notwithstanding pay, school, to high ability through kindergarten in same all the to and In power. goods purchasing non-emergency pre- private individuals’ wa other to on access and solely limiting care, based preventative services treatment, routine medical society care, education, of public natal forms unlike basic However, pay. many to withholds ability individual’s an of nevnin stog hs r eeyodnr rvt od,hsproven has goods, private ordinary merely inefficient. are these though as intervention, case. either in analogy are good care public weaken seriously health the not do and distinctions nuanced education these However, sense. public economic both ways, these e In course. same belongs the class that in obtain occupy we e knowledge we The attend experience. beds may learning same we hospital the Similarly, care. The others. of you. by simultaneously hour to a use unavailable same for is that unavailable take using are I from medicine excluded The are others time, physician’s 49 48 78 l,ta mrec eia aeb vial ne EMTALA under available be care medical exam- emergency for requiring, that care, health ple, States of control United market market. the competitive to purely exceptions a carves because law in simply care purchase it to need unable who are consumers they from withheld completely be not care level—health may fundamental some that—at adjudged has society American cual spiaegosadteeoeaentpr ulcgosi an in goods public pure not are therefore and goods private as xcludable enjoyed who others from even distinguishable is that way a in us to xclusively .51 0-6(1998). 504-06 501, L. K U.S.C. 42 ls stels noldsuet ditdadtu xld tesfrom others exclude thus and admitted students enrolled last the as class r y nehJ Vandevelde, J. enneth n hn,sm elhcr secual.We euea oro our of hour an use we When excludable. is care health some thing, one htabscbse fpbi dcto od n evcsi available is services and goods education public of basket basic a that We elhcr n dcto hr oecaatrsiswt rvt goods. private with characteristics some share education and care Health aktalcto fmdclgosadsrie ihu government without services and goods medical of allocation Market si nprilrcgiino h ulcgo set fhat care, health of aspects good public the of recognition partial in if As hudntecueayAeia,rc rpo,fo cest basic to access from poor, or rich American, any exclude not should § 1395(dd). 49 oilybnfiilapcso elhcr uha rvnaiecare preventative as such care health of aspects beneficial Socially netetLbrlzto n cnmcDevelopment Economic and Liberalization Investment E ,36C ARNEST OLUM 48 &M .J.T regardless RANSNAT A TTHEW ’ L Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 n hleg h osiuinlt fwat-kwddsrbto fpublic of distribution wealth-skewed financing. of school constitutionality the challenge other and with as care, health of The availability physician. the goods. family upon public a or depends centers, neurosurgeon society trauma a of of train network whole even a or cancer, hospital, for care cure tertiary a individual network produce single a no can American water, education, corporation single or K-12 or comprehensive no air a clean that or produce way roadways, or public same defense of the national the In for it. provide purchase can to unable those from AP 50 eur qial itiuino t ai eet.Rte hnrligwholly relying than Rather benefits. basic its of distribution equitable property require a to American every of care. health claim basic universal in the interest is Such enterprise. the costs investment the of half w any than In more Americans. paid all who investor for in an care analogy, interest health economic property basic to a in access of compel investor ownership American should This care largest the health system. the care of health represent members States collectively First, United the vast. payments, are tax good through public public, created socially a as CONCLUSION and create system. goods care to medical health buy continuing public to the good, from wishing from those public market apart to services a the care as health preclude care private not distribute health and would access advocate, to right we property as the public’s recog- Similarly, extent the services. the of and nition to goods educational education additional simul- funded bear preclude will privately market not of does the distribution Thus, education market system. funded taneous public publicly the to of entitlement outside public’s education purchase to to system, wishing market con- those a continues under alternatives, education education private in offers investment This currently. private services, basic to instructive. Americans is education public to analogy an Again, care. health to to part, in traced, be may reticence a This result. health this with precluding advocacy, associated care commonly rhetoric gener- entitlement-based have the lawmakers rejected care, ally health of delivery the in disparities wealth-based iudrtnigo h oiyipiain frcgiigapoet right property a recognizing of implications policy the of misunderstanding udhv otoln neetadapwru li oasr oto over control assert to claim powerful a and interest controlling a have ould ..Cashin, S.D. R OPERTY mrcncut noc h oenetsspoto ulceducation public of support government’s the enforce courts American eod eonto fmdcn sascal rae ulcgo will good public created socially a as medicine of recognition Second, care health in right property a recognizing of implications policy The all to access grants education in investment public’s the Although R F drls,WlaeRfr n h ioiyPoor Minority the and Reform Welfare ederalism, GTTO IGHT 50 M lhuhtesm esnn hudapyt correct to apply should reasoning same the Although EDICAL C ARE ,99C OLUM .L.R EV . 8,57(1999). 587 584, 79 Downloaded By: [University of Colorado, Boulder campus] At: 18:39 3 March 2008 loaino elhcr otepol h a o tadwtotwhose without and it for fair pay and all. who at universal exist people the not the the would by care for to rewarded health pay dollars care is to health care burden of health universal that allocation of conclusion the delivery the ensure and requires should Justice to creation we simple. care, intervene that health must is for government It pay care. all health health we that receive Because compels pervasive. all is justice delivery care the simple in medical investment one: public of ethical the because and equitably, provided are legal be must a all care is which care to health access to of level basic a pur- industry. establish to ability care merely entitled. anyone’s health but limit most the not more, would the in chase right investment in ownership his interest this or of entitlement Recognition her an of owning products as nation fundamental American our commodity, every purchased privately regard a will as care health of distribution on 80 ial,tesrnetagmn aoigagvrmn rtce right protected government a favoring argument strongest the Finally, E ARNEST &M A TTHEW