Monday, January 30, 2023
ISSN 2765-8767
  • Survey
  • Podcast
  • Write for Us
Daily Remedy
  • Home
  • Articles
  • Podcasts
    A conversation with Dr. Selwyn O. Rogers, trauma surgeon and gun policy expert

    A conversation with Dr. Selwyn O. Rogers, trauma surgeon and gun policy expert

    November 25, 2022
    A conversation with Dr. Kyle Fischer, policy director for the Health Alliance for Violence Intervention

    A conversation with Dr. Kyle Fischer, policy director for the Health Alliance for Violence Intervention

    November 25, 2022
    A conversation with Dr. Edwin Leap, physician writer and emergency medicine physician

    A conversation with Dr. Edwin Leap, writer and emergency medicine physician

    November 8, 2022
    A conversation with Mr. Omar M Khateeb, innovator in medical device sales

    A conversation with Mr. Omar M Khateeb, innovator in medical device sales

    October 31, 2022
    A conversation with Miss Smriti Kirubanandan, passionate healthcare strategist

    A conversation with Miss Smriti Kirubanandan, passionate healthcare strategist

    October 23, 2022
    A conversation with Mr. Michael Johnson, legal expert in physician contracts

    A conversation with Mr. Michael Johnson, legal expert in physician contracts

    October 23, 2022
  • Surveys

    Surveys

    Does inflation affect how you use your deductible?

    Does inflation affect how you use your deductible?

    by Jay K Joshi
    December 12, 2022

    Survey Resutls

    How strongly do you believe that you can tell when your provider does not trust you?

    How strongly do you believe that you can tell when your provider does not trust you?

    October 16, 2022
  • About Us
  • Contact us
  • Support Us
No Result
View All Result
  • Home
  • Articles
  • Podcasts
    A conversation with Dr. Selwyn O. Rogers, trauma surgeon and gun policy expert

    A conversation with Dr. Selwyn O. Rogers, trauma surgeon and gun policy expert

    November 25, 2022
    A conversation with Dr. Kyle Fischer, policy director for the Health Alliance for Violence Intervention

    A conversation with Dr. Kyle Fischer, policy director for the Health Alliance for Violence Intervention

    November 25, 2022
    A conversation with Dr. Edwin Leap, physician writer and emergency medicine physician

    A conversation with Dr. Edwin Leap, writer and emergency medicine physician

    November 8, 2022
    A conversation with Mr. Omar M Khateeb, innovator in medical device sales

    A conversation with Mr. Omar M Khateeb, innovator in medical device sales

    October 31, 2022
    A conversation with Miss Smriti Kirubanandan, passionate healthcare strategist

    A conversation with Miss Smriti Kirubanandan, passionate healthcare strategist

    October 23, 2022
    A conversation with Mr. Michael Johnson, legal expert in physician contracts

    A conversation with Mr. Michael Johnson, legal expert in physician contracts

    October 23, 2022
  • Surveys

    Surveys

    Does inflation affect how you use your deductible?

    Does inflation affect how you use your deductible?

    by Jay K Joshi
    December 12, 2022

    Survey Resutls

    How strongly do you believe that you can tell when your provider does not trust you?

    How strongly do you believe that you can tell when your provider does not trust you?

    October 16, 2022
  • About Us
  • Contact us
  • Support Us
No Result
View All Result
Daily Remedy
No Result
View All Result
Home Politics & Law

Substantive Due Process in Healthcare

Jay K Joshi by Jay K Joshi
August 8, 2021
in Politics & Law
0

The thirteenth amendment is considered the genesis of the civil rights movement in this country.

But in many ways, it was the fourteenth amendment that solidified the concept of civil rights in this county as we currently understand it – by expanding upon the concept of substantive due process.

A principle that allows courts to protect certain fundamental rights from government interference, even if procedural protections are present or the rights are not specifically mentioned elsewhere in the US Constitution.

Something that will come to play a major role in how healthcare laws are examined in the public and adjudicated in the courts. We know healthcare is growing more complex, far more complex than the current healthcare laws ever intended – creating a disparity between healthcare behavior and law that has grown into a chasm.

As exemplified best in the George Floyd murder trial – a high profile murder case which came down to the pathophysiology of hypoxia and asphyxiation.

Healthcare laws will need to match healthcare behavior with the same level of complexity. Currently most healthcare laws are designed to restrict specific healthcare behaviors or specific contexts in which healthcare behavior can take place.

When a law restricts a perceived liberty – be it freedom, healthcare, speech – the public invariably balances the law with the behavior it restricts.

James Madison, one of the principal Federalist authors and architect of the Constitution, described this balance as a triangulation – in which laws are interpreted and modified to optimize the rights of everyone should a disagreement or undue burden arise.

It should be no surprise then that Madison spearheaded the efforts to include the Bill of Rights into the Constitution. Because the first ten amendments are laws designed to protect, not restrict the natural rights of Americans. And subsequent interpretations of these amendments always balance the protection of these rights with commensurate responsibilities.

We have the freedom of speech so long as we do not harm or injure others through our words. We have the right to bear arms so long as we do not use the right to intimidate or hurt others.

For healthcare laws to accurately represent the complexity of healthcare behavior, they must be interpreted like the laws in the Bill of Rights, implementing Madisonian principles of triangulation to find a medically appropriate balance between law and behavior.

The right to substantive due process requires that legal interpretations of healthcare laws maintain this balance. Yet without a properly established understanding of substantive due process in modern healthcare, most healthcare laws are interpreted in ways that infringe upon basic healthcare rights.

The dynamic characteristics of healthcare often make it difficult to enumerate the healthcare rights described through substantive due process, and make it equally easy for healthcare laws to unnaturally restrict these rights.

When a restrictive law inhibits one aspect of an individual’s healthcare behavior, it affects other aspects in unforeseen, counterintuitive ways. Making it impossible for a law that only focuses on one behavior to encompass all the complexities intrinsic to healthcare rights.

Restrictive healthcare laws produce reactions and unintended consequences that manifest over time as undue burdens.

Instead, healthcare laws should be viewed in a balance, with each interaction breaking down into a set of corresponding responsibilities and burdens. With the right balance distributing the full set of responsibilities and burdens properly – both those anticipated and those unforeseen, accounting for the law of unintended consequences.

Or the secondary and tertiary effects of legal interpretation that sway the distribution of burdens in ways not anticipated when the law was first enacted. Not only from one set of individuals to another, but inappropriately distribute the burden of actual risk relative to potential risk, clinical risk with legal risk.

In law, we perceive the distribution of burdens in terms of individuals or minority populations who are disenfranchised in some capacity due to a law or the interpretation of a law. But in healthcare, the distribution of burdens must account for actual risks and potential risks that may occur when implementing a law into clinical practice.

And accounting for all these burdens is a monumental task, underscoring the complexity of the problem, but making the need to build upon substantive due processes in healthcare all the more pressing.

No time like the present.

ShareTweet
Jay K Joshi

Jay K Joshi

Dr. Jay K Joshi serves as the editor-in-chief of Daily Remedy. He is a serial entrepreneur and sought after thought-leader for matters related to healthcare innovation and medical jurisprudence. He has published articles on a variety of healthcare topics in both peer-reviewed journals and trade publications. His legal writings include amicus curiae briefs prepared for prominent federal healthcare cases.

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Videos

YouTube Video VVUxUDVQenU5RTFjUVFKNDY2ZlBmdFB3LmdVUm55WVpqRmNn This is a video about Elemental/Essential Frameworks of Healthcare Law

00:00 Elemental/Essential Frameworks of Healthcare Law
Load More... Subscribe

Expert vs. Lay Testimony

Visuals

NADAC (National Average Drug Acquisition Cost)

NADAC (National Average Drug Acquisition Cost)

by Jay K Joshi
January 29, 2023
0

We list the acquisition price of drugs that are covered under the Medicaid Drug Rebate Program - effectively, how much does the government pay for common drugs utilized by patients on Medicaid. Drugs listed are from A-CH.  

Read more

Twitter Updates

Tweets by DailyRemedy1

Newsletter

Start your Daily Remedy journey

Cultivate your knowledge of current healthcare events and ensure you receive the most accurate, insightful healthcare news and editorials.

*we hate spam as much as you do

Popular

  • Letter to the Alabama Board of Medical Examiners

    Letter to the Alabama Board of Medical Examiners

    0 shares
    Share 0 Tweet 0
  • Prosecuting Doctors as Drug Dealers

    0 shares
    Share 0 Tweet 0
  • Why Our Prescribing were for Patients’ Best Interests

    0 shares
    Share 0 Tweet 0
  • My Respect for the Law

    0 shares
    Share 0 Tweet 0
  • DEA Sets CDC Opioid Guidelines

    0 shares
    Share 0 Tweet 0

Daily Remedy

Daily Remedy offers the best in healthcare information and healthcare editorial content. We take pride in consistently delivering only the highest quality of insight and analysis to ensure our audience is well-informed about current healthcare topics - beyond the traditional headlines.

Daily Remedy website services, content, and products are for informational purposes only. We do not provide medical advice, diagnosis, or treatment. All rights reserved.

Important Links

  • Support Us
  • About Us
  • Contact us
  • Privacy Policy
  • Terms and Conditions

Newsletter

Start your Daily Remedy journey

Cultivate your knowledge of current healthcare events and ensure you receive the most accurate, insightful healthcare news and editorials.

*we hate spam as much as you do

  • Survey
  • Podcast
  • About Us
  • Contact us

© 2023 Daily Remedy

No Result
View All Result
  • Home
  • Articles
    • Contrarian
    • Financial Markets
    • Innovations & Investing
    • Perspectives
    • Politics & Law
    • Trends
    • Uncertainty & Complexity
  • Podcasts
  • Surveys
    • Survey Results
  • About Us
  • Contact us
  • Support Us

© 2023 Daily Remedy

Start your Daily Remedy journey

Cultivate your knowledge of current healthcare events and ensure you receive the most accurate, insightful healthcare news and editorials.

*we hate spam as much as you do