But while the limelight may be new, the relationship between law and public health is not. "The two are inextricably entwined because the earliest laws that we see on the books in many countries are actually laws that relate to public health," says David Studdert, MPH'95, SD'98, assistant professor of law and public health at the School. "And the earliest beginnings of public health are really about the power of the state and the laws the state can enact with respect to things like quarantine and infectious disease."
Here in the United States, such laws are as old as the 13 colonies themselves. As the nation's public health infrastructure began to grow, encouraged by revolutionary advances in health care, the need arose to create a regulatory structure for implementing public health measures and for defining relationships between the individual and the government around them. As Studdert describes it, the law became an "instrument" of public health--an enabling mechanism through which we are able to pursue public health goals, be it controlling communicable disease, bolstering emergency preparedness, or promoting safety measures.
At the same time, the law began to provide limits on what public health professionals could do. So while public health's inclination is often to take measures on behalf of the collective good, the law provides it with boundaries to protect people's rights and autonomy. Some of the more notable historical examples of this phenomenon involve the limits around quarantine against infectious disease, but similar friction can be seen today around reporting laws for HIV or vaccination mandates.
The complexity of these issues is even more pronounced when it comes to behavior that is purely self-regarding. Take, for example, smoking legislation; although we clearly recognize the public health damage of cigarettes to the smoker, an important element of regulation thus far has been around protecting the innocent bystander from secondhand smoke. Although we may be willing for the state to restrict the activities of a TB patient who presents a threat to others, having the government tell us not to smoke, to wear our seatbelt, or what to eat goes against the grain, even though it might be in our own best interest. "We're very reluctant to have the government intervene to save people from themselves," notes Mello. "It's very anti-American; it's anti our ideology of individual freedom."
Determining the juncture at which deprivation of certain individual liberties is fair and reasonable creates this "enlivening tension when you come at public health from the point of view of the law," says Troyen Brennan, professor of health policy and management. "That's what brings to life different kinds of controversy and issues that are excellent for debate. We really feel we're performing a significant service here at the School by pointing these kinds of issues out, not being afraid of them, and, in fact, in some ways being advocates for individual rights so that the person who's training in public health understands that tension."
Brennan has been playing that role for more than a decade, succeeding William Curran, SM'58--known widely as "the father of health law,"--as director of the School's Law and Public Health Program. But it was only a few years ago that he recruited Mello and Studdert to help round out his efforts in both research and teaching at the junction of law and public health. Together, they make a unique group of attorneys to say the least. With no less than six professional degrees among them, apart from their three JDs, they represent a melange of expertise in medicine, public health, philosophy, policy, mathematics, and ethics. "We're sort of mongrel researchers," quips Studdert. By splicing together the methods of legal scholars, econometricians, statisticians, and epidemiologists, this new breed of lawyer-scientist has jumpstarted the health law field and broadened its scope beyond one that deals primarily with core public health issues to one that is also cognizant of health policy, health care delivery, and ethics.
"It's a wonderful field to be a young researcher in," says Mello, "because there are a tremendous number of talented health lawyers writing about these issues, but there aren't many--really just a handful--who come at it from an empirical perspective. So in some respects we are still bumping around in a black box when it comes to some of the very fundamental questions we have about the law and the way people respond to the law." It's this never-been-done quality that makes the work so exciting for the legal trio. One of the hot button issues they are tackling now is the unfolding crisis in medical malpractice, which is the subject of their jointly penned editorial in the June 5 issue of the New England Journal of Medicine. Nationwide, physicians and other health care providers are having serious difficulties obtaining affordable liability insurance, and the three leading interest groups in the political debate--insurance carriers, health care providers, and trial attorneys--come with their own, often conflicting, perspectives on the cause, from over-litigiousness to the increasing severity of medical errors.
The researchers' goal is to determine the actual drivers of this crisis and its implications, namely if it is merely a professional crisis for doctors or also a crisis for public health in terms of quality of care. For instance, in a large federally funded study, they are using data from malpractice suits to understand patient safety issues and how injuries occur. "It sounds very simple and straightforward," notes Studdert, "but actually it's quite radical in the world of malpractice insurance, to think about using these data for something other than going to court and fighting over negligence." This is quite a change for a high-level policy debate that's been dominated by rhetoric and tales of doctors losing their livelihood and patients losing their lives. "As someone once said, the plural of anecdote is not data," observes Mello. "So what we've been asked to do is to try and flesh out those stories and get some actual data on how doctors and hospitals are responding to the situation, whether they are leaving practices or changing the way they practice, and to what extent patients are actually being hurt."
In the malpractice example, it's easy to see how the lines between medicine, law, and public health are starting to blur and how interdisciplinary efforts will be critical in solving many of the health problems this country will face down the road. Brennan believes as cost pressures increasingly bear down on health care, the integration of public health concepts, such as its emphasis on populations, will only become more essential, when focusing on each individual patient will become just too expensive. As a result, the role of the mongrel lawyer-scientist will become more important too. It's the reason that teaching is an integral part of the School's Law and Public Health Program and why Brennan and Mello have worked so hard in the last year to bring a joint MPH/JD program with Harvard Law School to fruition.
Through teaching, they hope to bring some critical mass to the field, create a funding base (which remains elusive because it's so unfamiliar and multifaceted), and perhaps most importantly impart some of their marked enthusiasm for what they do. "I've always found it to be a fascinating area from an intellectual point of view and there was never a time in which I felt there weren't interesting research questions to be asked and to be answered," notes Brennan. "I think my research, writing, and teaching provide the greatest joy I have on a day-to-day basis." Interacting with some of the brightest health professionals and attorneys on the planet as they try to understand how the other thinks and how they can work together can be a fascinating process. "It begins with the lawyers telling the non-lawyers how it is and usually ends up with the non-lawyer explaining to the lawyers how it's going to be," smiles Studdert. But it is not without its logistical challenges because the makeup of the classes are so diverse.
So does the purported animosity between health experts and lawyers start to rear its ugly head when you put them in a classroom together? Surprisingly, the verdict among the trio is a resounding no. While it can be challenging to get them speaking the same language, both groups are eager to learn and tend to understand that they are working toward the same goal--improving health for all. "I think sometimes the doctors or public health professionals appreciate having a lawyer around to give a perspective that's not the party line,"says Mello. "And sometimes lawyers will accept us because we're one of them and have something to say that they haven't heard." Studdert agrees but adds that a little humor never hurts to ease any tension. "Self deprecation is the only way out of that morass," he laughs. "We have many lawyer jokes and we roll them out every year."
In that vein, an old lawyer joke asks: What do you call 10,000 lawyers at the bottom of the ocean? The tongue-in-cheek answer: A good start. So what do you call three lawyers at the Harvard School of Public Health? Well, the answer's exactly the same. No, seriously.
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