Saturday, September 20, 2014
CREIGHTON UNIVERSITY SCHOOL OF LAW invites applications for a lateral tenured or tenure-track professor in health care law to join our faculty in Fall 2015. Applicants should have significant academic or practice experience in the business side of health care (e.g., the financing and regulation of health care, including but not limited to the Affordable Care Act). Creighton University has seven health care schools on its campus, as well as a College of Arts and Sciences and a College of Business, and the Law School is particularly interested in establishing interdisciplinary programs with those schools for non-JD as well as JD students. Candidates with experience in developing such programs are especially encouraged to apply. Candidates should have excellent academic credentials and a proven record of (or demonstrated potential for) outstanding classroom teaching and scholarship.
Katherine A Curnow, Information, Power and Relationships: Minimising Barriers to Access to Justice for End of Life Disputes, 25 Australasian Disp. Resol. J. 137 (2014).
Ali Sunyaev, Tobias Dehling, Patrick L. Taylor, Kenneth D. Mandl, Availability and Quality of Mobile Health App Privacy Policies, J. of the Am. Med. Informatics Ass'n (2014).
Guest Blogger Associate Professor Diana R.H. Winters: So Much, But Yet Not Enough - The Administration’s Plan to Combat Antibiotic Resistance
Yesterday was a big day in the fight against antibiotic resistance. The White House released an Executive Order and a National Strategy document on Combating Antibiotic-Resistant Bacteria, the President’s Council of Advisors on Science and Technology (PCAST) released a report on antibiotic resistance, and the National Institutes of Health and the Biomedical Advanced Research and Development Authority announced a $20 million prize for developing tests to identify highly resistant infections. Kevin Outterson at The Incidental Economist, Food Safety News, and the New York Times provide a good summary of these developments.
It is clear that the administration recognizes the grave threat posed by antibiotic resistance and that it intends to make combating this danger a national priority. Its approach is broad—the National Strategy includes a “Guiding Principle” that “[d]etecting and controlling antibiotic resistance requires the adoption of a ‘One-Health’ approach to disease surveillance that recognizes that resistance can arise in humans, animals, and the environment,” and the strategy pays much attention to the role of antibiotics in food production. One main objective of the strategy is to eliminate the use of medically important antibiotics at subtherapeutic levels for growth promotion (the practice of feeding animals antibiotics to make them fatter, not to make them well).
Tuesday, September 16, 2014
Guest Blogger Assistant Professor Jennifer A. Brobst: Whether The Movement To Criminalize Revenge Porn Will Serve As An Effective Coercive Public Health Strategy
Revenge porn involves the attempt by an offender to harm another person’s reputation and wellbeing through the online posting and distribution of sexually explicit images of that other person without his or her consent. In a 2013 survey, approximately 10% of ex-partners have threatened to post sexually explicit images online, of which 60% have done so. Other research noted by the American Psychological Association, accompanying this survey, has indicated that more men than women currently report being victims of revenge porn, contrary to the public media focus on women as primary victims.
While existing voyeurism and invasion of privacy charges and causes of action address the taking of such images without a person’s consent, until recently there were civil but not criminal remedies for the distribution of sexual images without consent, such as private images taken together during a relationship or through sexting. According to the National Conference of State Legislatures, as of August 15, 2014, the following states enacted revenge porn criminal statutes in 2013 or 2014: Arizona, California, Colorado, Georgia, Hawai’i, Idaho, Maryland, New York, Pennsylvania, Utah, Virginia, and Wisconsin. At least sixteen other states have pending legislation to adopt similar provisions.
The University of Richmond Journal of Law & the Public Interest currently has five openings for articles for the two general issues of their volume. As a Journal that centers in large part on the Public Interest, the Journal will be happy to accept and review articles on a broad range of topics that affect citizens on a national level or in the Commonwealth of Virginia.
Guest Blogger Professor Wendy Parmet - King v. Governor of the State of New Jersey: Applying the First Amendment to Laws Regulating Physician Speech
Last week’s decision by the U.S. Court of Appeals for the Third Circuit in King v. Governor of the State of New Jersey, provides an insightful addition to the growing body of case law examining the clash between the state’s power to regulate clinical practice andfree speech.
Although the common law of informed consent arguably implicates the First Amendment rights of physicians and other health professionals, the conflict between the state’s power to regulate health care and free speech has become more apparent in recent years as state legislatures have increasingly enacted laws prescribing what physicians and other clinicians can and cannot say. Such laws are especially common with respect to abortion, but state legislatures have also required physicians to provide specific information about breast cancer treatments, or refrain from asking patients about gun ownership.
Carl E. Fisher, David L. Faigman, Paul S. Appelbaum, Toward a Jurisprudence of Psychiatric Evidence: Examining the Challenges of Reasoning from Group Data in Psychiatry to Individual Decisions in the Law, SSRN.
Katherine A. Curnow, Lisa C. Toohey, A Focus on Process: Procedures to Address Disputes About End of Life Decisions, 24 Australasian Disp. Resol. J. 45 (2013).
There was an article a couple of weeks ago in the New York Times about “engineered foods,” and how “a handful of high-tech start-ups are out to revolutionize the food system by engineering ‘meat’ and ‘eggs’ from pulverized plant compounds or cultured snippets of animal tissue.” The author discussed some of the business models, interviewed some of the entrepreneurs, and contemplated some of the implications of “Food 2.0.” The concerns she noted involved the nutritional impact of these foods, and the possibility of resource-intensive production.
But what sort of screening will these food products go through before they enter the food supply? How will FDA vet these new foodstuffs for toxicity or allergenic properties? It won’t. Manufacturers can self-affirm that food products are safe, based on their own studies, and market them on that basis with no prior FDA approval. This is the GRAS (generally recognized as safe) route to marketability. A manufacturer could also choose to submit to the formal food additive approval process, which is extremely time-consuming, but considering the breadth of the GRAS exception, they probably won’t. Many more GRAS notifications are filed per year than food additive petitions.
Thursday, September 11, 2014
Jennifer M. Jørgensen, Paula L. Hedley, Mickey Gjerris, Michael Christiansen, Ethical Issues Related to Screening for Preeclampsia, 28 Bioethics 360 (2014).
Thomas Jefferson School of Law
Announces the First Annual
Jameson Crane III Disability and the Law
The Crane Writing Competition is designed to encourage outstanding student scholarship at the intersection of law and medicine or law and the social sciences that promotes an understanding, furthers the development of legal rights and protections, and improves the lives of those with disabilities.
Cleveland-Marshall College of Law
Journal of Law and Health
You are invited to submit an Article for possible inclusion in the Journal of Law & Health’s Annual Symposium: The Social, Ethical, and Legal Consequences of Sports-Related Brain Injuries. The Journal of Law & Health is a student-run publication dedicated to publishing innovative articles that offer diverse perspectives on the intersection between law, health, and medicine.
What makes a public health threat an emergency? In this week’s New England Journal of Medicine, Rebecca Haffajee, Michelle M. Mello and I ask this question in connection with Massachusetts Governor Deval Patrick’s decision last spring to declare the opioid-addiction epidemic a “public health emergency.” In our Perspective we do not question the seriousness of the opioid-addiction problem; or the specific policies Patrick implemented. Rather, we ask whether the epidemic warranted the invocation of emergency powers.
In the years since 9/11, in the name of public health legal preparedness, public health officials and scholars have focused much attention on the need for so-called emergency laws to strengthen the response to a public health emergency. Although the exact parameters of emergency laws vary, they typically allow for the suspension of some or most ordinary legal procedures and protections. Thus when an emergency is declared, the rules of the legal system are suspended. Executives can take action without awaiting legislative approval, or following the typical administrative process. Judicial review may also be significantly curtailed. As my co-authors and I discuss, this has enormous costs, not only on the individuals and entities whose interests are affected, but on the credibility of public health officials who must ultimately depend on the public’s trust. If the public comes to believe that declarations are issued too easily, its support for public health may diminish. In addition, in the absence of legislative and judicial checks, executive powers may easily be turned against vulnerable populations, as they have been too often in history.
This week, at Southern Illinois University School of Law, our annual Grayson Distinguished Lecture in health law featured Texas family law attorney Jessica Hall Janicek. Janicek successfully represented the family of Marlise Muñoz, who petitioned the state court in January 2014 to force the hospital to remove bodily sustaining devices after Ms. Muñoz collapsed and became brain dead while 14 weeks pregnant. Muñoz, a paramedic, had had a clear oral advance directive, choosing to opt out of life sustaining measures. However, the state hospital asserted through the District Attorney that Texas law would override her wishes and keep her body on a ventilator in the interests of saving the life of the fetus. At least 12 states have similar strict provisions overriding women’s advance directives if they are pregnant, regardless of whether the fetus is viable or if it will cause her unendurable pain or additional harm (i.e., Alabama, Idaho, Indiana, Kansas, Kentucky, Michigan, Missouri, South Carolina, Texas, Utah, Washington, and Wisconsin). Most other states, including Illinois, override a woman’s clear choice to decline life sustaining measures if she is alive and pregnant and the fetus has a probability of viability, following the Uniform Rights of the Terminally Ill Act. Maryland, New Jersey and Vermont stand out as the three which expressly permit pregnant women to control whether and how they wish to use life sustaining treatment in an advance directive.
The St. Louis Police Department (SLPD), which is geographically and jurisdictionally distinct from Ferguson and St. Louis County, has a relatively new chief of police who, in the wake of the events in Ferguson, acknowledged the legitimacy of citizens’ concerns about police interactions and a commitment to restoring communication and trust. Chief Dotson has consistently embraced a progressive stance on police operations, even in the face of strong resistance to maintain the status quo. Less than two months ago, he welcomed the new SLPD headquarters by emphasizing the value of modernizing the department’s infrastructure and practices. His repeated message: “It costs more to live in the past, than it does to invest in the future.”
Seema K. Shah, Piercing the Veil: The Limits of Brain Death as a Legal Fiction, U. of Mich. J. of L. Reform (Forthcoming).
Anna Lindblad, Niels Lynöe, Niklas Juth, End‐Of‐Life Decisions and the Reinvented Rule of Double Effect: A Critical Analysis, 28 Bioethics 368 (2014).
Eline M. Bunnik, A. Cecile J.W. Janssens, Maartje Schermer, Informed Consent in Direct‐To‐Consumer Personal Genome Testing: The Outline of a Model between Specific and Generic Consent, 28 Bioethics 343 (2014).
Douglas Mackay, Standard of Care, Professional Obligations, and Distributive Justice, 28 Bioethics 352 (2014).
Tuesday, September 9, 2014
In his New York Times op-ed today, former Denver tight end Nate Jackson explains why the NFL should prefer that its players use marijuana to medicate their pain rather than to rely on prescription drugs that can have serious side effects and promote dangerous addictions. Jackson explains quite effectively why he needed marijuana during his six-year career:
I broke my tibia, dislocated my shoulder, separated both shoulders, tore my groin off the bone once and my hamstring off the bone twice, broke fingers and ribs, tore my medial collateral ligament, suffered brain trauma, etc. Most players have similar medical charts. And every one of them needs the medicine.
But to ask whether players should use marijuana or legal drugs to treat their pain is to ask the wrong question. As I write in a forthcoming symposium on concussion in sports in the Journal of Law, Medicine & Ethics,
It is one thing to assume risks to health when there are meaningful benefits to be gained. But there are many ways to exercise, develop teamwork skills, or gain the other benefits of competitive athletics without playing football or other sports that lead to concussion. Ultimately, the social value of violent sports seems to rest heavily on the entertainment they offer to spectators.
Rather than asking how to treat the inevitably serious injuries that players suffer, we need to ask whether there is any legitimate role for the levels of physical violence that we tolerate in football.
[cross-posted at Bill of Health and orentlicher.tumblr.com]
Thursday, September 4, 2014
Designing policy interventions in the context of obesity—what we can learn from the effects of cigarette taxes on children’s health
by Diana R. H. Winters Indiana University Robert H. McKinney School of Law
An important new study shows that a child will most likely be healthier throughout her childhood if a tax on cigarettes is in place when her mother is pregnant. Economist David Simon (who, full disclosure, is my cousin) at the University of Connecticut has extended the findings that the health of infants can be improved by a policy intervention that improves the in-utero environment, and has provided strong evidence that cigarette taxes can improve the health of children into their teen years.
It is well established that smoking during pregnancy can harm a developing fetus. In his paper, Simon cites studies that demonstrate the negative effects of taxes on cigarette smoking, and in a second paper, he collects and reviews the literature that shows that pregnant women are responsive to cigarette taxes. Simon uses a restricted-use version of the National Health Interview Survey, which the Centers for Disease Control and Prevention has used since 1957 to collect data on the health of the U.S. population, to examine medium-term childhood health outcomes for individuals exposed to a cigarette tax in-utero.
HealthLawProf Blog is very pleased to welcome the fourth of our bloggers for the month of September, Assistant Professor Kelly Dineen. The following is her short bio:
Kelly Dineen is an Assistant Professor of Health Law and Ethics at Saint Louis University with a joint appointment in School of Law and the Albert Gnaegi Center for Health Care Ethics. She previously served as the Assistant Dean for Academic Affairs and as the Assistant Director of the Center for Health Law Studies at the School of Law. Prof. Dineen teaches Bioethics and the Law, FDA Law & Policy, and Innovation in Medicine.
Prior to joining Saint Louis University in 2006, Professor Dineen practiced in the health care practice group at Husch & Eppenberger LLC (now Husch Blackwell Sanders, LLP), where she also helped develop the firm's Children with Disabilities Pro Bono Project. She is PhD candidate (anticipated December 2014), holds a J.D. with a certificate in health care law, and a bachelor’s of science in nursing.
Professor Dineen also practiced nursing for a decade prior to entering SLU LAW. She began in a neurosurgical and organ transplant intensive care unit and later worked as a neurosurgical clinical and research nurse at an academic medical center. She has extensive clinical experience with patients with implanted programmable neuromodulation devices and assisted in the development of one of the first centers in the Midwest to provide functional neurosurgery for patients with movement disorders and chronic intractable pain.
Professor Dineen's research interests include the intersection of ethics, law and policy in the treatment of disenfranchised populations (including people with chronic pain or cognitive and neuropsychiatric conditions); end of life care; conflicts of interest in medicine, especially involving medical devices; health care provider decision making and moral development; and clinical research ethics.
HealthLawProf Blog is very pleased to welcome the third of our bloggers for the month of September, Associate Professor Diana R. H. Winters. The following is her short bio:
Diana has been an Associate Professor at Indiana University McKinney School of Law since 2012. She joined McKinney Law from Boston University Law School, where she was a Visiting Assistant Professor and the Health Law Scholar. Before that, Winters was an Assistant Solicitor General in the New York State Attorney General’s Office. Diana is currently researching the structure of food regulation, and the judicial review of health and safety regulation. She teaches Torts, Health Law, Environmental Law, and Food Law and Policy. Her recent research is available on SSRN.
Last month’s riots in an Ebola-infected slum in Monrovia, Liberia demonstrated anew the perils of relying on quarantine, and similar highly coercive public health laws, to contain highly contagious diseases.
At first blush, Ebola viral disease (EVD) is exactly the type of disease for which broad quarantines (more precisely, sanitary cordons) would seem appropriate. Transmitted through direct contact with the bodily fluids of an infected person, EVD can spread rapidly through a community, as it has done in several West African nations. Although experimental treatments and vaccines offer promise for the future, they have not yet been shown to be effective in humans; nor are they readily available. As a result, health officials are forced to rely on tried and true public health strategies, such as identifying cases, isolating and treating them with strict infection control measures, and monitoring their contacts. Needless to say, doing so is very challenging and very expensive, especially in highly urbanized areas, with weak health systems.
Given the challenges, health officials and government leaders are often tempted to call in the troops, and rely on more heavy-handed measures, such as imposing sanitary cordons around whole towns or neighborhoods, quarantining those who have had contact with patients, and restricting travel into and out of affected regions. Although the impetus for these measures is understandable given the magnitude of the EVD threat, history suggests that such highly coercive tactics frequently backfire. Like the military-style show of force employed by the police department in Ferguson, Missouri earlier this summer, highly coercive public health measures can undermine the public’s trust in authorities. Thus, rather than reduce travel, identify contacts, and come forward if they show symptoms, individuals are more apt to try to leave affected areas and avoid the health care system. Or they riot, as they did in Monrovia and China during the SARS outbreak. In any case, the problem is made worse not better.