HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, December 11, 2004

OIG Submits Semiannual Report to Congress

DHHS OIG posted its Semiannual Report to Congress for April-September of FY 2004 and an accompanying press release.  As a snapshot of what the OIG has been focusing on -- on both the enforcement and regulatory fronts -- it's hard to beat this document.

December 11, 2004 | Permalink | Comments (0)

"Medical Malpractice and the Insurance Underwriting Cycle"

That's the title of a new essay recently posted by Tom Baker (University of Connecticut School of Law) in the Health Law and Policy section of the SSRN Electronic Library.  Here's his abstract:

Lost in the recent efforts to take political advantage of (or explain away) the rapid rise in liability insurance premiums is any real attempt to understand the underwriting cycle, why it is so severe in medical malpractice insurance, and what it might mean for the ability of malpractice liability to deliver on its risk distribution, loss prevention, and corrective justice objectives. This essay attempts to fill that gap. Part 1 provides a primer on the liability insurance underwriting cycle that draws on the research prompted by the mid-1980s insurance hard market. This part explains that the recent dramatic increases in predicted medical malpractice losses are a result of the insurance cycle, not dramatic changes in medical malpractice claim payments. Part 2 explores why the underwriting cycle is so severe in medical malpractice insurance. This part applies my recent Geneva Lecture analysis of liability risks to the specific problem of medical malpractice, with a fuller consideration of the dynamics of the underwriting cycle. In short, the cycle is so severe because there is a relatively long period between the time that the premiums for a medical malpractice policy are paid and the time that losses under that policy can be known with certainty, and because there is more uncertainty regarding future medical malpractice losses than many other kinds of losses. Part 3 explores whether insurance regulators should consider acting to moderate the underwriting cycle (assuming that they could do so). This part argues that there are good reasons to believe that medical malpractice insurance crises lead medical providers to improve patient safety and, therefore, that efforts to moderate the cycle could have a negative impact on patient safety. Further research is needed before we can draw firm conclusions, but leaving the insurance cycle alone would be the wiser course for now.

The full text is also available for download.

December 11, 2004 | Permalink | Comments (2)

Friday, December 10, 2004

Ohio Legislators Pass New Tort Reform

Early Thursday morning, the Ohio General Assembly passed tort reform legislation that will place caps on pain-and-suffering damages and punitive awards.  Governor Bob Taft commended the passage of the bill and will sign it.  This bill is the Ohio's third attempt to pass tort reform.  The two prior bills have been declared unconstitutional and many attorneys have stated that this new bill may suffer many of the same defects as those earlier enactments.  As The Cincinnati Enquirer reports,

"The bill, for instance, puts caps on noneconomic "pain-and-suffering" damage awards in cases where injuries are not considered catastrophic.

But caps on awards "have been held to be unconstitutional at least twice" by the Ohio Supreme Court, said Peter Weinberger, a Cleveland plaintiff's attorney and chairman of the legislative committee of the Ohio Academy of Trial Lawyers, which lobbied against the bill."

It will be interesting to follow the fate of this bill.  Ohio's Supreme Court, which is elected, has recently changed so it is difficult to predict how the new court will rule on the caps constitutionality issue.

December 10, 2004 | Permalink | Comments (1)

Do Nonprofit Hospitals Deserve Tax-Exempt Status?

HealthLeaders Magazine's December cover story is "Do Nonprofit Hospitals Deserve Tax-Exempt Status?" by Philip Betbeze.  It's a good summary of what's been happening in this part of the industry over the past year - federal, state, and local legislation, litigation, and regulatory.

December 10, 2004 | Permalink | Comments (0)

HIV/AIDS Policy Fact Sheet Updated

The Henry J. Kaiser Family Foundation has updated its HIV/AIDS Policy Fact Sheet: "The HIV/AIDS epidemic has already claimed over 20 million lives and another 39 million people are currently estimated to be living with HIV/AIDS worldwide. HIV/AIDS cases have been reported in all regions of the world. This updated fact sheet provides the latest data on the impact of the epidemic by geographic region, on women and young people, and an overview of the economic impact and global response to date."

December 10, 2004 | Permalink | Comments (0)

The Dangers of Holiday Decorating

The Centers for Disease Control and Prevention, ever vigilant for our safety, has completed a study on seasonal spills.  On Thursday, December 9th, the CDC released the results of its study, finding that approxmately 5,800 people a holiday season end up in U.S. emergency rooms because of decorating injuries.  The most serious injuries result from falling off roofs and ladders while hanging or taking down Christmas lights.   People were also injured indoors while decorating, tripping over light strands or ornaments while decorating the tree.

The CDC study encompassed the years 2000-2003 and studied only the holiday season, November 1 through January 31.  The researchers found that men were more likely than women to get hurt  - with men comprising 58 percent of all ER visits because of decorating falls.  Visits to the emergency room rose to 12 percent during the holiday season, compared to 9 percent during the rest of the year.   Most injuries involved broken bones.

December 10, 2004 | Permalink | Comments (1)

MedPAC to Vote on Expansion of Stark Self-referral Prohibition

The Medicare Payment Advisory Commission (MedPAC) met on Thursday, Dec. 9, to discuss a variety of issues on which they may recommend changes in the law to Congress.  According to a late-breaking alert from Modern Healthcare, MedPAC

released a draft recommendation urging Congress to eliminate the “whole hospital” exemption in Medicare law that allows physicians to legally refer patients to hospitals in which they have a financial interest. The draft recommendation, however, supports establishing criteria to grandfather in existing physician-owned hospitals. A second draft recommendation would push Congress to authorize gain-sharing arrangements between hospitals and physicians. MedPAC will vote on both proposals in final form in January. Other notable draft recommendations released today include a proposal that Congress establish pay-for-performance incentives for hospitals, physicians and home health agencies.

Modern Healthcare's full story is here.

December 10, 2004 | Permalink | Comments (0)

Research and Policy Aids from NCSL

The National Conference of State Legislatures does a nice job of providing policy backgrounders and 50-state surveys on a variety of hot health-law issues, e.g.:

  • Medical Malpractice (NCSL Backgrounder, Oct. 2004): summarizes recent state and proposed federal med-mal reforms.
  • 50 States Summary of Breastfeeding Laws (Sept. 2004): summarizes state laws on breastfeeding. According to the summary, 35 states have enacted legislation on breastfeeding issues. These include locations for breastfeeding, exemption from public indecency laws, breastfeeding in the workplace, jury duty for breastfeeding mothers and breastfeeding awareness campaigns. There are also a spattering of unique laws; for example, "Louisiana prohibits any child care facility from discriminating against breastfed babies."  The summaries indicate the state, code citation, a brief description of the law and the originating legislation.
  • 50 States Summary of Sudden Infant Death Syndrome (SIDS) Laws (Nov. 2004): summarizes state laws on sudden infant death syndrome. It notes that state laws vary significantly in this area, including in the definition of SIDS. State laws cover issues such as protocol for autopsies and other guidance for medical examiners, educational programs, counseling, special training for child care personnel and experts on child fatality review panels. The summaries indicate the state, code citation, and a brief description of the law.

  • 50 States Summary of Osteoporosis Laws (June 2004): summarizes state laws on osteoporosis, a bone condition that affects some women after menopause. The summary indicates that federal and state legislation has been introduced to fund medical research concerning this disease. Many state laws establish public awareness programs. A small number mandate insurance coverage for osteoporosis-related diagnostic and treatment services.

Thanks to The Virtual Chase for providing most of these links and summaries.

December 10, 2004 | Permalink | Comments (0)

Thursday, December 9, 2004

NEJM - Perspectives on Military Care

At a time when people are debating the appropriateness of questioning the Secretary Defense about armored vehicles, the New England Journal of Medicine contains a timely perspective piece on the military care received by the wounded in Iraq and Afghanistan.  The issue also includes a photo essay showing the conditions in which doctors operate. 

December 9, 2004 | Permalink | Comments (0)

Medical Expert Witness Banned For Life from Georgia Court

No one can remember this ever happening before, but it's happened in the courtroom of Fulton County (Ga.) State Court Judge Craig L. Schwall Sr. -- an expert witness in a med mal case has been barred for life from testifying in that court.  According to a story in the Dec. 13 issue of American Medical News, the witness was banned on the ground that "the testimony the physician gave was 'conflicting, lacking in credibility and apparently untruthful.'"  The basis for the court's order appears to be three expert affidavits, two depositions, and one or more errata sheets, some of which took inconsistent positions on the key issue of whether the negligence of the hospital's nurses caused the plaintiff's injuries.

December 9, 2004 | Permalink | Comments (0)


If you are interested in all things HIPAA, there is a helpful, and actually somewhat humorous (really, it contains HIPAA jokes along with the latest developments) blog concerning HIPAA.  The blog may be found at  Go read and enjoy!

December 9, 2004 | Permalink | Comments (1)

Blogger Beware?

According to a story from the Dec. 9 edition of news service, "[m]en who park a hot computer on their laps for hours every day may be reducing their chances of becoming fathers":

A pilot study of 29 men shows that the combination of the legs-together posture required to balance a laptop, and the heat generated by the processor elevates scrotal temperature by up to 2.8°C during use. . . . A general association between elevated scrotal temperature and lowered fertility is well documented.

December 9, 2004 | Permalink | Comments (0)

Wednesday, December 8, 2004

New Breast Cancer Drug

A new drug called Arimidex has been found to be more effective than tamoxifen at preventing the return of breast cancer in women who have had the disease.  CNN reports, "The drug, Arimidex, might be able to prevent 70 percent to 80 percent of the most common type of tumors that occur in women after menopause, compared with the 50 percent that tamoxifen is credited with warding off, their research suggests."  AstraZeneca PLC, the manufacturer of Arimidex, reported these results on Wednesday and its study may be found on-line at the British medical journal, The Lancet.


December 8, 2004 | Permalink | Comments (0)

Pediatric Medical Ethics Center at Seattle Children's

As reported by the AP, Seattle's Children's Hospital is establishing a new center to examine ethics issues that arise in the care of children. The Center for Pediatric Bioethics, the first of its kind, will receive $340,000 a year in federal funds plus $1 million in startup money from Children's Hospital and Regional Medical Center, which is affiliated with the University of Washington:

"If you look around the country there are lots of centers for bioethics, but all of them tend to be devoted more toward general issues," said Dr. Doug Diekema, director of medical ethics at Children's and interim head of the new center. "There really is no concentrated center for the study of purely pediatric issues."

The center will be host of a pediatric bioethics conference in July, a sort of unofficial kickoff.

The center will consider such issues as:

  • Can a terminally ill 7-year-old decline medical treatment?
  • Are pediatricians required to tell parents when a teenager has a sexually transmitted disease?
  • Should a 10-year-old be consulted about enrollment in a clinical research trial?

Children's press release (with contact information) is here.

December 8, 2004 | Permalink | Comments (0)

Obesity Is Major Threat to Medicare Budget

As reported by Reuters, an article (PDF) in this week's JAMA (requires paid subscription) reports that citizens who are obese at middle-age will be about twice as expensive as normal-weight patients to care for when they hit the Medicare rolls:

Men and women who are obese in middle age will be up to twice as expensive to cover under Medicare, the government health plan that kicks in after Americans reach age 65, according to new study findings reported Tuesday.

The investigators found that men and women who were severely obese between the ages of 33 and 64 accumulated more than $170,000 in Medicare charges over their lifetimes.

Specifically, average annual Medicare charges for normal-weight women worked out to be $6224, compared with $12,342 for severely obese women; the corresponding charges for men were $7205 compared with $13,674, the authors report in this week's Journal of the American Medical Association.

"There is a long, long list of diseases related to overweight and obesity," lead author Dr. Martha L. Daviglus told Reuters Health. "The weight is making the individuals sicker."

She explained that the main culprits are likely cardiovascular disease, diabetes and certain cancers, as well as the diseases that are aggravated by obesity.

Nevertheless, she said she was "very surprised to see these huge differences."

The article scores obesity according to standard body-mass index calculations.  If you want to be really depressed, you can check out your body-mass index here and consult the BMI tables here.

December 8, 2004 | Permalink | Comments (1)

Mental Health Drugs Update

Pills According to the Wall Street Journal, the British Medicines and Healthcare Products Regulatory Agency, after an 18-month review, decided to strengthen its warnings regarding antidepressant medication use, “advising doctors not to prescribe them for the initial treatment of mild depression and to better communicate the withdrawal symptoms and other side effects.” The agency also reported that its review team concluded that antidepressants were being overprescribed and “reminded doctors that counseling can be as effective as drug treatments” in treating cases of mild depression. Overall, however, the agency concluded that the benefits of antidepressants outweigh the risks.  The article appeared in yesterday's Wall Street Journal, its website requires a paid subscription for access.

In a separate matter, the British Medicines and Healthcare Products Regulatory Agency has required that Wyeth change the label of two antidepressants it manufactures, Efexor and Efexor XL, to warn consumers about the possible effects the drugs can have on cardiovascular health as well as other possible dangers. Wyeth responded that the agency has indicated that this interim labeling will recommend that patients receive a baseline electrocardiogram when the drugs are first prescribed and that the drugs are indicated for moderate to severe conditions, among other items. Wyeth announced that the company will “fight” the agency’s action and reaffirmed the safety and efficacy of the two drugs.

Finally, on a related note, Consumer Reports magazine will launch tomorrow a new Web site ( that compares the cost and effectiveness of a few types of commonly prescribed medications. Anyone may access the website free of charge.  States already have access to this type of information for use in their Medicaid programs.  According to Consumer Reports, this service “will make similar information available for other low-income consumers, like senior citizens and people whose insurance does not cover prescription drugs.”

December 8, 2004 | Permalink | Comments (0)

Israel's National Council of Bioethics: Better Late Than Never

According to a recent article on, Israel is about to launch its own bioethics council, years later than originally scheduled, and beset by the kinds of concerns recently experienced in the West:

Developments and trends in science and academics tend to reach Israel after they have become the accepted norm in other parts of the world. For example, only now, a National Council of Bioethics is forming, many years later than the establishment of similar committees in the West, and three years after the date scheduled in a previous government decision. While other countries are striving to slow the advance of science, in recent years, the ruling trend in Israel is to limit generic research progress as little as possible, if at all. Almost every advance in the field is welcomed with open arms. . . .

The council intends to serve as a governmental statutory authority that oversees bioethics. It will monitor existing committees, and advise the Knesset, government, and courts on ethical questions arising from biotechnological research, medicine and genetics. In addition, the committee will be charged with seeking public participation for bioethical questions, advising committees dealing with the area, facilitating cooperation between such committees, and representing Israel in international organizations examining bioethical questions. . . .

The council is comprised of public representatives and various government office staffers. Some believe this formula poses many problems. Many the council members who were appointed to serve as public representatives also serve on other medical bioethics and bioethics in biotechnology committees. They belong to a small, yet dominant, group of lecturers and researchers who tend to favor minimal regulation and the least possible limitation of research.

"There are always the same people on every committee," says MK Melli Polishuk-Bloch, head of the Knesset Education Committee. According to her and several university researchers, this group of physicians, scientists and two philosophers has successfully taken ownership of Israel's public bioethical discourse. . . .   "It is annoying that this is the same crowd, which is there all the time in every location. . . ."

The council's chairman, Prof. Michel Ravel, and several of its members like Shapira, claim that the overlap is necessary to facilitate collaborative decision-making. They say that this will "prevent conflicts" between the committees investigating subjects related to bioethics. . . .

Was it Yogi Berra (or John Fogerty?) who said it best: Seems like deja vu all over again.

December 8, 2004 | Permalink | Comments (0)

Recent Reports from the GAO

As viewers of "60 Minutes" well know, the Government Accountability Office (formerly the General Accounting Office) is a steady and reliable source of inside information on government agencies and programs and the institutions and people they affect.  Recent health-related GAO reports include:

  • Medicare Chemotherapy Payments: New Drug and Administration Fees Are Closer to Providers' Costs, GAO-05-142R (PDF), December 1, 2004 - Abstract, (transmittal letter (PDF))
  • Flu Vaccine: Recent Supply Shortages Underscore Ongoing Challenges, GAO-05-177T (PDF), November 18, 2004 - Abstract, Highlights-PDF
  • Nursing Home Deaths: Arkansas Coroner Referrals Confirm Weaknesses in State and Federal Oversight of Quality of Care, GAO-05-78 (PDF), November 12, 2004 Abstract, Highlights-PDF
  • Emerging Infectious Diseases: Review of State and Federal Disease Surveillance Efforts, GAO-04-877 (PDF), September 30, 2004 - Highlights-PDF [not really "recent," I realize, but it made today's GAO listing of the top ten reports made publicly available in the past month]
  • December 8, 2004 | Permalink | Comments (0)

    Louisville Institute for Bioethics, Health Policy & Law

    Picking up where he left of at the University of Houston, Mark Rothstein has hit the ground running with the Louisville Institute for Bioethics, Health Policy and Law.  A recent news release highlights the research interests of its first Crown Life bioethics fellow, Heather Hinds, as well as some of the institute's public-health initiatives. 

    December 8, 2004 | Permalink | Comments (0)

    Tuesday, December 7, 2004

    UK Medical Websites

    British_flag_1 Many physicians have noticed that patients have turned to the internet in an attempt to act as their own doctor.  This has its dangers as much of the information on the web can be incorrect or can be directed only at selling products to suspectible patients.  The Guardian provides a top ten list of helpful and (hopefully) trustworthy health websites for individuals interested in learning more about health without going to medical school.  The list contains everything from websites with patient stories, to websites containing information about UK health services and recent research updates to a quackwatch website that helps an individual identify health frauds.

    December 7, 2004 | Permalink | Comments (0)