HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, December 7, 2004

Sleeping and Weight Gain

You would think that an individual who actually is able to sleep for 8 hours a night should be the one that faces an increase risk of weight gain.  How many calories can you be burning while you sleep??  A study reported today shows that people who sleep less are actually more at risk for weight gain.  As CNN reports:

"Losing sleep can raise levels of hormones linked with appetite and eating behavior, the researchers said.

In one study, people who slept only four hours a night for two nights had an 18 percent reduction in leptin, a hormone that tells the brain there is no need for more food, and a 28 percent increase in ghrelin, which triggers hunger.

The young men in the study also tended to eat more sweet and starchy foods when sleep was cut short.

"We don't yet know why food choice would shift," said Eve Van Cauter, a professor of medicine at the University of Chicago who led the study.

"Since the brain is fueled by glucose, we suspect it seeks simple carbohydrates when distressed by lack of sleep.

"This is the first study to show that sleep is a major regulator of these two hormones and to correlate the extent of the hormonal changes with the magnitude of the hunger change," Van Cauter said."

So, even though you may find your self busy with holiday activities, not to mention drafting and then grading exams, you should try to get more sleep - or - you may eat all those holiday goodies even before you family arrives to celebrate with you.

December 7, 2004 | Permalink | Comments (0)

More on the President's Council and Stem Cells

William Saletan writes in the Dec. 5 Slate that conservatives on the President's Council on Bioethics seem to have latched on to two proposals that would do an end-run around the existing federal rules on funding stem-cell research.  One focuses on determining when an embryo could be considered "dead" and therefore a candidate for stem-cell donation, in a manner analogous to the harvesting of organs from the newly dead. 

The other "presented by council member William Hurlbut, is exactly the opposite. It's brilliantly, grotesquely unconventional. Hurlbut, an earnest young member of the council's conservative wing, has been working for two years on a scheme to end-run the problem of killing embryos. He seems to be the only person in this debate who has figured out that the Catholic fixation on the technical definition of a human embryo, which stem-cell researchers regard as a roadblock, actually presents an opportunity. Instead of whining about the church's insistence on the continuity of personhood from embryo to adult, Hurlbut has seized on the point of discontinuity: the non-personhood of anything before or less than an embryo. If it isn't an embryo, it's fair game."

December 7, 2004 | Permalink | Comments (0)

ERISA Preemption & the Hawaii Supreme Court

This from Lexis/Nexis:

A state law providing for external review when a health maintenance organization denies benefits is preempted by the Employee Retirement Income Security Act because the review process more closely resembles contract interpretation than it provides for protection of the insured by seeking an additional medical opinion, the Hawaii Supreme Court held Nov. 18 (Hawaii Management Alliance Association v. Insurance Commissioner, et al., No. 24801, Hawaii Sup.; 2004 Haw. LEXIS 750).

The opinion can be read here [Lexis subscription required] or here [slip opinion, PDF].

December 7, 2004 | Permalink | Comments (0)

Jewish Medical Ethics, From A to V

Last Sunday's Jerusalem Post ran an article [requires free subscription] on the English-language publication of the Encyclopedia of Jewish Medical Ethics by Prof. Avraham Steinberg.  A three-volume version of the six-volume work originally published in 1998, the work has been "[s]limmed down (without some of the technical references and less relevant subjects such as Temple sacrifices and the priestly role) but updated with additional subjects (like cloning) to three volumes and 1,191 pages."  The original won the Israel Prize for Torah and Talmudic Literature - the nation's most prestigious civilian award - in 1999:

This major publishing event opens up a wealth of material to the English-speaking world interested in these 97 subjects - from Abortion & Miscarriage to the Elderly (Volume 1), from Embalming to Parents (Volume II) and from Paternity to Visiting the Sick (Volume III).

More information about the work is available from the publisher's web site at

December 7, 2004 | Permalink | Comments (0)

Monday, December 6, 2004

New Malpractice Reform Method

A Georgia physician has been barred from the courtroom as an expert witness - forever.  Denying access to expert witnesses willing to say anything may help stop frivolous lawsuits.  This case, however, seems a bit shocking.

According to an article in the

"... a Georgia judge has banned an expert witness from ever testifying in his courtroom because he said the testimony the physician gave was "conflicting, lacking in credibility and apparently untruthful."

The doctor denies the judge's allegations and is appealing the ruling.

The order comes at a time when some physicians are making a push to better police expert witness testimony as a way of limiting the number of meritless lawsuits being filed.

Legal experts say that federal judges have not allowed physician expert witnesses to appear in court in a specific case when their testimony appears to be 'junk science.'"

In response, the article reports that Mr. Garland (Dr. Williams' attorney),argues that the judge's ruling is illegal and that it should be changed.  The article continues noting that,

"If the judge doesn't change his mind, it would be a blemish on Dr. Williams' record that would likely be brought up anytime he testified in court. Some say that's unfair, particularly given the facts of the case. Others say it could set an interesting example for others to use when experts appear in their courtroom.

Either way, physicians who testify as expert witnesses and those who are pushing for better policing of expert witness testimony will watch the case closely to see how the issue is ultimately resolved."

Thanks to Jim Tomaszewski for this article!

December 6, 2004 | Permalink | Comments (0)

Is Universal Coverage an Idea Whose Time Has (Finally) Come?

Today's New York Times has an article by Steve Lohr ("The Disparate Consensus on Health Care for All") that asserts, somewhat surprisingly, that "there is a surprising consensus that the United States must inevitably adopt some kind of universal coverage":

"Politically, it's like the electrified third rail on the subway - no one wants to touch it," said Margaret O'Kane, president of the National Committee on Quality Assurance, an independent group that seeks to improve the quality of health care.

But health care experts contend that the issue must be addressed. Their policy proposals vary widely, and the proponents of universal coverage are as different as Dr. William W. McGuire, chief executive of one of the nation's largest health insurers, and Dr. David Himmelstein of the Harvard Medical School, who recommends eliminating big insurers like Dr. McGuire's company, the UnitedHealth Group.

The rationale for such a move: the experts "agree that moving toward universal coverage would surely save lives and maybe dollars as well."

The article goes on to analyze different proposals in light of the three questions any universal-coverage plan must answer: "Will the move to national coverage follow an incremental, step-by-step path or require drastic change? What role will the government play? What should be covered under a universal system?"

December 6, 2004 | Permalink | Comments (0)

Schiavo Update

Scotusblog has the latest information on the Gov. Jeb Bush v. Michael Schiavo, Guardian, docket 04-757.  Governor Bush has filed his petition for review and it may be found at, under "court developments."

If you need some more information about this case and its many twists and turns, you can find a detailed time line of this case at Professor Kathy Cerminara's website.

December 6, 2004 | Permalink | Comments (0)

New Level for Tiered Health Care

Amy Tsao writes in the Dec. 6 Business Week On-line that "some insurers are now offering lower co-pays for patients who use certain hospitals or doctors":

In the battle to trim health-care spending over the last several years, so-called tiering of prescription drug benefits has become a standard strategy. According to a Kaiser Family Foundation survey, adoption by employers of three-tier drug-benefit plans jumped from 27% to 63% between 2000 and 2003. Under the system, a patient is charged a co-payment of, say, $10 for a generic drug, vs. around $20 for a brand-name drug on the insurer's approved list and $30 or more for a drug not on the list. Tiered-drug benefits can save 11% or more on health-insurance costs for employers compared to plans without tiering, according to the 2004 Medco Drug Trend Report.

The cost savings are pushing insurers and employers to expand the tiering concept to include doctors and hospitals. The idea is to direct patients -- by charging lower co-pays -- to the most efficient providers. For example, a patient who belongs to a tiered plan and needs to select a hospital for colon surgery would have a report card of hospitals. The patient is charged a substantially lower co-payment at a hospital that scores well on cost and performance measures.

EARLY ADOPTERS. Insurers and employers see tiering as a way to control costs while at the same time encouraging doctors and hospitals to improve quality. Leapfrog, a coalition of large health-care buyers, counts nine insurers that offer tiered plans, and CEO Suzanne Delbanco says as many as 20 plans are in the works. Rick Siegrist, CEO of Healthshare, a software consulting company that specializes in health care and helps insurers and hospitals develop benchmarks for medical quality, says he knows of two major national insurers that plan to offer tiered plans in 2005, though he won't disclose which ones.

One insurer that already has adopted the system is Healthshare client Tufts Associated Health Plans, a regional insurer in New England. Its Navigator plan for Massachusetts state employees places hospitals in one of two tiers for services in three broad areas -- adult care, pediatric care, and adult surgery. Under the plan, patients are charged co-payments of $200 per hospital admission if the hospital ranks in the top tier in quality of care and cost-efficiency for the particular service -- and $400 if the hospital is in the lower tier.

One of the points of contention in all this is how the insurers measure quality:

Perhaps not surprisingly, physicians and hospitals have serious misgivings about such initiatives. "We're in favor of diminishing costs, but we think this is the wrong approach," says Dr. John C. Nelson, a Salt Lake City obstetrician-gynecologist who's president of the American Medical Assn. "There's no way to accurately delineate [quality]." The methodologies by which tiers are set and the data that are used to rank doctors are unreliable, Nelson argues.

DELAYS IN CARE?  Measuring the quality of medical services is much less black-and-white than choosing a generic over a brand-name drug. When deciding between a hospital that has an average of 25 medical errors per day vs. one with two or three per week, the choice may seem obvious. However, the hospital with more errors may simply lack the technology to detect them all. Patient population, too, is a major factor that could affect how doctors and physicians are rated. Wealthier patients tend to be healthier, Nelson notes. "That needs to be factored in," he says.

Another issue is the impact of the tiering system on acces to health care.  "If it shifts too many patients to too few hospitals and doctors, tiering also could make it harder for some patients to get care in a timely fashion, worries Jim Bentley, senior vice-president for strategic policy planning at the American Hospital Assn."

December 6, 2004 | Permalink | Comments (0)

California AG Examines Sensitive Medical Services for Minors

On November 29, California Attorney General Bill Lockyer issued Opinion No. 04-112, which concludes:

  1. "A school district may not require that a student obtain written parental consent prior to releasing the student from school to receive confidential medical services"; and
  2. "A school district may not adopt a policy pursuant to which the district will notify a parent when a student leaves school to obtain confidential medical services."

The opinion discusses "sensitive medical procedures" as those that may be obtained by a minor without the consent of an adulty, including the following:

  • care related to the prevention or treatment of pregnancy (but not including sterilization);
  • an abortion;
  • for a minor of age 12 or older, treatment of an infectious, contagious, or communicable disease or to care related to the diagnosis or treatment of rape;
  • care related to the diagnosis or treatment of sexual assault;
  • for a minor of age 12 or older, care related to the diagnosis or treatment of drug-related or alcohol-related problems;
  • for a minor of age 12 or older, mental health treatment, counseling, or residential shelter services if (1) the minor is mature enough to participate intelligently, in the opinion of the health care provider, and (2) the minor is either a danger to himself or herself or others without the treatment, or is the alleged victim of incest or child abuse (not including convulsive therapy, psychosurgery, or psychotropic medication); and
  • HIV testing.

December 6, 2004 | Permalink | Comments (0)

Sunday, December 5, 2004

Massive DME Fraud Case Settles

BNA's Health Care Daily Report Executive Briefing reports:

Gambro Healthcare US Inc., one of the nation's largest providers of kidney-dialysis services, will pay over $350 million to resolve criminal and civil charges that it defrauded the Medicare and Medicaid programs, U.S. Attorney for the Eastern District of Missouri James G. Martin announced Dec. 2 (United States v. Gambro Healthcare U.S. Inc., E.D. Mo., No. 4:01-CV-00553-DDN, settlement 12/02/04; United States v. Gambro Supply Corp., E.D. Mo., case number unavailable, plea entered 12/1/04). As part of the settlement, a Gambro subsidiary, Gambro Supply Corp., pleaded guilty to a one-count criminal information charging it with carrying out a health care scheme, and agreed to pay a $25 million fine. Gambro Supply will be permanently barred from participation in the Medicare program. A Department of Justice statement described Gambro Supply as "a sham durable medical equipment company." As part of the overall settlement, DOJ said, Gambro Healthcare will pay $310.5 million to resolve civil liabilities stemming from alleged kickbacks paid to doctors, false statements made to procure payment for unnecessary tests and services, and payments to Gambro Supply.

Details of the elaborate scheme are available in the Department of Justice's news release on the plea bargain.  Gambro's press release is here; the company's previous releases concerning this care are here.

The BNA service is available by subscription here.

December 5, 2004 | Permalink | Comments (0)

Stem Cells and the President's Council on Bioethics

Reports coming from the first post-election meeting of the President's Council on Bioethics say that Chairman Leon Kass told his colleagues "he supports two new proposals that could allow scientists to create human embryonic stem cells without destroying embryos" (Boston Globe):

The proposals still face a range of ethical and scientific hurdles, and neither has yet been attempted, but they received a positive reception from the council, which has generally taken a cautious approach to new biological research.

The two ideas considered by the council represent different ways to obtain embryonic stem cells without destroying an embryo. One, crafted by council member Dr. William Hurlbut, a conservative bioethicist at Stanford University, would engineer a human egg so that it creates cells equivalent to human embryonic stem cells but never develops into an actual embryo.

The other idea, presented by two Columbia University professors, proposes devising standards for declaring an embryo ''dead." If it is ethically acceptable to allow organ donation from patients who have been declared brain dead, they reason, then it should be acceptable to remove cells from an embryo that has been declared dead.

The Council's agenda for the December 2-3 meeting in Washington, D.C., is hereTranscripts will be posted here when they become available.

December 5, 2004 | Permalink | Comments (0)

Medicare Drug Benefit Stifles Nursing Home Staff

Robert Pear reports in Sunday's New York Times that "[a] wide range of experts on long-term care express serious concern that the new Medicare law will be unworkable for most of the 1.5 million Americans who live in nursing homes":

Nursing home residents take large numbers of prescription drugs, an average of eight a day. But many have physical disabilities and brain disorders that impair their memory and judgment. So they cannot easily shop around for insurance plans to find the best bargains on their drugs, as other Medicare beneficiaries are supposed to do.

Federal and state officials, pharmacists and nursing home directors said they had no idea how these patients would obtain their medicines under the new program, which begins in January 2006.

"Nobody knows where they're going to get their drugs from," said Stanton G. Ades, senior vice president of NeighborCare, a company in Baltimore that supplies drugs to more than 1,500 nursing homes and assisted living centers in 32 states. The role of such long-term care pharmacies under the new law is unclear.

Confusion reigns on both sides of the pharmaceutical supply relationship:

"We don't have a clue how the system is supposed to work under the new law," said Laurence F. Lane, vice president of Genesis HealthCare, which operates 192 nursing homes in 12 states. "We don't know what will happen on Jan. 1, 2006."

The new Medicare benefit, as envisioned by Congress, will be delivered by insurance companies and pharmacy benefit managers like Medco Health Solutions and Express Scripts, through drug stores like Walgreens and CVS. But the typical retail drugstore or pharmacy benefit manager has little experience with nursing home residents.

December 5, 2004 | Permalink | Comments (0)