HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, February 12, 2005

Abu Ghraib and Doctors

I don't know how many of you have been following some of the current  information available about the role of medical personnel in the horrid Abu Ghraib torture horror but there in a new article that provides more details on how these individuals should have behaved and apparently did not.  The article is written by Stephen N. Xenakis, a retired brigadier general in the U.S. Army and a physician. 

February 12, 2005 | Permalink | Comments (0)

Friday, February 11, 2005

Red Wine Suggestion

I know that many of you have read about the health benefits of drinking red wine -- well -- I have a suggested wine purchase from the Wall Street Journal.  Beringer Pinot Noir 2003 - it is less than $20,00 and quite tasty (although I am not a wine expert).  Anyway, if you are looking for a nice wine to help you and your loved one celebrate Valentine's Day, I can say that my husband and I both enjoyed it.  [bm]

February 11, 2005 | Permalink | Comments (0)

Educational Malpractice

Professor Lars Noah, University of Florida -Fredric G. Levin College of Law has written a new article entitled "Medical Education and Medical Malpractice:  What's the Connection?" This article examines  the potential for future lawsuits based on educational malpractice filed against medical schools when recent graduations inflict injuries on patients.  The article is an interesting read and suggests some new thoughtful rationales for courts that may face some of these claims in the future.  As a law professor, I shudder at the thought that one of my student's clients could sue me one day! [bm]

On a slightly different note, both Ezra Klein and Brad Plumer  have interesting discussions on  the need for more medical schools in the United States. 

February 11, 2005 | Permalink | Comments (1)

Thursday, February 10, 2005

Flu Supply and Distribution Update

Reuters reports on the latest Centers for Disease Control study concerning who received the flu vaccine during the current flu season.  According to the CDC, more toddlers received the vaccine than in prior years, while at the same time fewer older adults received the shots.  I am not sure what to think of this study and others conducted to show who is and who is not receiving the flu shot this year.  I think the short supply as well as distribution problems could have played a fairly large role in who ended up actually receiving the vaccine.  I could not get the flu shot for my 22 month old son here in Ohio (and, of course, he is now sick with something that resembles the flu) and I know that my 90-year old grandmother, who lives in Tennessee, did not receive her flu shot until last month because of the shortage.  Perhaps if the distribution system worked more efficiently, more at risk individuals would actually receive the flu vaccine.  [bm]

February 10, 2005 | Permalink | Comments (0)

You're Sued!

The AP reports on a story concerning James Schottel, a quadriplegic lawyer, who has sued producers of NBC's "The Apprentice" (the "reality" television series starring Donald Trump).   Mr. Schottel alleges that the tryouts for the show violate the Americans with Disabilities Act by requiring that would-be contestants be in excellent physical  and mental health.   His lawsuit requests a preliminary injunction that would require the show to revise such requirements that exclude himself and other disabled individuals.  According to the story, Mr. Schottel says, "Since the ADA was enacted, there have been great steps in new buildings and accessibility by (the disabled). But I rarely see a person with a disability on anything" on television."  [bm]

February 10, 2005 | Permalink | Comments (0)

Wednesday, February 9, 2005

Texas-Style Health Planning

We're all used to reading stories about desperately poor counties and their residents and the hurdles they face in getting affordable health care services.  Descriptions of facilities in such places often sound like they're coming from third-world countries, not from the richest country (not counting public debt) on earth.  Sunday's Houston Chronicle, however, had a different kind of story (one all too familiar to residents of Dallas County).

The richest county in Texas is Collin, whosed median income is almost double the state's median.  Immediately to the north of Dallas County, Collin is home to thousands of McMansions, corporate campuses, and luxury stores.  It also killed a $16 million bond proposal to renovate its old public hospital in 1983, after which it sold the facility for $13 million and created a trust fund for indigent health care.  The fund is valued today at $24 million. 

Under state law, counties without a public hospital are obligated to pay for the indigent health care of their residents.  The tricky part is that counties are free to set the income levels to qualify for indigent health benefits at any level tghey want.

The story describes one recently unemployed and uninsured Collin County resident who racked up a relatively modest $50,000 hospital tab after a near-fatal motor vehicle accident last June.  He applied to the county for benefits and was turned down.  To qualify he would have had to have earned less than $2,328.  In addition to the eligibility standard, Collin doesn't make the process easy on applicants:

[C]ounty officials handed [the patient] a list of 31 documents he was required to supply with his application, including canceled rent checks, automobile registrations, savings and checking account statements, and a reference list. "Every time I'd hand one thing in, they'd ask for another," Wright said. "They even asked for my dad's W-2s. He's a truck driver."

The county is, shall we say, tax-averse: "'You bet. We don't like to pay taxes,' said Collin County Commissioner Jerry Hoagland. 'Nobody I'm talking with wants to raise taxes to pay for this.'"

So what's a Collin County resident to do?  There's a one-day-a-week adult clinic and a two-day-a-week children's clinic, but the appointment list fills up fast at those charity-run facilities.  So many indigent patients head south to Dallas' Parkland Hospital, one of the premier public hospitals in the country, which faces its own mounting deficits each year.  In 2003, Parkland treated 237 Collin County in-patients (for which it received payment for 1) and had 4,575 outpatient visits from Collin residents, leaving Parkland with a $6 million unpaid bill for the care provided to Collin's indigent population.  (Little wonder Dallas residents' county tax bill is about double that of Collin County.)

Meanwhile, Collin County officials are unrepentant:

"Parkland believes anybody who shows up should get health care. It's not our problem they don't qualify patients before they admit them," said Collin County Commissioner Phyllis Cole, who said she believes health care should be left to charities and the private sector. "I wish they would get off my back."

As long as Texas' state laws set no standards for the indigent health-care obligations of individual counties, and as long as we continue our fractionated health-insurance system, which rewards cost-shifting behaviors by private and public health plans, the situation can only get worse.  [tm]

February 9, 2005 | Permalink | Comments (0)

Disclosure of Hospitals' Infection Rates

From the CDC's Public Health Law News roundup (Feb. 2):

"Some push to make hospitals disclose rates of infection"

The Wall Street Journal     (02/01/05)     Rhonda L. Rundle,,SB110722521039541957-email,00.html (subscription required)

A movement is underway to require hospitals to publicly report their rates of hospital-acquired infections. An estimated 2 million patients develop hospital infections each year, according to CDC. These infections may account for nearly 90,000 deaths annually. Pennsylvania, Illinois, Florida, and Missouri are among the states that have recently passed legislation requiring hospitals to compile and publish infection rates, and such legislation is pending in more than 12 other states. But while a number of consumer advocates and patients welcome the trend, some on the front lines of infection control say the situation is much more complicated than the reports indicate. For example, there is no standard method for counting infections, and patients sometimes check out from the hospital before an infection is detected. "This is a much more complicated, technical issue than the average legislator or person understands ... to have a different standard in every state would be very disadvantageous," said Kathy Warye, executive director of the Association for Professionals in Infection Control and Epidemiology. In an effort to avoid a conflicting mix of rules and definitions, CDC, Consumers Union, the American Hospital Association and other groups will meet in Atlanta next week to discuss the possibility of a national approach to the issue.


February 9, 2005 | Permalink | Comments (0)

Health Reform Faces Hurdles on Capitol Hill

NPR's Julie Rovner and Jennifer Ludden filed a characterfistically excellent report during Saturday's "All Things Considered" on the main features of the Bush administration's health reform plans, as well as the difficulties they are likely to encounter on the Hill.

February 9, 2005 | Permalink | Comments (0)

Medical Malpractice Reform Update

For those of you continuing to follow various legislative proposals that attempt to "reform" malpractice and other tort claims, the Kaiser Daily Health Policy Report has issued a helpful overview of the status of state legislative reforms. [bm]

February 9, 2005 | Permalink | Comments (1)

Follow-Up Frozen Embryo Wrongful Death Lawsuit

There are additional interesting comments about the Illinois wrongful death lawsuit filed on behalf of nine frozen embryos at the bioethics discussion blog and also at rangelmd [bm]

February 9, 2005 | Permalink | Comments (0)

Michael Perlin - New Article on Right to Refuse Treatment

We recently examined the new legislation permitting doctors to refuse certain treatments to patients when those treatments conflicted with their moral and religious beliefs - now lets focus on the patient's right to refuse treatment, specifically mentally ill patients who may want to refuse treatment.

Michael_perlin_2 Professor Michael Perlin, an internationally-known and respected scholar concerning the rights of the mentally disabled, has written a new piece on the rights of involuntarily committed psychiatric patients to refuse treatment.  The article is entitled, "And My Best Friend, My Doctor, Won't Even Say What It is I've Got: The Role and Significance of Counsel in Right to Refuse Treatment Cases," is forthcoming in the San Diego Law Review.  His article addresses an often-ignored topic -- the availability and adequacy of counsel to represent patients who seek to assert this right to refuse.  His abstract states, "Simply put, if active, trained counsel is not provided for patients seeking to interpose this right, then the right becomes nothing more than a paper document: useless and meaningless (and perhaps, counterproductive) in the real world, and yet another in a series of shameful pretexts that dominate this area of the law."

To see the full article and an abstract, click here. [bm]

February 9, 2005 | Permalink | Comments (0)

Tuesday, February 8, 2005

New Research on Brain Damaged Patients

The New York Times today reports on a new brain-imaging study suggesting that many brain-damaged people who were thought to be almost completely unaware do hear and register what is going on around them but are unable to respond.   The Times notes that such results, if repeated, would have dramatic implications for how to care for these patients, including such patients as Terri Schiavo.  The original study may be found in this week's edition of the journal Neurology.  The Times describes the study as follows:

In the study, a team of neuroscientists in New York, New Jersey and Washington, D.C., used imaging technology to compare brain activity in two young men determined to be minimally conscious with that of seven healthy men and women. In a measure of overall brain activity, the two groups were vastly different: the two minimally conscious men showed less than half the activity of the others.

But the researchers also recorded an audiotape for each of the nine subjects in which a relative or loved one reminisced, telling familiar stories and recalling shared experiences. In each of the brain-damaged patients, the sound of the voice prompted a pattern of brain activity similar to that of the healthy participants.

The study results should encourage more research in this area, and hopefully a better understanding of what these patients are actually experiencing.  I must admit, I agreed with this quote from Dr. Joseph Fins, chief of medical ethics division of New York Presbyterian Hospital-Weill Cornell Medical Center, "This study gave me goose bumps, because it shows this possibility of this profound isolation, that these people are there, that they've been there all along, even though we've been treating them as if they're not."  It must be a nightmare to be trapped in your body and unable to tell anyone.  [bm]

February 8, 2005 | Permalink | Comments (0)

Update on Refusals to Treat

The National Law Journal has an interesting article discussing recent state legislative proposals that are aimed at protecting doctors and other health professionals who refuse to provide certain medical services or drugs based on their moral or religious beliefs.   These laws, commonly  known as "refusal" or "conscience" clauses, have engendered controversy in the medical and legal community.  The National Law Journal reports,

Last year, 14 states introduced 37 bills that would allow pharmacists and other health care providers not only to opt out of abortion services, but to refuse to fill prescriptions for any drugs on the basis of personal or moral convictions.

In addition, nine states introduced broader bills that would permit the refusal of any medical procedure or drug for any reason.  . . . .

Meanwhile, many attorneys fear the government is on a slippery slope to allowing refusal for virtually any medical procedure, limiting access to practices and technology such as in-vitro fertilization, stem cell research and end-of-life practices.

The breadth of some of the proposed and newly enacted legislation has some concerned that doctors and other health professionals will fail not only to provide a service but any information about that service.  In addition, the article notes that hospitals have concerns because doctor's orders may no longer be followed if an individual disagrees with them on moral grounds.  [bm]

February 8, 2005 | Permalink | Comments (0)

Monday, February 7, 2005

Bar Codes for Cal. Cadavers?

AP reports (courtesy of the Napa Valley Register) that the UC system is considering bar codes or "toll-tag"-type radio transmitters to keep track of bodies donated to the system for tissue, research, or education.  The system has weathered numerous controversies in recent years, including allegation of hundreds of missing bodies, black-market tissue sales, and mishandling of remains.  Art Caplan says he's never heard of such a practice, it might not be all that hard for "bad people" to circumvent, and unless the system invests in auditors, it's probably meaningless.  [tm]

February 7, 2005 | Permalink | Comments (0)

New Article Concerning Megan's Law and Race

Professor Daniel M. Filler, University of Alabama Law School, has written an excellent article on the racial impact of Megan's Law.  As you may know, Megan's Law is a notification law that alerts individuals living in a community about the presence of a sex offender.  Many different challenges have been made to these laws, many on the basis that the offender continues to be punished for conduct for which he/she has served time.   This article adds a new dimension to those earlier critiques by demonstrating the racial impact of Megan's Law.   The abstract is below:

In the last decade of the twentieth century, every state adopted a new criminal offender community notification law. While critics challenged these provisions on a number of grounds, one potential consequential cost of these laws received no attention: the possibility that they might disparately impose their significant burdens on racial minorities and, particularly, African-Americans. This article breaks this silence about race and Megan's Laws, establishing that community notification provisions do have a significantly disparate racial impact. Using newly gathered statistical data, across multiple jurisdictions, it shows that African-Americans are over-represented on these public registries of criminals. It considers how the contours of these provisions may promote this result, and also explores why this disparity is consequential.

Moving from an empirical study of these provisions, the article then investigates the reasons why race concerns never surfaced in the community notification debates. Given the centrality of racial critiques in the criminal law literature, one might have expected legislators, advocates, or at least scholars to have investigated this issue previously. The article suggests several reasons for this remarkable silence, including the narrow scope of equal protection doctrine, failures of legislatures to demand transparency about race, social phenomena such as moral panics and availability cascades, and the framing of Megan's Laws as an answer to white-on-white crime. It then offers suggestions for doctrinal, legislative, and scholarly moves that increase the transparency of race issues, exposing them to fuller democratic debate.

The article may be found by clicking here.  [bm]

February 7, 2005 | Permalink | Comments (0)

Sunday, February 6, 2005

Wrongful Death Suit for Destruction of Frozen Embryo

An Illinois judge ruled on Friday that a couple whose frozen embryos were accidentally discarded by a fertility clinic has the right to file a wrongful-death lawsuit.  In a novel ruling, Judge Jeffrey Lawrence said "a pre-embryo is a 'human being' ... whether or not it is implanted in its mother's womb" and thus, he ruled that the couple is as entitled to seek compensation as any parents whose child has been killed.   Judge Lawrence relied on the Illinois' Wrongful Death Act, which allows lawsuits to be filed if unborn fetuses are killed in an accident or assault, and an Illinois state law that says an "unborn child is a human being from the time of conception and is therefore, a legal person."  Many have expressed concern that the decision may have a detrimental impact on reproductive research including research involving the use of embryonic stem cells.  An appeal by the feritility clinic is likely.  [bm]

Thanks to Professor Fred Harris for this story.

February 6, 2005 | Permalink | Comments (0)

The Latest in Pharmaceutical Ads -- The Sleeping Pill

Remember those recent pharmaceutical advertisements -- when a number of us learned more than we liked about male impotence and the number of unpleasant side effect diet drugs had on an individual's digestive tract  -- well, according to Lisa Marsa, writing in Mother Jones, this year we are going to learn about the importance of sleep and sleeping pills.  Specifically, we will be provided information about our need to get a good night's sleep that current medicines cannot provide but that new prescription drugs can.  The article is an interesting read about the pharmaceutical industry, its need for new blockbuster drugs, and the impact of advertising to not only sponsor drugs, but also to promote a health problem that may or may not exist.    According to Marsa's research, there does not exist any conclusive evidence that not getting sufficient sleep makes one more prone to illness or other ill effects.  Furthermore, her research shows that the new prescription drugs that are supposed to provide a wonderful sleep, actually provide little help and are not much more effective than current remedies.   

The only good news that I can find in these new ads results from the fact that I will not have to explain sexual dysfunction to my child if we are watching television together.  [bm

Thanks to for the update.

February 6, 2005 | Permalink | Comments (0)

Blood: Quality, Cost Tradeoff?

Hospitals in Syracuse, NY, are considering the creation of a local blood bank and are betting that they can save about 20%, or $2 million a year, compared to the $11.59 million they paid the Red Cross last year.  Start-up costs are estimated to be $2.6 million.  Is there a trade-off in quality?  The article in this morning's Syracuse Post-Standard isn't clear on this point.  Local hospital officials point out that all blood banks are required to meet FDA standards.  On the other hand:

The Red Cross blood prices tend to be higher because it requires certain genetic testing and filtering that many independent blood banks consider unnecessary, said Arthur Caplan. He is chairman of the department of medical ethics at the University of Pennsylvania medical school and former chairman of the federal Advisory Committee on Blood Safety and Availability.

But there's no difference between the Red Cross and independent centers when it comes to blood product quality, he said.

Even assuming that blood centers meet all of the FDA's minimum standards, does it make sense that the Red Cross builds in a 20% price differential because of tests that add nothing to the safety of their blood products?  Or would it be more accurate to say that local centers enjoy a price advantage because they don't believe the safety margin is worth the extra 20 percent?  [tm]

February 6, 2005 | Permalink | Comments (0)

Saturday, February 5, 2005

FDA Hints at Approval for Implant to Treat Depression

Wow!  The New York Times reports on a new device called the VNS Pulse 102 manufactured by Cyberonics.  The VNS Pulse 102 may be approved by the FDA as a form of  therapy for chronic depression that is resistant to other treatmentsapparently treats depression.  The Times describes the device as follows:

"The device, which is called the VNS Pulse 102 and is the size of a pocket watch, is implanted in the upper chest and connected via thin wires to the vagus nerves in the neck. It sends pulses through the nerves into parts of the brain associated with the diseases being treated.

'It's sort of a pacemaker for the brain," said Dr. Peter Whybrow, an expert on depression at the University of California, Los Angeles.'"

I am not clear on whether this same technology may be used in modified forms to treat other mental disabilities but it is interesting to see alternatives to the current medications that are usually prescribed.  [bm]

February 5, 2005 | Permalink | Comments (0)

Friday, February 4, 2005

Horwitz Appointed NBER Faculty Research Fellow

I am not moonlighting as Michigan Law School's director of publicity, but their publicity operation is doing a great job getting out word of the school's activities, and here's another that is worthy of note.  Assistant Professor Jill Horwitz has recently been appointed a faculty research fellow with the National Bureau of Economic Research.  According to the press release, Prof. Horwitz' research and teaching interests include health law, nonprofit corporations, empirical research methods, law and economics, and torts.  [tm]

February 4, 2005 | Permalink | Comments (0)