HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, April 15, 2005

Faculty Member/Parent

Dscn6357_1 The Chronicle of Higher Education has a wonderful article entitled, "It'a An Illusion" by Simone Schweber about balancing work and family that hit a little close to home for me.  I admit that I related to the scene in the elevator where the faculty member/mother momentarily tries to convince herself that even after her daughter has thrown up on her - super faculty member/mother can still teach class.  I have several times this semester taken Luke's temperature and briely thought --- 102+ degrees isn't that bad --- I am sure that he would sit through my class and keep quiet (keep in mind - my son is just two years old and rather active even when sick) while I lecture on organ transplant  regulations or some other quite interesting topic.  It is nice to know that I am not the only parent who has engaged in such truly wild fantasies.

Thanks to Professor Verna Williams for the site. [bm]

April 15, 2005 | Permalink

FDA and Ephedra

U.S. District Court Judge Tena Campbell has struck down the Food and Drug Administration's ban on ephedra,an adrenalinelike stimulant linked to dozens of deaths.  Nutraceutical and its subsidiary Solaray had challenged the FDA's April 2004 ban in federal court in Utah, claiming that ephedra was wrongly being regulated by the FDA as a drug and not a food.  In her ruling, the judge stated  that the drug agency had failed to prove that ephedra at low doses was dangerous, and that it lacked the authority to ban the substance without such proof.  Judge Campbell's ruling sends the matter back to the FDA for further rulemaking and keeps the agency from enforcement action against the companies. [bm]


April 15, 2005 | Permalink

Thursday, April 14, 2005

The Uninsured

Looking for a book to help inform you and your class on the plight of those without health insurance, The Washington Monthly points to Uninsured in America: Life and Death in the Land of Opportunity  by Sered and Fernandopulle, which is reviewed in this week's  The New Republic (free registration reguired).  I hope that people with power in Washington, D.C. (or even Columbus, Ohio) take a look at it. [bm]

April 14, 2005 | Permalink

Congratulations to Gail Agrawal

G_agrawalThe University of North Carolina School of Law has named Professor (Health Law Professor!)and Senior Associate Dean Gail B. Agrawal as Acting Dean of the
law school effective July 1.  Congratulations to Gail, and to UNC on such a wonderful selection for Acting Dean!

April 14, 2005 | Permalink

Substituted Judgment Rule and Schiavo Case

Jrobertsonsg Professor John A. Robertson, University of Texas Law School, has written a new article entitled, "Schiavo and Its (In)significance," that is now available on SSRN.  The article provides an overview of the substituted judgment rule as well as an examination of its strengths and weaknesses in light of the Terri Schiavo litigation.

The asbtract follows:

Florida, like most states, adopted the substituted judgment paradigm for decision making for incompetent patients first outlined in In re Quinlan. Under that approach, the case appears to have been correctly decided, and should have been resolved after final review by the Florida courts. By reframing the case as one of starvation of a conscious person with a brain injury, Terri Schiavo's parents were able to generate massive public support from right-to-life and disability rights groups. This led to additional litigation and both state and national legislative attempts to overturn the results of an on-going judicial proceeding. These events demonstrate both the strengths and weaknesses of the substituted judgment paradigm, and the power of the right-to-life movement in judicial and policy decisions at the end of life.

The article does an excellent job of reviewing the Schiavo case and what it may mean for the future of end-of-life decision-making.  [bm]

April 14, 2005 | Permalink

Wednesday, April 13, 2005

Fresh Air Interview

Tonight's Fresh Air with Terry Gross (NPR) had an interview with Gareth Cook, The Boston Globe science reporter.  Last week he won the 2005 Pulitzer Prize for explanatory journalism for his series of stories concerning stem-cell research.  It is an informative interview.  The NPR Fresh Air website also includes further stories on stem cell research.  [bm]

April 13, 2005 | Permalink

Lowering the Drinking Age

The New York Times reports on an interesting public health debate occuring in Vermont over efforts to lower the state's drinking age (yes, it does say lower).  According to the article, the former President of Middlebury College, Mr. John M. McCardell, states,

"The 21-year-old drinking age is bad social policy and terrible law," Mr. McCardell wrote, saying it had led to binge drinking by teenagers. "Our latter-day prohibitionists have driven drinking behind closed doors and underground."

He has garnered the suppport of a number of Vermont legislators who agree with his analysis of the current drinking age.   As the article notes, the debate is unlikely to go too far due to the federal highway funds that are tied to the state's adoption of a 21-year old drinking age.  I don't know that lowering the drinking age would help prevent binge drinking, but it is interesting to see the debate occuring (particularly among university officials) after many years of officials promoting a higher drinking age as the best means of protecting the public from heavy drinking and drunk drivers.  [bm]

April 13, 2005 | Permalink

Law School Teaching Loads and Pay

Here is a listing of the teaching loads for some of the nation's law schools.  As you can see, many "top-tier" law schools have adopted a three-course teaching load. 

From the Chronicle of Higher Education, new information has been released about average faculty salaries at law schools as well as comparative salary data with other graduate and undergraduate programs.

Thanks to Professors Paul Caron and Brad Mank for the websites. [bm]


April 13, 2005 | Permalink

Tuesday, April 12, 2005

Performance Records and Doctors

The Washington Post has an interesting story on physicians who escape listing on the National Practicioner Data Bank.  According to the story by Cheryl W. Thompson:

Doctors who find themselves in trouble can move around because many are never reported to a national repository for doctor discipline records, known as the National Practitioner Data Bank. The aim of the data bank is to allow licensing boards and employers to check on doctors' records before they are hired and to prevent problem doctors from state-hopping.

But nearly 54 percent of all hospitals have never reported a disciplinary action to the data bank, according to the federal Department of Health and Human Services, which oversees the system. Even when hospitals or boards report problems, they don't always do it quickly, allowing doctors to move and get a new license before the paper trail catches up with them.

It is a well-written story with eye-opening facts.  [bm]

April 12, 2005 | Permalink

Politics and Stem Cell Research

The Carpetbagger has an interesting political analysis on the stem cell research debate in Congress.  The blog editor predicts that the Castle-DeGette stem cell bill to permit some federal funding for stem cell research should pass the Republican House of Representatives.  The remaining question is whether that bill receives a veto from the President. [bm]

April 12, 2005 | Permalink

Checklist for HIPAA Security Rule

As we all have learned over the past few years, there's more to HIPAA than pre-existing conditions and privacy.  Now, on April 21, all but small health plans must comply with the HIPAA security rule. HealthLeaders Daily News has a helpful piece on the rule, "April 20 is Coming: A 16-Point Checklist for HIPAA Security," by Michael Doscher and Chris Davenport.   Here is their checklist (minus the explanatory text for each point):

  1. Does the application create, receive, maintain or transmit electronic Protected Health Information (ePHI)? (For all applications that process ePHI in some way, the entity must pursue responses to the next 15 questions.)
  2. Is there a procedure for authorizing, establishing and modifying user access?
  3. Does the application possess unique user identification capabilities?
  4. Have unique user identification capabilities been activated?
  5. Are there generic IDs in use?
  6. Does an Emergency Access Procedure exist?
  7. Does the application facilitate automatic logoff capability?
  8. Is automatic logoff capability enabled?
  9. Is there an encryption feature for data "at rest" in databases?
  10. Is the application capable of performing audit logging?
  11. Is the audit logging function enabled?
  12. Are audit logs reviewed on a routine basis?
  13. Does the application possess person or entity authentication capabilities?
  14. Are person or entity authentication capabilities activated?
  15. Is there a method to ensure transmission integrity?
  16. Is there a capability to encrypt the transmission?

If the checklist (and accompanying explanation) still leaves you in the dark, check out the final security rule[tm]

April 12, 2005 | Permalink

New Title From MIT Press

0262033313mediumjpg Many on this list are familiar with the work of Prof. Norman Cantor, Professor of Law and Justice Nathan Jacobs Scholar at Rutgers University School of Law. For all of us, then, it will come as good news indeed that he has a new book coming out in a few months.  Here's the MIT Press blurb (for which thanks go to Joe Hodnicki):
Making Medical Decisions for the Profoundly Mentally Disabled
Norman L. Cantor
MIT Press, June 2005
In this book, Norman Cantor analyzes the legal and moral status of people with profound mental disabilities -- those with extreme cognitive impairments that prevent their exercise of medical self-determination. He proposes a legal and moral framework for surrogate medical decision making on their behalf. The issues Cantor explores will be of interest to professionals in law, medicine, psychology, philosophy, and ethics, as well as to parents, guardians, and health care providers who face perplexing issues in the context of surrogate medical decision making.

The profoundly mentally disabled are thought by some moral philosophers to lack the minimum cognitive ability for personhood. Countering this position, Cantor advances both theoretical and practical arguments for according them full legal and moral status . He also argues that the concept of intrinsic human dignity should have an integral role in shaping the bounds of surrogate decision making. Thus, he claims, while profoundly mentally disabled persons are not entitled to make their own medical decisions, respect for intrinsic human dignity dictates their right to have a conscientious surrogate make medical decisions on their behalf. Cantor discusses the criteria that bind such surrogates. He asserts, contrary to popular wisdom, that the best interests of the disabled person are not always the determinative standard: the interests of family or others can sometimes be considered. Surrogates may even, consistent with the intrinsic human dignity standard, sometimes authorize tissue donation or participation in nontherapeutic medical research by profoundly disabled persons. Intrinsic human dignity limits the occasions for such decisions and dictates close attention to the preferences and feelings of the profoundly disabled persons themselves. Cantor also analyzes the underlying philosophical rationale that makes these decision-making criteria consistent with law and morals.

April 12, 2005 | Permalink

Monday, April 11, 2005

LexisNexis Sponsors Law Professor Blogs Network

Lexislogo200We are thrilled to announce that LexisNexis has agreed to sponsor all of the blogs in our Law Professor Blogs Network:

LexisNexis shares our vision for expanding the network into other areas of law, so please email us if you would be interested in finding out more about starting a blog as part of our network.

April 11, 2005 | Permalink

Conscience Clauses

Ellen Goodman has a further examination of such laws in her Washington Post column from Friday.  She focuses on the conscience of the woman.  She states,

The pharmacist who refuses emergency contraception is not just following his moral code, he's trumping the moral beliefs of the doctor and the patient. "If you open the door to this, I don't see any place to draw a line," says Anita Allen, law professor at the University of Pennsylvania and author of "The New Ethics." If the pharmacist is officially sanctioned as the moral arbiter of the drugstore, does he then ask the customer whether the pills are for cramps or contraception? If he's parsing his conscience with each prescription, can he ask if the morning-after pill is for carelessness or rape? For that matter, can his conscience be the guide to second-guessing Ritalin as well as Viagra? . . . .

Yes, we want people to have a strong moral compass. But they have to coexist with others whose compasses point in another direction. In the debate over conscience clauses, Frances Kissling of Catholics for a Free Choice says, properly, "There is very little recognition that the conscience of the woman is as important, let alone more important, than the conscience of the provider."

For another viewpoint, a rather more sarcastic one, see The Illustrated Daily Scribble.  [bm]

April 11, 2005 | Permalink

Op-ed Columnist Krugman Tackles Health Reform

Today, in the first of what promises to be a series of op-ed pieces on the subject, Princeton economist and N.Y. Times columnist Paul Krugman sets out to diagnose (and presumably to prescribe for) what ails the U.S. health care system.  Working within the limits of a 725-word column, Krugman will have his hands full!  [tm]

April 11, 2005 | Permalink

Sunday, April 10, 2005


Erza Klein's blog has an interesting critique of the Blues new health plan for the younger set, Tonik. Here is the website from the Blue Cross affiliate.  For a humorous take, The Daily Show ran an piece outlining  the Tonik health plan on January 24, 2005.  [bm]

April 10, 2005 | Permalink

Sperm Bank Story

The New York Times has a story by Linda Dackman entitled, "Looking for Love at the Sperm Bank," that details her search for a father for her child.   It is an interesting read as she struggles through the selection process.  She writes,

One young prospect excited me, a tall young man of Japanese and Jewish descent. Jewish, like me, and Japanese as a nice twist. I'd had a half-Japanese boyfriend once, a medical student, and had liked him a lot. But would a mixed race child be a mistake, an even greater disadvantage for this poor imaginary kid than being raised by a single mother? My heart raced, my Pergonal-enhanced ovaries ached, and my stomach took flight. This process was so preposterous. I knew love was supposed to be blind, but come on.

There was anguish when I opened the next file. His family's medical history seemed as bad as mine - cancer all over the place, as well as poor vision, headaches and allergies. Ah, this was going to be a problem, this eugenics, where there ought to be emotion. The information in these files was so abstract, so sterile, so tinged with the depressing reality of paternal grandmothers with diabetes and fathers with heart disease.

What about personality, love, intellect, passion? All I had to go on was the hieroglyphics of handwriting. I couldn't visualize any of them. From what I understood they were mostly kids, college students in need of tuition money, with mothers who were probably younger than I. I'd probably be better off grading their college English papers and picking a father for my child on that basis. What was I doing here?

The story reminded me of an excellent Frontline video that I sometimes use in my Health Law class.  It is entitled, "Making Babies," and provides an educational overview of the many assisted reproductive technologies available as well as an introduction to some of the many ethical and safety issues these technologies raise.  It is a little dated now but I still recommend it.  [bm]

April 10, 2005 | Permalink

Saturday, April 9, 2005

EPA Pesticide Testing

Now perhaps there has been a misrepresentation concerning the details of this study,because it sounds terrible.  The EPA study's purpose was to examine the effects of pesticides on children.  According to the LATimes,

A controversial program to pay parents to document the effects of pesticide exposure on their children was canceled Friday by the acting head of the Environmental Protection Agency (Stephen L. Johnson) , whose confirmation to the post had been jeopardized by the study. . . .

The program, which had been suspended by EPA officials late last year, would have paid low-income families in Florida $970 if they agreed to record evidence — including videotaping — on how pesticides used in their homes affected their children. . . .

The EPA started accepting applications for the program last year and said the study would not pose additional risks because it would only accept families already using pesticides.

But the agency suspended the study in November after outcries from various groups, including the Alliance for Human Research Protection in New York. The project came under more criticism when it was disclosed that the American Chemistry Council had paid $2 million toward the $9-million study.

I used to teach summer school to fairly young children and once had a child come to class who had been sprayed with Raid by his mother because he had lice.  So, while I do realize that we need to know more about these pesticides, and we need to educate families about their potential harms,  this now-canceled study does not appear convincing as a means to achieve these goals.  On an academic note (I hope this does not sound too crass), the canceled study may provide a helpful example in a course discussing the protection of human subjects.  [bm]

April 9, 2005 | Permalink

Rankings Conference

I wanted to alert you an interesting conference that two of my colleagues Professor Paul Caron and Professor Raphel Gely will be participating in next week.  The conference is entitled, Symposium on the Next Generation of Law School Rankings, and concerns the U.S. News and World Report rankings and what we can do to help education U.S. News and others about some of the criteria that seems to be missing from the current evaluation of law schools.  For an overview of the conference and the various presentations, click here.  For law librarian blog provides further information and a link to some of the papers which will be presented.  [bm]

April 9, 2005 | Permalink

Thursday, April 7, 2005

Friday Funny

The Onion's "what do you think" column this week examines public reaction to news that many cancers are preventable.  It is unfortunate to our nation's public health that some of the fake responses sound true.[bm]

April 7, 2005 | Permalink