Tuesday, May 31, 2005
We are pleased to announce the launch of two new blogs as part of our Law Professor Blogs Network:
These blogs join our existing blogs:
- AntitrustProf Blog (Shubha Ghosh (SUNY Buffalo))
- ContractsProf Blog (Carol Chomsky (Minnesota) & Frank Snyder (Texas-Wesleyan))
- CrimProf Blog (Jack Chin (Arizona) & Mark Godsey (Cincinnati))
- Health Law Prof Blog (Betsy Malloy (Cincinnati) & Tom Mayo (SMU))
- LaborProf Blog (Rafael Gely (Cincinnati))
- Law Librarian Blog (Joe Hodnicki (Cincinnati))
- Law School Academic Support Blog (Dennis Tonsing (Roger WIlliams) & Ellen Swain (Vermont))
- Media Law Prof Blog (Cristina Corcos (LSU))
- Sentencing Law & Policy Blog (Douglas Berman (Ohio State))
- TaxProf Blog (Paul Caron (Cincinnati))
- Tech Law Prof Blog (Jonathan Ezor (Touro) & Michelle Zakarin (Touro))
- White Collar Crime Prof Blog (Peter Henning (Wayne State) & Ellen Podgor (Georgia State))
- Wills, Trusts & Estates Prof Blog (Gerry Beyer (Texas Tech))
LexisNexis is supporting our effort to expand the network into other areas of law. Please email us if you would be interested in finding out more about starting a blog as part of our network.
In a survey of  Pennsylvania physicians representing 6 specialties at high risk of litigation for their practice of defensive medicine, [the authors] found that 93% reported practicing defensive medicine, particularly assurance behaviors such as ordering more tests, prescribing more medications, and performing more procedures to confirm diagnoses [and avoiding risky procedures].
The AP continued: "That means they engaged in unsound practices that exposed patients to potential harm, said Dr. Peter Budetti, a physician-lawyer and public health professor at University of Oklahoma Health Sciences Center. He called the numbers staggering. . . . 'Perhaps the greatest irony is that defensive medicine may be counterproductive and actually might increase malpractice risk,' said Budetti, who wrote an accompanying editorial."
A second study in this week's JAMA, according the AP, "found that caps on malpractice damages and other changes in liability law appear to have less effect on the nation's supply of doctors than ardent supporters of tort reform contend." [tm]
Today's Wall Street Journal ran four articles on various aspects of the individual health insurance market (paid subscription required):
- Individuals Face Hurdles in Health-Policy Search: The individual insurance market is at the center of a debate about how to extend health coverage to more people, a crucial point of disagreement among politicians pushing to solve the issue of the uninsured.
- Insurers' New Target: the Uninsured: Insurers are setting their sights on the 45 million Americans who lack health insurance as their traditional market of selling health insurance to employers shows sluggish growth.
- Many Ailments Can Pose Coverage Problems: Severe medical conditions like cancer, diabetes and HIV can pose formidable, and sometimes insurmountable, barriers to coverage in the individual insurance market.
- Having Insurance Doesn't Guarantee Coverage: Buying individual insurance doesn't mean that coverage of medical treatments is guaranteed. Much depends on state rules and a policy's fine print.
The Kaiser Family Foundation's "Daily Health Policy Report" has a nice summary of the four pieces, including these nuggets:
"It is not clear how expanding the individual insurance market 'would help people whose health isn't perfect and who, arguably, are the most in need of help with medical costs.' There also are 'big holes' in the individual market system, and federal protections do little 'to protect people' from higher premiums and denial of coverage for pre-existing conditions. While state-run high-risk pools might offer some relief for uninsured residents with high medical costs, the pools 'have their own problems,' such as high premiums and a low enrollment threshold."
"'Buying individual insurance doesn't mean that coverage of medical treatments is guaranteed; [m]uch depends on state rules and a policy's fine print.'"
"Patients with chronic medical conditions such as HIV, cancer and diabetes might not be able to obtain health insurance coverage, but even patients with less-severe medical problems can face barriers to getting coverage."
Marty Lederman of SCOTUSblog has been thinking about why the Raich case (the medical marijuana case) has yet to be issued. He states,
As Tom has previously written, only two cases (Raich and Miller-El) remain pending from the "December" sitting; and Justices Stevens and Souter have yet to write majority opinions from that sitting. This is odd, because -- as I wrote on the "Greedy Clerks" board earlier today -- it is unlikely (but not out of the question, cf. Sabri) that the Chief Justice would assign Raich to be written by Justice Stevens or Justice Souter. Even if my earlier prediction is correct -- i.e., that the Government will win Raich 9-0 or 8-1 (depending on whether Justice Thomas writes a dissent or a concurrence hinting that Wickard v. Filburn should be overruled) -- I have a hard time imagining the Chief assigning even a unanimous opinion in the case to JPS or DS, because of the risk that they would write about Lopez and Morrison in a way that could not hold a five-Justice Court.
Therefore, I raised the possibility that perhaps the Chief Justice is actually in dissent, either (i) because he has voted to invalidate the statute as applied, or (ii) because, although the Chief Justice would sustain the law, Justice Stevens (presumably no fan of the policy decision to enforce of the law in this context -- see his concurrence in Oakland Cannibis Buyers' Co-op), has cobbled together five votes for invalidating the Act as applied, and is writing an opinion along the lines of: "I continue to believe that Lopez/Morrison were wrongly decided, but as long as five of my colleagues continue to insist that those cases are the law, their logic leads to the conclusion that the CSA is unconstitutional as applied here . . . ."
As I wrote in that post, I find both of these scenarios implausible (the latter much more than the former) -- which leaves me scratching my head. (Not that that's a bad thing -- this arm-chair speculation is only fun because the Court is not perfectly transparent, and occasionally throws a curveball.)
I am surprised as well that the case has not been decided. June is always an exciting month for court watching -- and this one may be particularly so. [bm]
Newsweek has an interesting article in this week's issue concerning stem cell research by Jonathan Alter.
His article details how politically charged this issue has become and relates his position in support of such research. He states,
As a cancer survivor with an adult-stem-cell transplant under my belt, I'm not exactly neutral on the issue of embryonic-stem-cell research. It may end up being the best chance to save my life. But this column is not about my life or even the lives of millions of others who could be cured of everything from cancer to Parkinson's to Alzheimer's. It's about the political life of this country.
My perspective could be skewed (all politics is local), but I have a gut feeling that President Bush is headed for a serious bruising on this issue, as are at least some of the 180 Republicans and 14 Democrats who voted last week against the stem-cell-research bill that passed the House. These members may look back ruefully on this vote as one that helped get them tossed out of office. After all, every American who has a relative with one of these diseases—which means nearly every American—is beginning to understand the issue in a new way: it's "pro-cure" versus "anti-cure," with the anti-stem-cell folks in danger of being swept into the medical wastebin of history.
Also,on a more humorous note, Jesus' General website provides this helpful living will for those who are opposed to stem cell research and, to be consistent,should also be opposed to being the beneficiaries of such research:
Stem Cell Research Living Will
I hereby certify that neither I, nor any member of my family, including but not limited to: children, grandchildren, cats, dogs, etc. and any "after acquired" family will never, ever, under any circumstances (even with my fingers crossed) take or ingest any form of drug treatment or medical breakthroughs that are in any way associated with or connected to Stem Cell research. I am morally opposed to this type of medical malfeasance that our lord and Savior and Dr. Dobson most assuredly rebuke. I declare that I am of sound mind and body (as so it is hence with respect to the aforementioned family members) as we execute this irrevocable document and thusly said, this document shall not be challenged in a court of law. This is so despite the fact that I or said parties, would either now or in the future, be the beneficial recipient of such a repugnant life enhancing treatment. Only the Devil's greatest tool, i.e. "temptation" could lead us into sinful thoughts of partaking of this reprehensible policy.
Rest of Family
Should be an interesting few weeks in Congress. . . [bm]
Monday, May 30, 2005
ModernHealthCare.com reported that the state of California lost a preliminary ruling in the Sacramento Superior Court against the California Nurses Association. The issue was whether Governor Schwarzenegger and the state Department of Health Services had the authority to relax the state's nurse-to-patient ratios. Judge Judy Hersher ruled that the state had overstepped its authority in November 2004 by issuing an emergency regulation that loosened certain provisions of the staffing laws and delayed for three years a tightening of the medical-surgical ratio to one nurse for every five patients from one for every six. The judge reasoned that the administration "failed to follow the procedures established by law in determining that the regulations were necessary for the immediate preservation of public health and safety." The AP reports that the Schwarzenegger administration protests that this ruling will exacerbate an already critical shortage of nurses in California. The state will appeal this ruling and the preliminary injunction that blocked the regulation.
The emergency order issued by Governor Schwarzenegger incited a strong and intense opposition campaign from the nurses. The campaign consisted of pickets, television commercials, and aerial advertising. The Washington Post reported that the nurses demonstrated at Arnold's appearances, with Arnold responding with "Don't mind the special interest. I kick their butts every day in Sacramento." The AP commented that many political analysts have seen this protest as the mere beginning of Schwarzenegger's declining popularity as he fights special interest groups. The Executive Director of the California Nursing Association, Rose Ann DeMoro, wrote an editorial in the San Jose Mercury News that proposes three ideas for more comprehensive solutions than the Governor's that will be on the ballot in the special election. The three solutions are universal health care, making corporations pay their fair share, and financing campaigns with clean money.
Thanks to my research assistant, Lindley Bain, for help with this post. [tm]
Picking up on Tom's recent post concerning Viagra, the new revelations that Viagra may cause loss of vision and also that state governments were paying for Medicaid for a variety of individuals, including sex offenders. Majikthise has some further analysis considering who should receive Viagra and who should pay for it. You can read the posts here (discussing how states are ending funding of Viagra for sex offenders), here and here (discussing what items should be receive Medicaid coverage). The following is a concluding excerpt:
The fact is that we have clinical solutions for symptoms like impotence and hyperactivity. The question we should be asking is whether it would be a good use of our finite resources to cover these treatments. What constitutes a good use of resources shouldn't depend on whether something is a disease.
The good news is that public health insurance scheme doesn't need to draw sharp a priori distinctions between treating the diseases of individuals vs. conferring other benefits to society. We still have to ask whether it's effective, expedient, or fair to address a particular problem through the health care system. Creeping medicalization is bad, but we don't need an arbitrary standard of disease to combat it. We are only vulnerable if we assume that everything that's a disease must therefore be addressed by medical care for individuals. Even if somethings a disease, it may be more appropriate to address the problem through public health, economic policy, educational reform, or some other means.
Private insurance companies want to draw as many lines as the can. Sophistry is profitable if you can convince your customers not to demand birth control coverage because contraception doesn't treat any diseases. Public health insurance needn't obsess over this boundary. It's convenient and cost-effective to include birth control in a public health insurance program, so it's irrelevant whether this kind health care meets some preconceived definition of medicine.
The same principle applies to Viagra. The drug deserves to be considered for formulary coverage because it's an effective treatment for a troublesome physical symptom. Whether Medicaid covers Viagra should depend entirely on how the costs and benefits of the drug compare to other agents competing for a finite budget.
Very interesting reads. [bm]
According to a story in the AM News, some physicians and other health care professionals have concerns about the supply of flu vaccine for this Fall. They also worry that individuals who decided to forego the vaccine this past year, may not return to get a shot this year. The article states,
According to several presentations at the annual National Influenza Vaccine Summit convened in May by the American Medical Association and the Centers for Disease Control and Prevention in Chicago, physicians, public health officials and influenza vaccine supply experts are concerned that, after such a significant supply disruption, those who took a pass will now be lost for good.
There are multiple reasons why. These patients might not have become ill, leading them to believe they don't really need a flu shot after all. Or last season's message that flu shots be reserved for those most in need could stick beyond its relevance.
"[People] may think 'I stepped aside and didn't die. Do I really need this vaccine?' " said Steve Cochi, MD, MPH, acting director of the CDC's National Immunization Program. "Last year was confusing."
Sunday, May 29, 2005
Members of Congress have been looking more closely at the tax-exempt status of hospitals and this week will hold a hearing concerning those hospitals. Here is a link describing the House Ways and Means hearing. In addition, the Health Care Renewal blog has further commentary about the tax-exempt privilege that some hospitals receive and whether they are truly worthy of such a privilege. [bm].
Robert Pear has a Page-One piece in today's New York Times on the unlikely-but-promising assemblage of "24 ideologically disparate leaders representing the health care industry, corporations and unions, and conservative and liberal groups [who] have been meeting secretly for months to seek a consensus on proposals to provide coverage for the growing number of people with no health insurance." The impetus for the talks wasn't only a humane instinct to address the health-care needs of 45 million Americans. It was also to address the increasing inability of the business community to shoulder the added costs of health care that result when uninsured patients lack access to primary and preventive care.
According to Pear, the consensus group is considering the following options:
- The federal government could require parents to arrange health insurance for their children up to a certain age, say 21. If the children were not eligible for public programs like Medicaid, the parents could obtain tax credits to help meet the cost.
- If an employer does not offer health benefits to employees, the workers could designate amounts to be withheld from their paychecks, along with taxes. These amounts would eventually be forwarded to insurers to pay premiums.
- The federal government could provide tax credits to low-income individuals and families or small businesses to help them pay for insurance. The full amount of the credit would be sent directly to the insurer.
- Medicaid could be expanded to cover any adult with income below the official poverty level (about $9,600 for an individual). Each state would decide for itself whether to do this, and the federal government would provide financial incentives for states to take the option.
- The federal government would offer small grants to states to help them establish insurance purchasing pools. Individuals and small businesses could buy coverage through these pools.
The group is expected to take its recommendations to the Bush Administration and Congress later this year. [tm]
Saturday, May 28, 2005
A statement released by the Center for Disease Control reports that visits to emergency deparments reached a record high of almost 144 million in 2002 even though the number of emergency departments have decreased by 14 percent from 1993 to 2003. Linda Craig of the CDC's National Center for Health Statistics explains that "emergency departments are a safety net and often the place of first resort for health care for America's poor and uninsured". The 2003 National Hospital Ambulatory Medical Care Survey Emergency Department Survey released by the CDC attributes the rise in the number of visits primarily to the increased visits by adults, especially those over the age of 66 years. The report found that Medicaid patients were four times more likely to go to an emergency room that those with private insurance. Visit rates for people between the ages of 65-74 were five times higher for those residing in a nursing home or institution than those who were not. The average waiting time to see a physician, however, did not increase from 2000. An article for MSNBC cites a U.S. Census Bureau statistic that estimates that 45 million people or 15.6 percent of Americans did not have any health insurance in 2003.
Thanks to research assistant Lindley Bain for help with this post. [tm]
And on a related note:
Drexel Law School will be the first law school opened by a top university in the past 20 years. It is going to build on Drexel’s reputation as a technological university that offers extensive internships (which Drexel calls "co-ops"), and offer a skills-based education that teaches professionalism as well as analytic ability. It will also be different in that it will have its faculty work with the faculty of its other colleges and schools, and stress joint-degree programs. In short, its faculty will need to be both entrepreneurial and flexible.
Drexel intends to focus its upper level law curricula in three areas: health care, intellectual property, and entrepreneurial business. This responds to its core strengths in medicine, engineering/design, and business. Drexel has begun its search for candidates in those core areas, plus those who would teach the first year curriculum. To ensure its place as one of the nation’s better law schools (it aspires to be ranked in the top 50), it is looking to hire a very high quality faculty.
The goal is to have Drexel’s first hires be the leaders of the core areas, and to have them under contract by mid-September; and to have a full complement of the first-year faculty hired by January.
P.S. For more information, you can visit Drexel’s webpage: http://www.drexel.edu/law. It is still under construction, but it will give you an idea of where it is headed.
Joseph P. Tomain, Dean Emeritus,Wilbert and Helen Ziegler Professor of Law
According to law.com, the new Drexel Law School just got a little bit closer to opening in the Fall of 2006 when the Board of Trustees approved its creation during a meeting earlier this month. The law school plans to have a focus in health care law. The story reports,
Drexel senior vice president and general counsel Carl "Tobey" Oxholm III said the school's next step will be to file paperwork -- as early as this week -- seeking formal approval from the state Department of Education. Oxholm said the Department of Education would make an on-campus visit and then give the school provisional approval to open its doors, hopefully with enough time for the school to begin advertising for a September 2006 start date.
Because the school would open without being accredited by the American Bar Association, Oxholm said it would offer students a discount on tuition. He said he would hope to have provisional approval before the first group of students graduate in the spring of 2009. ABA approval would also entail an on-campus visit, would require the school to meet a host of regulations and would eventually need to be approved by the House of Delegates.
Drexel officials have said its law school will distinguish itself from other local law schools by focusing its curriculum on Drexel's undergraduate and graduate academic strengths such as engineering, health care and business while incorporating the university's focus on cooperative education.
According to a UPI article in Science Daily, CBS News reports that the FDA is examining 50 cases of men who went blind after using Viagra. In 1998, Dr. Howard Pomeranz was the first doctor to make the connection between the drug and changes in vision. Since Viagra alters the blood flow in "key parts of the body," it is possible that circulation to the optic nerve could be affected. Pfizer told CBS that its studies show no reports of blindness and there is no more evidence of vision loss in men who take Viagra than those who do not. Despite these remarks, Pfizer is working with the FDA to update the label to reflect this possible side effect.
According to Reuters, reports of blindness have surfaced before, and in response, Pfizer said there was no proof that the blindness was linked to Viagra. A Pfizer spokesperson could not say how many cases had been reported. According to an article in Red Herring, Viagra has been linked to temporary changes in vision with patients reporting a tendency for the world to appear more blue or green. A study in the March issue of the Journal of Neuro-Ophthalmology reports on the eye condition nonartheritic optic neuropathy caused by Viagra. A new study shows that recreational use of Viagra is growing rapidly in men under 45 years of age.
Since we are on the subject of Viagra, CNN reports that the New York state comptroller has announced that 198 paroled rapists and sex offenders have been reimbursed for Viagra by Medicaid over the past five years. See also the NY Times Article.
Thanks to research assistant Lindley Bain for her help in preparing this post. [tm]
Friday, May 27, 2005
Anyone who has a back-list of must-reads for the summer is invited to submit to Betsy or me the titles they think will be of greatest interest to readers of this blog. An early candidate for my list, though perhaps one that will see an early exit, as well: Dean Koontz' new horror/thriller, Velocity. Here are some salient excerpts from a N.Y. Times review by Janet Maslin:
The novel's resident good guy, Billy Wiles, is bedeviled by a serial killer who tries to make Billy complicit in his violence. He forces Billy to pick the victims. And he sends Billy such high-concept threatening letters that one of them is conveniently reprinted on the book's back cover. . . . [T]his book wears its conscience on its sleeve even as it puts Billy on the receiving end of messages like this: "If you don't go to the police and get them involved, I will kill an unmarried man who won't much be missed by the world. If you do go to the police, I will kill a young mother of two. . . . "
Mr. Koontz also has blunt points to make. He underscores Billy's devotion to Barbara, his fiancée, who has been in a coma for four years, though she continues to say cryptic, beautiful things. (These are eventually explained.) Despite this sign of life, Barbara's doctor suffers a "bioethics infection" that makes him want to remove Barbara's feeding tube. "Four years is such a long time," says the doctor. "Death is longer," says steadfast Billy. Mr. Koontz also condemns scientists who work on cloning, genetic engineering and stem cell research. ("The smarter they are, the dumber they get.") He has Billy flirt with drug use to show how it can be dangerous to the soul. "Pain is a gift," he writes, after Billy discovers Vicodin. "Humanity, without pain, would know neither fear nor pity. Without fear, there could be no humility, and every man would be a monster."
Koontz has a reputation for writing thrillers with a difference. Is he up to speed with Velocity? [tm]
Sunday's Washington Post ran an interesting column by Michael Kinsley (". . . Fear of the Unknown") about the recently reported South Korean breakthrough in cloning human embryos for stem-cell research and the reactions of Leon Kass to that news. He begins:
Imagine what it's like to open the newspaper (as I did Friday morning) and read that scientists in faraway South Korea have made a huge breakthrough toward curing a disease that is slowly wrecking your life. But closer to home, your own government is trying to prevent that cure.
The reference in that lead was to Parkinson's, with which Kinsley said in December 2001 he had been diagnosed 8 years earlier. He was not pleased by Leon Kass' response to reports of the South Koreans' breakthrough:
Leon Kass, chairman of the President's Council on Bioethics, greeted this thrilling news with his usual fatuous call for a "moratorium" on the research that produced it while we think through the morality and all that. . . .
But no crash research program is going to produce some dazzling bioethical principle we never thought of before. We know all that we're going to know about the moral issues, and we just have to decide.
For Kinsley, "there are three issues," and all of them are fairly easy to dispose of:
- "First, do the embryos used for stem cell research and therapy have rights?"
"Second, is human cloning such a horrific concept that it crosses a line into the territory of Frankenstein and 'Brave New World'?" "Third, there's the slippery slope. If we're willing to destroy microscopic embryos for their stem cells, why will we stop before harvesting body parts from advanced fetuses, or breeding babies for their organs? Once we allow human cloning for embryos, how can we be sure no one will bring a cloned embryo to term and produce an actual cloned human being?"
Kinsleys answers to all three questions are worth reading. [tm]
Leif Wellington Haase has published a new book advocating reform of our health care system. He is a fan of mandatory private health insurance. The abstract for the book states,
U.S. spending on health care has grown from $246 billion in 1980 to $1.7 trillion today. At the same time, the number of uninsured Americans has increased by 5 million over the past decade. These factors, along with concern over the quality of care, have brought the need for health care reform back into the headlines. A New Deal for Health offers a plan for these much-needed reforms, one that focuses on creating large risk pools while still allowing consumer choice and maintaining high quality care.
Thursday, May 26, 2005
For those of you who are considering a potential change in employment, the Academic Keys website provides listing of law, including law professor, job opportunities. Here are two that I thought might be of interest:
Associate/Full Professor, University of Houston Law Center
Research Professor, University of Houston Law Center
Science Daily has reported on a survey released Wednesday that says many university medical schools permit the pharmatceutical companies to influence what gets published from industry sponsored drug studies. The article expressed concern about the possible negative consequences of withholding negative study results since pharmaceutical companies fund over 70 percent of clincial drug trials. Harvard's Michelle Mello in her article in the May 26 issue of the New England Journal of Medicine (abstract) insists that the relationship between academia and the drug companies should be closely monitored. Dr. Peter Lurie of Public Citizen in Washington is concerned that correcting the problem in the academia area will only shift it to the private sector where drug companies can contract out research to privatec contract research organizations (CROs). These CROs may have even less of an incentive to publish negative results.
After two notorious recent incidents (the removal of Vioxx and the use of anti-depressants in children) there have been allegations that drug manufacturers withheld data that indicated the possibility of safety problems from academic researchers.
In her study, Mello sent 107 university medical centers questionnaires about their policies for conducting research sponsored by the drug industry. She found that 85% of medical centers said they would not allow industry sponsors to revise manuscripts for publication in journals or give them th authority to decide whether results of a study should be published. 24 percent said they permit industry sponsors to insert their own statistical analysis in manuscripts. 50 percent said they permitted industry people to draft the manuscript. 41 percent said they allowed the drug industry to prohibti investigators from sharing research results with third parties.
According to the N.Y. Times, the study reported that 69 percent of administrators surveyed said competition for research money "created pressure on adminstrators to compromise" with drug companies. Scott Lassman, assistant general counsel for Pharmaceutical Research and Manufacturers of America stated that "it's a hypothetical study and doesn't measure what these institutions routinely do or don't do." One medical center reported that a commercial sponsor refused to make the last payment for a drug trial "apparently because they did not like the results of the study."
The AP also reported on this conflict of interest. The article mentions several efforts to remedy the situation such as:
- AMA working with the drug industry to eliminate gag clauses in research contracts;
- American Assocation of Medical Colleges developing set of principles for researchers and sponsors of studies;
- bill pending in Congress that would require public and private sponsors to register their studies in a government database;
- 11 members of International Committee of Medical Journal Editors promised last year not to publich any studies not registered in the database.
Thanks to my reearch assistant, Lindley Bain, for her help in preparing this post. [tm]